BHAU MANGESH WAGLE Vs. AHMEDBHOY HABIBBHOY

JUDGEMENT

(1.) In this case a rule was issued by Mr. Justice Batty on the 24th December 1905, calling upon the defendants to show cause why the Mamlatdar s order should not be reversed, and the case sent back for re-trial on the merits on the ground that the facts calling for the exercise of his jurisdiction having been alleged, the Mamlatdar refused to inquire into them.

(2.) Now the first thing to do is to consider the nature of the claim set out in the plaint. The plaintiff alleges that at a place called Kanheri, in the Than a District, there are two pieces of land belonging to him: on a piece of land towards the north he has got his house, to the south of that there is a piece of land belonging to the first defendant, and to the south of that again is a field of the plaintiff: and the plaintiff says that for a considerable period of time, for many years, up till the 29th of April last, that is, 1905, he was in the habit of going to and fro through the piece of land belonging to the first defendant between the plaintiff s two pieces of land that I have mentioned. Then he says (after mentioning some police proceedings and magisterial proceedings which we need not go into) that the defendants have wrongfully closed his right of way ; and, according to his allegation, the defendants put a shed across the north end of this passage and put a cactus fence across the south end of it; and, under these circumstances, he says the defendants have closed the above-mentioned passage and stopped the enjoyment thereof; and he prays that the Court may order the defendants to remove the said cactus and the said shed and make the plaintiff s passage clear or unobstructed as before.

(3.) Now it appears that at the trial the Mamlatdar raised the following issues :-