Bombay High Court
Shaikh Khalil Sk. Ajij And Anr vs Inayatkha Ramjakha And Ors on 20 August, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.413 OF 2013
WITH
CIVIL APPLICATION NO.7870 OF 2013
IN SA/413/2013
SHAIKH KHALIL SK.AJIJ AND ANOTHER
VERSUS
INAYATKHA RAMJAKHA AND OTHERS
.....
Advocate for Appellants : Mr. A. G. Talhar
Advocate for Respondents No.2, 3 and 4-A: Mr. V. B. Patil
.....
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 20-08-2021.
ORDER :
1. Present second appeal has been filed by the original defendants
challenging the concurrent findings and Judgment by the Courts below.
Present respondents are the original plaintiffs who had filed Regular
Civil Suit No.136 of 1997 before Civil Judge, Junior Division, Raver,
District Jalgaon, for declaration and perpetual injunction. The said suit
came to be decreed on 17-01-2006 and the declaration was given that
the plaintiffs are having cart way of easement of necessity through the
land Gut No.70 abutting to its western side bandh, which runs from
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south to north up to the Gut No.69 and further in Gut No.72. The
defendants No.1 and 2 were permanently restrained from causing
obstruction to the enjoyment of the way by the plaintiffs by
themselves or through third person on their behalf. This decree was
challenged by the present appellants/original defendants before
District Court Jalgaon by filing Regular Civil Appeal No.59 of 2006.
the said appeal was heard by learned District Judge-1, Jalgaon and
came to be dismissed on 10-10-2012. Hence, this second appeal.
2. Heard leaned Advocate Mr. A. G. Talhar for appellants and
learned Advocate Mr. V. B. Patil for respondents No.2, 3 and 4-A.
3. It has been vehemently submitted on behalf of the appellant
that both the Courts below have not considered the evidence
properly. The original plaintiffs had not proved that they are having
easementary right of necessity and in fact the present defendants
had proved that there was alternative way available to the plaintiffs,
yet the injunction has been clamped on the defendants. Both the
Courts below erred in giving finding that the gut numbers as have
been canvassed by the plaintiffs before the Trial Court i.e. Gut No.69
to 72 were the part of old Gut No.64 and they were then sub-divided
in several tenements. Gut No.64 was having original road available
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to the ancestors of plaintiff and defendants. Even if for the sake of
arguments it is accepted that Gut No.69 to 72 are part of old Survey
No.64, that does not mean that the plaintiffs would have right of
way as claimed. The admissions given by the plaintiffs witnesses
have not been considered at all and the evidence led by the
defendants has been unnecessarily discarded. No documentary
evidence has been produced to prove that such easement was
available to the plaintiffs. Substantial questions of law are arising in
this case and, therefore, the second appeal deserves to be admitted.
4. Per contra, the leaned Advocate appearing for respondents
No.2, 3 and 4-A supported the reasons given by both the Courts
below and submitted that no substantial questions of law are arising
in this case.
5. At the outset, this Court under second appeal cannot go much
dipper into the facts of the case, however, those facts can be
considered only to the extent if the party preferring appeal is
successful in showing that the findings arrived at in respect of the
facts are perverse.
6. Both the Courts below after taking into consideration the facts
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have arrived at the conclusion that Gut No.69 to 72 are part of old
Survey No.64. This has been shown on the basis of revenue records
which have not been seriously challenged by the defendants. Those
parts were the effect of partition and purchase of portion of land.
The documents produced at Exhibit 56 to 67 showed how old Survey
No.64 was sub-divided and numbered as Gut No.69 to 72. Original
owner of Survey No.64 was one Imammiya. He was having three
sons namely Rajjak, Vajir and Dinmohammad. After death of
Imammiya, partition had taken place and the land was divided into
three parts. Survey No.64/1 went to the share of Rajjak, Survey
No.64/2 went to the share of Vajir and Survey No.64/3 went to the
share of Dinmohammad. Thereafter, there is further division of
Survey No.64/3 into two parts i.e. Survey No.64/3 A and 64/3 B,
and they have then be renumbered as Gut No.69 to 72. The
easement of necessity would definitely applicable here when the
original survey number is then divided. Each division should have
the access for approach. Under such circumstances, the easement
as contemplated under Section 13 of the Indian Easements Act
would be applicable. Section 13 (a) Indian Easements Act Provides
that :-
"Where one person transfers or bequeaths immovable
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property to another -
(a) if an easement in other immovable property of
the transferor or testator is necessary for enjoying the
subject of the transfer or bequest, the transferee or
legatee shall be entitled to such easement."
Further, Section 13 (e) provides that :-
"There would be easement of necessity if an
easement over the share of one of them is necessary
for enjoying the share of another of them, the latter
shall be entitled to such easement."
The Act itself makes it very clear that the easement mentioned in
the Section 13 (a) (c) and (e) are called easement of necessity and
the illustrations, those illustrations explained what could be the
easements of necessity and the case in hand is perfect example of
the same. Therefore, even if there would have been some
alternative road available, yet by virtue of Section 13 of the Indian
Easements Act, the plaintiffs will have the cart way as shown by
them.
7. Both the Courts below after taking into consideration the
evidence have come to the conclusion that the defendants have
failed to prove that there was another or alternative road available,
this Court cannot go into the assessment of those facts again in
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Second Appeal. Hence, no substantial questions of law as
contemplated under Section 100 of the code of Civil Procedure are
arising, the second appeal stands dismissed at the threshold.
Pending civil application stands disposed of.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
