Bombay High Court
Shri. Dada S/O. Maroti Mahure, Through ... vs Namdeo S/O. Vishwanath Dukare And ... on 8 April, 2026
2026:BHC-NAG:5721
30.sa.487.2019 Judgment.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.487 OF 2019
APPELLANTS :- 1) Shri Dada S/o Maroti Mahure,
Aged about; 75 years Occ; Agriculturist
2) Shri Pundalik S/o Ramaji Porate
Aged about; 75 years Occ; Agriculturist
3) Shri Vikram S/o Damduji Porate
Aged about; 42 years Occ; Agriculturist
4) Shri Dada S/o Pundalik Porate
Aged about; 45 years Occ; Agriculturist
5) Shri Manik S/o Vithobha Dukare
Aged about; 65 years Occ; Agriculturist
6) Shri Mahadeo S/o Zibal Dukare
Aged about; 60 years Occ; Agriculturist
7) Shri Gautam S/o Somaji Teltumbade
Aged about; 55 years Occ; Agriculturist
8) Shri Laxman S/o Deorao Aglawe
Aged about; 55 years Occ; Agriculturist
9) Shri Moreshwar S/o Kisanaji Mahure
Aged about; 50 years Occ; Agriculturist
10) Shri Namdeo S/o Punaji Punwatkar
Aged about; 72 years Occ; Agriculturist
11) Shri Subhash S/o Panjabrao Porate
Aged about; 50 years Occ; Agriculturist
12) Shri Diwakar S/o Ajabrao Porate
Aged about; 50 years Occ; Agriculturist
13) Shri Pundalik S/o Jangalu Porate
Aged about; 60 years Occ; Agriculturist
14) Shri Sahebrao S/o Anandrao Aglawe
Aged about; 48 years Occ; Agriculturist
15) Shri Nago S/o Zibal Dukre
Aged about; 62 years Occ; Agriculturist
30.sa.487.2019 Judgment.odt
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16) Shri Dattu S/o Maroti Ambode
Aged about; 60 years Occ; Agriculturist
All the respondent through its power of
attorney holder Shri Prashant S/o Dadaji
Mahure
Aged about; 42 years, Occ; Agriculturist,
R/o Chinchala, Tq, Deoli, Dist. Wardha
..VERSUS..
RESPONDENTS :- 1) Namdeo S/o Vishwanath Dukare
Aged about; 73 years, Occ: Cultivators
2) Gunwant S/o Yashwant Ingale (deceased)
Both are the R/o Chinchala, Tq. Deoli,
Dist. Wardha.
3) Narayan S/o Maroti Mahure (dead)
Aged about; 78 years Occ: Cultivator
4) Prabhakar S/o Nanaji Hole (dead)
Aged about; 70 years Occ: Cultivator
5) Bhimshankar S/o Abhiman Alone
Aged about; 60 years, Occ: Cultivator
All Respondent 1 to 5 are R/o Chichala
Tq. Deoli, Dist. Wardha.
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Mr. Rajesh Nagpure, Advocate for Appellants.
Mr. C.R. Khobragade, Advocate for Respondent No.1.
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CORAM : ROHIT W. JOSHI, J.
DATE : 08/04/2026
JUDGMENT :
1. Heard finally with consent of learned advocate for the respective parties.
30.sa.487.2019 Judgment.odt 3
2. The present second appeal arises out of judgment and decree dated 09.09.2010 passed by the learned 2 nd Joint Civil Judge Junior Division, Wardha, in Regular Civil Suit No.278 of 1992 and judgment and decree dated 24.11.2014 passed by the learned District Judge-2, Wardha, in Regular Civil Appeal No.256 of 2010. The appellants are the original defendants. The respondent is the original plaintiff. The plaintiff has filed a suit for perpetual injunction restraining the defendants from using the road allegedly passing through his fields bearing Survey Nos.127/1 and 127/2.
3. It is the case of the defendants that there is a road in existence passing through the suit fields and that the road is in existence for years together which was used by the villagers for approaching their agricultural lands. The defendants had initially initiated the proceedings before the Tahsildar for removal of obstruction to their right of way. The application is allowed by the learned Tahsildar. However, the plaintiff challenged the said order before the Sub-Divisional Officer, who remanded the matter back to the learned Tahsildar for deciding the application afresh. In this backdrop, the plaintiff has filed suit for injunction.
4. The learned trial Court has decreed the suit on the ground that the matter was pending adjudication before the revenue
30.sa.487.2019 Judgment.odt 4 authority and that since the matter was not finally decided, it could not be said that the defendants have right to use the road which is subject matter of dispute. In view of such findings, the learned trial Court passed a decree for perpetual injunction in favour of the plaintiff.
5. Being aggrieved by the said judgment and decree, the defendants preferred an appeal being Regular Civil Appeal No.256 of 2010. The learned First Appellate Court has dismissed the appeal on the ground that defendants failed to prove that there was a cart way passing through the field of the plaintiff. Perusal of the judgment by the learned First Appellate Court will demonstrate that entries in revenue record, in the form of vazibul are referred by the learned First Appellate Court. The learned First Appellate Court has observed that the evidence on record did not show cart way was passing through the field of the plaintiff. The learned First Appellate Court accordingly dismissed the appeal. In view of such concurrent decrees passed against them, the present second appeal is filed by the defendants.
6. Vide order dated 22.10.2019, following substantial questions of law were framed :-
"(i) Whether the Courts below were justified in holding against the appellants and granting decree in favour of the contesting
30.sa.487.2019 Judgment.odt 5 respondent (original plaintiff), despite noticing the fact that the revenue maps, vazibul entries and nistar patrak did show existence of way as claimed by the appellants through the field of the contesting respondent?
(ii) Whether the Courts below were justified in placing the burden on the appellants (original defendants) to prove their case when it was for the contesting respondent (original plaintiff) to have proved his case as per the contentions raised by him before the two Courts below?"
7. The defendants have brought evidence on record in the form of entries in nistar patrak, which show existence of road through the suit lands. However, the learned First Appellate Court held that although the documents show existence of road, the documents do not indicate existence of cart way. In this backdrop, that exhibited documents on record are required to be perused. The documents are required to be perused since the contention of the learned advocate for the appellants is that, the findings by the learned First Appellate Court is perverse since it is contrary to the documents exhibited during the course of evidence which clearly indicate existence of cart way. The learned advocate for the appellants draws attention to document at Exhibit 93, which is nistar partrak of village Chinchala of the year 1955. The said document record entries with respect to road and foot way in the village. The said document contents entries with respect to constructed road, kaccha road as well as permanent pathway/foot
30.sa.487.2019 Judgment.odt 6 way. Perusal of the document will indicate that reference to land owned by the plaintiff i.e. Survey Nos.127/1 and 127/2 is made showing existence of kaccha road as well as path way through the said fields.
8. At the foot of the document, it is recorded that agriculturists pass through boundaries /dhurra of lands of each other with cattle and other agricultural equipments for cultivating their land without any restrictions.
9. The map at Exhibit 94 also shows a road passing through a land bearing survey Nos.127/1 and 127/2 owned by the plaintiff. Another certified copy of the bandobast map of the year 1909-10, is at Exhibit 147, which also clearly shows existence of road through land bearing Survey Nos.127/1 and 127/2.
10. Nistar patrak at Exhibit 93 pertains to the year 1955. The map at Exh.94 is the bandobast map of the year 1909-10. Thus, existence of road is recorded in old revenue records and maps.
11. It is not in dispute that the land of the plaintiff now numbered as Survey Nos.399. The 7/12 extract of the suit property at Exhibit 58 also records an entry in the 'other rights' column with respect to existence of road through the field.
12. There is overwhelming documentary evidence on record
30.sa.487.2019 Judgment.odt 7 which proves existence of road through the field of the plaintiff. The documents relate back to the year 1909-10. In view of the such overwhelming documentary evidence on record, in the considered opinion of this Court, the learned First Appellate Court has clearly erred in holding that the documents on record do not show existence of cart way through land bearing Survey Nos.127/1 and 127/2. The learned First Appellate Court has failed to notice that there are two entries recorded in the nistar patrak, one pertaining to kaccha road and second pertaining to foot way/ pathway. Foot way as well as cart way are shown to pass through the suit lands owned by the plaintiff.
13. In view of the aforesaid, the first substantial question of law deserves to be answered in favour of the appellants/original defendants and against the respondent/plaintiff.
Substantial question of law (ii) :-
"(ii) Whether the Courts below were justified in placing the burden on the appellants (original defendants) to prove their case when it was for the contesting respondent (original plaintiff) to have proved his case as per the contentions raised by him before the two Courts below?"
14. The learned First Appellate Court has placed burden of proof on the defendants. Normally, the burden of proof ought to have been placed on plaintiff, who sought relief of injunction. However, after the trial of the suit, when both the parties lead
30.sa.487.2019 Judgment.odt 8 evidence, often the issue of burden of proof becomes academic.
15. In the present case, I am of considered opinion that even if the burden is placed on defendants, the defendants have satisfactorily discharged the said burden on the basis of old documentary evidence in the form of village map, nistar patrak entries and 7/12 extract of plaintiff's lands.
16. In view of the reasons recorded above, in the considered opinion of this Court, second appeal deserves to be allowed and is allowed in following terms :-
i) judgment and decree dated 09.09.2010 passed by the learned 2nd Joint Civil Judge Junior Division, Wardha, in Regular Civil Suit No.278 of 1992 and judgment and decree dated 24.11.2014 passed by the learned District Judge-2, Wardha, in Regular Civil Appeal No.256 of 2010, are hereby quashed and set aside.
ii) Regular Civil Suit No.278 of 1992 decided by the learned 2nd Joint Civil Judge Junior Division, Wardha, is dismissed.
iii) Parties to bear their own costs.
(ROHIT W. JOSHI, J.)
C.L. Dhakate