1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 346 0F 2010 *** Dattatraya S/o Dada Jejurkar and others Versus Vishwanath S/o Mahadu Mali and others *** 1. Heard learned counsel for the Petitioner. 2. Petitioners are plaintiffs in Regular Civil Suit No. 85 of 2008 filed on 29th April, 2008. Annexure-F is copy of the plaint, on record. There are four defendants in the suit, who are now respondents in this writ petition. In this suit, para 1, description of the property owned by the petitioner/ plaintiffs is given as Gat No.345 with its boundaries. The other properties are also described in para 1 of the plaint. A statement is made that suit property Para 1-A is owned by plaintiff Nos.1 and 2, property described in para 1-B is owned by plaintiff No.3 and property mentioned in para 1-C is owned by defendant Nos.1 to 4. This suit is for declaration that there is no cart road from land Gat No.1-A and 1-B. Further prayer is made that the order passed by the Tahsildar dated 26th March, 2008 is illegal and it be quashed and set aside. Other prayer for perpetual injunction is made in 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. this plaint. It is not in dispute that the Respondents in this writ petition had filed Case NO.18 of 2008 before the learned Tahsildar, Rahata, Taluka Rahata, district Ahmednagar against the present petitioners. This case is filed under section 143 of the Maharashtra Land Revenue Code, 1966 [the said Code of 1966, for short]. Indisputably, this case is filed by the Respondents in this writ petition, earlier to the date of filing of the suit by the petitioners in the civil Court. The Tahsildar, after hearing the parties, passed order on 26th March, 2008. Copy of the order is Annexure-E, on record. This order directs the removal of the impediment on the Bandh of land Gat No.1346, 1345, 1343, 1344/1 which is in existence. This order specifies that this road on common Bandh is a cart way. Further, this order restrains the present petitioners from obstructing the respondents while using this cart way to reach their own land Gat NO.1341. There are two options under the law available to the petitioners to challenge the order passed by the Tahsildar dated 26th March, 2008. Aggrieved petitioners could have challenged this order by filing appeal under section 247 of the Code of 1966 before the 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Appellate Authority. Second option is to challenge the said order by filing civil suit in civil Court. This remedy is made available under section 143 of the Code of 1966. In the case on hand, indisputably petitioners chose to file civil suit i.e. Regular Civil Suit NO.85 of 2008 in the court of learned Civil Judge, Junior Division, Rahata, as referred to in the foregoing paragraphs. Suit filed by the petitioner/ plaintiffs has been followed by an application for temporary injunction below Exhibit-5. This application for temporary injunction was heard by the trial Court and rejected. This order, passed by the trial Court, rejecting the temporary injunction, was carried by the aggrieved petitioner/ plaintiffs to the first Appellate Court by filing M.C.A. No.43 of 2008. This M.C.A. 43 of 2008 has been dismissed by the first Appellate Court by its judgment and order dated 25th November, 2009. It is this order which is sought to be quashed and set aside in extraordinary jurisdiction of this Court. 3. Counsel for the Petitioner points out order passed by the Tahsildar. In his opinion, the Tahsildar has observed that only foot way is available, not the cart way. 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. According to him, order passed by the Tahsildar is illegal and, therefore, has been challenged in the civil Court. He has also pointed out copy of the Panchanama and other material placed on record in support of his submission. Coming to the order passed by the first Appellate Court, in M.C.A., learned counsel for the Petitioner took me to the observations of the first Appellate Court that “in the present case, presuming for a moment that plaintiffs have prima facie case but defendants do not have an access road to take their carts to the land Gat No.1341.” These are the observations at the close of para 6 of the judgment of the first Appellate Court. Referring these observations, learned counsel for the petitioners submitted that having held that there is a prima facie case in favour of the petitioners, first Appellate Court ought to have granted temporary injunction in favour of the petitioners. 4. With the assistance of the learned counsel for the Petitioners, I have examined the order passed by the first Appellate Court in extenso. I have considered the entire para 6 of the judgment of the first Appellate Court. Order passed by the Tahsildar under section 143 of the said Code and/ or power 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. exercised under section 5 of the Mamlatdars Court Act, is challenged in the suit. At this stage, it would not be proper to record any observation for the reason that Courts below are supposed to decide the suit on merits. The Civil Courts are expected to consider the application for temporary injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure. In the case on hand, trial Court did exercise the jurisdiction and rejected the prayer for temporary injunction. The first Appellate Court has considered the material on record and dismissed the appeal. In my view, the circumstances pointed out by the learned counsel for the Petitioners does not attract the extraordinary jurisdiction of this Court, at this stage, in a matter of temporary injunction. In my view, the order passed by the first Appellate Court is an exercise of sound judicial discretion. Order impugned cannot be said to be perverse. Counsel for the petitioners submitted that because of the order passed by the Tahsildar and refusal of temporary injunction by the Civil Courts, sugarcane crop and lucern grass crop of the petitioners is likely to be damaged. Indisputably, petitioners and respondents are 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. agriculturists by profession. Crop pattern cannot be varied extensively. This circumstance, in my view, is not sufficient to upset the order passed by the first Appellate Court. 5. Writ petition stands dismissed in limine, without any order as to costs. 6. The Court concern shall decide the suit on its own merits without being influence by this order. [S.B.DESHMUKH, J.] Dated:03/02/2010. ans/346