Sameer Yusuf Shaikh And Anotherq vs Damodhar Vithoba Adhane And ...
2023 Latest Caselaw 10671 Bom

2023:BHC-AUG:22283
                                                     1                        34-WP.12919-23.odt


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        BENCH AT AURANGABAD

                                     34 WRIT PETITION NO.12919 OF 2023

                                  SAMEER YUSUF SHAIKH AND ANOTHER
                                               VERSUS
                                DAMODHAR VITHOBA ADHANE AND OTHERS

                                                      ...
                          Advocate for Petitioners : Mr. Rautray Mahesh Tatyarao.
                              AGP for Respondent/s-State : Mr. S. P. Tiwari.
                                                      ...

                                                CORAM :          S. G. MEHARE, J.

                                                DATE :           16.10.2023

                     PER COURT :-

1. Heard the learned counsel for the petitioners.

2. The petitioners/plaintiffs have impugned the judgments

and orders of the learned 4th Joint Civil Judge Senior Division,

Aurangabad, passed below Exh.5 in RCS.No.434 of 2023,

dated 03.07.2023 and the learned District Judge-4,

Aurangabad in Misc. Civil Appeal No.102 of 2023, dated

06.09.2023.

3. The plaintiffs had filed a suit for permanent injunction

restraining the respondents/defendant Nos.1 to 3 from not

creating any new road in Gut No.40 of village Gadana, Taluka

Khultabad.

2 34-WP.12919-23.odt

4. Learned counsel for the petitioners submitted that the

respondents are trying to create a new road in the suit land

Gut No.40 of the village Gadana. He has referred to the village

map. He also referred to the order of the Tahsildar regarding

the dispute over the way passing through Gut No.40. The

Tahsildar inspected the spot personally and directed that the

plaintiffs shall remove the obstructions in the road running

from north in Gut No.36 and upto Gut No.40 towards the

western boundary marks. The said order was impugned before

Sub Divisional Officer. The appeal of the plaintiffs was also

dismissed.

5. Learned counsel for the petitioners submits that both

Courts did not consider the fact that there was no road in

existence. However, defendants are trying to create a new road

through Gut No.40 or Gut No.45 belonging to defendant No.1.

6. Both Courts considered the facts of the case and

recorded the findings that they were plaintiffs who had

destroyed the approach road available to defendant No.1 from

Gut No.36 as well as plaintiff's Gut No.40. The Trial Court has

considered the inspection report of the Mamlatdar and further

recorded the findings that if the injunction would be granted to

the plaintiffs, defendant No.1 would suffer irreparable loss.

3 34-WP.12919-23.odt

Both Courts on facts, arrived at conclusion that no prima facie

case is made out. The balance of convenience does not tilt in

favour of the petitioners and they would suffer no irreparable

loss, if the temporary injunction as prayed has been refused.

The Court has referred to both the judgments and orders. Both

Courts have considered the facts in detail examined, each and

every paper filed on record and correctly recorded the findings

that it is the plaintiff who had destroyed the road available to

defendant No.1 from Gut No.36 and plaintiffs field Gut No.40.

The findings are supported with the documents. There is no

error apparent on the face of record. There is no scope to

exercise the power under Article 227 of the Constitution of

India. There is no substance in the petition.

7. For the above reasons, the writ petition stands dismissed

at admission stage.

(S. G. MEHARE, J.)

...

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