Bombay High Court

Chhagan Sarjerao Garad vs The State Of Maharashtra Through ... on 6 February, 2024

2024:BHC-AUG:2564

                                                                                 WP 632/24
                                                    1


                                   IN THE HIGH COURT AT BOMBAY
                               APPELLATE SIDE, BENCH AT AURANGABAD

                                    WRIT PETITION NO. 632 OF 2024

                     Chhagan s/o. Sarjerao Garad,
                     Age 76 yrs, Occu. Agri.,
                     R/o. Chinchpur (Kh), Tal. Paranda,
                     Dist. Osmanabad.                           ....Petitioner

                           Versus

            1.       The State of Maharashtra,
                     Through Collector,
                     Collector Office, Osmanabad.

            2.       Tahsildar,
                     Tahsil Office, Paranda,
                     Tal. Paranda, Dist. Osmanabad.

            3.       Executive Engineer,
                     Maharashtra Rural Development Institute,
                     Chief Minister, Pradhan Mantri Gramsadak Sadak Yojna,
                     Amalbajawani Pathak Karyalaya, Behind Z.P. Shopping
                     Center, Near City Police Station,
                     Tal. & Dist. Osmanabad.                          ....Respondents

                                                   ...
                            Mr. Sandeep Y. Mahajan, Advocate for petitioner.
                                  Mr. V.M. Chate, AGP for respondents.
                                                   ...

                                              CORAM       : ARUN R. PEDNEKER, J.
                                              Dated       : 06/02/2024

            ORDER :

1. By the present writ petition, the petitioner is challenging the

judgment and order dated 2.1.2024 passed by the learned District Judge-1,

Paranda in Misc. Civil Appeal No. 42/2023, which was filed against the order

on temporary injunction application, Exh. 5, in R.C.S. No. 15/2023. The

temporary injunction application was allowed by the trial court and the

same was set aside by the impugned judgment and order of the appellate

Court.

2. The facts of the case of the petitioner can be summarized as under :-

Petitioner is the original plaintiff, who has filed R.C.S.No. 15/2023 in

the Court of Civil Judge, Senior Division, Paranda against the present

respondents/defendants i.e. State of Maharashtra and it's authorities,

seeking declaration of ownership and perpetual injunction over the suit

property. It is the case of the plaintiff that he is the owner and possessor of

the suit property bearing Gat No. 371, admeasuring 2 H. 69 R. land situated

at village Chinchpur, Taluka Paranda, District Osmanabad. The defendants

are constructing Chinchpur Manik Nagar rural road from the north portion

adjoining to the boundary of the suit property. There is house of plaintiff in

north-east corner of the suit property. So also there is a well in the northern

portion of the suit property. It is submitted that there is no rural way

through the suit property, however, without acquiring any portion of the suit

property, the defendants are illegally trying to construct rural road through

the northern portion of the suit property and an attempt is made to

dispossess the plaintiff from the northern portion of the suit property. As

such, the plaintiff was constrained to file suit for temporary injunction

restraining defendants or anybody claiming through them from obstructing

the peaceful possession of the plaintiff over the suit property.

3. After the suit summons were issued, defendants/respondents herein

appeared in the suit and filed their written statement and denied all the

contentions raised by the plaintiff in the suit. The respondents submits that

there is Chinchpur-Manik Nagar Rural road and the said road is owned by

Zilla Parishad Construction Department and the construction work of the

said road is sanctioned under 'Pradhan Mantri Gram Sadak Yojana'. The

defendants contended that the said road is in existence since long and

defendants are not making any illegal construction and prayed for dismissal

of the suit.

4. After hearing both sides and considering the documentary evidence

placed by both the sides, on 5.9.2023 the trial Court allowed the application

below Exh. 5 filed by the present petitioner and temporarily restrained the

respondents/defendants from interfering in the peaceful possession of the

plaintiff over the suit property.

5. Being aggrieved and dissatisfied by the order dated 5.9.2023 passed

by the trial Court below Exh. 5 in R.C.S. No. 15/2023, defendants preferred

Misc. Civil Appeal No. 42/2023 before the District Court. District Court, by

it's impugned order dated 2.1.2024 allowed the appeal of the respondents.

Hence, the same is challenged by filing the present writ petition by the

plaintiff/petitioner.

6. Mr. Mahajan, learned counsel for the petitioner has taken me through

the judgment and order of the appellate court and draw my attention to the

points and it's findings rendered by the appellate court, which are as

under :-

Sr.                          Points                             Findings
No.
1)    Whether plaintiff has established prima-facie      ...      Yes.
      case in his favour ?
2)    Whether balance of convenience lies in favour of   ...      No.



     plaintiff ?
3)   Whether plaintiff has established that, in case of   ...      Yes.
     refusal of injunction irreparable loss will be
     caused to him ?
4)   Whether impugned order is legal and proper ?         ...       No.
5)   Whether impugned order calls for interference ?      ...      Yes.
6)   What order ?                                         ...   As per final
                                                                  order.

7. The learned counsel for the petitioner has further taken me through

para No. 13 and submitted that panchanama dated 10.4.2023 was prepared

in presence of Dy. S.L.R., Paranda and witnesses. Both the parties relied

upon the panchanama dated 10.4.2023 and the panchanama reveals that

the road passes through Gat No. 381 for some distance and through the

boundary of Gat No. 381 and 371 for some distance. The learned counsel

submits that the road passes through the boundary upon Gat No. 381 and

not from the property of the petitioner i.e. Gat No. 371. The learned counsel

has shown me the map which is at page No. 54 of this writ petition to

contend that the village map shows that road is passing through the

property of Gat No. 381 and not from the property of the petitioner i.e. Gat

No. 371. The learned counsel submits that the portion of the property

owned by the plaintiff i.e. Gat No. 371 is taken over by the respondent

authorities without acquisition of the same and as such, he prayed to direct

the respondents/State authorities to either acquire the portion of land from

Gat No. 371 of plaintiff and thereafter, only permit the respondents to

construct the road through the petitioner's land.

8. Per contra, Mr. V.M. Chate, learned A.G.P. appearing for the

respondents/State authorities has filed an affidavit and has submitted that

the petitioner had filed an application under section 5 of the Mamlatdar

Courts Act, 1906 to the Tahsildar, Paranda, contending that some of the

person have obstruction road which is in existence to use for the land Gat

No. 371, 372, 373, 375 and 376 and in the said proceedings, the learned

Tahsildar Paranda passed the order confirming that the road is in existence

for use of Gat Nos. 376, 371, 372, 373 and 381. The learned AGP submits

that the petitioner himself has got measured the land from D.S.L.R. Office,

Paranda for confirmation of the road passing through the lands Gat Nos.

371 and 381. The map prepared by the Deputy Superintendent of Land

Records, Paranda is also produced on the record. The learned AGP submits

that no new road is prepared and that existing road is developed.

9. Considered the rival submissions and perused the documents, more

particularly, the map produced and also the order passed by the Tahsildar,

Paranda. The findings as regards the existence of pathway is rendered by

the appellate Court at para No. 14. The relevant portion is as under :-

"14 ..........The existing way is through the common boundary of land Gat No. 381 and 371. Under such circumstance, at this stage, it cannot be said that defendants are changing the route of the way while developing rural road."

The findings of the appellate Court is that the existing way is through the

common boundary of lands Gat Nos. 381 and 371 and it cannot be said that

defendants are changing the route of the way by developing the road.

10. The evidence produced on record shows that there is road in

existence for long period of time and the said road is shown in the map

which is passing through the boundary of Gat Nos. 371 and 381 and the

petitioner has also moved an application under Mamlatdar Courts Act for

removal of obstruction from the said road. Thus, it cannot be said that there

is no road in existence towards northern side, in between Gat Nos. 371 and

381. As such, the appellate court has rightly refused the injunction against

the plaintiff as the existence of the road is prima facie established by the

respondents/State authorities and the same is upgrated under the Pradhan