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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 195 OF 2004
1] Shrikrishna Sheshrao Dane,
aged about 38 yers, Occ. Service,
R/o. Akola [ Mah. Pahan Mahasangh,
Bhagwat Plots, Phare Building,
Opp. Mahyco Office], Tq. Distt. Akola
2] Sheshrao Sukhdeo Dane,
through L.Rs.
2-A] Smt. Shantabai Sheshrao Dane,
aged 70 years, Occ. Agriculturist,
R/o. Khiroda, Tq. Sangrampur,
Distt. Buldana.
2-B] Ku. Vijaykanta Sheshrao Dane,
aged about 49 years, Occ. Agriculturist,
R/o. Khiroda, Tq. Sangrampur,
Distt. Buldana....... APPELLANTS
Org. Defts
...VERSUS...
1. Vasant Ramrao Tayade,
aged about 30 years, Occ. Agriculturist,
2. Purushottam Ramrao Tayade,
aged about 27 years, Occ. Agriculturist,
Both R/o. Khiroda, Tq.Sangrampur,
Distt. Buldana....... RESPONDENTS
Org. Plffs.
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Shri A.V.Bhide, counsel for appellants
Shri N.R.Saboo, counsel for Respondent no. 1
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CORAM: R. K. DESHPANDE, J.
th DATE : 20 MARCH, 2017 .
ORAL JUDGMENT 1] The Mamlatdar, in exercise of its power under Section 5(2) of the Mamlatdar Courts Act, 1906, passed an order on 31.05.1996, restraining the plaintiffs from obstructing the cart way used by the defendants from the boundary of Gat No. 12 and 13 belonging to the plaintiffs. The plaintiffs aggrieved by it, filed Regular Civil Suit No.213 of 1996 for declaration that the order passed by the Mamlatdar on 31.05.1996 is not legal, proper and binding upon the plaintiffs. The plaintiffs further claimed a decree for permanent injunction restraining the defendants from using a way from Gat Nos. 12 and 13. The trial Court by judgment and order dated 28.11.2000, dismissed the suit filed by the plaintiffs. The appellate Court by judgment and order dated 24.02.2004 allowed the appeal filed by the plaintiffs. Hence, the defendants are in this second appeal as appellants. 2] On 06.07.2004, this Court admitted the second appeal and passed an order as under, framing the substantial ::: Uploaded on - 23/03/2017 ::: Downloaded on - 25/03/2017 00:37:42 ::: 3 sa195.04.odt questions of law.
"Admit on the following substantial questions of law.
[1] Was the learned Appellate Judge justified in reversing the finding recorded by the trial Court just because it entertained second opinion about the matter.
[2] Is the learned Appellate Judge justified in relying on the alternate way created by neighbouring land owners when the way available to the neighbouring land owners is immediately appurtenant to the property while the said access was not all comparable with that of the right of way claimed by the defendants.
C.A. No. 3031/04 Learned Advocate Mr. Saboo who appears for the respondent No.1 caveator pray for time to reply and for hearing on this application. Request is granted. However, there shall be ad interim stay.
Stand over for four weeks for reply and hearing on this application."
3] The plaintiffs are the owners of Gat No. 12 and 13, whereas the defendant is the owner of Gat No. 10 and 11, which are adjacent to the southern boundary of Gat Nos. 12 and 13. To the southern boundary of Gat Nos. 10 and 11, there is Gat No.9 and adjacent to it on the southern boundary is the gairan road flowing from East to West. On the northern side of Gat Nos. 12 and 13, Shegaon-Patudra road touches the boundary. It is from that road, right of way from North to South was claimed by the defendants to Gat Nos. 10 and 11, through the dhura of Gat Nos. 12 and 13.
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4] The Mamlatdar conducted the spot inspection
and recorded the finding that there existed such a road from Gat Nos. 12 and 13 as approach way to the field Gat Nos. 10 and 11. Before the trial Court, both the parties examined the witnesses. PW-4 Digambar Kashinath Kulkarni examined by the plaintiffs has proved the plaint map at Exh.49. The Court Commissioner appointed under Order XXIX, Rule 9 of C.P.C., submitted his report on 15.02.2000 at Exh.67 along with which a map prepared by him was enclosed. The trial Court considered the oral evidence of the witnesses and recorded the finding that the way was established by the defendants from Gat Nos. 12 and 13 belonging to the plaintiffs.
5] The lower appellate Court also considers the evidence of the witnesses and the reports at Exh.49 and 67, to reverse the findings recorded by the trial Court and to pass a decree holding that the order passed by the Mamlatdar under Section 5 of the Mamlatdar Courts Act was illegal, improper and it was quashed and set aside. The appellate Court granted the injunction restraining the ::: Uploaded on - 23/03/2017 ::: Downloaded on - 25/03/2017 00:37:42 ::: 5 sa195.04.odt defendants from using the way in terms of the order passed by the Mamlatdar.
6] Sub-Section (2) of Section 5 of the Mamlatdar Courts Act, 1906, empowers the Mamlatdar to pass an order of injunction against the persons prohibiting the use of road or customary way and to remove any obstruction or impediment created therein. What the Mamlatdar is required to see is that there exists a way or a customary way in use, to grant the relief. The trial Court considered the evidence of PW-4 Digambar Kulkarni, who prepared map at Exh.49 (plaint map) to hold that there existed a way through Gat Nos. 12 and 13 for the defendants to approach Gat Nos. 10 and 11. The trial Court also considered the report submitted by the Court Commissioner along with the map. 7] After going through the evidence of this witness PW-4, the plaint map, the report of the Court Commissioner at Exh.67, I find that the existence of way through Gat Nos. 12 and 13 to approach Gat Nos. 10 and 11 has been established. The defendant has examined predecessor in title of Gat Nos. 10 and 11 Smt. Mankarnikabai, who ::: Uploaded on - 23/03/2017 ::: Downloaded on - 25/03/2017 00:37:42 ::: 6 sa195.04.odt deposed that the way in question was being used as a cart way. The findings recorded by the lower appellate Court indicate that the concentration is on the existence of an alternate way from Gat No.9 to the southern side of Gat Nos. 10 and 11. The owner of Gat No.9 has been examined as a witness, who has deposed that there is no cart way available to the defendants from Gat No. 9 to connect gairan road from the southern side to field Gat Nos. 10 and 11. This was not the enquiry which Mamlatdar was required to conduct under sub-section (2) of Section 5 of the Mamlatdar Courts Act. The appellate Court was, therefore, not justified in reversing the findings recorded by the trial Court on the irrelevant consideration just because it entertained the second opinion about the matter. The substantial question of law at Sr. No.1 is answered accordingly.
8] As to the substantial question of law at Sr.No.2, as pointed out earlier, what was relevant for determination of the Mamlatdar under sub-section (2) of Section 5 was the existence of way for the use and it could not have, therefore, been compared with the way claimed by the defendants. The substantial question of law at Sr.No.2, therefore, answered ::: Uploaded on - 23/03/2017 ::: Downloaded on - 25/03/2017 00:37:42 ::: 7 sa195.04.odt accordingly.
9] In the result, the second appeal is allowed. The judgment and order dated 24.02.2004 passed in Regular Civil Appeal No. 3 of 2001 by the lower appellate Court is hereby quashed and set aside. The decree passed by the trial Court on 28.11.2000 in Regular Civil Suit No. 213 of 1996 is restored. No costs.
JUDGE Rvjalit ::: Uploaded on - 23/03/2017 ::: Downloaded on - 25/03/2017 00:37:42 :::