1 wp-3329.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3329 OF 2011 WITH WRIT PETITION NO.9607 OF 2011 Narayan Shamrao Patil and ors. : Petitioners versus Prabhu Rayappa Pujari and ors. : Respondents. Mrs. Geeta Mulekar for the Petitioners. Mr.P S Dani i/by Mr. Surel Shah for Respondent Nos.1 to 4. Mr.S D Rayrikar, AGP, for Respondent No.7. CORAM : R M SAVANT, J. DATE : 25th November 2011 P.C. 1 The above Petitions arise out of the Applications for temporary injunction filed by the Petitioners and the Respondents in the suits filed by them being Regular Civil Suit No.31 of 2011 which is filed by the Petitioners and, Regular Civil Suit No.70 of 2011 which is filed by the Respondents above named. 2 The bone of contention is the right of way on the Bandh (Boundary) of Gat Nos.178 and 179 going North side up to Gat Nos.180 and 181 joining Solapur Kandalgaon Road. The said road was the subject matter of the proceedings before the Mamlatdar under the Mamlatdar Courts Act 1906. The Respondents had approached the Mamlatdar making a grievance that the Petitioners and some others had put obstruction on the said road. The 2 wp-3329.11.sxw Tahasildar as per the procedure had made site inspection and on such site inspection he had observed that there is a kachha car road on the Bandh/boundary of Gat Nos.178 and 179. The Tahasildar therefore, by his order dated 24/1/2011 had directed the Petitioners not to obstruct the Respondents from the user of the said road. 3 The said order of Tahasildar was challenged by the Petitioners by filing a Revision Application before the Additional Collector. The Additional Collector has stayed the order of the Tahasildar, pending consideration of the said Revision Application. This prompted the parties to approach the Civil Court to asser their rights in respect of the said road. The Petitioners filed Regular Civil Suit No.31 of 2011 and the Respondents filed Regular Civil Suit No.70 of 2011. The substratum of their respective cases was that, according to the case of the Petitioners there was no road leading up to Solapur Kandalgaon Road on the Bandh/boundary of Gat Nos.178 and 179, and therefore was only permissible user of a portion. On the other hand, it was the case of the Respondents in their Regular Civil Suit No.70 of 2011 that they had a right of way in respect of the said road which was on the Bandh/boundary of Gat Nos. 178 and 179 for approaching Solapur Kandalgaon Road. 4 In both the suits, the parties filed applications for temporary injunction. In so far as the application filed by the Petitioners is concerned, the same was allowed by the trial Court by an order dated 9/3/2011. The trial 3 wp-3329.11.sxw Court on the basis of the material that was on record, reached a conclusion that the Plaintiffs had made out a prima facie, as there was no way as claimed by the Defendants in the said suit, and therefore, it was necessary to prevent the Defendants from creating a new way. 5 In so far as the Respondents are concerned, the application for temporary injunction filed by them in their suit came to be rejected by an order passed on the same day. This probably in view of the order passed in the application filed the Plaintiffs in Regular Civil Suit Nos.31 of 2011. 6 Hence aggrieved by the orders passed by the trial Court allowing the application for temporary injunction of the Petitioners and rejecting their application, the Respondents filed two Appeals in the District Court at Solapur i.e. Misc. Civil Appeal Nos.29 of 2011 and 30 of 2011. 7 As indicated above, the said Appeals have been allowed by the First Appellate Court by the impugned order dated 11/4/2011. The First Appellate Court on re­appreciation of the material that was before the trial Court came to a conclusion that there was a right of way through Bandh/boundary of Gat Nos.178 and 179 for the Plaintiffs in Regular Civil Suit No.70 of 2011. For reaching such conclusion, the First Appellate Court took into consideration the sale deed (Exhibit 33/3) executed by the predecessor in title of the Plaintiffs in Regular Civil Suit No.70 of 2011, and also a map placed 4 wp-3329.11.sxw on record in Regular Civil Suit No.31 of 2011 drawn by cadestral surveyor in respect of encroachment made by holder of Block No.179 over Block No.181 which according to the First Appellate Court reveal the existence of the way towards eastern side of the lands. The First Appellate Court also took into consideration the admission of the Defendant No.3 in the proceedings by way of B.N.D. Appeal No.3 of 2007 which placed on record of the Regular Civil Suit No.70 of 2011 by way of Exhibit 24 and also the order of the Tahasildar, which, as indicated above, has been stayed pending consideration of the Revision Application filed by the Petitioners. It is required to be noted that the Defendants in their written statement have also stated that the Plaintiff Prabhu in Regular Civil Suit No.70 of 2011 used the suit way with the consent of the Defendants without consideration. 8 A perusal of the map showing the aforesaid properties indicates that the road claimed by the Plaintiffs in Regular Civil Suit No.70 of 2011 is marked by four points by Alphabets A, C, D and B. It is the case of the Plaintiffs in Regular Civil Suit No.31 of 2011 that there is no dispute about the road up to Point­D but the dispute is about the North­Eastern portion from Point D to Point B leading to Solapur Kandalgaon Road. Apart from the material which has been taken into consideration by the First Appellate Court, it is impossible to believe, and it defies logic that there is no way from Points D to B leading to the Solapur Kandalgaon Road as the said road can be said to be an important road in so far as the said area is concerned. The First Appellate 5 wp-3329.11.sxw Court therefore was right in arriving at a conclusion that prima facie the existence of right of way has been proved by the Plaintiffs in Regular Civil Suit No.70 of 2011 i.e. the Respondents herein, the setting aside of the orders passed by the trial Court on the applications for temporary injunction filed by the parties i.e. the Plaintiffs and the Defendants, therefore, the same in my view, cannot be faulted with at least at the prima facie stage. In that view of the matter, no case for interdiction is made out in the writ jurisdiction of this Court under Article 227 of the Constitution of India. Since the First Appellate Court has already expedited the hearing of the suits, the trial Court trying the said suits, may hear and decide the said suits latest by 31/12/2012. 9 With the aforesaid observations, the above Writ Petitions are disposed of. Needless to say that both the suits would be tried on their own merits and in accordance with law uninfluenced by the observations made in the impugned orders or in the instant order. [R.M.SAVANT, J]