Shamrao Sitaram Lokhande, (Dead ... vs Subhash Janrao Undre And Others
2021 Latest Caselaw 14602 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR

                      WRIT PETITION NO. 6508 OF 2016

         Shamrao Sitaram Lokhande
         since dead through LR's

         Mohan Shamraoji Lokhande,
         aged about 45 years, Occ. Agriculture,
         R/o Mojhari, Tq. Tiwasa,
         District Amravati.                               PETITIONER

                ...Versus...

   1. Subhash Janrao Undre,
      aged about 58 years, Occ. Agriculture,
      R/o Near Hanuman Temple, Mojhari,
      Tq. Tiwasa, District Amravati.


   2. The Sub-Divisional Officer, Tq. Tiwasa,
      District Amravati.

   3. The Naib Tehsildar, Tiwasa,
      Tq. Tiwasa, District Amravati.                      RESPONDENTS

 -----------------------------------------------
 Shri J.B. Kasat, Advocate for the Petitioner.
 Shri R.D. Dharmadhikari, Advocate for the Respondent No. 1.
 Shri S.A. Ashirgade, Addl. G.P. for Respondent Nos. 2 & 3.
 -----------------------------------------------


                               CORAM : AVINASH G. GHAROTE, J.

DATED : 06th OCTOBER, 2021.

ORAL JUDGMENT :-

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Rule, Rule made returnable forthwith.

2. Heard Mr. Kasat, learned counsel for the petitioner

and Mr. Dharmadhikari, learned counsel for the respondent

No.1.

3. On application filed by the petitioner under Section

5 of the Mamlatdar's Courts Act, 1906, the learned Mamlatdar

by his order dated 19.06.2014, relying upon the spot inspection

report dated 23.05.2014 found that the way from the southern

boundary of Survey No. 233/1 belonging to the respondent

No.1 for approaching the land of Survey No. 233/1A owned by

the petitioner was obstructed, and therefore, directed removal

of the obstruction.

4. The respondent No.1 being aggrieved by the same,

approached the Sub-Divisional Officer, Tiwasa in appeal, who by

his order dated 08.03.2016, set-aside the order passed by the

Mamlatdar, which is how the matter is before this court.

5. Mr. Kasat, learned counsel for the petitioner, by

inviting my attention to the spot inspection report dated

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23.05.2014 submits, that the land of the petitioner, is

landlocked and there is no approach way, other than from the

southern boundary from the Survey No. 233/1, which had been

so found in the spot inspection report based upon which the

obstruction was directed to be removed by the learned

Mamlatdar. Further inviting my attention to the impugned order

of learned Sub-Divisional Officer, Tiwasa, dated 08.03.2016,

learned counsel submits, that instead of placing reliance upon

the spot inspection report dated 23.05.2014, the learned Sub-

Divisional Officer, Tiwasa, has incorrectly relied upon the report

of the Talathi dated 16.08.2013, to hold, that there were 2 to 4

Babool Trees on the boundary of Survey Nos. 233 and 226,

20-25 years old, due to which, the way was not available, and

therefore, dismissed the application by allowing the revision.

6. Mr. Kasat, learned counsel for the petitioner further

submits, that the learned Sub-Divisional Officer, Tiwasa, could

not have ignored the spot inspection report dated 23.05.2014.

That apart, even the Talathi report dated 16.08.2013 indicates,

that there are no trees on the southern boundary of Survey

No. 233/1, and therefore, the basic premise on which the

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impugned order has been passed is vitiated.

7. Mr. Dharmadhikari, learned counsel for the

respondent No.1 submits, that there was no road at all from the

southern boundary of Survey No. 233/1, apart form which, the

alternate way was available for the petitioner from the eastern

side of the Survey Nos. 234 and 233/3, and therefore, the

impugned order is correct.

8. It is material to note, that the impugned order does

not proceed on the basis of any plea regarding existence of the

alternate way, in view of which, the contention in this regard

has to be rejected.

9. In so far as, the existence of 2 to 4 Babool Trees

aged about 20 to 25 years on the southern boundary of Survey

No. 233/1 is concerned, which is the basis of the impugned

order or even the report of Talathi dated 16.08.2013, upon

which, the reliance has been placed, a perusal of the same

indicates that the said trees are on the boundary in between

Survey Nos. 233 and 226, which would form the northern

boundary of the original Survey No. 233 and not the southern

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one, which would also be apparent from the bare perusal of the

map as contained in the spot inspection report dated

23.05.2014. That being the position, the premise on which the

impugned order has been passed is factually incorrect, in view

of which, the same cannot be sustained. The impugned order is

therefore quashed and set-aside and the order passed by the

learned Mamlatdar dated 19.06.2014 is hereby restored.

10. The petition is allowed in the aforesaid terms.

11. Rule is made absolute.

( AVINASH G. GHAROTE, J.) S.D.Bhimte