RAMESH FONDU BORKAR Vs. GOVINDNATH DEVALAYA

JUDGEMENT

(1.) HEARD Shri Pangam, learned Counsel appearing for the petitioner and Shri S.D. Lotlikar, learned Senior Counsel appearing for the respondent. The above petition challenges the orders passed by the filed by the petitioner in the suit filed by the petitioner against the respondent claiming the right of access through the property of the respondent came to be rejected. The Courts below while passing the impugned orders have come to the conclusion that the petitioner has prima facie failed to establish any right of access claimed by him through the property of the respondent. The Courts below have also on the basis of the material on record have come to the prima facie conclusion that the petitioner has an alternative access to go to the main road.

(2.) SHRI Pangam, learned Counsel appearing for the petitioner has assailed the impugned order and pointed out that the Courts below have erroneously exercised its jurisdiction in rejecting the application filed by the petitioner inasmuch as the Courts have failed to consider that the petitioner has no alternative access. He further pointed out that the suit access was the only access available to the petitioner to go to the main road. Shri Pangam, learned Counsel appearing for the petitioner has also brought to my notice the photographs of the site and pointed out the manner in which the petitioner was using the suit access after passing through the main area adjoining to the temple. Learned Counsel further pointed out that the Courts below have erroneously come to the conclusion that the petitioner has an alternative access as according to him no such alternative access exists nor such access can be found at the site. Learned Counsel further pointed out that the petitioner has prima facie established his right of way to proceed through the property of the respondent by the suit access and, as such, the petitioner is entitled for an injunction as prayed for by the petitioner. Learned Counsel, as such, submits that the impugned orders deserve to be quashed and set aside and the application filed by the petitioner for temporary injunction be allowed.

(3.) HAVING heard the learned Counsel and on perusal of the record, I find that the Courts below after appreciating the evidence on record and taking note of the fact that the petitioner was a party to the resolution of the Committee of the respondent to construct the compound wall, have dismissed the application filed by the petitioner for temporary injunction. The Courts below have minutely examined the material produced by both the parties and have prima facie come to the conclusion that the petitioner has failed to establish his right of access through the property of the respondent. The Courts below have also prima facie come to the conclusion that the petitioner has an alternative way to proceed to the main road and, as such, no prejudice shall be occasioned to the petitioner in case the compound wall is constructed by the respondent. The Courts below have also noted the fact that there are other residential houses in the vicinity of the residential house occupied by the petitioner and have found that the inhabitants there are using the alternative access to go to the main road. These findings of the Courts below on the basis of material on record cannot be reappreciated by this Court under Article 227 of the Constitution of India.