KESHAV VITHOBA KHATDEO, Vs. GOPAL SAKHARAM MUNDARE (DELETED),

JUDGEMENT

(1.) THIS second appeal was not board. However, Appeal From Order No. 99/2013 is on today's admission board at Sr. No. 22. Mrs. Deshpande, learned counsel for the appellants, commenced her arguments on A.O. No. 99/2013 and during the course of hearing it was noticed that the result of this A.O. depends fully upon the result of Second Appeal No. 426/99. That being so, with the consent of learned counsel for both the parties, present A.O. as well as S.A. were posted for final hearing and disposal at 2.30 p.m. and accordingly both the appeals have been heard together. Since result of A.O. No. 99/2013 depends on the result of S.A. No. 426/1999, I have taken the said appeal for hearing and disposal first. Upon hearing learned counsel for the rival parties, I find that the following substantial questions of law will have to be reframed since the question of law framed on 20.12.2001 in the light of the arguments advanced before me do not arise. Hence, following substantial questions of law are reframed:

(2.) PERUSED the impugned judgments recorded by the courts below. Heard learned counsel for the rival parties. It is not in dispute that none of the parties relied on any revenue documentary evidence for showing the way over Dhura of survey no. 28 belonging to the appellants -plaintiffs. Since according to the plaintiffs, there was no such right of way over Dhura there was no question of plaintiffs bringing on record any such revenue entries or revenue records but then the courts below have criticised the appellants -plaintiffs for claiming negative declaration. When it was the case of the plaintiffs that there was no way over Dhura of the plaintiffs, the plaintiffs obviously required an order of injunction against the defendants which cannot be described as 'negative declaration'. Be that as it may.

(3.) THERE is one more reason why the civil court should not have done so. The reason is that the job of finding out right of way in wajib -ul -arz or in any other manner or removal of obstruction from the existing right of way or for enquiring into and deciding the claims for right of way over the boundaries of other survey numbers or to decide such claims having regard to the needs of cultivators for reasonable access to their field is, in my opinion, an expert job and perhaps the Civil Court may not be equipped with such an expertise. That is the reason why, in my opinion, creation of such right and enquiring into such rights deciding such right or claims even for reasonable access or over the boundaries for that matter should be left to the land and survey and revenue officers who do have expertise in their working. It is, in this context, I quote section 143 of the Maharashtra Land Revenue Code, which reads thus: