Dattu Pandurang Malode v. Ramnath Fakira Malode And ORS

JAYARAJAN ANJAKULATH NAIR Date: 2022.01.14 14:05:41 +0530 JAYARAJAN ANJAKULATH NAIR 1/4 09 WP-8247.21.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8247 OF 2021 Dattu Pandurang Malode ... Petitioner Vs.

Ramnath Fakira Malode & Ors.

... Respondents ...

Mr. Pradeep J. Thorat for the petitioner.

Mr. Sachin Gite for respondent Nos.1 to 3.

Mr. Atul Vanarse, A.G.P. for the State.

...

CORAM

: RAVINDRA V. GHUGE, J.

DATED : 07TH JANUARY, 2022.

P.C. :- 1.

This matter was heard for quite some time on 04/01/2022. The map dated 28/05/2019 prepared by the Tahsildar's office, Nashik, which is placed on record at page 22 of the petition paperbook, was referred to. It was, therefore, obvious, that the lands owned by the petitioner and the respondents formed four checks in one square. Two opposite checks, bearing Survey Nos.15/3 and 15/5 are owned by the petitioner. Similarly, two checks of the

2/4 09 WP-8247.21.odt lands are owned by the respondents bearing Survey No.15/2 and 15/4. For ready reference, a sketch of these four portions forming four checks, in one square, is prepared as under: S.No.15/3 S.No.15/2 [Owned by the [Owned by petitioner.] respondent No.1] S.No.15/4 S.No.15/5 [Owned by [Owned by the respondent No.1.] petitioner.] 2.

Considering that the two parcels of the land of the petitioner forming two checks, are diagonally opposite each other, and the same is the situation of two parcels of the land of the respondents, as such, a plus sign ('+') formation between the four checks is formed. The respondents have erected a fencing between Survey Nos.15/2 and 15/3, between 15/4 and 15/3 and between 15/2 and 15/5. Consequentially, the petitioner's two parcels of land have virtually got locked and the access between them, which was at a distance of about 5 to 10 feet, has been closed. 3.

All these litigating parties are blood relatives. I, therefore, called upon the learned advocate for the respondents to take instructions, as to whether the fencing could be removed at least, to create a cart way, so that, all the four parcels of land are connected to each other, through such cart way, which all the parties could utilize.

3/4 09 WP-8247.21.odt 4.

The learned advocate for the respondents states, on instructions, that a road with the width of 9 meters be permitted so that 41⁄2 meters of land of either land owners could be consumed for preparing such road. The learned advocate for the petitioner submits that since these are small portions of agricultural field, 41⁄2 meters of land would consume a large portion of his agricultural field. Earlier, as there was a cart way, if the fencing is to be removed or if the opening of the fencing is at the junction of these four parcels of land, a centre point '+' is made, and the width of about 10 feet would be enough for all the parties to access the cart way so as to connect their two portions of land, situated diagonally opposite.

5.

I find that though the respondents have agreed for opening the fencing, so as to enable the petitioner to travel in between Survey Nos.15/3 and 15/5 and, so also, enable the respondents to use the same opening to connect Survey Nos.15/2 and 15/4, the suggestion made by the petitioner is more reasonable. 6.

In view of the above, this petition is partly allowed. Both the impugned orders are modified as follows:

(a) The respondents, who are owners of Survey Nos.15/2 and 15/4 are at liberty to either remove the entire fencing or create an opening in the

4/4 09 WP-8247.21.odt fencing at the junction of these four parcels of land, so as to enable all the parties to use that opening for moving their bullock carts/tractor connecting each of their land.

(b) To facilitate a peaceful implementation of this order, I deem it appropriate to direct the Tahsildar, Nashik (respondent No.4 herein) to reach the spot of the suit lands on 21/01/2022 at 11.00 a.m. and monitor the opening of the fencing to create an opening with a width of 10 feet, to enable the parties to use the opening as a cart way. All the litigating parties shall remain present at the site on 21/01/2022 at 11.00 a.m.

(c) All the litigating parties, being blood relations, would use the said opening peacefully and without obstructing each other.

[RAVINDRA V. GHUGE, J.]