Prabhakar S/O Pundalik Hedaoo & ... vs Sudam S/O Ganpat Jawade
2017 Latest Caselaw 3206 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No. 109 of 2003


 1.      Prabhakar son of Pundalik Hedaoo,
         aged about 47 years,
         occupation - Teacher and agriculturist,
         resident of Linga, Tq. Warud,
         Distt. Amravati.

         .....Org. Defendant.

 2.      Ku. Tai daughter of Pundalik Hedaoo,
         aged adult,
         occupation - household,
         resident of Sausar,
         Distt. Chhindwara (since deceased),
         through legal representatives:

 i]      Keshaonand son of Kashinath Hedaoo,
         aged about 35 years,
         occupation - service,
         resident of at Post Gadchandur,
         Tq. Korpana, Distt. Chandrapur.

 ii]     Vijay son of Kashinath Hedaoo,
         aged about 27 years,
         occupation - business,
         resident of at Post Pusla,
         Tq. Warud, Distt. Amravati.

 iii]    Nandkishore son of Kashinath Hedaoo,
         aged about 23 years,
         occupation -
         resident of at Post Gadchandur,
         Tq. Korpana, Distt. Chandrapur.

 iv]     Sanjay son of Kashinath Hedaoo,
         aged about 20 years,



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         occupation - student,
         resident of Pusla,
         Tq. Warud, Distt. Chandrapur.    .....           Appellants.


                                Versus


 1.     Sudam son of Ganpat Jawade,
        ..... [Original Plaintiff],
        since dead, through his
        legal heirs :

        Suresh son of Sudam Jawade
        since dead, through his legal
        representatives:

 1-i Rekha widow of Suresh Jawade,
     aged about 46 years,
     resident of at Post Pusla,
     Tq. Warud,
     Distt. Amravati.

 1-ii Mangesh son of Suresh Jawade,
      aged about 21 years,
      resident of at Post Pusla,
      Tq. Warud,
      Distt. Amvati.

 1-iii Sharad son of Suresh Jawade,
       aged about 17 years,
       since minor through his mother
       Rekha widow of Suresh Jawade,
       resident of at Post Pusla,
       Tq. Warud, Distt. Amravati.

 1-iv Swati daughter of Suresh Jawade,
      aged about 19 years,
      resident of at Post Pusla,
      Tq. Warud,




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        Distt. Amravati.

 2.     Ashok son of Sudam Jawade,
        aged about 50 years,
        resident of C/o Manikrao Kawalkar,
        Plot No. B/16, Ramna Maroti
        Nagar, Nagpur.

 3.     Prakash son of Sudam Jawade,
        aged about 46 years,
        resident of Warud,
        Andewadi (Ganeshnagar),
        Tq. Warud, Distt. Amravati.

 4.     Sau. Sushila wife of Manikrao
        Kawalkar,
        aged about 54 years,
        resident of Plot No. B/16,
        Ramana Maroti Nagar,
        Nagpur.                                  .....        Respondents.


                               *****
 Ms. Gordey, Adv., for the appellants.

 Mr. Dharaskar, Adv., holding for Mr. A. Parchure, Adv., for
 respondent nos. i to iv, 2,3 and 4.

                                     *****


                                 CORAM :        A.S. CHANDURKAR, J.

                                 Date       :   15th June, 2017
 ORAL JUDGMENT:

01. The original defendants who are aggrieved by the decree for

permanent injunction have preferred the present appeal.

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02. Field Survey No. 50 was initially owned by one Ganpat

Jawade. In a partition effected in the year 1968, said land was divided.

Survey No. 50/1 was allotted in favour of one Madhukar Jawade, while

Survey No. 50/2 was allotted to Sudam Jawade. The appellants

purchased field Survey No. 50/1 from Madhukar Jawade in the year

1984. In the year 1985, they obstructed the plaintiff from using the

suit way to approach his field. Hence, the respondent filed suit for

declaration with regard to his right of way along with prayer for

perpetual injunction.

03. The appellants did not dispute the manner in which they

acquired title. However, according to them, the respondent had right

to approach his field from a Nullah, which was passing from field

survey no. 50/1.

04. After the parties led evidence, the trial Court on the basis of

sale-deed between the appellants and their vendor held that the way

existed on the Eastern side of the Nullah and, therefore, the plaintiff

could not be obstructed from using the suit way. The suit accordingly

was decreed and the appellate Court after re-appreciating the

evidence dismissed the appeal.

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05. The following substantial question of law was framed while

admitting the appeal:-

"The learned Additional District Judge, thus, has completely misconstrued the document on record, i.e., the sale-deed, dated 28th December, 1984, which is not merely of evidentiary value but upon which the claim of the present appellants is based, so far as the way of the present respondent/original plaintiff to approach Ms agricultural field bearing survey no. 50/2 is concerned."

06. Ms. Gordey, learned counsel for the appellants, submitted

that the sale-deed dated 28th December, 1984 could not be the basis

for grant of relief to the respondent. It was submitted that the

respondent had an approach way to field Survey No. 50/2 through the

Nullah from the Eastern side of Field Survey No. 50/1. It was

submitted that by misinterpreting the aforesaid recital in the sale-

deed, both the Courts have erred in granting relief to the respondent.

As the respondent had a separate way to approach his field, the

injunction did not deserve to be granted.

07. Shri Dharaskar, learned counsel for the respondent,

supported the impugned judgment. It was submitted that as per the

recital in Exh.41, the appellants and their vendor had agreed that there

was a way existing on the Eastern side of Field Survey No. 50/1.

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According to him, both the Courts rightly interpreted said recitals and

that as per the evidence on record, said way was being used even prior

to the suit field being purchased by the appellants.

08. I have heard the learned counsel for the parties at length

and with their assistance I have perused the records of the case.

09. It is not in dispute that initially Field Survey No. 50 was

purchased by the respondent's father in a suit for preemption, being

Suit No. 10 of 1940. A partition had taken place in the year 1968, in

which Field Survey No. 50/1 came to be allotted to the brother of the

plaintiff, Madhukar, while Field Survey No. 50/2 came to the share of

respondent. This Survey No. 50/2 was purchased by the appellants in

the year 1984. In the sale-deed at Exh.41, it was stated that for the

purposes of approaching Survey No. 50/1, there was a cart way on the

Eastern side of the Nullah. On a plain reading of this recital, it is clear

that the parties to the transaction agreed that there was a way

existing to the Eastern side of the Nullah for approaching Field Survey

No. 50/1. When this recital is considered along with other evidence on

record, as has been done by the appellate Court, it can be seen that

such evidence also supports the conclusion that can be drawn from

said recital. It was found that the Nullah in question was about ten

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feet in depth and, therefore, it was not possible to use the same as a

cart way. Moreover, since the partition in the year 1968 this way was

being used by the respondent and it is only after Survey No. 50/1 was

purchased by the appellants in the year 1984 that they started causing

obstruction to the respondent. Thus, on consideration of the entire

evidence on record along with the relevant recital in the sale-deed at

Exh.41 to which the appellants are a party, it cannot be said that said

recital has been misconstrued while granting relief to the respondent.

10. Accordingly, the substantial question of law as framed is

answered against the appellants. In view thereof, the impugned

judgment of the appellate Court stands confirmed. The Second

Appeal, therefore, stands dismissed with no order as to costs.

Judge

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