Shri. Bartol Degin Farnat vs. Shri. Pascol Manvel Gonsalves

Order - Status 8: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5339 OF 2013 Shri Bartol Degin Farnat and Ors ..Petitioners Vs. Shri Pascol Manvel Gonsalves and Ors ..Respondents Ms. Neeta Karnik,for the Petitioners. Mr. P. B. Shah i/b Mr. Kayval P. Shah,for the Respondent Nos.1 and 2. CORAM : RAVI K. DESHPANDE *,* J. DATE : JULY 1, 2013. P. C.: 1 Rule made returnable forthwith. Heard finally by consent of the learned counsel appearing for the parties. 2 The learned counsel for the PetitionersPlaintiffs submits that it is the case of the Plaintiffs that the road in question is of 20 feet wide and it has been reduced to 2.8 feet because of the obstruction created by the Defendants in the way. With the assistance of the learned counsel appearing for the parties, I have gone through the orders passed by both the Courts below. Both the Courts below have taken into consideration the report of the Commissioner. However, there is no finding recorded, on prima facie assessment of the case on the question whether there existed 20 feet road and that it was reduced to 2.8 feet by the Aswale 1/2 5339.13.wp Defendants by creating obstruction. In the absence of any such finding, the orders impugned cannot be sustained. The same needs to be quashed and set aside. The orders are required to be remanded back to the Trial Court for decision afresh in accordance with law. 3 In the result, the Writ Petition is allowed. 4 The order dated 28.09.2011 passed by the Trial court and also by the Appellate Court dated 12.04.2013 are hereby quashed and set aside. 5 The matter is remitted back to the Trial Court to decide Exhibit5 filed in Regular Civil Suit No. 159 OF 2009, afresh within a period of three months from the date of first appearance of the parties before it. 6 Parties to appear before the Trial Court on 15.07.2013. 7 The Trial Court is at liberty to grant adinterim relief, if such is claimed by the parties. ( RAVI K. DESHPANDE *,* J.)