JAGLAL PREMLAL JAYASWAL Vs. WAMAN SHYAMRAOJI DHOBALE

JUDGEMENT

(1.) The original defendants have challenged the concurrent judgments and decrees whereby the suit of the respondents plaintiffs to restrain the appellants from entering the Field Survey No. 35/2 or 35/1-A, from going over the Dhura to reach their Field Survey No. 35/1 of village Temburkheda, came to be decreed with a declaration that the defendants have no such rights.

(2.) The appeal has been admitted for final hearing on 14-3-1992 by raising a question as to whether the Civil Court, in a already instituted suit, can go into the correctness of the decision of Tahasildar under Section 143(3) of Maharashtra Land Revenue Code, which was based on the needs of the cultivators, and whether a fresh suit under Section 143(4) of the said Code was necessary, after the decision of the Tahasildar

(3.) The respondents - plaintiffs filed Regular Civil Suit No. 1 of 1982 on 28-12-1981 for declaration and injunction as mentioned above. The said suit, upon its transfer to the Court of Joint Civil Judge, Junior Division Warud, was renumbered as R.C.S. No. 33 of 1989. The plaintiffs are admittedly the owners of Field Survey No. 35/2 and 35/1-A situated diagonically opposite to each other. The Field Survey No. 35/1 belongs to the original respondents/present appellants. The plaintiffs approached with a grievance that the respondents were not entitled to use their fields or Dhura shown by them as Shiv of village Bembadi on eastern side of Field Survey No. 35/2, and then on its northern side to reach his Field Survey No. 35/1. They contended that there was a regular cart way (Pandhan) from Temburkheda village to Bembadi village, which began from Survey No. 38 of Temburkheda, and passed on western side of Field Survey No. 35/1 and 35/1-A. Between these two fields and said cart way, there is Survey No. 32. Cart way proceeds by western boundary of Survey No. 32, and it was the case of the plaintiffs that the defendants used this way to reach the boundary between the Survey Nos. 31 and 32, and from there, they took a turn towards east (right hand turn) and reached north west corner of their Field Survey No. 35/1. The trial Court after adjudication, decreed the suit of the plaintiffs, and held that the defendants had no such right, and it also held that the plaintiffs proved that the defendants had usual way by Pandhan between Temburkheda and Bembadi. The defendant then filed the Regular Civil Suit No. 112 of 1998, and 2nd Additional District Judge, on 22-6-1992, dismissed the appeal.