sa109.03
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 109 of 2003
1. Prabhakar son of Pundalik Hedaoo,
aged about 47 years,
occupation - Teacher and agriculturist,
resident of Linga, Tq. Warud,
Distt. Amravati.
.....Org. Defendant.
2. Ku. Tai daughter of Pundalik Hedaoo,
aged adult,
occupation - household,
resident of Sausar,
Distt. Chhindwara (since deceased),
through legal representatives:
i] Keshaonand son of Kashinath Hedaoo,
aged about 35 years,
occupation - service,
resident of at Post Gadchandur,
Tq. Korpana, Distt. Chandrapur.
ii] Vijay son of Kashinath Hedaoo,
aged about 27 years,
occupation - business,
resident of at Post Pusla,
Tq. Warud, Distt. Amravati.
iii] Nandkishore son of Kashinath Hedaoo,
aged about 23 years,
occupation -
resident of at Post Gadchandur,
Tq. Korpana, Distt. Chandrapur.
iv] Sanjay son of Kashinath Hedaoo,
aged about 20 years,
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occupation - student,
resident of Pusla,
Tq. Warud, Distt. Chandrapur. ..... Appellants.
Versus
1. Sudam son of Ganpat Jawade,
..... [Original Plaintiff],
since dead, through his
legal heirs :
Suresh son of Sudam Jawade
since dead, through his legal
representatives:
1-i Rekha widow of Suresh Jawade,
aged about 46 years,
resident of at Post Pusla,
Tq. Warud,
Distt. Amravati.
1-ii Mangesh son of Suresh Jawade,
aged about 21 years,
resident of at Post Pusla,
Tq. Warud,
Distt. Amvati.
1-iii Sharad son of Suresh Jawade,
aged about 17 years,
since minor through his mother
Rekha widow of Suresh Jawade,
resident of at Post Pusla,
Tq. Warud, Distt. Amravati.
1-iv Swati daughter of Suresh Jawade,
aged about 19 years,
resident of at Post Pusla,
Tq. Warud,
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Distt. Amravati.
2. Ashok son of Sudam Jawade,
aged about 50 years,
resident of C/o Manikrao Kawalkar,
Plot No. B/16, Ramna Maroti
Nagar, Nagpur.
3. Prakash son of Sudam Jawade,
aged about 46 years,
resident of Warud,
Andewadi (Ganeshnagar),
Tq. Warud, Distt. Amravati.
4. Sau. Sushila wife of Manikrao
Kawalkar,
aged about 54 years,
resident of Plot No. B/16,
Ramana Maroti Nagar,
Nagpur. ..... Respondents.
*****
Ms. Gordey, Adv., for the appellants.
Mr. Dharaskar, Adv., holding for Mr. A. Parchure, Adv., for
respondent nos. i to iv, 2,3 and 4.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 15th June, 2017 ORAL JUDGMENT:
01. The original defendants who are aggrieved by the decree for permanent injunction have preferred the present appeal. ::: Uploaded on - 19/06/2017 ::: Downloaded on - 21/06/2017 00:22:49 :::
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02. Field Survey No. 50 was initially owned by one Ganpat Jawade. In a partition effected in the year 1968, said land was divided. Survey No. 50/1 was allotted in favour of one Madhukar Jawade, while Survey No. 50/2 was allotted to Sudam Jawade. The appellants purchased field Survey No. 50/1 from Madhukar Jawade in the year 1984. In the year 1985, they obstructed the plaintiff from using the suit way to approach his field. Hence, the respondent filed suit for declaration with regard to his right of way along with prayer for perpetual injunction.
03. The appellants did not dispute the manner in which they acquired title. However, according to them, the respondent had right to approach his field from a Nullah, which was passing from field survey no. 50/1.
04. After the parties led evidence, the trial Court on the basis of sale-deed between the appellants and their vendor held that the way existed on the Eastern side of the Nullah and, therefore, the plaintiff could not be obstructed from using the suit way. The suit accordingly was decreed and the appellate Court after re-appreciating the evidence dismissed the appeal.
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05. The following substantial question of law was framed while admitting the appeal:-
"The learned Additional District Judge, thus, has completely misconstrued the document on record, i.e., the sale-deed, dated 28th December, 1984, which is not merely of evidentiary value but upon which the claim of the present appellants is based, so far as the way of the present respondent/original plaintiff to approach Ms agricultural field bearing survey no. 50/2 is concerned."
06. Ms. Gordey, learned counsel for the appellants, submitted that the sale-deed dated 28th December, 1984 could not be the basis for grant of relief to the respondent. It was submitted that the respondent had an approach way to field Survey No. 50/2 through the Nullah from the Eastern side of Field Survey No. 50/1. It was submitted that by misinterpreting the aforesaid recital in the sale- deed, both the Courts have erred in granting relief to the respondent. As the respondent had a separate way to approach his field, the injunction did not deserve to be granted.
07. Shri Dharaskar, learned counsel for the respondent, supported the impugned judgment. It was submitted that as per the recital in Exh.41, the appellants and their vendor had agreed that there was a way existing on the Eastern side of Field Survey No. 50/1. ::: Uploaded on - 19/06/2017 ::: Downloaded on - 21/06/2017 00:22:49 :::
sa109.03 6 According to him, both the Courts rightly interpreted said recitals and that as per the evidence on record, said way was being used even prior to the suit field being purchased by the appellants.
08. I have heard the learned counsel for the parties at length and with their assistance I have perused the records of the case.
09. It is not in dispute that initially Field Survey No. 50 was purchased by the respondent's father in a suit for preemption, being Suit No. 10 of 1940. A partition had taken place in the year 1968, in which Field Survey No. 50/1 came to be allotted to the brother of the plaintiff, Madhukar, while Field Survey No. 50/2 came to the share of respondent. This Survey No. 50/2 was purchased by the appellants in the year 1984. In the sale-deed at Exh.41, it was stated that for the purposes of approaching Survey No. 50/1, there was a cart way on the Eastern side of the Nullah. On a plain reading of this recital, it is clear that the parties to the transaction agreed that there was a way existing to the Eastern side of the Nullah for approaching Field Survey No. 50/1. When this recital is considered along with other evidence on record, as has been done by the appellate Court, it can be seen that such evidence also supports the conclusion that can be drawn from said recital. It was found that the Nullah in question was about ten ::: Uploaded on - 19/06/2017 ::: Downloaded on - 21/06/2017 00:22:49 ::: sa109.03 7 feet in depth and, therefore, it was not possible to use the same as a cart way. Moreover, since the partition in the year 1968 this way was being used by the respondent and it is only after Survey No. 50/1 was purchased by the appellants in the year 1984 that they started causing obstruction to the respondent. Thus, on consideration of the entire evidence on record along with the relevant recital in the sale-deed at Exh.41 to which the appellants are a party, it cannot be said that said recital has been misconstrued while granting relief to the respondent.
10. Accordingly, the substantial question of law as framed is answered against the appellants. In view thereof, the impugned judgment of the appellate Court stands confirmed. The Second Appeal, therefore, stands dismissed with no order as to costs.
Judge
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