Learned Counsel for the appellant referred to the
ruling in the case of Manikrao Narayanrao Bhoge and
Others vs. Maheshkumar s/o. Bansilal Vyas and another
reported in 2011 (5) Mh.L.J. 345 to argue that Sections 13
and 15 of the Easements Act need to be read together.
Section 13 of the Easements Act provides for easement of
necessity and quasi easement, while Section 15 of the Act
provides for easement by prescription which are
independent provisions. If the parties are legally entitled to
exercise easementary right under both the provisions, it is
open for them to do so. Thus, when the plaintiff produced
evidence in the present case in the trial Court regarding his
right of way enjoyed by him and his predecessor in respect
of the approach way to the suit land for carrying
agricultural implements, bullockcarts etc. and when the
trial Court found the evidence sufficient so as to pass decree
in favour of the plaintiff after recording conclusion that the
defendant had obstructed right of way pleaded and proved
by the plaintiff, the first Appellate Court was unnecessarily
swayed away by argument on behalf of the defendant to
deny legal right declared by the trial Court in favour of the
plaintiff on the basis of prescriptive easementary right.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.9 OF 2007
Uttamrao Tulshiramji Madghe
V
Shrawan Natthuji Bagul (Pagtil),
CORAM : A.P.BHANGALE, J.
DATE : 19.4.2014.
Heard the submissions advanced by the learned
This appeal is directed against the judgment and
2.
Counsel for the respective parties.
order dt.6.9.2006 passed by the learned Additional District
Judge, Achalpur in Regular Civil Appeal No.4 of 2002
preferred by the original defendant in the suit. The appeal
was allowed. The appeal arose from the judgment and
order dt.10.12.2001 passed in Regular Civil Suit No.103 of
1998 by the Joint Civil Judge (Jr.Dn.), Achalpur. The suit
for declaration and injunction was decreed by the trial
Court with costs. The trial Court had declared the suit way
shown by alphabets 'ABCD' in the plaint map as
easementary way of plaintiff to approach his field and
ordered that the defendant had no right to obstruct the
easementary way and directed the defendant to remove all
the obstructions created by him in the suit way and
restrained the defendant from causing obstruction in the
user of the suit way by the plaintiff. It was also ordered
3.
of the decree.
that the plaint map (Exh.86) in the evidence shall form part
Briefly stated the facts appear from the record as
under :
That the plaintiff claims to be owner and possessor of
field bearing S.No.27/3 (Gat No.77) admeasuring 1 H, 49 R
situated at village Nimkheda, Tq. Achalpur. The plaintiff
became owner of the suit field in the year 1979 after he
purchased the field. According to the plaintiff, defendant
had possessed land bearing Survey No.29 (Gat No.69)
admeasuring about 1 H, 23 R adjacent to the plaintiff's field
on western side as indicated in the plaint map. The plaintiff
claimed user of the suit way as shown in the map since
beginning without any obstruction and it was the only
approach way to his field. According to the plaintiff, the
defendant, in the month of August 1998, had planted 18
orange saplings to create obstruction in the user of the suit
way and to close the user of suit way. Thus, it is the case of
the plaintiff that it became impossible for him to use the
ig
suit way so as to carry his bullockcart, agricultural
implements etc. to his field. Therefore, declaration was
sought in respect of user of the suit way and also that the
defendant had no right to obstruct user of the suit way. A
prayer was also made for consequent mandatory injunction
directing the defendant to remove the obstruction created
in the suit way.
4.
The defendant in the trial Court had resisted the suit
on the ground that he is in possession of the land bearing
Survey No.29. The defendant had admitted that Wadura
Salepur Government road is adjacent to his field from
northern side as shown in the plaint map, but denied user
of the suit way by the plaintiff or his predecessor before the
registered Sale deed dt. 14.5.1987 in respect of the land
bearing old Survey No.29. It appears that the trial Court,
after considering the pleadings and evidence led by the
parties including the documentary evidence and report
from the Commissioner, found that the plaintiff had proved
easementary right of way through the side 'EFGH' indicated
in the plaint map and that the defendant caused obstruction
to the user of the right of way to the plaintiff. Thus, the
Court recorded the finding that the plaintiff is entitled to
declaration and injunction, as prayed for. According to the
learned trial Judge, the map produced by the plaintiff in
respect of the land bearing old Survey No.29 was drawn by
Taluka Inspector of Land Records, Achalpur (Exh.74). Thus,
considering the evidence in the form of document as well as
oral evidence led before the Court in the light of pleadings,
the trial Court was pleased to pass decree in the suit, as
prayed for. The grievance of the appellant is that the first
Appellate Court without any justification reversed the
findings recorded by the trial Court in respect of user of the
right of way for the plaintiff to approach his field by taking
his bullockcart, agricultural utensils, implements.
According to the learned first Appellate Court, the trial
Court had not properly appreciated the material on record
and reached to a wrong conclusion. The learned first
Appellate Judge relied upon the map drawn by one
Mr.R.K.Deshpande appointed as the Commissioner and on
the ground that Mr.Deshpande in Exh.45 did not observe
existence of way in dispute went on to make observations
ignoring evidence led on record and brushed aside the
findings recorded by the trial Court so as to direct dismissal
of the suit.
5.
This appeal was admitted on 5.4.2007 upon following
substantial questions of law :
1.
Whether the Appellate Court was justified in
reversing the judgment and decree passed in favour
of the appellant without considering the fact that
the appellant had pleaded that he had acquired the
easementary right by prescription and not merely by
necessity ?
I answer the following substantial question of law in
the negative for the following reasons.
Perusal of the plaint in Regular Civil No.103 of 1998
6.
clearly reveals that the plaintiff is owner of the land bearing
ig
Survey No.27/3 (Gat No.77), admeasuring 1 H, 49 R at
village Nimkheda, Tq. Achalpur. The plaintiff became
owner in the year 1979 and on west side of the plaintiff's
field, the defendant claimed possession of field bearing
Survey No.29 (Gat No.69), admeasuring 1 H, 23 R in Class
II occupancy. According to the plaintiff, the field claimed
by the defendant was formerly a gaothan (hollow land)
allotted by the Government to Maroti Sheti Wadar for
cultivation. After the death of said Maroti, the defendant
purchased the field from Ashok Maroti Wadar. Thus,
according to the plaintiff, there was a Government village
road from Salepur to Wadura and the plaintiff and his
predecessorintitle used to approach the field via Salepur
Wadura road upto the point EA and then turning to the
south by the side of nali adjoining the eastern boundary of
defendant's field by EFGH road upto the point GH and then
used to enter in the plaintiff's field. Thus, 'EFGH' way was
8 ft. broad as indicated by green colour in the map annexed
with the plaint. It is used to be the way for the plaintiff for
carrying his agricultural implements and taking bullockcart
and labourers for cultivation and bringing home the
produce. This right of way was claimed by the plaintiff
without interruption peacefully and as of right by
prescription and as of necessity. Therefore, it was the case
of the plaintiff in the trial Court that the defendant had no
right to obstruct the approach way of the plaintiff to and fro
the field owned and possessed by the plaintiff. When the
defendant, despite registered notice dt.19.9.1998 served by
the plaintiff, failed to remove obstacles in the form of new
plantation of orange saplings, the plaintiff prayed for
declaration about the way indicated by green colour with
alphabets 'EFGH' in the plaint map as approach way to the
plaintiff's field indicated as ABCD in the plaint map seeking
7.
plaintiff in using way to approach his field.
declaration that the defendant had no right to obstruct the
It appears that the trial Court had considered the
evidence led on behalf of the plaintiff along with the map.
The plaintiff in his deposition had clearly deposed that
there was gaothan in the same land which the defendant is
claiming as his land. According to the deposition by the
plaintiff, the defendant had planted 18 saplings of orange
trees on 16.8.1998 so as to prevent the plaintiff from using
the way for approaching plaintiff's field. The deposition of
the plaintiff was also supported by the witness Ashok
Mahadeo Kurade regarding right of way claimed by the
plaintiff and unavailability of any alternate way for the
plaintiff and also by witnesses Bapurao Pund and Sitaram
Lokhande, Marotirao Dhundane, Sahebrao Shelke. While,
as against the evidence of witnesses examined on behalf of
the plaintiff, the defendant has examined himself and one
Rajaram Kathe, Bapurao Raut and Ramkrushna
Shahastrabudhe.
It also appears that, in the trial Court, specific
8.
statement under signature of the defendant was made
under praecipe dt.18.12.1999 that the defendant will not
obstruct the plaintiff till decision of the suit. The suit was
instituted after the notice dt.19.9.98 was issued from the
plaintiff to the defendant regarding removal of obstruction
by 18 orange saplings. Thus, looking into the evidence on
record and the plaint map, the trial Court had passed
decree in favour of the plaintiff, as prayed for. The trial
Court found that the plaintiff had acquired easementary
right in view of Section 15 of the Easements Act by
prescription of continued interrupted user. Under these
circumstances, when plaint map was drawn and produced
on record with explanatory footnotes indicating user of the
right of way and obstruction sought to be created, the trial
Court was justified to consider the evidence in detail so as
to pass decree, as prayed for.
9.
On the other hand, the learned first Adhoc Additional
District Judge, Achalpur was swayed way by the fact that
the Commissioner Mr.Deshpande who drew the map
(Exh.45) had not observed existence of way in dispute.
Considering the case of the plaintiff himself that obstruction
was created by the defendant, the fact that Mr.Deshpande
did not observe existence of way in dispute, could not have
been relied upon so as to dismiss the suit. The approach of
the learned first Appellate Judge to ignore the evidence on
record in the light of plaint map was perverse. The findings
of the trial Court could not have been brushed aside lightly
without adverting to the evidence led on record for proving
the right of way. It must be borne in mind that the trial
Judge had benefit to see witnesses deposing as to facts in
the trial Court.
10.
Learned Counsel for the appellant referred to the
ruling in the case of Manikrao Narayanrao Bhoge and
Others vs. Maheshkumar s/o. Bansilal Vyas and another
reported in 2011 (5) Mh.L.J. 345 to argue that Sections 13
and 15 of the Easements Act need to be read together.
Section 13 of the Easements Act provides for easement of
necessity and quasi easement, while Section 15 of the Act
provides for easement by prescription which are
independent provisions. If the parties are legally entitled to
exercise easementary right under both the provisions, it is
open for them to do so. Thus, when the plaintiff produced
evidence in the present case in the trial Court regarding his
right of way enjoyed by him and his predecessor in respect
of the approach way to the suit land for carrying
agricultural implements, bullockcarts etc. and when the
trial Court found the evidence sufficient so as to pass decree
in favour of the plaintiff after recording conclusion that the
defendant had obstructed right of way pleaded and proved
by the plaintiff, the first Appellate Court was unnecessarily
swayed away by argument on behalf of the defendant to
deny legal right declared by the trial Court in favour of the
plaintiff on the basis of prescriptive easementary right.
Under these circumstances, it appears that even in the case
of Manikrao Narayanrao Bhoge and Others, this Court had
set aside the perverse conclusion recorded by the first
Appellate Court and restored the judgment and order which
was passed by the trial Court in that case. In the same
manner, in this appeal also, I find that the first Appellate
Court was unnecessarily swayed away by omission on the
part of the Commissioner to make observations in his
report. The first Appellate Court ignored voluminous
evidence on record in the form of oral testimony as also
documentary evidence, map annexed with the plaint and
the admitted fact that the plaintiff is owner under
registered sale deed and is required to approach the suit
field by using the way which in the past was part of
gaothan land. Therefore, considering the well reasoned
judgment of the trial Court delivered with reference to
evidence led by the parties, this Second Appeal needs to be
allowed. The Second Appeal is accordingly allowed.
The judgment and decree passed by the first Appellate
Court in Regular Civil Appeal No.4 of 2002, dt.6.9.2006 is
set aside accordingly and the judgment and decree passed
by the trial Court in Regular Civil Suit No.103 of 1998,
dt.10.12.2001 is restored. No order as to costs.
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