Mamlatdar empowered to grant injunction against use of road or customary way, inquiry focused on existence of way, not comparison with claimed way

R.K. Deshpande, J.

1. The Mamlatdar, in exercise of its power under Section 5(2) of the Mamlatdar Courts Act, 1906, passed an order on 31.05.1996, restraining the plaintiffs from obstructing the cart way used by the defendants from the boundary of Gat No. 12 and 13 belonging to the plaintiffs. The plaintiffs aggrieved by it, filed Regular Civil Suit No.213 of 1996 for declaration that the order passed by the Mamlatdar on 31.05.1996 is not legal, proper and binding upon the plaintiffs. The plaintiffs further claimed a decree for permanent injunction restraining the defendants from using a way from Gat Nos. 12 and 13. The trial Court by judgment and order dated 28.11.2000, dismissed the suit filed by the plaintiffs. The appellate Court by judgment and order dated 24.02.2004 allowed the appeal filed by the plaintiffs. Hence, the defendants are in this second appeal as appellants.

2. On 06.07.2004, this Court admitted the second appeal and passed an order as under, framing the substantial questions of law.

"Admit on the following substantial questions of law.

[1] Was the learned Appellate Judge justified in reversing the finding recorded by the trial Court just because it entertained second opinion about the matter.

[2] Is the learned Appellate Judge justified in relying on the alternate way created by neighbouring land owners when the way available to the neighbouring land owners is immediately appurtenant to the property while the said access was not all comparable with that of the right of way claimed by the defendants.

C.A. No. 3031/04

Learned Advocate Mr. Saboo who appears for the respondent No.1 caveator pray for time to reply and for hearing on this application. Request is granted. However, there shall be ad interim stay. Stand over for four weeks for reply and hearing on this application."

3. The plaintiffs are the owners of Gat No. 12 and 13, whereas the defendant is the owner of Gat No. 10 and 11, which are adjacent to the southern boundary of Gat Nos. 12 and 13. To the southern boundary of Gat Nos. 10 and 11, there is Gat No.9 and adjacent to it on the southern boundary is the gairan road flowing from East to West. On the northern side of Gat Nos. 12 and 13, Shegaon Patudra road touches the boundary. It is from that road, right of way from North to South was claimed by the defendants to Gat Nos. 10 and 11, through the dhura of Gat Nos. 12 and 13.

4. The Mamlatdar conducted the spot inspection and recorded the finding that there existed such a road from Gat Nos. 12 and 13 as approach way to the field Gat Nos. 10 and 11. Before the trial Court, both the parties examined the witnesses. PW4 Digambar Kashinath Kulkarni examined by the plaintiffs has proved the plaint map at Exh.49. The Court Commissioner appointed under 29, Rule 9 of C.P.C., submitted his report on 15.02.2000 at Exh.67 along with which a map prepared by him was enclosed. The trial Court considered the oral evidence of the witnesses and recorded the finding that the way was established by the defendants from Gat Nos. 12 and 13 belonging to the plaintiffs.

5. The lower appellate Court also considers the evidence of the witnesses and the reports at Exh.49 and 67, to reverse the findings recorded by the trial Court and to pass a decree holding that the order passed by the Mamlatdar under Section 5 of the Mamlatdar Courts Act was illegal, improper and it was quashed and set aside. The appellate Court granted the injunction restraining the defendants from using the way in terms of the order passed by the Mamlatdar.

6. Sub-Section (2) of Section 5 of the Mamlatdar Courts Act, 1906, empowers the Mamlatdar to pass an order of injunction against the persons prohibiting the use of road or customary way and to remove any obstruction or impediment created therein. What the Mamlatdar is required to see is that there exists a way or a customary way in use, to grant the relief. The trial Court considered the evidence of PW4 Digambar Kulkarni, who prepared map at Exh.49 (plai