Hussensha Kasamsha Muslim & ... vs Saiyyadkha Sardarkha Muslim
2016 Latest Caselaw 299 Bom

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                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT NAGPUR, NAGPUR.




                                                                                     
                                                                ...

SECOND APPEAL NO. 12/2001

1) Hussensha Kasamsha Muslim Aged 49 years

2) Vijirsha Kasamsha Muslim Aged 27 years,

Both Agriculturist R/o Nirod Tq. Sangrampur Dist. Buldana. ... APPELLANTS

v e r s u s

Saiyyadkha Sardarkha Muslim Aged 50 years, occu: Agriculturist R/o Sangrampur, Dist.Buldana. .. ... RESPONDENT

...........................................................................................................................

Mr. Anjan De, Advocate for the appellants None for respondent ............................................................................................................................

CORAM: A.B.CHAUDHARI, J .

                                                         DATED :     3rd March,  2016

    ORAL  JUDGMENT:





    1.                   Being     aggrieved   by   the   judgment   and   decree     dated 

6.4.2000 in Regular Civil Appeal No.9/1992 passed by learned

Additional District Judge, Khamgaon, arising out of the judgment and

decree dated 24.12.1992 in Regular Civil Suit No.115/1988 made by

the Civil Judge, Jr.Dn., Jalgaon Jamud, the present Second Appeal was

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preferred by the unsuccessful plaintiffs.

2. In support of the Appeal, Dr. Anjan De, learned counsel for the

appellants vehemently argued that both the Courts below have concurrently

held that the appellants/plaintiffs are the owners of the field over the Dhura

of which the respondent/defendant claimed to have cart-way for approaching

his field, abutting the field of appellants/plaintiffs. The Courts below have

also concurrently held that there was obstruction made by the

appellants/plaintiffs since the respondent/defendant wanted to use his Dhura

of the field of appellants/plaintiffs, by carving out a new way for him. He

submitted that the Civil Court cannot confer the right of way at mere

askance unless the the same is backed by any provision in statutory law,

since the Civil Court is the court of law and not the court of equity. He

therefore, submitted that the respondent/defendant having not set up the

case either under Section 13 or Section 15 or Section 20 of the Easement Act

for claiming the right over the Dhura or even for that matter on the basis of

Wajib-ul-Arj within the meaning of Section 148 of the Maharashtra Land

Revenue Code, the Civil Court could not have rewarded a way from the field

of the appellants/plaintiffs in favour of the defendant merely on the

evidence that the defendant after the purchase of field some 8 to 10 years

was using the Dhura of the field of appellants/plaintiffs. Mr. Dey, therefore,

submitted that in the absence of existence of any legal provision, only on the

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basis of the report of the Commissioner as to what he found on the spot, there

was no right in favour of defendant to ask for right of the way over the Dhura

of the appellants/plaintiffs as it would damage the crops of the plaintiffs and

reduce the area of his field. He then submitted that a certified copy of the

map from District Inspector of land Records was produced on record and

finding has been recorded by the Courts below that the same being a

certified copy the same, is admissible in evidence. Despite this position, the

map was kept aside and, therefore, the suit should be remanded to the trial

Judge for finding out, not only the legal right but also the existence of the

way, if any. In the alternative, Mr. De prays for remand of the matter to the

trial Judge.

3. None appears for the respondent/defendant though served.

The Appeal was partly heard yesterday and was kept today so as to enable

the respondent to appear. Today, neither the respondent nor his counsel is

present. The Appeal relates to the year 2001 and it is undesirable to keep it

pending.

4. This Court, while admitting the Appeal on 14th February, 2005,

had framed the following substantial question of law :

" Whether the Courts below erred in ignoring the certified copy of the report of the District Inspector of Land Records though the lower court has observed that it was admissible in evidence?"

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In addition, I frame the following substantial question of law, as

under :-

" Whether the learned trial Judge ought to have made

an exercise to find out the legal right in the defendant to claim the right of way over the Dhura of the appellants/plaintiffs or whether the Civil Court could create

a right of way for the first time from the Dhura of the appellants/plaintiffs, that too in defence of the

respondent/defendant ?

5. Perused the plaint as well as the written statement and the

evidence tendered by the parties before the Courts in support of their

respective claims. The Courts below have recorded concurrent finding that

the appellants/plaintiffs are the owner of their field and has been in

possession and the field of the respondent/defendant is abutting the field of

the appellants/plaintiffs. The existence of Sheo Pandhan i.e. Government

Pandhan is also not in dispute. The only difference appears to be that the

defendant is required to travel about 2 kms for reaching his field. The

defendant did not plead either the customary right u/s. 20, easementary

right u/s. 13 or easement by prescription u/s. 15 of the Easement Act. The

defendant simply stated in the evidence that after the purchase of the field by

him for the last 8 to 10 years he has been using the Dhura-boundary of

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appellants/plaintiffs. In my opinion, the respondent/defendant did not carve

out any right in him to do so. Under Section 143 of the Maharashtra Land

Revenue Code or by virtue of rights under Wajib-Ul-Arj, such rights can be

read into law but then there is established procedure for claiming such a

right. In the instant case, what I find is that the Civil Court has for mere

askance held that the respondent/defendant to use the Dhura because he

was using the same for about 8 to 10 years after the purchase of the field by

him. At the same time, there is a certified copy of DILR map on record and

the Courts below have referred to it as the document admissible in evidence

being a public document; but then the document was kept aside for

assessment of the case of the parties, for finding out right of way, if any. I

think, that was a mistake on the part of the Courts below and, at any rate,

the right in the respondent/defendant, if any, ought to have been properly

found out instead of dismissing the suit filed by the appellants/plaintiffs who

have been in possession of the valuable property. In this view of the matter

and in view of the fact that the respondent/defendant has been using the

Dhura for so many years, the proceedings of the suit deserves to be remanded

to the trial judge, to find out the truth and to make an adjudication according

to law, since the issue concerns the way available for the farmers to approach

their respective fields. In the result, I make the following order :

ORDER

1) Second Appeal No.12/2001 is partly allowed.

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2) The judgment and decree dated 6.4.2000 in Regular Civil Appeal

No.9/1992 passed by learned Additional District Judge, Khamgaon,

arising out of the judgment and decree dated 24.12.1992 in Regular

Civil Suit No.115/1988 made by the Civil Judge, Jr.Dn., Jalgaon

Jamud, both are set aside.

3) Proceedings of R.C.S. No. 115/1998 are sent back to the trial Judge for

hearing and fresh disposal in accordance with law, in the light of the

observations made in this judgment.

4) Parties are at liberty to amend their respective pleadings or lead

additional evidence, if so advised.

5) The Civil Court may take the help of office of the concerned Tahsildar,

if thought fit, for arriving at appropriate conclusion and also consider the

certified copy of the map from D.I.L.R., if necessary, by examining the

concerned officials.

6) The parties to appear before the trial Judge on 4th April,2016.

7) Since the matter relates to the year 1998, endeavour should be made

to dispose of the Suit within a period of one ear from the date of appearance.

    8)       R & P be sent back immediately.

    9)       No order  a to costs.

                                                              JUDGE

    sahare