Bombay High Court
Dhoniram Rajaram Salunkhe ... vs Dinkar Parshuram Salunkhe And Ors on 24 January, 2018
Bench: Dr. Shalini Phansalkar-Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5377 OF 2017
Dhondiram Rajaram Salunkhe ]
Age 70 yrs., Occu. Agriculture, ]
Through Power of Attorney holder ]
Sanjana Sambhaji Salunkhe ]
Age 37 yrs., Occu.Household, ]
R/at Nagthane, ] ...Petitioner
Tal. and District Satara ] (Org. Plaintiff)
Versus
1 Dinkar Parshuram Salunkhe ]
Age 57 yrs., Occu. Agriculture, ]
2 Shankar Bajirao Salunkhe ]
Age 48 yrs., Occu. Agriculture, ]
3 Dattatraya Bajirao Salunkhe ]
Age 45 yrs., Occu. Agriculture, ]
4 Bajirao Krishna Salunkhe ]
Age 70 yrs., Occu. Agriculture, ]
5 Dattatraya Pandurang Salunkhe ]
Age 45 yrs., Occu.Agriculture ]
6 Shankar Parshuram Salunkhe ]
Age 50 yrs., Occu.Agriculture ]
7 Uttam Parshuram Salunkhe ]
Age 43 yrs., Occ. Agriculture ]
8 Somnath Balkrishna Salunkhe ]
Age 23 yrs., Occu. Agriculture ]
9 Bajrang Parshuram Salunkhe ]
Age 65 yrs., Occu. Agriculture ]
10 Ganpat Namdeo Salunkhe ]
Age 58 yrs., Occu. Agriculture, ]
1/14
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11 Haribhau Pandurang Salunkhe ]
Age 55 yrs., Occ. Agriculture, ]
12 Somnath Baban Salunkhe ]
Age 40 yrs., Occu. Agriculture, ]
13 Pushpa Baban Salunkhe ]
Age 60 yrs., Occu. Agriculture, ]
All R/at : Nagthane, ]
Tal. And District Satara. ] ....Respondents
] (Org. Defendants)
• Mr.Vijay Patil i/b. Mr.Kalpesh U. Patil for the Petitioner.
• Mr.Shriram Kulkarni for the Respondents.
CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.
RESERVED ON : 18 th JANUARY, 2018.
PRONOUNCED ON : 24 th JANUARY, 2018.
JUDGMENT :
1] Rule. Rule made returnable forthwith. Heard finally with
consent of learned counsel for both the parties.
2] By this Writ Petition filed under Article 227 of the
Constitution of India, the Petitioner is challenging the judgment and
order dated 1st April, 2017, passed by the District Judge-3, Satara,
thereby allowing Miscellaneous Civil Appeal No.43 of 2016 preferred
by the Respondents, being aggrieved and dissatisfied with the order
passed below Exhibit-5 by 2nd Jt. Civil Judge Junior Division, Satara,
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on 10th February, 2016 in Regular Civil Suit No.471 of 2015.
3] Brief facts of the Writ Petition are to the effect that the
Petitioner herein is the Original Plaintiff, who has filed the suit before
the trial Court contending inter-alia that she is the owner of the
agricultural land bearing Gat No.231, ad-measuring 1-Hectare 20-R
situated within the limits of village Nagthane, Tal. & District Satara
and it is her ancestral joint family property. The suit property is
having approach road which is situated on North-West side of old
Nagthane-Mazgaon Road, running in North-South direction on the
Eastern side. The said road is described in the plaint in paragraph
No.1 by the letters "A, B, C, D, E & F".
4] As per the Petitioner, she is using the said road as a access
to her land, since the time of her forefathers for carrying-out
agricultural activities. The said road is also used for passing of bullock-
carts, tractors and other agriculture machineries. The road falls along
side of the agricultural lands of Respondent No.1 bearing Gat No.221
and Respondent Nos.2 to 4 bearing Gat Nos.224 and other lands
bearing Gat Nos. 226, 227, 228, 229 and 230.
5] According to the Petitioner, in the consolidation scheme,
which was implemented in the village in the year 1961, the suit
property as well as agricultural property including, those of the
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Respondents were re-numbered. At that time, in an enquiry conducted
before the Asst. Consolidation Officer, Satara, a statement of the
predecessor of the Respondents came to be recorded on 8 th June,
1961. In the said statement, he has accepted the existence of the said
road. Despite all these facts, the Respondents started causing
obstruction to the Petitioner's access from the said road.
6] Therefore, the Petitioner approached the Tahsildar, Satara
and filed road Dispute Case bearing S.R.No.7 of 2015. The Tahsildar
visited the suit property and the disputed road on 12 th April, 2015, but
neither prepared a panchanama nor had taken any further action. In
view thereof, the Petitioner was constrained to file the suit before the
trial Court for declaration of her right to use the said road and for
permanent injunction against the Respondents.
7] Along with the suit, the Petitioner had filed an application
for interim injunction at Exhibit-05, restraining the Respondents from
causing obstruction to her use of this road during pendency of the
suit.
8] The said application came to be resisted by the
Respondents vide their say at Exhibit-55, denying the existence of
such road and also the use of the said road as an access to her land by
the Petitioner. It was submitted that the Petitioner is trying to create a
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new road from the agricultural lands of the Respondents, which are
presently under cultivation. According to the Respondents, there is
another available road which is passing from the Southern side of the
land. The said path has been used and is being used by the Petitioner
as well as the land owners of Gat Nos.226 to 230 and 232. It was
further submitted that, the Petitioner has not claimed any right over
the lands alongside of the disputed road nor any easementary right
over the disputed road. The Petitioner has also not joined the owners
of the other lands alongside of which the disputed road is passing. It is
denied that any such statement was made by the Predecessor of
Respondents in consolidation scheme about existence of the road or of
the Petitioner using the said road since forefathers. It was specifically
contended that, the Petitioner was and is having the road which is
passing from Gat Nos.230, 239 and then 240. The Petitioner has
claimed her right of way from the said road and not from the disputed
road, before the Tahsildar in Road Dispute Case No.7 of 2015. The
Tahsildar, however, has rejected the said application, thereby clearly
indicating that the Petitioner has no prima-facie case, the balance of
convenience also does not lie in her favour and hence, her application
for interim-injunction needs to be dismissed.
9] The trial Court, after hearing learned counsel for both the
parties and after relying on the report of Court Commissioner, who
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was appointed to bring on record the existing situation, was pleased to
allow the application for interim injunction.
10] Being aggrieved thereby, the Respondents approached
Appellate Court and the Appellate Court, relying on the same Court
Commissioner Report and the material produced on record, was
pleased to reverse the finding of the trial Court and allowed the
appeal.
11] While challenging the impugned judgment and order of the
Appellate Court, the submission of learned counsel for the Petitioner is
two fold. In the first place, it is submitted that, the Appellate Court
should not have interfered in the well reasoned order of the trial
Court, which was also passed on the material on record. It is
submitted that, the order passed by the trial Court is discretionary
one and the view taken by the trial Court was also a plausible view of
the matter. Therefore, the Appellate Court has clearly exceeded its
jurisdiction in reassessing the material and reaching a conclusion
different from the one reached by the trial Court and thereby
substituting its own discretion. According to learned counsel for the
Petitioner, it was not permissible, as the discretion exercised by the
trial Court in the present case is reasonable. Hence, merely because, a
different view was possible, the Appellate Court was not justified in
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interfering with the trial Court's exercise of discretion. In support of
this submission, learned counsel for the Petitioner has placed reliance
placed on the judgment of the Apex Court, in the case of Wander Ltd.
& Anr. vs. Antox India P. Ltd., 1990 (supp.) SCC 727.
12] Secondly, it is submitted that, the Appellate Court has not
disputed the existence of the disputed road. The only ground on which
the Appellate Court has rejected the claim of the Petitioner is that,
there is also another road from which the suit property can be
accessed and that road is comparatively shorter than the disputed
road; therefore, it was not possible to hold that the Petitioner was
using the longer road. According to learned counsel for the Petitioner,
the Appellate Court has also, in this respect, not properly read the
Court Commissioner's Report and hence, according to learned counsel
for the Petitioner, the impugned order passed by the Appellate Court
needs to be quashed and set-aside.
13] Per contra, learned counsel for the Respondents has
supported the impugned order by submitting that, if the discretion
exercised by the trial Court was not based on the material on record
and not on its proper appreciation, hence in that sense, it was
perverse, the Appellate Court was justified in interfering with the said
discretion. Here, in the case, it is submitted that, the Petitioner has
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neither asked for the relief of declaration of ownership over the
disputed road nor has claimed any relief of easementary right, nor has
joined the owners of the other lands alongside of the disputed road as
party defendants. The Petitioner has also failed to establish the use of
the said road and hence, the Appellate Court was justified in rejecting
the application for interim injunction, which was allowed by the trial
Court. According to learned counsel for the Respondents, this Court,
in exercise of its writ jurisdiction, therefore, should be slow to again
interfere in the correction of factual findings done by the Appellate
Court.
14] In view of these rival submissions, on appreciation of
thereof, in the facts of the present case, this Court finds much
substance in the submission of learned counsel for the Respondents. It
needs no reiteration that the burden lies on the Petitioner, she being
the Plaintiff, to prove prima-facie the case, the balance of convenience
and irreparable loss, in order to get the relief of interim injunction.
Here in the case, the Petitioner has approached the Court with a case
that she is the owner of the agricultural property bearing Gat No.231
and the suit property is having the approach road on North-West side
of old Nagthane-Mazgaon Road, running in North-South direction on
the Eastern side. According to the Petitioner, the said road is being
used from the time of her forefathers for carrying out agricultural
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activities. She had also admitted that said road falls alongside
agricultural properties of Respondent No.1 bearing Gat No.221,
Respondent Nos.2 to 4 bearing Gat Nos.224 and other lands bearing
Gat Nos. 226, 227, 228, 229 and 230, which are owned by other
persons. Hence, the initial burden was lying upon the Petitioner, first
to prove the existence of such road alongside the lands belonging to
other persons and secondly to prove its user and her right to use the
same unobstructed.
15] However, as rightly observed by the Appellate Court, the
Petitioner has prima-facie failed to prove all these facts. Though in her
suit she has claimed the relief of declaration that she is having the
right to use this road, she has not explained on which basis she is
claiming the said right. It is pertinent to note that, she has not even
joined the owners of the other lands bearing Gat Nos.226, 227, 228,
229 and 230, when admittedly the disputed road is passing alongside
their lands. She has only joined Respondent No.1, the owner of Gat
No.221 and Respondent Nos.2 to 4, the owners of Gat No.224. If she is
claiming the right of way against the owners of the lands bearing Gat
Nos.226 to 230 and as the disputed road is passing alongside the lands
of these persons, then it was utmost essential for her to join them also.
She has not done so. Hence, one does not know whether they are
accepting the right of the Petitioner to use that road and the user of
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that road by the Petitioner, since the time of her forefathers till the
date. They are also not joined as co-plaintiff or co-defendants in the
suit. As per the Respondents, the owner of one of these lands, had
already filed an affidavit in favour of the Respondents, denying the
Petitioner's right to use the said road.
16] The Petitioner has also not claimed any ownership over
this disputed road or over the land below it. She has also not explained
how that road came into existence and whether it was with the
consent of the owners of those lands and whether at any time they
have accepted the user of the said road as of right by the Petitioner.
Thus, without any title or any prima-facie proof of user or enjoyment
over the said road, the Petitioner is claiming her right of way and
without joining all the necessary parties, she is also claiming the relief
of injunction.
17] It is also pertinent to note that, the Petitioner has not even
claimed any easementary right of way, either on account of the
necessity or on account of prescription over the said road. The reason
may be because there is another road in existence, which is not only
pointed out by the Respondents but the existence of such road is also
brought on record from the report of the Court Commissioner and
photographs which he has taken at the time of the inspection in the
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presence of the parties. The Appellate Court has discussed in detail,
how this road proceeds from Mazgaon-Nagthane i.e. South-West
Direction to the suit property. The Court Commissioner's Report
shows that initially the said road is having 9 feet in width, then there
is the crop of ladies finger which has been cut off, thereafter there is a
water canal, there is a bandh and there is a toilet. The ginger crop is
there. The pipe-line is also laid down. This road directly goes to the
land of the Petitioner bearing Gat No.231. The Court Commissioner
has shown this road upto the toilet and from toilet, the water canal is
shown and the ladies finger crop is shown. This road appears to be
directly leading to the land of the Petitioner and appears to be a
shorter road and having sufficient width.
18] As against it, the approach road on which the Petitioner is
claiming the right, is a longer road and as stated above on the way, one
has to travel through the many lands in order to reach the land of the
Petitioner by this road and the owners of these lands are not joined in
the suit. As observed by the Court Commissioner, at some places, the
said road is having the width of only 4 to 6 feet and hence the tractor
cannot pass on this road.
19] It is the contention of the Petitioner that the second road
shown by the Court Commissioner is not a continuous one, the tractor
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cannot pass from the said road. However, the Court Commissioner's
Report and the photographs' clicked at that time also show that, at the
time of the inspection of the Court Commissioner, the tractor could
easily pass from the said road. Even the width of the said road is more
than the width of the disputed road. Only on a very small piece of land,
there appears to be the crop of ladies finger, but otherwise the said
road gives clear access to the land of the Petitioner and therefore,
there is every possibility of the Petitioner using this very road, it being
shorter and closer to her road and hence easily accessible and even
the tractor can pass from the said road, as against the disputed road,
which is not only a longer route but is not having sufficient width also.
20] The Appellate Court has considered all these factual
aspects of the case. The Appellate Court has also considered the
statement of the Respondent's predecessor, recorded in the
Consolidation Scheme and found that the said statement does not
refer at all to any particular road. It merely states that, whatever road
is in existence, it will remain as it is. Hence, the said statement is also
not sufficient to establish the Petitioner's right over the disputed road
or to prove that the Petitioner is using this very specific disputed
road., since the time of her forefathers. As disputed road is not the
only way or the road at the site, in the absence of specific reference to
this disputed road, the statement of the Respondent's predecessor
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recorded in Consolidation Scheme cannot be of much help to the
Petitioner. It is pertinent to note that the existence of this disputed
road is also not appearing in the 7/12 extract of any of the lands,
which are alongside to this road.
21] It is further significant to note that, the Petitioner has filed
the Dispute Road case before the Tahsildar, who is the Appropriate
Authority to decide the same. Accordingly, the Tahsildar has after
inspection of the site rejected the claim of the Petitioner over the
disputed road. The Petitioner has not challenged the said order before
the Superior Authority viz. Sub-Division Officer (S.D.O.).
22] In my considered opinion, the Appellate Court has
considered all these factual aspects of the case in their proper
perspective, the most important fact being the Petitioner's failure to
prima-facie establish her right over the disputed road juxtaposed to
the existence of the another road, which is shorter and much closer to
her land, these aspects being not properly considered by the trial
Court. Therefore, no fault can be found, if the Appellate Court has
interfered in the discretion exercised by the trial Court, to correct the
said discretion. As the order of the Appellate Court is found to be
correct, legal and proper; in writ jurisdiction this Court cannot
interfere in the said order.
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23] Writ Petition, therefore, being without merit, stands
dismissed.
24] Rule is discharged.
[DR.SHALINI PHANSALKAR-JOSHI, J.]
25] At this stage, learned counsel for the Petitioner submits
that, the interim order passed in this proceeding is in existence till
today and therefore, the same order may be continued, in order to
enable the Petitioner to approach the Hon'ble Supreme Court.
26] Learned counsel for the Respondents takes an objection
thereof.
27] However, in the interest of justice, the interim order
passed by this Court on 16th June 2017 and thereafter, modified on 2nd
August 2017 is extended for a period of six weeks from today.
[DR.SHALINI PHANSALKAR-JOSHI, J.]
