Shrikrishna Sheshrao Dane And Anr vs Vasantrao Ramrao Tayde And ...
2017 Latest Caselaw 840 Bom

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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.
 -------------------------------------------------------------------------------------------
 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

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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

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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

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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

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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