Failure to prove the existence of a customary road, obstruction created beyond the statutory period, and failure to consider the observations of the Civil Court led to the quashing of the impugned orders.

JUDGMENT

Nitin B. Suryawanshi, J. - Rule. Rule made returnable forthwith. Heard finally by the consent of the parties.

2. This petition is directed against the order dated 26-07-2021 passed by the Tahsildar, Kopargaon, in Rasta Case (Re-Inquiry) No.152/2021 (Old Rasta Case No.03/2019), which is confirmed by the Sub-Divisional Officer, Shirdi Division, Shirdi, in Revision application No.230/2021.

3. The respondent Nos. 1 and 2 filed Rasta Case No.03/2019 before the Tahsildar, Kopargaon, under Section 5(2) of the Mamlatdar's Courts act, 1906 (for short 'the act, 1906') claiming that for approaching their land Gut No.58 there was a road on common Bandh of lands bearing Gut No.62/5 and Gut No.57. It is obstructed by the petitioners and respondent Nos. 3 to 6 by putting sand, stones and constructing a shed. Hence, they prayed for removal of the obstruction and clear 12 feet road.

4. Site inspection was conducted on 30-05-2019 wherein it was found that the owner of Gut No.57 had installed iron angles abutting to the boundaries. Though alternate road was tried to be shown from Gut Nos. 60 and 59, however, on that day no access road was found for Gut No.58. On 20-07-2019 the Tahsildar granted temporary injunction in favour of respondent Nos. 1 and 2.

5. The petitioners and two others (respondent Nos. 3 and 5 herein) filed Regular Civil Suit No.120/2019 against the Collector, ahmednagar, Tahsildar, Kopargaon and Circle Officer, Pohegaon, Tq. Kopargaon, as well as the respondents seeking injunction against the defendants that they should not create a road from the plaintiffs' field and they should not obstruct the peaceful possession of the plaintiffs, so also, they should not make any encroachment in the suit property i.e. Gut No.62/5. The Civil Court by a detail order injuncted defendant No.2 (Tahsildar) from acting upon the interim order dated 20-07-2019 passed in Rasta Case No.03/2019. Further injunction is granted against the defendant Nos. 4 and 5 (i.e. respondent Nos. 1 and 2 herein) and/or any one on their behalf, thereby restraining them from creating encroachment over the suit property, as well as causing hindrance to the plaintiffs from peaceful enjoyment of the suit property i.e. Gut No.62/5, till final disposal of the suit. The Tahsildar was granted liberty to proceed further with the Rasta Case No.03/2019 in accordance with law.

6. The Tahsildar vide order dated 20-07-2020 allowed the Rasta Case No.03/2019 filed by respondent Nos. 1 and 2 and directed to give respondents 10 feet wide road from western side of Pohegaon Ves road and North Bandh boundary of Gut No.62/5 to approach Gut No.58, by removing obstructions. The said order was challenged by filing revision before the Sub-Divisional Officer, who initially stayed the order of Tahsildar and subsequently partly allowed the revision and remanded the matter back to the Tahsildar. after remand the Rasta case No.03/2019 is re-numbered as Rasta Case (Re-Inquiry) No.152/2021.

7. after remand, site inspection was conducted by the Tahsildar on 23-03-2021. The Tahsildar by the impugned order dated 26-07-2021 allowed the application and directed to remove obstructions and give 10 feet wide road to the respondents for going to Gut No.58 from northern boundary of Gut No.62/5 and southern boundary of Gut No.57, by removing trees, constructions, iron poles, etc. The said order is confirmed by the Sub-Divisional Officer in the revision. Hence, the present petition.

8. Heard the learned advocate Mr. R. L. Kute for petitioners, learned advocate Mr. V. H. Dighe for respondent Nos. 1 and 2, learned assistant Government Pleader Mr. S. B. Pulkundwar for respondents State at length. Perused the documents placed on record by the respective parties.

9. The record reveals that during the inquiry in Rasta Case No.03/2019 the site inspection panchanama was prepared, so also, the statement of witnesses were recorded, who were cross-examined before the Tahsildar. In the first panchanama conducted on 30-05-20