Kondaji Hari Kale vs Ramkrushna Arjun Gaikar And Ors
2023 Latest Caselaw 2904 Bom

2023:BHC-AS:9099



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                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION

                                      CIVIL WRIT PETITION NO. 2972 OF 2022

                    Kondaji Hari Kale                                               ..Petitioner
                         Versus
                    Ramkrushna Arjun Gaikar & Ors.                                  ..Respondents

                                                __________
                    Mr. Sugandh Deshmukh a/w. Irvin D'Souza for Petitioner.
                    Mr. Shailesh Kharat for Respondent Nos.1 to 6.
                                                __________

                                                  CORAM : SARANG V. KOTWAL, J.

DATE : 24 MARCH 2023 PC :

1. By this petition, the Petitioner is seeking quashing of the

order dated 09/10/2021 passed in Miscellaneous Civil Appeal

No.12 of 2018 by learned District Judge, Nashik, thereby

confirming the order passed by 2nd Jt. C.J.J.D., Nashik Road,

Nashik below Exhibit-5 in Regular Civil Suit No.104 of 2017, dated

19/12/2017.

2. Heard Shri. Sugandh Deshmukh, learned counsel for the

Petitioner and Shri. Shailesh Kharat, learned counsel for the

Respondent Nos.1 to 6.

                      Gokhale





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3. The Petitioner is the original Defendant No.1 in

R.C.S.No.104 of 2017. The Respondent Nos.1 to 6 herein are the

original Plaintiffs. For the sake of convenience the parties are

described by their status in the suit wherever necessary.

4. The Petitioner had initially approached the Tahsildar

under the Mamlatdars' Courts Act 1906 for access to his field at

Gat No.65/1+2 at Lahvit, Taluka and District Nashik. During those

proceedings, a panchanama was conducted by the Talathi on

23/04/2017. It was mentioned in the panchanama that the

Petitioner did not have any access road to approach his

agricultural field and that he was using the land Gat No.64 for that

purpose. The panchanama further mentions that, if the owners of

the Gat No.65/4 and Gat No.65/3 permit him, then he could use

the road which was in existence between Gat No.65/3 and 65/4.

The owners of the Gat No.65/4 and 65/3 are the plaintiffs in the

suit.

5. The Tahsildar vide his order dated 31/07/2017 allowed

the Petitioner's application and issued directions that the Petitioner

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was entitled for removal of the obstruction on the road leading to

his land between Gat No.65/4 and 65/3. The said order was

confirmed by the S.D.O. on 20/04/2018 passed in Revision No.300

of 2017. The order of the Tahsildar was confirmed. In between,

the Plaintiffs i.e. the Respondent Nos.1 to 6 herein filed the above

mentioned suit for declaration that the Petitioner herein i.e. the

Defendant No.1 does not have any right to access his land except a

common bandh between two gat numbers mentioned earlier. The

other prayer was for perpetual injunction against using that

particular road.

6. The Plaintiffs had also filed an application for interim

relief vide Exhibit-5 in the said suit, which was allowed in their

favour vide order dated 19/12/2017 passed by the trial Court. It

was observed in that order that, if the relief was granted to the

plaintiffs, no hardship would be caused to the Defendants, as they

were already using the common access way to their property and,

therefore, the balance of convenience was in favour of the

Plaintiffs. The said order was confirmed by the learned District

Judge, Nashik in M.C.A.No.12 of 2018 vide order dated

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08/10/2021. The suit was expedited.

7. Learned counsel for the Petitioner submitted that the

Petitioner did have a prima facie case at least for grant of interim

injunction because there was an order passed by the Tahsildar in

his favour; which was confirmed by the S.D.O. He had adopted

legal remedies before the competent authority and the order was

passed in his favour. Those two orders were completely ignored by

the learned Trial Judge, as well as, by the Appellate Judge. He

submitted that, though the stay is operating against him, since the

year 2017, every passing year is causing irreparable loss to him. He

submitted that, since the monsoon is approaching very fast, he

needs to cultivate his land, so that, he can have sufficient crop

during monsoon season. He, therefore, submitted that, in this

situation, he is pressing for interim protection in his favour by

setting aside both the impugned orders. He submitted that the

Tahsildar's order clearly shows that, there was no way available to

him except one through the land at Gat No.64, but that land is also

used by it's owner for taking crop in the monsoon season and,

therefore, it will not be possible for him to access his land at all.

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8. Learned counsel for the original Plaintiffs submitted that

the impugned orders need not be interfered with. Stay is operating

since 2017 and, therefore, it is not necessary to vacate that stay. He

relied on the observations of the Hon'ble Supreme Court in the

case of Bachhaj Nahar Versus Nilima Mandal and another 1. He

relied on paragraph-19 of the said Judgment wherein it was

observed that, a dominant owner seeking any declaratory or

injunctive relief relating to an easementary right shall have to

plead and prove the nature of easement, manner of acquisition of

the easementary right, and the manner of disturbance or

obstruction to the easementary right. Learned counsel for the

Plaintiffs submitted that, there are no such pleadings by the

present Petitioners. Therefore, they have no case. He further

submitted that, the action brought out by the Petitioners before the

Mamlatdars' Court was barred by limitation and, therefore, that

order was not binding. He further submitted that, in any case, that

order is under challenge in the civil suit.

9. I have considered these submissions. It is made clear

1 (2008) 17 Supreme Court Cases 491

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that, today I am only considering the question of interim relief. All

the questions raised by both the sides will obviously be dealt with

and decided by the civil court at the final stage of the suit. The suit

is at the stage of recording of evidence on behalf of the Plaintiffs.

All these questions, will have to be finally decided when both

parties lead their evidence and both of them are given sufficient

opportunity for the same. Today I am only considering whether the

Petitioner's claim is frivolous or whether they deserve some

protection till the decision of the suit.

10. The Trial Court while deciding the interim application

has observed in paragraph-8 that the Petitioner i.e. Defendant No.1

in the suit want to have access to his property through the

property of the Plaintiffs by using common way situated on the

property of the Plaintiffs. It was observed that the Defendants were

claiming way for certain area where there was no way seen and as

such, it required creation of way for the defendants through

Survey No.65/3. Learned counsel for the plaintiff relied on this

particular observation.

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11. Learned counsel for the Petitioner, on the other hand,

referred to the observation made in paragraph-10 wherein, it was

observed that, from the factual aspect of the case it appeared that

the Defendant (present Petitioner) wanted to create way to their

property which may deprive the Plaintiff of the portion of their

property because that portion of the property which may be used

as access way could not be brought under cultivation.

12. Learned counsel for the Petitioner submitted that, this

particular observation is erroneous. At no stage the Petitioner had

claimed creation of a new way. There was no question of the

plaintiffs suffering from any loss by creation of way depriving them

of their land from cultivation.

13. In this context, it is necessary to refer to the operative

part of the Tahsildar's order, wherein, it was mentioned that the

obstructions which were placed in the way were to be removed. It

nowhere states that, a new way was to be created. To that extent,

submissions of learned counsel for the original Plaintiffs is not

acceptable. The Appellate Court has merely confirmed the

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observation of the Trial Court.

14. Considering all these aspects, it does appear that the

Defendant No.1 i.e. the present Petitioner did have an order of the

Tahsildar in his favour. It is obvious that, ultimately, all the issues

will have to be decided by the Trial Court, but at this stage, order

of the Tahsildar cannot be totally ignored. Both the learned

Judges, in the Trial Court, as well as, in the Appellate Court have

not given due consideration to the order passed by the Tahsildar,

which was confirmed by the S.D.O., in arriving at their conclusion

in the interim application and the Appeal respectively. In this view

of the matter, I am of the opinion that, till the suit is decided,

operation of the Tahsildar's order can continue.

15. Hence, the following order:

ORDER

i) The order passed by the District Judge, Nashik in

M.C.A.No.12 of 2018 on 09/10/2021 confirming

the order passed by 2nd Jt. C.J.J.D., Nashik Road,

Nashik below Exhibit-5 in Regular Civil Suit

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No.104 of 2017, dated 19/12/2017, is set aside.

ii) The hearing of the suit is expedited. The Trial

Court is directed to conclude and decide the suit

within two months from today. Both the parties

shall co-operate with early disposal of the suit.

iii)Till then, the order passed by the Tahsildar on

31/07/2017 in case No.7 of 2016 on his file shall

continue to operate.

iv) With these observations the petition is disposed

of.

v) The Trial Court shall not be influenced by any of

the observations made in this order while

deciding the suit.

(SARANG V. KOTWAL, J.)