Bombay High Court
Rambhau Laxman Kosalge & 4 Others vs Atul Vasantrao Dubewar And ... on 20 July, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.315 of 2001
1. Rambhau s/o Laxman Kosalge
(dead), through LRs.:
a. Smt. Shantabai w/o Rambhau
Kosalge,
Aged about 75 years,
Occupation - Household work.
b. Bhaskar s/o Rambhau Kosalge,
Aged about 56 years,
Occupation - Service,
R/o Govind Nagar, Kakaddati,
Tq. Pusad, Distt. Yavatmal.
c. Subhash s/o Rambhau Kosalge,
Aged about 53 years,
Occupation - Business,
R/o Kali Daulat, Tq. Mahagaon,
Distt. Yavatmal.
d. Suryakant s/o Rambhau Kosalge,
Aged about 49 years,
Occupation - Service,
R/o Moti Nagar, Pusad,
Tq. Pusad, Distt. Yavatmal.
e. Uday s/o Rambhau Kosalge,
Aged about 37 years,
Occupation - Business,
R/o Kali (Daulat),
Tq. Mahagaon,
Distt. Yavatmal.
f. Sou. Ushabai w/o Panditrao Padamawar,
Aged about 32 years,
Occupation - Household work,
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C/o Laxmi Kirana Provision,
Mahur Road, Arni,
Tq. Arni, Distt. Yavatmal.
2. Kisanlal s/o Brijlal Bethriya,
since dead, through his LRs.:
2a. Smt. Kesharbai wd/o Kisanlal
Bethriya (Jaiswal),
Aged 70 years,
Occupation - Household.
2b. Subhash s/o Kisanlal Bethriya
(Jaiswal),
Aged 45 years,
Occupation - Business.
2c. Santosh s/o Kisanlal Bethriya
(Jaiswal),
Aged about 37 years,
Occupation - Business.
All R/o. Kali (Daulat),
Tq. Mahagaon,
District Yavatmal.
3. Shyeikh Jamir Sk. Fatru,
Aged about 58 years.
4. Sitaram s/o Ganpat Bhone,
Aged about 48 years,
Occupation - Cultivator.
5. Haskibai Devising Rathod,
Aged about 48 years,
Occupation - Cultivator.
All R/o Kali (Daulathan),
Tq. Mahagaon,
Distt. Yavatmal. ... Appellants
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Versus
1. Atul s/o Vasantrao Dubewar,
Aged about 33 years,
Occupation - Cultivator.
2. Suhas s/o Vasantrao Dubewar,
Aged about 33 years,
Occupation - Cultivator.
Both R/o Pusad,
Tq. Pusad, Distt. Yavatmal. ... Respondents
Shri Amol Mardikar, Advocate for Appellants.
Coram : R.K. Deshpande, J.
Dated : 20th July, 2016
Oral Judgment :
1. The appellant No.3-Sheikh Jamir Sheikh Fatru,
No.4-Sitaram Ganpat Bhone, and No.5-Haskibai Devising Rathod, who
were the original defendant Nos.7, 10 and 11 respectively, have
settled the matter out of Court with the respondent-plaintiffs and
hence they do not want to press this appeal. The present appeal, so
far as the appellant No.1-Rambhau Laxman Kosalge and No.2-Kisanlal
Brijlal Bethriya, who were the original defendant Nos.1 and 5
respectively, the same is required to be decided on its own merits.
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2. Shri Amol Mardikar, the learned counsel appearing for the
appellant-defendants, has invited my attention to paras 8 and 9 of the
judgment of the Trial Court, wherein it is observed that the plaintiffs
themselves have deleted the names of the defendant Nos.2 and 8 on
the ground that they died during the pendency of the suit and the
matter was settled with the defendant Nos.3, 4, 9 and 12 as per the
compromise pursis at Exhibit 102. In view of this, the present appeal
also does not survive, so far as the appellant Nos.3, 4 and 5, who were
the original defendant Nos.7, 10 and 11 respectively, are concerned.
3. The Trial Court passed a decree on 4-4-1998 in Regular Civil
Suit No.25 of 1992. The operative portion of the order passed by the
Trial Court is reproduced below :
"1. Suit of the plaintiffs is decreed with costs.
2. Defendants are hereby permanently restrained from
causing any sort of interference in the field of the plaintiff or
passing from the Northern boundary of the land survey no.80.
3. The counter claim of the defts. is hereby dismissed with
costs.
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4. Decree be drawn up accordingly."
The lower Appellate Court has dismissed Regular Civil Suit No.34 of
1998 on 4-5-2001. The present appeal, as stated earlier, is pressed
only at the instance of the appellant Nos.1 and 2, through their legal
representatives.
4. At the time of admission of this appeal, this Court framed the
substantial questions of law as under :
"(1) Whether P.W.1 Vasant, who is the power of attorney
holder, was entitled to appear as a witness on behalf of the
plaintiffs, when he had no knowledge of the complete facts?
(2) Whether, in the above circumstances, the Courts below
were justified in relying on the testimony of P.W.1 Vasant?
(3) Whether the Courts below erred in not considering the
aspect of absence of proof about the accessibility to the fields of
defendants from the alternative way suggested by the
plaintiffs?"
5. The respondent-plaintiffs are the owners of Survey Nos.80/1
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and 80/2. They had filed the suit restraining the appellant-defendants
from using the way from the eastern boundary of their fields. The
defendants raised a counter-claim for grant of declaration that they
have right to use the suit way. The Trial Court dismissed the
counter-claim, and the lower Appellate Court has maintained the
decision of the Trial Court.
6. I have gone through the pleadings in the plaint as well as the
written statement and the counter-claim. The counter-claim lacks all
the material facts required to be pleaded to establish the existence of
way or grant of way through the boundary of Survey Nos.80/1 and
80/2. The ownership of the respondent-plaintiffs over Survey
Nos.80/1 and 80/2 is not disputed. The user of the boundary is also
not disputed by the appellant-defendants. In the absence of right of
way being established by the defendants, no fault can be found with
the view taken by the Courts below that the plaintiffs were entitled to
injunction, as was claimed. Thus, none of the substantial questions of
law, as are framed by this Court, arise in the present appeal.
7. Shri Amol Mardikar, the learned counsel for the
appellant-defendants, has invited my attention to the map at
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Exhibit 182 and the settlement arrived at between the parties at
Exhibit 146 dated 6-5-1977 in the Court of Naib-Tahsildar in the
proceedings said to be under Section 5 of the Mamlatdar's Courts Act,
1906. Perusal of the said settlement seems that it was a temporary
arrangement and was subject to further measurements. In view of this
position, two options are left open for the appellant-defendants, viz.
(i) to approach the authority under Section 143 of the Maharashtra
Land Revenue Code, 1966 for grant of way through the boundaries of
Survey Nos.80/1 and 80/2, or (ii) to file an application under
Section 5 of the Mamlatdar's Courts Act, 1906 for removal of
obstruction in the existing way created by the respondent-plaintiffs.
Upon the decision by the authority, the further remedies available can
be resorted to and the decree passed by the Trial Court in the present
matter can be treated as subject to such decision.
8. In view of above, the second appeal is dismissed. The
appellant-defendants are granted liberty to approach the appropriate
authority either for grant of way or for removal of the obstruction in
the way, if it is existing. It shall also be open for the
appellant-defendants to adopt further remedies, as are permissible in
law, to establish the right of way by way of easement.
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This Court has passed an interim order on 25-4-2003 and the
same shall continue to operate for a further period of two months, and
it shall be open for the appellant-defendants to ask for continuation of
such order by approaching the appropriate authority.
No order as to costs.
JUDGE.
Lanjewar
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CERTIFICATE
"I certify that this Judgment uploaded is a true and
correct copy of original signed Judgment."
Uploaded by : Uploaded on : 26-7-2016
P.D. Lanjewar,
PS to Hon'ble Judge
