70 WP 3854 OF 2026.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIRCUIT BENCH AT KOLHAPUR CIVIL APPELLATE JURISDICTION 70 WRIT PETITION NO. 3854 OF 2026 SHANKAR NIVRUTTI PATIL VERSUS PRAKASH NIVRUTTI PATIL ... Advocate for Petitioner : Mr. Ajit Vishwanath Alange Advocate for Respondents : Mr. Amol Amarnath Kanaki ... CORAM : SHAILESH P. BRAHME, J. DATE : 17.08.2026 PER COURT : Heard both sides. 2. The petitioner takes exception to the judgment and order dated 11.06.2026 passed by the Appellate Court in Misc. Civil Appeal No. 64/2024, thereby reversing the order of injunction granted by the Trial Court on 08.07.2024 below Exh. 5 in Regular Civil Suit No. 302/2023. 3. The parties are real brothers. The factum of partition by an intervention of Tahsildar under Section 85 of the Maharashtra Land Revenue Code is not disputed much. Gat Nos. 16/1 and 17/1 are allotted to the petitioner, whereas, Gat Nos. 16/2 and 17/2 are allotted to respondent. The record of Tahsildar would indicate that the petitioner was being allotted 2- Are land in excess than the respondent. He claims an easement which passes along the boundary of Gat No. 16/2 belonging to respondent from eastern side national high way to connect his land Gat No. 16/1. The easement is stated to be east-west on the Northern side. The same is disputed by the respondent, which is cause for preferring Regular Civil Suit No. 302/2023 for declaration and injunction. 1/4 70 WP 3854 OF 2026.odt 4. The Trial Court granted injunction by order below Exh. 5 passed on 08.07.2024 for using the easement. The Appellate Court reversed it vide impugned judgment and order dated 11.06.2026. 5. The learned counsel for petitioner submits that there is no alternate way and the easement claimed i.e. East-West access on the Northern side is the only approach road for the petitioner. He would rely upon mutation entry No. 1198 and Roznama of acquisition proceedings to show that there existed a road. It is submitted that though the mutation entry was quashed by judgment of the Sub Divisional Officer, the appeal has been preferred before the Additional Collector, which is pending. It is submitted that the affidavits of witnesses in support of the petitioner have not been taken into account. 6. Per contra, learned counsel for the respondent submits that the proceedings under Section 85 of M.L.R.C. before the Tahsildar do not refer to any easement. The acquisition is solely from land of the respondent and there was no question of any settlement between the parties before the acquisition authority. It is further submitted that fraudulent mutation entry No. 1698 has been quashed by the Sub Divisional Officer in R.T.S. 540/2025 and there exist no material to show the road in question. It is submitted that Appellate Court rightly reversed the order. 7. Learned counsel for the petitioner has tendered on record additional documents, which are born from the record and which are not objected by the respondent. 8. The plant is accompanied by rough map. National high way is located on the Eastern side of Gat No. 16/2 and 17/2 allotted to respondent. The proceedings before the Tahsildar under Section 85 of the Code do not spell out any easement for the petitioner. It is also an admitted fact that order passed by the Sub Divisional Officer dated 31/10/2025 in R.T.S. Appeal No. 540/2024 is further subjected to appeal before the Additional Collector, 2/4 70 WP 3854 OF 2026.odt which is pending. 9. I have carefully gone through written statement-cum-say filed by the respondent, which is silent regarding alternate way for the petitioner, either to approach Eastern side National High Way from his field or any other road from his field. The mutation entry No. 1698, which was effected somewhere in 2008, was not promptly challenged by the respondent. He had preferred R.T.S. Appeal No. 92/2020, which is renumbered as RTS Appeal No. 540/2024. Both sides have filed affidavits of the witnesses to corroborate their claims. Though there was partition between the parties, no alternate way is shown by the respondent and hence case is made out by the petitioner for the easement by necessity. 10. The appellate Court reversed the order passed by the Trial Court mainly on the ground that mutation entry was quashed by the Sub Divisional Officer in RTS No. 540/2024 but the said decision is further subjected to challenge before the Additional Collector, which is pending. In any case, the Civil Court will have to determine as to whether there exist easement by grant or easement of necessity by permitting the parties to adduce the evidence. 11. I find that judgment of the Lower Appellate Court is unsustainable because it overlooks material aspects of the matter. Interestingly, the acquisition is from land allotted to the respondent. In all probabilities, the petitioners might have been allotted excess 2-Are land because those were not abutting the National High Way. Therefore, merely because excess land was allotted in partition to the petitioner, cannot be said to be a ground to deny easementary right to him. I find that case is made out to cause interference in the impugned judgment and order. I, therefore, pass, following order : ORDER (A) The writ petition is allowed partly. 3/4 70 WP 3854 OF 2026.odt (B) Impugned judgment and order dated 11.06.2026, passed in Misc. Civil Appeal No. 64/2024, is quashed and set aside and order of the Trial Court below Exh. 5 passed on 08.07.2024 in Regular Civil Suit No. 302/2023 shall stand restored. (C) Needless to mention that the observations are prima faice in nature. ( SHAILESH P. BRAHME, J.) mkd/- 4/4