Bombay High Court
Ambadas Yashwant Kale (L.Rs.) ... vs Dadarao Krishna Jagtap on 9 August, 2016
Bench: T.V. Nalawade
SA No. 387/1996 & Anr.
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IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 387 OF 1996
Amabdas Yeashwant Kale
Since dead his L.Rs.
1A. Rahibai w/o. Ambadas Kale,
Age 55 years, Occu. Household,
R/o. Household, R/o. Shahapur,
Tq. Tuljapur, Dist. Osmanabad.
1B. Dagdu s/o. Ambadas Kale,
Age 30 years, Occu. Agri.,
R/o. As above.
1C. Digambar s/o. Ambadas Kale,
Age 27 years, Occu. Agri.,
R/o. As above.
1D. Sow. Shala w/o. Uttam More,
Age 35 years, Occu. Agri. &
Household, R/o. Kurnur,
Tq. Akkalkot, Dist. Osmanabad.
1E. Chababai w/o. Shivaji Lomate,
Age 32 years, Occu. As above,
R/o. Shahapur, Tq. Tuljapur,
Dist. Osmanabad.
1F. Shilabai w/o. Mahadeo More,
Age 25 years, Occu. As above,
R/o. Hannur, Tq. Akkalkot,
Dist. Osmanabad.
1G. Shobha d/o. Ambadas Kale,
Age 16 years, Occu. Household,
R/o. Shahapur, Tq. Tuljapur,
Dist. Osmanabad.
1H. Beba d/o. Ambadas Kale,
Minor Age 14 years,
R/o. As above.
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SA No. 387/1996 & Anr.
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1J. Shashikala d/o. Ambadas Kale,
Age Minor, R/o. As above.
Nos. 1G to 1J are minor and under
guardianship of Dagdu Ambadas
Kale, R/o. Shahapur, Tq. Tuljapur,
Dist. Osmanabad. ....Appellants.
Versus
1. Ambadas Krishna Jagtap,
Age 50 years, Occu. Agri.,
R/o. Shahapur, Tq. Tuljapur,
Dist. Osmanabad.
2. Rama Krishna Jagtap,
Age 45 years, Occu. & R/o.
As above.
3. Dadarao Krishna Jagtap,
Age 40 years, Occu. & R/o.
As above.
4. Manohar Krishna Jagtap,
(Died) his L.Rs.
A. Smt. Taibai Manohar Jagtap,
Age 50 years, Occu. Agri.,
R/o. Shahapur, Tq. Tuljapur,
Dist. Osmanabad.
B. Pandit s/o. Manohar Jagtap,
Age 26 years, Occu. & R/o.
As above.
C. Gundu s/o. Manohar Jagtap,
Age 24 years, Occu. & R/o.
As above.
D. Kubir s/o. Manohar Jagtap,
Age 20 years, Occu. & R/o.
As above.
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SA No. 387/1996 & Anr.
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E. Arvind s/o. Manohar Jagtap,
Age 15 years, Occu. & R/o.
As above.
F. Balaji s/o. Manohar Jagtap,
Age 14 years, Occu. & R/o.
As above.
Minors u/g. of their mother
R 4-A.
5. Limbaji Krishna Jagtap,
Age 30 years, Occu. & R/o.
As above. ....Respondents.
Mr. K.K. Kulkarni, Advocate for appellants.
Mrs. M.A. Kulkarni, Advocate for respondent Nos. 2.
WITH
SECOND APPEAL NO. 388 OF 1996
Amabdas Yeashwant Kale
Since dead his L.Rs.
A. Rahibai w/o. Ambadas Kale,
Age 55 years, Occu. Household,
R/o. Household, R/o. Shahapur,
Tq. Tuljapur, Dist. Osmanabad.
B. Dagdu s/o. Ambadas Kale,
Age 30 years, Occu. Agri.,
R/o. As above.
C. Digambar s/o. Ambadas Kale,
Age 27 years, Occu. Agri.,
R/o. As above.
D. Sow. Shala w/o. Uttam More,
Age 35 years, Occu. Household
& Agri., R/o. Kurnur, Tq. Akkalkot.
E. Chababai w/o. Shivaji Lomate,
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SA No. 387/1996 & Anr.
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Age 32 years, Occu. As above,
R/o. Shahapur, Tq. Tuljapur.
F. Shilabai w/o. Mahadeo More,
Age 25 years, Occu. As above,
R/o. Hannur, Tq. Akkalkot.
G. Shobha d/o. Ambadas Kale,
Age 16 years, Occu. Household,
R/o. Shahapur, Tq. Tuljapur.
H. Shashikala d/o. Ambadas Kale,
Age Minor, Occu. Household,
R/o. Shahapur.
I.
Beba d/o. Ambadas Kale,
Minor Age 14 years,
Occu. Household, R/o. As above.
Nos. G to I are minors and under
the guardianship of Dagdu Ambadas
Kale, R/o. Shahapur, Tq. Tuljapur. ....Appellants.
Versus
Dadarao Krishna Jagtap,
Age 40 years, Occu. Agri.,
R/o. Shahapur, Tq. Tuljapur. ....Respondents.
Mr. K.K. Kulkarni, Advocate for appellants.
CORAM : T.V. NALAWADE, J.
DATED : 9th August, 2016.
JUDGMENT :
1) Second Appeal No. 387/1996 is filed against
judgment and decree of Regular Civil Suit No.197/1980, which
SA No. 387/1996 & Anr.
was pending in the Court of Civil Judge, Junior Division, Tuljapur
and judgment and decree of Regular Civil Appeal No. 228/1985,
which was pending in the Court of 2nd Additional District Judge,
Osmanabad. Second Appeal No. 388/1996 is filed against
judgment and decree of Regular Civil Suit No. 21/1981 and
against judgment and decree of Regular Civil Appeal No.
229/1985. Regular Civil Suit No. 197/1980 was filed by present
appellant - Ambadas Kale for relief of declaration and injunction
and the other suit was filed by present respondent - Dadarao
Jagtap in respect of his right to use the way passing through
lands Survey Nos. 119 and 120, belonging to Ambadas Kale. The
Trial Court had held that Dadarao Jagtap has right to use portion,
which is norther side of Bandh of Survey Nos. 119 and 120 of
village Shahapur and belonging to Ambadas Kale as way for
going to land Survey No. 118 of Dadarao Jagtap. In the suit filed
for injunction by Ambadas Kale against Dadarao Jagtap, relief of
injunction was given to protect his possession over Survey Nos.
117, 119 and 120, but in that suit, it was held that Dadarao
Jagtap has right of way from the northern boundary of Survey
Nos. 119 and 120, belonging to Ambadas Kale. The Trial Court
had not described the length and width of the way and also the
nature of user. District Court has modified the decision of the
Trial Court and the way is described as 'cart way'. As Ambadas
SA No. 387/1996 & Anr.
Kale is feeling aggrieved due to giving of cart way to Dadarao
Jagtap through lands of Ambadas Kale, the appeals are filed
against the decision of Courts below. Both the sides are heard.
2) In short, the facts leading to the institution of the
appeals, can be stated as follows :-
It is the case of plaintiff Dadarao Jagtap that he and
his brothers Ambadas Krishna, Ram Krishna, Manohar Krishna
and Limbaji Krishna constitute Joint Hindu Family and they have
purchased land Survey No. 118 from defendant - Ambadas Kale
under sale deed dated 5.2.1979. It is contended that under the
sale deed, half share in water of well situated in Survey No. 120
was given and right of way through Survey Nos. 119 and 120
belonging to Ambadas Kale from northern side was also sold. It is
contended that when the right of way is also sold, defendant -
Ambadas Kale is now preventing the plaintiff from using the said
portion as a way and so, the cause of action has taken place. It is
contended that due to such prevention, the plaintiff is not able
to cultivate his land and so, injunction relief needs to be granted.
3) Defendant - Ambadas Kale, present appellant filed
written statement and contested the matter. He admitted the
sale of the land from Survey No. 118 to the family of plaintiff, but
SA No. 387/1996 & Anr.
he denied that the right to use some portion of Survey Nos. 119
and 120 was sold. He contended that he was required to file suit
against the plaintiff as Dadarao Jagtap was trying to interfere in
the possession of Ambadas Kale over Survey Nos. 117, 119 and
120 and he was causing damage to the standing crops. By
making such contentions in a suit filed by Ambadas Kale, relief of
injunction was claimed against Dadarao Jagtap and thus, in both
the suits, Ambadas Kale wanted to prevent Dadarao Jagtap from
using the portion of Survey Nos. 119 and 120 as a 'cart way'.
The Courts below have held that such right was sold under the
sale deed and so, decree is given accordingly.
4) This Court (Other Hon'ble Judge) admitted the
appeals on 14.7.1998, though substantial question of law was
not formulated. This Court made it clear that the appeals will be
decided on following substantial question of law.
(i) Whether the document of sale deed executed in
favour of Dadarao Jagtap by Ambadas Kale is
interpreted correctly by the Courts below to hold that
right was given to use portion of Survey Nos. 119 and
120 as a 'cart way' ?
5) The entire dispute revolves around the aforesaid
SA No. 387/1996 & Anr.
claim of Dadarao Jagtap that he has purchased the right to use
some portion of Survey Nos. 119 and 120 as road. The execution
of sale deed, Exh. 42, is not disputed. This Court has carefully
gone through the contents of the sale deed. The relevant recitals
are as under :-
"lnjh tfeuhl rqEgkl tk.ksa ;s.ksa lkBh losZ uacj 119 o 120
P;k mRrjsdMhy cka/kko:u ¼cka/kkP;kdMs½ dMs dMwu jLR;klkBh
ekydh gDd fnyk vkgs- R;kizek.ks rqEgh oghokV djkoh"
6) The first thing which can be said about the contents
is that the width of the road was not mentioned. The second
thing which can be said that it was not specifically stated that it
was to be used as a 'cart way'. It can be said that as the land
sold was situated beyond Survey Nos. 119 and 120, to have
access to that land, right was given to use northern Dhura ( /kqjk),
Bandh of Survey Nos. 119 and 120. Much was argued in respect
of content that there is word used that 'from the edge of Bandh,
the right will be there'. But, the bracketed portion shows that the
Bandh was to be used for going towards the Bandh of Survey No.
118 i.e. from Bandh to Bandh.
7) It is not the case of Dadarao Jagtap that in the past,
there was a 'cart way' for going to Survey No. 118 and it was
passing through Survey Nos. 119 and 120. As nothing is said
SA No. 387/1996 & Anr.
about the width of the portion to be used as a 'way', one day the
successors of Jagtap may start to use this way even for taking
heavy vehicles. The Courts below have not considered this
aspect and District Court has simply declared that some portion
can be used as a 'cart way'. If such decree is given, Ambadas
Kale will not be in a position to use that portion, having entire
length of the two survey numbers for cultivation purpose. In
view of these circumstances, the interpretation cannot be made
that lightly.
8) There are Rules made under the Maharashtra Land
Revenue Code like Boundary Rules, 1969. The relevant Rule
shows that the width of Sarbandh needs to be 1.22 Mtr. and
height of Sarbandh needs to be 0.61 Mtrs. Thus, the farmer is
expected to keep the width of Sarbandh between 3.6 and 4 ft.
For taking cart, the width of atleast 6 ft. is required and it can be
said that due to the use of two bullocks, the width or the portion
used by the cart way can be more than 6 ft. It is customary right
of all farmers to use Sarbandh of the lands situated between
their lands and land towards main road for access as 'foot-path'.
Thus, the Bandhs of Survey Nos. 119 and 120 can be used as a
'foot-path' and not as a 'cart-way'. This Court has no hesitation
to hold that the Courts below have committed error in holding
SA No. 387/1996 & Anr.
that right is sold to use portion of Survey Nos. 119 and 120 and
that too, as a 'cart-way'. In the result, following order is made.
ORDER
(I) Both the appeals are partly allowed.
(II) The judgments of the Courts below are modified to
declare that purchaser, plaintiff from suit baring R.C.S. No.
21/1981 is entitled to use the Bandhs, Dhuras or Sar-bandhs of
Survey No. 119 and 120, the northern side Bandh of these lands
as way, having width of 1.22 Mtrs. and height of 0.61 Mtrs. as
provided in Rule 4 of Maharashtra Land Revenue Code made for
Boundary and Boundary Marks Rules, 1969. This portion is to be
used as a 'foot-path' and not as a 'cart-way'.
(III) Decree is to be prepared accordingly.
[ T.V. NALAWADE, J. ]
ssc/
