Narendra Dharma Patil And Others vs Subhangi Anil Choudhari And ...
2016 Latest Caselaw 7547 Bom

                                                                      950_WP478916.odt


             
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                              
                            BENCH AT AURANGABAD

                             WRIT PETITION NO. 4789 OF 2016




                                                      
    1.  Narendra Dharma Patil
         Age: 28 years, Occu.: Agri.,




                                                     
    2.  Dattu Manga Patil
         Age: 45 years, Occu.: Agri.,

    3.  Punamcand Manga Patil




                                                
         Age: 40 years, Occu.: Agri.,

    4.  Lilachand Manga Patil
         Age: 50 years, Occu.: Agri.,
                                    
                                   
    5.  Atul Hasmukhlal Jain
         Age: 35 years, Occu.: Agri.,

         All R/o Kharde (Bk.), Tq. Shirpur,
         

         Dist. Dhule.                                        ..PETITIONERS
      



                   VERSUS
    1.  Shubhangi Anil Choudhari
         Age: 39 years, Occu.: Household,
         c/o Anil Parshuram Chjoudhari,





         D.N. Patil Engineering College,
         Shahada, Tq. Sahada,
         Dist. Nandurbar.

    2.  Sakharam Hiraji Choudhari





         Age: 70 years, Occu.: Agri.,
         R./o Kharde (Bk.), Tq. Shirpur,
         Dist. Dhule.                                        ..RESPONDENTS
                                        ....
    Mr. B.S. Deokar, Advocate for petitioners.
    Mr. S.P. Brahme, Advocate for respondents.
                                        ....

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                                             CORAM :  T.V. NALAWADE, J.

DATED : 21st DECEMBER, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard both sides by

consent for final disposal.

2. The petition is filed to challenge the order made on Exhibit 19

in Regular Civil Suit No. 116 of 2014 which is presently pending in the

Court of Civil Judge, Junior Division, Shirpur and also to challenge the

decision of District Court made in Miscellaneous Civil Appeal No. 77 of

2015.

3. The suit is filed by respondent - Shubhangi and others for

relief of injunction. In the said suit, both plaintiff and defendant had filed

applications for relief of injunction. The Trial Court has granted

injunction in favour of plaintiff by allowing application at Exhibit 5 and

due to this order the present petitioners will be prevented from using

portion shown as A and B in the judgment of the Miscellaneous Civil

Appeal as way.

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950_WP478916.odt

4. Even if the map from Miscellaneous Civil Appeal is considered

as it is, it can be said that if the order is not interfered with, the owner of

land Survey No. 27/2B will not be able to approach his land from the

national highway which is shown to be situated on the northern side, but

after two pieces of land situated on the northern side of Survey No.

27/2B. Similarly, there will be situation in which the owners of Survey

No. 27/1 and 27/2A will not be allowed to use the common bandh of

their land situated on western side. On the western side of this bandh,

there is Survey No. 26/2/2 which belongs to plaintiff.

5. Common bandhs are required to be kept as per rules made

under the Maharashtra Land Revenue (Boundaries and Boundary Marks)

Rules, 1969 and it has specific height and width. Even if it is presumed

that there are Dhuras or Surbandhs, they will have the width of 1.22

meters and height of 0.61 meters. Such bandhs can be used by farmers of

that region as customary footpath though not as cart way. In view of this

circumstance, this Court holds that interference is warranted in the order

made by the Trial Court which is confirmed by the District Court. The

common bandh situated between the land Survey No. 26/2/2 on one side

and Survey Nos. 27/1, 27/2A and 27/2B on the other side can be used by

the owners of Survey No. 26/2/2 and the owners of land situated on the

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eastern side of this land. However, this band can be used only as footpath

and care is to be taken that they do not enter the land of the others. Such

correction needs to be made in the order and so the following order :-

Petition is allowed. The order made by the Trial Court on

Exhibit 5 which is confirmed by the First Appellate Court is hereby

modified. Both sides are allowed to use the common bandh situated

between the Survey No. 26/2/2 on one side and Survey Nos. 27/1, 27/2A

and 27/2B on the other side as footpath having width and height as

mentioned above. Nobody will be allowed to use it as cart way and by

using this order nobody is allowed to enter the land of others. Rule is

made absolute in those terms. The Trial Court is expected to expedite the

suit and in any case within six months from the date of receipt of this

order.

( T.V. NALAWADE, J. )

SSD

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