Bombay High Court
Durga Wd/O Tanba Thaware And Others vs Parasram S/O Shiva Marskole on 9 July, 2025
2025:BHC-NAG:6443
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N THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 6930 OF 2022
1. Smt. Durga wd/o. Tanba Thaware,
Aged about 52 years, Occu.: Cultivator,
2. Sau. Subhangi w/o. Prakash Khobragade,
Aged about 28 years, Occu.: Household,
Resident of - 18, Shastri Ward, Balaghat
(M.P.).
3. Vivek s/o. Tanba Thaware,
Aged about 26 years, Occu.: Cultivation,
4. Shashik s/o. Tanba Thaware,
Aged 23 years, Occu.: Student,
No. 1, 3 & 4 are resident of -
Petrol Pump (Thana), ... PETITIONERS
Tahsil & District - Bhandara. (Ori. Plaintiffs)
...VERSUS...
Parasram s/o. Shiva Marskole,
Aged 60 years, Occu.: Cultivation,
Resident of Pimpalgaon, ... RESPONDENT
Tahsil & District - Bhandara. (Ori. Defendant)
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Mr. A. V. Mule, Advocate for the Petitioners.
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CORAM : MRS. VRUSHALI V. JOSHI, J.
JUDGMENT RESERVED ON : 02.07.2025
JUDGMENT PRONOUNCED ON : 09.07.2025
JUDGMENT :
1. Rule. Rule is made returnable forthwith. Heard finally by
consent of learned Counsel appearing for the parties.
2. The petitioners, who are the plaintiffs in Regular Civil Suit
No.141/2018 have challenged the order dated 02.02.2019 passed by the
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2nd Joint Civil Judge Junior Division, Bhandara thereby rejecting the
application for temporary injunction and the order dated 25.10.2021
passed in Miscellaneous Civil Appeal No.10/2019 rejecting the appeal
preferred by the petitioners challenging the order dated 02.02.2019
passed by the 2nd Joint Civil Judge Junior Division, Bhandara for grant of
temporary injunction.
3. It is the case of the petitioners that they have challenged
the order of Niab Tahsildar, who has granted the way to the respondent
from his field. The petitioners have filed the suit for Declaration and
Permanent Injunction vide Regular Civil Suit No.141/2018 against the
respondent. As per the contentions of the plaintiffs/petitioners, the
respondent has no right to pass through the field Gat No.5/6, area 1.03
H.R. of village Pimplgaon, Tahsil and District Bhandara. The Niab
Tahsildar has passed the order under Section 143 of the Maharashtra
Land Revenue Code, 1966 and granted way through the field which is
illegal as the Niab Tahsildar can grant the way only over Dhura and,
therefore, the petitioners have filed the suit for quashing and setting
aside the said order. The respondent has filed the Written Statement and
his defence was that since last 20 years, he has right by way of easement.
Initially, the ex parte injunction was granted to the petitioners.
4. After hearing both the parties, the temporary injunction
below Exhibit-5 was rejected. The respondent has stated that he is in
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possession of the field as he has received the field in Ceiling and since
1992, he is using the said way. In 1996, the petitioners had purchased
the adjacent property and in 2016 restrained the respondent to use the
way which he was using since 1992.
5. The learned Counsel for the petitioners has stated that, there
is no material placed on record to prima facie show that he is using the
way through the field of the petitioners. The report of Tanta Mukti
Samiti is not supporting the case of the defendant and it is not mentioned
that the way from the field of the plaintiffs is used since 1996. As the
Naib Tahsildar has no power to grant the way from the field, the
petitioners have filed this petition challenging the order passed by the
Principal District Judge, Bhandara in Misc.Civil Appeal No.10/2019.
6. It is an admitted fact that the Dhura which is from Gat
No.5/6 was used by the defendant. Niab Tahsildar, Bhandara allowed
the defendant to use the way from Dhura in Gat No.5/6 without
damaging the crop. According to the plaintiffs, the alternate way is
available to the respondent-defendant. The learned District Judge has
rightly observed that under Section 143 of the Maharashtra Land
Revenue Code, 1966, the Tahsildar can enquire into and decide the claim
of the person holding the land in Survey number to confer a right of way
over the boundaries of other survey numbers. The petitioners have not
filed on record the report of Tanta Mukti Samiti. It is not disputed that
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the petitioners have purchased the land in 1996 and till the month of
June, 2016, there was no any dispute for the utilization of the way or
path. It is the grievance of the petitioners that the defendant/respondent
tried to destroy Dhura and prepared new way or path by using a Tractor
in June 2016 and therefore, filed a Civil Suit. It appears that the
petitioners have purchased the adjacent land in 1996. Since then they are
cultivating the land. The dispute in question arose in 2016 and, therefore,
the period from 1996 to 2016 of 20 years has to be considered. There is
no stay to the order passed in appeal and the respondent is using the way
during the pendency of this petition. To prove the right over the way, it is
necessary to consider the oral and documentary evidence, whether Naib
Tahsildar has passed the order beyong his jurisdiction by allowing the
respondent to use the way near Dhura, will be considered after evidence
only. At this stage, no harm will cause to the petitioners if the injunction
is not granted during the pendency of the Civil Suit. Hence, the writ
petition is dismissed.
Rule is discharged.
(MRS. VRUSHALI V. JOSHI, J.)
Signed by: Mrs.RGurnule
R.M. MANDADE
Designation: PA To Honourable Judge
Date: 09/07/2025 17:06:17
