Shri Ramesh Fondu Borkar vs Shri Govindnath Devalaya

F.M. Reis, J.—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.

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.

On the other hand, Shri S.D. Lotlikar, learned Senior Counsel appearing for the respondent has supported the impugned orders. Learned Senior Counsel pointed out that both the Courts below on the basis of material on record and in exercise of its discretionary jurisdiction have come to the conclusion that the petitioner has failed to establish his right of access through the property of the respondent. Learned Senior Counsel further pointed out that both the Courts below on the basis of appreciation of evidence have 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 impugned orders are upheld. Learned Senior Counsel further pointed out that the Courts below have also noted the fact that the petitioner was also a party to the resolution of the Committee of the respondent to the effect that the compound wall is to be constructed for the security of the temple. Learned Senior Counsel further pointed out that in case such compound wall is not constructed at the site it will affect the security of the temple which is the concern not only of the respondent but also of the devotees and the visitors to the said temple. Learned Senior Counsel, as such, submitted that no interference is called for in the impugned orders and, as such, the above petition deserves to be rejected.

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.

But however, dealing with the contention of Shri Pangam, to the effect that the alternate access found by the Courts below is not convenient and/or not appropriate for the purpose of going to the main road, I called upon the learned Senior Counsel appearing for the respondent to identify such alternate way to proceed to the main road without prejudice to the rights and contentions of the parties. Accordingly, a plan has been produced by Shri Lotlikar, learned Senior Counsel appearing for the respondent, duly signed by the President of the respondent depicting the alternate access marked by letter ''X'' in red colour to proceed to the PWD road which is located on the south eastern side of the residential house of the petitioner. Shri Pangam, learned Counsel appearing for the petitioner has duly inspected the said plan tendered by Shri Lotlikar, learned Senior Counsel appearing for the respondent. The said plan is marked ''Y'' for identification. Shri Pangam, learned Counsel appearing for the petitioner raises the grievance to the effect that the steps depicted in the said plan to proceed to the main road do not exist at the site, but however, Shri Lotlikar, learned Senior Counsel upon instructions states that such steps do exist and the same are used by the other locals to come to the main road. The said statement of learned Senior Counsel is accepted.

Considering the facts and circumstances of the case, no case is made out by the petitioner to call for any interference in the impugned order, but however, without prejudice to the rights and contentions of the parties in the suit the respondent shall provide the petitioner unobstructed access through the alternative way as depicted by letter ''X'' in the plan marked ''Y'' for identification pending the hearing and final disposal of the suit. Liberty is given to the petitioner to apply to the learned trial Judge in case of any difficulty in using the said access. Subject to the above, I find no reasons to interfere in the impugned orders. Petition stands disposed of accordingly. Considering the nature of the dispute the learned Civil Judge Junior Division at Ponda is directed to dispose of the Regular Civil Suit No.8/2011/B as expeditiously as possible preferably within one year.