Judgment:
Naik Vasanti A., J.
1. By this petition, the petitioner impugns the order passed by Tahsildar/Mamlatdar on 25.3.2003 as also the order passed by the Additional Commissioner, Amravati Division, Amravati on 17.4.2004 dismissing the revision filed by the petitioner and upholding the order passed by the Mamlatdar directing the petitioner to remove the encroachment on the suit way and permitting the respondent Nos. 1 to 4 to use the suit way.
2. The petitioner is the owner of land gat No. 238, admeasuring 0.82 R. Respondent Nos. 1 to 4 are the owners of gat Nos. 253 to 256. On 24.1.2003, the respondent Nos. 1 to 4 made an application before the Tahsildar under Section 5 of the Mamlatdar Courts Act stating therein that they have a right of way over the field gat Nos. 238 and 239 belonging to the petitioner. The respondent Nos. 1 to 4 sought a direction to the petitioner to remove the encroachment on the way of the Mandir and to their fields, as the same was obstructed by the petitioner. By the impugned order dated 25.3.2003 the Tahsildar allowed the application by considering the material on record. The Tahsildar came to the conclusion that the respondent Nos.: 1 to 4 had a right of way to approach their field through the field of the petitioner and the petitioner was directed remove the encroachment on the suit way. The order passed by the Tahsildar on 24.3.2003 was challenged by the petitioner before the Additional Collector, Amravati Division, Amravati. The Additional Collector, however, by order dated 3.10.2003 rejected the appeal filed by the petitioner and upheld the order passed by the Tahsildar. The orders passed by the Tahsildar and the Additional Collector were challenged by the petitioner in a revision before the Additional Commissioner, Amravati Division, Amravati. The revision was however, dismissed by the impugned order dated 17.4.2004. The petitioner has impugned all these three orders by filing the present writ petition.
3. Mrs. A.A. Joshi, the learned Counsel for the petitioner submitted that the Tahsildar was not justified in granting the right of way which was not even sought by respondent Nos. 1 to 4. The learned Counsel for the petitioner submitted that in the application filed before the Mamlatdar, the respondent Nos. 1 to 4 had sought a way to the Mandir and the Tahsildar carved out a new way and granted it to the respondent Nos. 1 to 4. The learned Counsel for the petitioner then submitted that the Tahsildar failed in his duty in conducting the trial as the Tahsildar had not issued any witness summons and had not permitted the petitioner to tender oral evidence in the matter before granting of right of way through the property of the petitioner. The learned Counsel for the petitioner submitted that the Tahsildar aught to have given an opportunity to the petitioner to lead the evidence and then only the order ought to have been passed by the Tahsildar. The learned Counsel for the petitioner relied on an unreported decision of this Court dated 13.1.2004 in Writ Petition No. 4548/2003 to substantiate her submissions.
4. Shri Sambre, the learned Counsel for respondents Nos. 1, 2 and 4 supported the orders passed by all the three authorities and submitted that the findings recorded by these authorities are pure findings of fact based on a proper appreciation of material on record and hence they need not be interfered with in exercise of writ jurisdiction.
5. Shri Ahirkar, the learned A.G.P. appearing on behalf of respondent No. 5 also supported the orders passed by the three authorities and sought for the dismissal of the writ petition.
6. On hearing the learned Counsel for the parties and on perusal of the impugned order, along with the other documents which are annexed to the petition, it appears that the authorities did not commit any error in allowing the application filed by respondent Nos. 1 to 4 and directing the petitioner to remove the encroachment from the suit way. Submission made on behalf of the petitioner that a new way was carved out in this case is not well founded as in the application filed before the Mamlatdar, the respondent Nos. 1 to 4 had clearly sought for the removal of encroachment on the way to the fields of the respondents Nos. 1 to 4 and also temple. There is a reference about the right of way to this temple as also the fields of the respondent Nos. 1 to 4 in the pleadings of the application, under Section 5 of the Mamlatdar's Courts Act. On a perusal of the order passed by Tahsildar on 25.3.2003, it is clear that no new way is carved out in this case and the Tahsildar had directed the petitioner to remove the encroachment on the way to the fields of the respondent Nos. 1 to 4 as it was proved by respondent Nos. 1 to 4 that they had a right of way through the petitioner's field property.
7. The second submission made on behalf of the petitioner that the petitioner was not afforded an opportunity to tender evidence and of being heard is an afterthought as in the appeal memo filed before the Additional Collector and in the revision memo which is filed before the Additional Commissioner, this ground has not been raised by the petitioner. It is merely stated in the memo of appeal filed before the S.D.O. that the Tahsildar had not properly recorded evidence of the witnesses. In fact in ground No. 1 of the appeal memo filed before the S.D.O. it is stated that the Tahsildar had wrongly appreciated the facts of the case and the evidence tendered on record. This clearly shows that the petitioner had not made any grievance that the petitioner was prevented from tendering any evidence though the petitioner desired to tender it before the Tahsildar. It is apparent from the order of the Tahsildar that not only the statements of all the respondents were recorded, but the statement of the petitioner was also recorded. The statement of some of the adjoining field owners were also recorded by the Tahsildar. Report was called by the Tahsildar from Talathi. Talathi's report clearly showed that the petitioner had obstructed the right of way by putting a thorny fencing on the suit way. Not only were the statements recorded and the report was called, the Tahsildar also went to the spot and inspected the same. The Tahsildar considered the evidence which was tendered in this case. After considering each and every piece of evidence which was tendered in the case, the Tahsildar held that respondent Nos. 1 to 4 succeeded in proving that they had a right of way through the petitioner's field and a right of way to the Mandir and the petitioner was therefore directed to remove the obstruction on the said way. All the four authorities have appreciated the material to find that the petitioner had no case and the respondents Nos. 1 to 4 had succeeded in proving the right of way through the field of the petitioner. The memorandum of appeal filed before the Additional Collector and the Memorandum of revision filed before the Additional Commissioner does not raise a ground that the petitioner was prevented by the Tahsildar from tendering any evidence in this case and the Tahsildar refused to issue summonses to the witnesses inspite of the fact that petitioner desired to examine the witnesses. Since the petitioner had no grievance before the Authorities in regard to the objection which is raised by the petitioner for the first time before this Court on the basis of the unreported judgment of this Court in Writ Petition No. 4548/2003, it is clear that the petitioner has raised this objection as an afterthought by relying on the judgment in Writ Petition No. 4548/2003. The orders passed by the authorities can not be interfered with on the basis of the ground which is raised by the petitioner for the first time in the writ petition.
8. Since the orders passed by the authorities record concurrent findings of facts on a proper appreciation of the material on record, there is no need to interfere with the same in exercise of writ jurisdiction.
9. In the result, the writ petition fails and is dismissed. No order as to costs.