Bombay High Court
Ruprao Wamanrao Ghungrad & 2 ... vs Vinod Babarao Dhone on 15 July, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.180 OF 2001
1] Ruprao s/o Wamanrao Ghungrad,
Aged about 51 years, Occ: Agri.
2] Manohar s/o Wamanrao Ghungrad,
Aged about 45 years, Occ: Agri.
3] Vijay s/o Wamanrao Ghungrad,
Aged about 35 years, Occ: Agri.
R/o Borwaghat, Post Bhatkuli,
Renukapur, Tq. Dhamangaon Rly.
Dist. Amravati. ....... APPELLANTS
...V E R S U S...
Vinod s/o Babarao Dhone,
Aged about 34 years, Occ: Agri.
R/o Borwaghat, Post: Bhatkuli,
Renukapur, Tq. Dhamangaon Rly.
Dist. Amravati. ....... RESPONDENT
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Shri Abhay Sambre, Advocate for Appellants.
Shri Anil S. Kilor, Advocate for Respondent.
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CORAM: R.K. DESHPANDE, J.
th JULY, 2016.
DATE: 15
ORAL JUDGMENT
1] The trial Court dismissed Regular Civil Suit No.51 of 1994
for grant of permanent injunction restraining the defendant from using
the way on 09.07.1996 from the boundary of field Survey No.4 and 3/2
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belonging to the plaintiff. The lower Appellate Court has allowed
Regular Civil Appeal No.153 of 1996 preferred by the plaintiff
on 24.11.2000 and the operative part of the order passed is reproduced
below:
O R D E R
The appeal is allowed with costs throughout.
The judgment and decree of dismissal of the claim of the
plaintiff for perpetual injunction passed in Reg. C. Suit
No. 51/1984 (old no. 160/1986) decided by the Civil Judge
(J.D.), Dhamangaon Rly. District Amravati, is hereby set
aside. In the result, the said suit stands decreed as follows or
in the following terms.
ii. The plaintiff / appellant is entitled to the decree for
perpetual injunction. The defendants no.1 to 3 personally or
their agents, servants are hereby perpetually restrained from
using the suit way i.e. Bandh (Dhura) which is in existence in
between the field survey no.4 and 3/2 situated at village
Borvaghal Tq. Dhamangaon Rly. District Amravati as an
approach road or road for the purpose of ingress and egress to
the field survey no. 9 and 3/1A situated at village Borvaghal
Tq. Dhamangaon Rly. District Amravati.
iii. The decree in the above terms shall be substituted to the
impugned decree.
The original defendant is before this Court challenging the decision of
the lower Appellate Court and seeking restoration of the decree passed
by the trial Court.
2] This Court on 27.02.2004 admitted the appeal on the
substantial questions of law raised in the ground Nos.3, 4 and 5 in the
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memo of appeal, which are reproduced below:
3. Whether the lower Appellate Court is justified in law in
granting the perpetual injunction restraining the appellants by
using the suit way, in view of Exh.51 i.e. compromise deed
dated 18/08/1986, executed by the plaintiff and defendants?
4. Whether the learned Lower Court / appellate court is
justified in law in not considering the order passed by the Naib
Tahsildar dated 16/10/93, holding therein that it was a
personal right to way given by the predecessor title of plaintiff
to the predecessor title of defendant?
5. Whether the learned Lower Appellate Court has
committed an error of law in not considering Exh.51.
Specifically when plaintiff has admitted his signature and
execution of compromise deed?
3] So far as the substantial questions of law in ground Nos.1
and 3 are concerned, the reliance is placed by the defendant on the
alleged compromise-deed dated 18.08.1986 at Exhibit-51 submitted in
the Police Station. In the plaint, there is a specific averment that there
was no settlement between the parties. I have gone through the
document at Exhibit-51 and its reading makes it clear that it was a
temporary arrangement subject to the parties keeping open the
adjudication of their rights in the appropriate forum.
Immediately, thereafter the suit was filed on 28.08.1986 for grant of
permanent injunction restraining the defendant from using the dhura of
field Survey No.4 and 3/2 for approaching his field Survey No.9 and
3/1A. The Appellate Court has taken into consideration this aspect of the
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matter in paragraph 18 and it is held that one does not know under what
circumstances the said compromise had taken place and the plaintiff has
deposed that he signed the said compromise under pressure. Normally it
is observed that such documents are executed in the Police Station by
way of temporary arrangement till the parties get their rights adjudicated
in appropriate forum. In view of this, it cannot be said that the document
at Exhibit-51 was a compromise arrived at between the parties settling
amicably the entire dispute. The substantial questions of law in ground
Nos.1 and 3 are answered holding that the finding recorded by the lower
Appellate Court does not give rise to any substantial question of law.
4] The lower Appellate Court has also considered the order
dated 16.10.1913 (wrongly referred in substantial question of law as
dated 16.10.1993) passed by Naib Tahsildar at Exhibit-81. The lower
Appellate Court has held that the said order no way discloses that the
owner of the field Survey No.9 was permitted to use the said way as a
cart way. Apart from this, the finding is recorded on merits in paragraph
16 of the lower Appellate Court judgment, which is reproduced below:
16. Even assuming and admitting that the
predecessor in title of the defendants had right to use the suit
way for all purposes, then I find that the said right has
resulted into extinction. Section 47 of the Easements Act
speaks of extinction of the easementary rights by non-
enjoyment. For the purposes of extinction of the easementary
right, there must be a nonuser of such a right for unbroken
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period of 20 years. It is an admitted fact that there are about
22 to 29 standing trees on the alleged suit way. The age of
these trees is ranging from 30 to 35 years. There is no dispute
about the number of standing trees on the suit way and its
ages. The fact of number of standing trees on the Dhura and
their ages about 30 to 35 has been observed by the sub
Divisional Officer, Chandur Rly. In the order passed in Rev.
Appeal No. B.N.D. - 56/Borwaghad -2/ 1986 - 1987 at Exh.
82. This fact conclusively indicates on Bandh, there are many
trees raining around 30 to 35 years. If that is so, then one can
easily infer that the suit way has not been used since last 35
years, Had it been used by the defendants as an approach road
to their fields, then the trees would not have been there is
standing position on the suit way and therefore, in the above
circumstances, I find that since last 35 years the suit way has
not been in use of the defendants. I have already mentioned
earlier that section 47 of the Easements Act speaks about the
extinction of the easementary right by non-user of the
easementary right for unbroken period of 20 years. The suit
way over which the defendants claimed right of way as an
easement by grant, hand not been used since last 35 years and
therefore, the non-user of the suit way has resulted into
extinction of the right of way. Thus, in the above
circumstances I find that the defendants have no right of way
as claimed by them by the suit way as shown in the suit map
ACD. Hence I answer the point no.1 in negative.
The aforesaid findings of fact do not give rise to any substantial question
of law, as framed in ground No.4 above.
5] Consequently, the second appeal is dismissed. No order as to
costs.
JUDGE
NSN
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C E R T I F I C A T E
"I certify that this Judgment uploaded is a true and
correct copy of original signed Judgment."
Uploaded by : Uploaded on : 18.07.2016.
N.S. Nikhare,
P.A. to Hon'ble Judge
