Babasaheb Dagadu Agre And Others vs Macchindra Dagadu Abhale And ...
2021 Latest Caselaw 11414 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                          WRIT PETITION NO.6338 OF 2021

1.     Babasaheb s/o Dagadu Agre,
       Age : 46 years, Occu. Agri.

2.     Balasaheb s/o Dagadu Agre,
       Age : 49 years, Occu. Agri.

3.     Vasant s/o Dagadu Agre,
       Age : 51 years, Occu. Agri.

4.     Dropaabai w/o Dagadu Agre,
       Age : 71 years, Occu. Agri.

5.     Suresh s/o Dagadu Agre,
       Age : 44 years, Occu. Agri.

       Petitioners No.2 to 5 through their
       General Poer of Attorney i.e.
       Petitioner No.1 Babasaheb Dagdu Agre

       All r/o Ekrukhe, Tq. Rahata,
       District Ahmednagar                                PETITIONERS
                                                       (Orig. Defendants)
       VERSUS

1.     Macchindra s/o Dagadu Abhale,
       Age : 56 years, Occu. Agri.

2.     Datta s/o Machindra Abhale,
       Age : 27 years, Occu. Agri.

       Both r/o Ekrukhe, Tq. Rahata,                       RESPONDENTS
       District Ahmednagar                                 (Orig.Plaintiffs)

3.     The Circle Officer,
       Shirdi, Dist. Ahmednagar                             RESPONDENT
                                      AND

                          WRIT PETITION NO.6339 OF 2021




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1.     Babasaheb s/o Dagadu Agre,
       Age : 46 years, Occu. Agri.

2.     Balasaheb s/o Dagadu Agre,
       Age : 49 years, Occu. Agri.

3.     Vasant s/o Dagadu Agre,
       Age : 51 years, Occu. Agri.

4.     Dropaabai w/o Dagadu Agre,
       Age : 71 years, Occu. Agri.

5.     Suresh s/o Dagadu Agre,
       Age : 44 years, Occu. Agri.

       Petitioners No.2 to 5 through their
       General Poer of Attorney i.e.
       Petitioner No.1 Babasaheb Dagdu Agre

       All r/o Ekrukhe, Tq. Rahata,
       District Ahmednagar                              PETITIONERS
                                                     (Orig. Defendants/
                                                       Plaintiffs in
                                                       counter claim)
       VERSUS

1.     Macchindra s/o Dagadu Abhale,
       Age : 56 years, Occu. Agri.

2.     Datta s/o Machindra Abhale,
       Age : 27 years, Occu. Agri.

       Both r/o Ekrukhe, Tq. Rahata,                      RESPONDENTS
       District Ahmednagar                                (Orig.Plaintiffs)

3.     The Circle Officer,
       Shirdi, Dist. Ahmednagar                           RESPONDENT
                                      ----
Mr. Sachin S. Deshmukh, Advocate for the petitioners
in both Writ Petitions
Mr. P.B. Shirsath, Advocate for respondent Nos.1 and 2
in both Writ Petitions
Mr. S.W. Munde, A.G.P. for respondent No.3 in
both Writ Petitions
                                      ----


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                                    CORAM :    MANGESH S. PATIL, J.

                DATE OF JUDGMENT RESERVED                     : 17.08.2021
                DATE OF JUDGMENT PRONOUNCED                   : 20.08.2021


COMMON JUDGMENT :


                Heard.

2. Rule in both the petitions. Rule is made returnable forthwith.

Learned Advocate Mr. P.B. Shirsath waives service for Respondent Nos.1 and

2 and the learned A.G.P. waives service for respondent No. 3. With the

consent of both the sides, the petitions are heard finally at the stage of

admission and are being disposed of by this common judgment.

3. These matters arise out of a common order passed by the learned

Civil Judge, Junior Division in Regular Civil Suit No.351 of 2018 filed by

respondent Nos.1 and 2, claiming declaration that the petitioners do not have

any right to use any portion of the suit property being a portion admeasuring

40 Ares of the western side from their land Gut No.541, totally admeasuring

1 Hectare 42 Ares of village Ekrukhe, Taluka Rahata and restraining the

petitioners from entering into the suit property. By way of application (Exh-

5), the respondents claimed temporary injunction in terms of the main relief

restraining the petitioners from entering into their lands.

4. The petitioners contested the suit by filing written statement-

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cum-counter claim. They asserted that there exists a public way which passes

through the respondents' suit property. They have been using it for number

of years and the respondents were obstructing it. Even they claim a

declaration regarding existence of way as asserted by them and seek

perpetual injunction. By filing application (Exh-10), even they claimed

temporary injunction.

5. The learned Civil Judge, by the common order, rejected both the

applications. Both the sides preferred separate Misc. Appeals. By the

impugned judgment and order, the learned Additional District Judge allowed

the appeal of the respondents and granted them temporary injunction

whereas dismissed the petitioners' appeal.

6. Mr. S.S. Deshmukh, learned Advocate for the petitioners would

submit that the approach of the two courts below to the extent of refusing to

recognize the road/way asserted by the petitioners is wholly incorrect. There

was a record in the form of measurement book showing that in fact the Zilla

Parishad had spent for laying the road being claimed by the petitioners. Even

the respondents admitted, though tentatively, that the petitioners have been

using some portion of the respondents' suit property for approaching the

canal and there was no sufficient and cogent reason for the two courts below

to refuse to grant temporary injunction to the petitioners.

7. The learned Advocate would further submit that though the

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learned Civil Judge had rightly rejected the respondents' application (Exh-5)

with cogent and convincing reasons, the learned Judge of the Appellate

Court, by resorting to scrutiny afresh, has reached an independent conclusion

while allowing their appeal and application (Exh-5). The learned Advocate

would point out that the learned Judge of the Appellate Court by referring to

the photographs produced on the record has concluded that the way being

admitted by the respondents is, in fact, a narrow lane. The whole approach of

the Appellate Court in confirming the rejection of their application (Exh-10)

and allowing the respondents' application (Exh-5) is grossly erroneous and

may be quashed and set aside.

8. Per contra, Mr. P.B. Shirsath, learned Advocate for respondent

Nos.1 and 2, submits that so far as the petitioners' application (Exh-10) is

concerned, there is concurrent finding of the two courts below refusing to

grant temporary injunction to them and there is no reason to cause any

interference in exercise of the writ jurisdiction.

9. The learned Advocate would submit that so far as the

observations of the Appellate Court with regard to the respondents' request

for grant of temporary injunction are concerned, the learned Judge has

rightly pointed out that the road being claimed by the petitioners is not in

existence. The photographs were on the record. He could easily notice that

the way being claimed by the petitioners is, in fact, not a public way from its

appearance and therefore, having seen that the petitioners were bent upon to

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assert their right through the land of the respondents, the latter were entitled

to temporary injunction.

10. I have carefully considered the rival submissions and perused the

orders of the two courts below. Suffice for the purpose to observe that this

Court has inherent limitations while deciding a Writ Petition against the

orders of the two courts below, which are the fact finding courts. One need

not overemphasize that while exercising the writ jurisdiction, this Court is

not supposed to substitute its own findings in place of the findings arrived at

by the two courts below.

11. Bearing in mind the aforementioned trite proposition, so far as

the petitioners' application for temporary injunction (Exh-10) is concerned,

the two courts below have been consistent in observing that they have not

come out with a clear description regarding the way being claimed by them.

Besides, there is no other material to demonstrate existence of any such

road/way. They have also concurrently found that the document in the form

of measurement book of Zilla Parishad, Ahmednagar does not refer to the

road/way being claimed by the petitioners. In view of such concrete and

concurrent objective findings, the Writ Petition, which challenges such

rejection of the application (Exh-10) is liable to be dismissed.

12. So far as the request of respondents for temporary injunction by

way of application (Exh-5) is concerned, as has been rightly pointed out by

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the learned Judge of the Appellate Court, the learned Judge of the Trial Court

has not assigned cogent and concrete reasons as to why the temporary

injunction is to be refused to them.

13. Apart from such state-of-affairs, it is apparent from the reasoning

given by the learned Judge of the Appellate Court that going by the

topography, there are no signs of existence of any road as being claimed by

the petitioners. However, still, they are claiming the way through the

respondents' land. Though the learned Judge has not spelt out in so many

words, it is apparent that he was alive to the fact that the very conduct of the

petitioners in claiming a way through the respondents' suit property was

sufficient to draw an inference that the former were bent upon to obstruct

latters' possession over their suit property.

14. Again, the learned Judge of the Appellate Court seems to have

had an opportunity to go through the photographs to draw an inference that

it is only some sort of a narrow lane as against a public way is in existence in

the respondents' suit property. The respondents have been fair enough to

admit that it is only intermittently, once in a month or so, that the petitioners

have been using that way to approach the canal. It is in the light of such

circumstances that no exception can be taken much less the observations can

be said to be perverse and arbitrary when the learned Judge, in the

impugned order, has noticed that the way being claimed through the land of

the respondents' suit property is merely a narrow lane and cannot be

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regarded as a public road along which the vehicles can pass.

15. It is in the light of such state-of-affairs, the learned Judge of the

Appellate Court has taken a plausible view that the respondents would be put

to greater hardship and inconvenience than being faced by the petitioners if

the temporary injunction as claimed by the former was not granted. In my

considered view, the observations made and the conclusions drawn by the

Appellate Court cannot be said to be either perverse or arbitrary so as to

reverse those in exercise of the writ jurisdiction.

16. Both the Writ Petitions are dismissed. The Rule is discharged.

17. Pending Civil Application No. 4113/2021 in Writ Petition

No.6338/2021 and Civil Application No.4451/2021 in Writ Petition

No.6339/2021 are disposed of.

[MANGESH S. PATIL] JUDGE

npj/wp6338-6339-2021