Bombay High Court
Nilkanth Vithu Patil vs Chindhu Mansaram Wayakole & ... on 22 July, 2016
Bench: T.V. Nalawade
1 SA 128 of 1992
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 128 of 1992
* Nilkanth Vithu Patil,
Age 39 years,
Occupation : Agriculture,
R/o Chikhali Khurd,
Taluka Yawal, District Jalgaon. .. Appellant.
Versus
1)
Chindhu Mansaram Wayakole,
Since deceased through his
legal heir -
Hemchandra @ Hemaraj Chindhu
Wayakole, Age 48 years,
Occupation : Tailoring Class,
R/o Methaji Plot, Bhusawal,
Bhusawal, District Jalgaon.
2) Lalji Chindhu Wayakole,
Occupation: Agriculture
R/o Pilode, Taluka Yawal,
District Jalgaon.
3) Trivenibai w/o Ramdas Chaudhary,
Age 45 years,
Occupation : Household,
R/o Sahakarnagar, Bhusawal.
4) Shushilabai w/o Girdhar Patil,
Age 42 years,
Occupation: Household,
R/o Viroda, Taluka Yawal
District Jalgaon.
5) Vatsalabai w/o Dnyandeo Ingale,
Age 40 years, Occupation: Household,
R/o Khiroda, Taluka Raver,
District Jalgaon. .. Respondents.
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2 SA 128 of 1992
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Shri. A.G. Talhar, Advocate, for appellant.
Shri. P.P. Kothari, Advocate, holding for Shri. S.S. Bora,
Advocate, for respondent No.1.
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CORAM: T.V. NALAWADE, J.
DATE : 22 JULY 2016
JUDGMENT:
1)
The appeal is filed against the judgment and
decree of Regular Civil Appeal No.204/1986 which was
pending in the Court of the Additional District Judge,
Jalgaon. The appeal filed by present respondent, original
defendant No.1, against the judgment and decree of
Regular Civil Suit No.4/1979 which was pending in the
Court of the Civil Judge, Junior Division, Yawal is allowed
by the District Court. In the suit, the trial Court had given
relief of declaration that plaintiff, present appellant, has
right to take water from well situated in land belonging to
the defendant and relief of injunction was given to prevent
the defendants from interfering in the right of the plaintiff
to take water from the well. Both the sides are heard.
3 SA 128 of 1992
2) In short, the facts leading to the institution of
the appeal can be stated as follows :-
3) Plaintiff is owner of land Survey No.87/1 (new
Gat No.234) situated at village Pilode Bk. Tahsil Yawal,
District Jalgaon and it admeasures 4 acres 46 gunthas.
The land of the defendant bearing Survey No.82/2 (Gat
No.232) admeasuring 2 acres 25 gunthas is situated in the
vicinity of the land of the plaintiff. It is contended by the
plaintiff that in the land of the defendant there is well and
the plaintiff has right to take water from this well. It is
contended that this right was there to the vendor of the
plaintiff also, and plaintiff has been exercising such right.
It is contended that this right was given in the year 1919
to the first purchaser from owner. It is contended that in
the sale deed, by mistake Survey No.86 was mentioned to
show that the purchaser had right to take water from the
well situated in Survey No.86 but the land was correctly
described as Kalamala and the land Survey No.88/2 was
described in the sale deed.
4 SA 128 of 1992
4) It is the case of the plaintiff that one revenue
proceeding was started and entry was made in favour of
the plaintiff with regard to the aforesaid right but the
revenue proceeding is decided against him and so he is
required to file the suit.
5) Defendant filed written statement and
contested the matter. He denied that such right is given to
the plaintiff under the sale deed. He denied that plaintiff
has such right in any other way. He contended that there
is well in Survey No.86 and plaintiff may have right to
take water from that well. He has admitted that RTS
proceeding was started by the plaintiff for making entry of
this right in the revenue record and that proceeding is
decided in his favour.
6) On the basis of aforesaid pleadings issues were
framed by the trial Court. Both sides gave evidence. The
trial Court had given decree by holding that there was
motor of the plaintiff fixed on the well of the defendant
and he has given admission that the motor was fixed in
the year 1974-75. The trial Court had observed that the
5 SA 128 of 1992
land of the defendant is known as "Kalamala" and so the
contents of the sale deed of 1919 can be used against the
defendants. The first appellate Court has set aside this
decision by holding that the plaintiff has not proved that
the vendor had such right.
7) This Court, other Hon'ble Judge, admitted the
appeal on 16-3-1992 but substantial questions of law were
not formulated. Both the sides were allowed to argue on
following substantial question of law :-
Whether the District Court has committed error in not
considering any material giving probability that plaintiff
has right to take water from the well of the defendant ?
8) Both the sides have given oral evidence and
there is admission of the defendant to the effect that on
his well in the year 1974-75 motor of the plaintiff was
installed. There is important record like original sale deed
at Exhibit 83 executed by the same person from whom the
property came to the plaintiff. This document was
executed in the year 1914. Sale deed was executed in
favour of the plaintiff in the year 1919. In the sale deed
6 SA 128 of 1992
executed in favour of the defendant under which the
property No.88/2 was sold there is mention that there is
well in the land and along with the well, the property was
sold to the defendant. Thus nothing was left with the
vendor on the basis of which he could have given right to
the plaintiff to take water from the well situated in Survey
No.88/2.
9) It appears that plaintiff purchased the property
from previous purchaser in the year 1954. In the sale
deeds of 1919 and 1954 care was taken to mention that
right is given to the purchaser to take water from the well
situated in the land Survey No.86 first and then from
Survey No.88 in the year 1954. Due to aforesaid
circumstances no right or interest has passed to the
plaintiff. No steps were taken by the plaintiff to enter his
right in the revenue record on the basis of sale deed till
there 1973-74. First his name was entered in the revenue
record of Survey No.88/2 but the defendant contested the
proceeding and the revenue authority decided the matter
in favour of the defendant. The admission given by the
plaintiff shows that on the date of the suit there was no
7 SA 128 of 1992
connection of electricity to the motor installed on the well
of the defendant. Thus on the date of the suit he was not
taking water. Though defendant has not come with any
specific case as to why he allowed the plaintiff to install
the motor, there is possibility that due to aforesaid
circumstances he had permitted the plaintiff to take
water. There is no pleading of easementary right from the
plaintiff. In view of these circumstances, this Court holds
that no declaration could have been given in favour of the
plaintiff and relief of injunction also could not have been
given. The District Court has not committed any error in
deciding the matter in favour of the defendant. So the
aforesaid point is answered in negative and the appeal is
dismissed.
Sd/-
(T.V. NALAWADE, J. )
rsl
