Judgment
second appeal428.04 42
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.428 OF 2004
Vishwanath s/o Laxman Ekhar
(Deceased) through LRs.
1) Smt. Vatsalabai wd/o Vishwanath Ekhar,
Aged about 60 years, Occupation Cultivators,
R/o Selod (Hirapur), Taluka and District Wardha.
2) Rambhau s/o Vishwanath Ekhar,
Aged about 48 years, Occupation Service,
R/o Checkling Nanka, Selu,
Taluka Seloo, District Wardha.
3) Shamrao s/o Vishwanath Ekhar,
Aged about 45, Occupation Service,
R/o Selod (Hirapur),
Taluka and District Wardha.
4) Ankush s/o Vishwanath Ekhar,
Aged about 35 years, Occupation Service,
R/o Amravati, Taluka and District Amravati.
5) Sau. Shanta w/o Ganeshrao Zore,
Aged about 32 years, Occupation Household,
R/o Deoli, Taluka Deoli,
District Wardha. ..... Appellants.
:: VERSUS ::
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Judgment
second appeal428.04 42
2
Deleted as per
1) Champatrao s/o Govindrao Waghmare,
Court's order Aged about 70 years, Occupation Not given.
dt.24.3.05
2) Suresh s/o Champatrao Waghmare,
Aged about 25 years.
3) Subhash s/o Champatrao Waghmare,
Aged about 22 years.
All by occupation cultivators,
Resident of Salod (Hirapur)
Tahsil and District Wardha.
4) Shriram s/o Bansi Jangalekar,
Aged about 55 years, Occupation Cultivator,
R/o Walgaon (Haldya),
Tahsil Samudrapur, District Wardha. ..... Respondents.
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Shri S.V. Sohoni, Counsel for the appellants.
Mrs. A.R. Khare, Counsel for the respondents.
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CORAM : V.M. DESHPANDE, J.
DATE : NOVEMBER 23, 2017.
ORAL JUDGMENT
1. Heard learned counsel Shri S.V. Sohoni for the appellants and learned counsel Mrs. A.R. Khare for the .....3/-
::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:44:37 ::: Judgment second appeal428.04 42 3 respondents, in extenso. With their able assistance, I have gone through the record and proceedings also.
2. On 17.7.2006, this second appeal was admitted on the following substantial question of law:
"Whether the Courts below were right in refusing relief of injunction to the present appellants after finding that the construction made by the respondents is an encroachment?
3. The submission of learned counsel Shri S.V. Sohoni for the appellants/plaintiffs is that Map Exhibit 55 prepared by PW2 Ramesh Hage shows that respondents/defendants have made construction over the suit lane that exists in between houses of the appellants/plaintiffs and the respondents/defendants. He, therefore, submits that both the Courts below ought to have granted relief of mandatory injunction in favour of the appellants/plaintiffs .....4/-
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4. Per contra, it is submission of learned counsel Mrs. A.R. Khare for the respondents/defendants that firstly there is no proof produced before the Court that there is an encroachment at the hands of the respondents/defendants over the entire suit lane. Secondly, according to learned counsel Mrs. A.R. Khare, there is other way available to the appellants/plaintiffs to have their access to the suit lane for effecting repairs. Therefore, learned counsel Mrs. A.R. Khare submits that the Courts below have rightly refused discretionary relief and directed the respondents/defendants to pay the compensation.
5. Originally, the suit was filed by Vishwanath for permanent and mandatory injunction. The mandatory injunction was sought for removal of encroachment and .....5/-
::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:44:37 ::: Judgment second appeal428.04 42 5 permanent injunction was prayed that the respondents/defendants be restrained from constructing in the suit lane that exists in between houses of the appellants/plaintiffs and the respondents/defendants.
6. During the pendency of the suit, plaintiff Vishwanath expired. Therefore, his legal representatives being his widow, sons and daughter were brought on record and they prosecuted the suit.
Defendant No.1 Champatrao Waghmare, who also expired during the time when proceedings reached to this Court, was having his house on the Western side of the house owned by plaintiff Vishwanath. Defendant No.2 Suresh s/o Champatrao Waghmare, defendant No.3 s/o Subhash Champatrao Waghmare are his sons. There is no dispute about existence of lane in between houses of the .....6/-
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7. According to the appellants/plaintiffs, the said lane was used for flowing out of rainwater and also for carrying and effecting repairs to the walls of the house of the appellants/plaintiffs. As per the plaint, in the month of March 1991, defendant No.1 Champatrao Waghmare started construction in open land including portion of the lane having width of 3 feet. The said was obstructed by the appellants/plaintiffs with the help intervention of Sarpanch. However, defendant No.1 Champatrao Waghmare persisted in raising the construction and has also constructed some portion. Therefore, the suit was filed.
8. The written-statement filed on behalf of the respondents/defendants shows that there is no dispute about existence of the houses that they are adjacent to each other .....7/-
::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:44:37 ::: Judgment second appeal428.04 42 7 nor there are dispute that there exists a lane in between these two houses. However, as per the respondents/defendants, this lane was not a common lane. According to the respondents/defendants, the lane was owned by them and not by the appellants/plaintiffs and, therefore, they have every right to raise the construction.
9. On these rival pleadings, Issues were framed and the parties went on trial. The appellants/plaintiffs examined in all 4 witnesses. Whereas, defendant No.2 Suresh s/o Champatrao Waghmare, defendant No.3 s/o Subhash Champatrao Waghmare entered for and on behalf of the defendants and filed closure Pursis.
10. Learned Judge of the Trial Court, vide judgment and decree dated 31.8.199, partly decreed the suit. According to learned Judge of the Trial Court, the appellants/plaintiffs .....8/-
::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:44:37 ::: Judgment second appeal428.04 42 8 were successful in proving that the respondents/defendants have made construction in the disputed lane, however only at opening of the suit lane and other entire lane was open. Learned Judge of the Trial Court, therefore, granted decree of damages to the tune of Rs.5,000/- while rejecting the claim of mandatory as well as permanent injunction, resulting into filing of an appeal by the appellants/plaintiffs as well as cross- appeal by the respondents/defendants. Vide impugned judgment dated 30.12.2003, learned 1st Ad hoc Additional District Judge at Wardha dismissed the appeal as well as the cross-appeal.
11. The present second appeal is filed by the original plaintiffs while original defendants chose not to question wisdom of both the Court below granting compensation against them.
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12. Though the respondents/defendants in their written statement claimed ownership over the disputed lane, no issue in that behalf was framed by learned Judge of the Trial Court. In spite of that the respondents/defendants did not raise any challenge in respect of non-framing of the said Issue. Further, there is nothing on record to show that the respondents/defendants alone own the disputed lane.
13. The appellants/plaintiffs never claimed that they are the owners of the lane that exists in between two houses. It is the appellants/plaintiffs' consistent case that the lane is a common lane. In absence of any proof being placed on record by the respondents/defendants about ownership there cannot be any difficulty in recording finding that the disputed lane was not owned either by the appellants/plaintiffs or by the respondents/defendants and it was having character as a common lane that exists in between two houses.
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14. As per the case of the appellants/plaintiffs, the respondents/defendants raised construction in the said lane to such an extent thereby the appellants/plaintiffs are unable to have access in the said lane for effecting repairs in case of such necessity. Further, it is the case of the appellants/plaintiffs that due to the construction, there will be an obstruction regarding flowing of rainy water. In order to prove its case, the appellants/plaintiffs have examined PW2 Ramesh Hage. This appellants/plaintiffs' witness is a civil engineer. Not only that, he knows both the appellants/plaintiffs and the respondents/defendants. As per his evidence, on 22.4.1991 he prepared a Map in respect of houses of the parties to the suit. According to his evidence, during measurement he found that some construction is carried out by the respondents/defendants. He prepared Map Exhibit 55. This appellants/plaintiffs' witness was cross-
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::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:44:37 ::: Judgment second appeal428.04 42 11 examined at the hands of counsel for the respondents/defendants. He was required to admit that he is unable to depose about the exact width of the lane. Not only that, though there is a slope of the house of the appellants/plaintiffs towards the lane, he has failed to show the same in the Map. He has further admitted that when the measurement was carried, he found that the construction of the respondents/defendants was complete, till slab level.
15. Learned Judge of the Lower Appellate Court, after perusing Map Exhibit 55, came to the conclusion that the construction made by the respondents/defendants is not on entire suit lane shown by K B Ch Chha but only towards Northern end of the suit lane. Learned counsel for the appellants/plaintiffs could not counter this particular reasoning given by learned Judge of the Lower Appellate Court. Perusal of the Map also depicts that situation only.
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::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:44:37 ::: Judgment second appeal428.04 42 12 Therefore, it is crystal clear that the case of the appellants/plaintiffs, that the respondents/defendants have made encroachment throughout the suit lane, has to be discarded and, in my view, both the Courts below have rightly non-suited the appellants/plaintiffs to that extent.
16. Grant of injunction is a discretionary relief. The parties seeking such a relief must be able to point out to the Court that if in case relief of injunction is not granted, parties seeking such a relief will be put to an irreversible position and hardships suffered cannot be compensated in terms of money.
17. Even, it is not the case of the appellants/plaintiffs either during the pendency of the suit or before the Lower Appellate Court or even before this Court that the respondents/defendants have raised any further construction .....13/-
::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:44:37 ::: Judgment second appeal428.04 42 13 over the suit lane than what is shown in Map Exhibit 55. Though opening of the lane is covered under construction, as shown in Map Exhibit 55, there is an access to this lane from backside as it could be seen from the Map itself. Learned Judge of the Lower Appellate Court, after appreciating the evidence, has recorded a finding that there is an evidence in the form of the Map. Therefore, learned Judge of the Lower Appellate Court recorded a finding, in my view, correctly that there is an evidence in the nature of the Map that an access is available to the appellants/plaintiffs from the backside of the house and also the rainwater can flow from the roof through outlet pipes.
18. In my view, learned Judge of the Trial Court has moulded the relief suitably in granting the relief of compensation. Once it is proved that the suit lane is not exclusively owned by either of the parties and though there is .....14/-
::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:44:37 ::: Judgment second appeal428.04 42 14 construction of some part of the common lane, at the same time, there is an access to the appellants/plaintiff for the said lane for the purposes for which the lane is kept. In my view, it would be rather harsh to ask for demolition of a small portion that was constructed in the year 1991 and which has not caused any nuisance to the appellants/plaintiffs nor it has obstructed his right to have an access in the lane for effecting the repairs.
19. Conspectus of the aforesaid discussions, leads me to record a finding that the present appeal does not involve any substantial question of law. Consequently, the second appeal is dismissed. However, there shall be no order as to costs.
JUDGE !! BRW !! ...../-
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