Vishwanath Laxman Ekhar(D) ... vs Suresh Champatrao Waghmare & 3 Ors
2017 Latest Caselaw 8997 Bom

Judgment

                                                             second appeal428.04 42

                                        1

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

                   SECOND APPEAL NO.428 OF 2004

Vishwanath s/o Laxman Ekhar
(Deceased) through LRs.

       1) Smt. Vatsalabai wd/o Vishwanath Ekhar,
       Aged about 60 years, Occupation Cultivators,
       R/o Selod (Hirapur), Taluka and District Wardha.

       2) Rambhau s/o Vishwanath Ekhar,
       Aged about 48 years, Occupation Service,
       R/o Checkling Nanka, Selu,
       Taluka Seloo, District Wardha.

       3) Shamrao s/o Vishwanath Ekhar,
       Aged about 45, Occupation Service,
       R/o Selod (Hirapur), 
       Taluka and District Wardha.

       4) Ankush s/o Vishwanath Ekhar,
       Aged about 35 years, Occupation Service,
       R/o Amravati, Taluka and District Amravati.

       5) Sau. Shanta w/o Ganeshrao Zore,
       Aged about 32 years, Occupation Household,
       R/o Deoli, Taluka Deoli, 
       District Wardha.                                           ..... Appellants.

                                ::   VERSUS   ::

                                                                              .....2/-



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                   Judgment

                                                                            second appeal428.04 42

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Deleted as per 
                  1) Champatrao s/o Govindrao Waghmare,
Court's order     Aged about 70 years, Occupation Not given.
  dt.24.3.05


                  2) Suresh s/o Champatrao Waghmare,
                  Aged about 25 years.

                  3) Subhash s/o Champatrao Waghmare,
                  Aged about 22 years.

                  All by occupation cultivators,
                  Resident of Salod (Hirapur)
                  Tahsil and District Wardha.

                  4) Shriram s/o Bansi Jangalekar,
                  Aged about 55 years, Occupation Cultivator,
                  R/o Walgaon (Haldya),
                  Tahsil Samudrapur, District Wardha.      ..... Respondents.

                  ================================================================
                            Shri S.V. Sohoni, Counsel for the appellants.
                            Mrs. A.R. Khare, Counsel for the respondents.
                  ================================================================


                                                  CORAM : V.M. DESHPANDE, J.

                                                  DATE    :  NOVEMBER 23, 2017.

                  ORAL JUDGMENT

1. Heard learned counsel Shri S.V. Sohoni for the

appellants and learned counsel Mrs. A.R. Khare for the

.....3/-

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second appeal428.04 42

respondents, in extenso. With their able assistance, I have

gone through the record and proceedings also.

2. On 17.7.2006, this second appeal was admitted on

the following substantial question of law:

"Whether the Courts below were right in refusing relief of injunction to the present appellants after finding that the construction made by the respondents is an encroachment?

3. The submission of learned counsel Shri S.V.

Sohoni for the appellants/plaintiffs is that Map Exhibit 55

prepared by PW2 Ramesh Hage shows that

respondents/defendants have made construction over the suit

lane that exists in between houses of the appellants/plaintiffs

and the respondents/defendants. He, therefore, submits that

both the Courts below ought to have granted relief of

mandatory injunction in favour of the appellants/plaintiffs

.....4/-

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second appeal428.04 42

directing removal of the construction.

4. Per contra, it is submission of learned counsel Mrs.

A.R. Khare for the respondents/defendants that firstly there is

no proof produced before the Court that there is an

encroachment at the hands of the respondents/defendants

over the entire suit lane. Secondly, according to learned

counsel Mrs. A.R. Khare, there is other way available to the

appellants/plaintiffs to have their access to the suit lane for

effecting repairs. Therefore, learned counsel Mrs. A.R. Khare

submits that the Courts below have rightly refused

discretionary relief and directed the respondents/defendants

to pay the compensation.

5. Originally, the suit was filed by Vishwanath for

permanent and mandatory injunction. The mandatory

injunction was sought for removal of encroachment and

.....5/-

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permanent injunction was prayed that the

respondents/defendants be restrained from constructing in

the suit lane that exists in between houses of the

appellants/plaintiffs and the respondents/defendants.

6. During the pendency of the suit, plaintiff

Vishwanath expired. Therefore, his legal representatives

being his widow, sons and daughter were brought on record

and they prosecuted the suit.

Defendant No.1 Champatrao Waghmare, who also

expired during the time when proceedings reached to this

Court, was having his house on the Western side of the house

owned by plaintiff Vishwanath. Defendant No.2 Suresh s/o

Champatrao Waghmare, defendant No.3 s/o Subhash

Champatrao Waghmare are his sons. There is no dispute

about existence of lane in between houses of the

.....6/-

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appellants/plaintiffs the respondents/defendants.

7. According to the appellants/plaintiffs, the said

lane was used for flowing out of rainwater and also for

carrying and effecting repairs to the walls of the house of the

appellants/plaintiffs. As per the plaint, in the month of March

1991, defendant No.1 Champatrao Waghmare started

construction in open land including portion of the lane having

width of 3 feet. The said was obstructed by the

appellants/plaintiffs with the help intervention of Sarpanch.

However, defendant No.1 Champatrao Waghmare persisted in

raising the construction and has also constructed some

portion. Therefore, the suit was filed.

8. The written-statement filed on behalf of the

respondents/defendants shows that there is no dispute about

existence of the houses that they are adjacent to each other

.....7/-

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nor there are dispute that there exists a lane in between these

two houses. However, as per the respondents/defendants, this

lane was not a common lane. According to the

respondents/defendants, the lane was owned by them and not

by the appellants/plaintiffs and, therefore, they have every

right to raise the construction.

9. On these rival pleadings, Issues were framed and

the parties went on trial. The appellants/plaintiffs examined

in all 4 witnesses. Whereas, defendant No.2 Suresh s/o

Champatrao Waghmare, defendant No.3 s/o Subhash

Champatrao Waghmare entered for and on behalf of the

defendants and filed closure Pursis.

10. Learned Judge of the Trial Court, vide judgment

and decree dated 31.8.199, partly decreed the suit. According

to learned Judge of the Trial Court, the appellants/plaintiffs

.....8/-

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were successful in proving that the respondents/defendants

have made construction in the disputed lane, however only at

opening of the suit lane and other entire lane was open.

Learned Judge of the Trial Court, therefore, granted decree of

damages to the tune of Rs.5,000/- while rejecting the claim of

mandatory as well as permanent injunction, resulting into

filing of an appeal by the appellants/plaintiffs as well as cross-

appeal by the respondents/defendants. Vide impugned

judgment dated 30.12.2003, learned 1st Ad hoc Additional

District Judge at Wardha dismissed the appeal as well as the

cross-appeal.

11. The present second appeal is filed by the original

plaintiffs while original defendants chose not to question

wisdom of both the Court below granting compensation

against them.

.....9/-

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12. Though the respondents/defendants in their

written statement claimed ownership over the disputed lane,

no issue in that behalf was framed by learned Judge of the

Trial Court. In spite of that the respondents/defendants did

not raise any challenge in respect of non-framing of the said

Issue. Further, there is nothing on record to show that the

respondents/defendants alone own the disputed lane.

13. The appellants/plaintiffs never claimed that they

are the owners of the lane that exists in between two houses.

It is the appellants/plaintiffs' consistent case that the lane is a

common lane. In absence of any proof being placed on record

by the respondents/defendants about ownership there cannot

be any difficulty in recording finding that the disputed lane

was not owned either by the appellants/plaintiffs or by the

respondents/defendants and it was having character as a

common lane that exists in between two houses.

.....10/-

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14. As per the case of the appellants/plaintiffs, the

respondents/defendants raised construction in the said lane to

such an extent thereby the appellants/plaintiffs are unable to

have access in the said lane for effecting repairs in case of

such necessity. Further, it is the case of the

appellants/plaintiffs that due to the construction, there will be

an obstruction regarding flowing of rainy water. In order to

prove its case, the appellants/plaintiffs have examined PW2

Ramesh Hage. This appellants/plaintiffs' witness is a civil

engineer. Not only that, he knows both the

appellants/plaintiffs and the respondents/defendants. As per

his evidence, on 22.4.1991 he prepared a Map in respect of

houses of the parties to the suit. According to his evidence,

during measurement he found that some construction is

carried out by the respondents/defendants. He prepared Map

Exhibit 55. This appellants/plaintiffs' witness was cross-

.....11/-

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examined at the hands of counsel for the

respondents/defendants. He was required to admit that he is

unable to depose about the exact width of the lane. Not only

that, though there is a slope of the house of the

appellants/plaintiffs towards the lane, he has failed to show

the same in the Map. He has further admitted that when the

measurement was carried, he found that the construction of

the respondents/defendants was complete, till slab level.

15. Learned Judge of the Lower Appellate Court, after

perusing Map Exhibit 55, came to the conclusion that the

construction made by the respondents/defendants is not on

entire suit lane shown by K B Ch Chha but only towards

Northern end of the suit lane. Learned counsel for the

appellants/plaintiffs could not counter this particular

reasoning given by learned Judge of the Lower Appellate

Court. Perusal of the Map also depicts that situation only.

.....12/-

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Therefore, it is crystal clear that the case of the

appellants/plaintiffs, that the respondents/defendants have

made encroachment throughout the suit lane, has to be

discarded and, in my view, both the Courts below have rightly

non-suited the appellants/plaintiffs to that extent.

16. Grant of injunction is a discretionary relief. The

parties seeking such a relief must be able to point out to the

Court that if in case relief of injunction is not granted, parties

seeking such a relief will be put to an irreversible position

and hardships suffered cannot be compensated in terms of

money.

17. Even, it is not the case of the appellants/plaintiffs

either during the pendency of the suit or before the Lower

Appellate Court or even before this Court that the

respondents/defendants have raised any further construction

.....13/-

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over the suit lane than what is shown in Map Exhibit 55.

Though opening of the lane is covered under construction, as

shown in Map Exhibit 55, there is an access to this lane from

backside as it could be seen from the Map itself. Learned

Judge of the Lower Appellate Court, after appreciating the

evidence, has recorded a finding that there is an evidence in

the form of the Map. Therefore, learned Judge of the Lower

Appellate Court recorded a finding, in my view, correctly that

there is an evidence in the nature of the Map that an access is

available to the appellants/plaintiffs from the backside of the

house and also the rainwater can flow from the roof through

outlet pipes.

18. In my view, learned Judge of the Trial Court has

moulded the relief suitably in granting the relief of

compensation. Once it is proved that the suit lane is not

exclusively owned by either of the parties and though there is

.....14/-

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construction of some part of the common lane, at the same

time, there is an access to the appellants/plaintiff for the said

lane for the purposes for which the lane is kept. In my view, it

would be rather harsh to ask for demolition of a small portion

that was constructed in the year 1991 and which has not

caused any nuisance to the appellants/plaintiffs nor it has

obstructed his right to have an access in the lane for effecting

the repairs.

19. Conspectus of the aforesaid discussions, leads me

to record a finding that the present appeal does not involve

any substantial question of law. Consequently, the second

appeal is dismissed. However, there shall be no order as to

costs.

JUDGE

!! BRW !!

...../-