GENERAL MANAGER CENTRAL RAILWAY MUMBAI Vs. MEHMOODA SHIKSHAN AND MAHILA GRAMIN BAHUUDESHIYA SANSTHA NAGPUR

JUDGEMENT

(1.) Petitioners before this Court are the defendants in RCS No. 456/2009 and have invoked Article 226 r/w Article 227 of the Constitution of India to challenge the reversing judgment dated 21/1/2010 delivered by the 4th Additional District Judge, Nagpur in MCA No. 230/2009 whereby it has granted temporary injunction to respondent plaintiff. The petitioners, their agents, servants etc. are restrained from obstructing the respondent in using suit road by this appellate judgment. Considering the nature of dispute, I have heard parties finally at the stage of admission itself with their consent by making Rule returnable forthwith.

(2.) On or about 16/6/2009 present respondent filed RCS No. 456/2009 praying for permanent injunction to restrain defendants i.e., petitioners from obstructing their user of suit road. Said road is stated to be situated east west on shivdhura of land bearing survey no. 348 of Mouza Godhani, Tahsil Nagpur Rural, DistrictNagpur. They relied upon the order dated 26/2/2009 passed by the Tahsildar permitting them to use road constructed over lands bearing survey no. 347 & 348 of Mouza Godhani as an approach road to their college. Pursuant to Tahsildar's order, according to them the road has been constructed on shivdhura of land survey no. 348. They pleaded obstruction by defendants on 15/6/2009 by trying to place the barricades and trying to damage that road. Hence they filed the suit for permanent injunction and declaration along with prayer for grant of temporary injunction to continue that user unobstructed by the defendants. The petitioners defendants opposed the suit and temporary injunction by pointing out that the shivdhura does not reach up to the land of plaintiff and they were trying to encroach on portion admeasuring 300 meters in length and 10 meters in width of defendants land for approaching their own property. They pointed out that those lands were acquired for railways on 27/1/1913 and map of lands belonging to them at village Godhani and Lonara is duly approved by the District Inspector of Land Records on 2/3/2002.

(3.) Trial Court has found prima facie case in favour of plaintiff as it noted that Tahsildar has under S. 143 of the Maharashtra Land Revenue Code,1966 allowed it to use LonaraGodhani shivdhura as approach road and said order was not challenged by the defendants. However, it noted the case of the defendants that on southern side of the plaintiff's property the defendant Railway's property was situated and noted that Tahsildar has not granted any right over it. It has found contention of plaintiff that on southern side there existed a Shivdhura of survey no. 348 belonging to State Government baseless in view of the documents placed on record by plaintiff. It relied upon some letters written by or for plaintiff' admitting Railway lands on its southern side and found that it separated LonaraGodhani shivdhura and land of plaintiff. Therefore according to it, no balance of convenience lay in favour of the plaintiff but it tilted in favour of defendants. It also relied upon the affidavit of the defendants and photographs filed by it to prima facie conclude availability of 40 feet wide alternate road to plaintiff from Koradi post till its main gate. The photographs and affidavit were found unrebutted. It therefore did not find possibility of irreparable loss in plaintiff's favour. In impugned judgment dated 21/2/2010, the Appellate Court noted that claim of plaintiff was only in relation to prevention of obstruction by defendants to use of suit road on shivdhura between Khasara or survey no. 347 and 348. It found that admittedly these lands do not belong to Railways and hence, defendants have no right to obstruct user of plaintiff'. It has not accepted the stand of defendants that Shivdhura does not touch the property of plaintiff. Because of these findings, it has allowed MCA No. 230/2009 filed by the plaintiff against rejection of temporary injunction by the Trial Court and granted temporary injunction as sought for.