Bombay High Court
Shantabai Prabhakar Bhumkar vs Dilip Kashinath Valvase on 27 August, 2024
2024:BHC-AS:34260
901-SA-203-2018.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
rrpillai CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 203 OF 2018
WITH
CIVIL APPLICATION NO. 528 OF 2018
IN
SECOND APPEAL NO. 203 OF 2018
Shantabai Prabhakar Bhumkar ... Appellant
Vs.
Dilip Kashinath Valvase and others ... Respondents
Mr. Shailendra S. Kanetkar for the Appellant.
CORAM: GAURI GODSE J
CLOSED FOR ORDER ON: 22nd JULY 2024
PRONOUNCED ON: 27th AUGUST 2024
ORDER:
1. This Second Appeal is preferred by the original plaintiff to
challenge the judgment and decree passed by the First Appellate
Court, allowing the defendants' appeal. The First Appellate Court
allowed the defendants' appeal and set aside the judgment and
decree passed by the trial court in favour of the plaintiff. The trial
court had decreed the suit for injunction, restraining the defendants
from obstructing the plaintiff's right of way to approach the south
side road from the property bearing Survey No. 36/8/8/1,
admeasuring 10 gunthas. The trial court also directed the
901-SA-203-2018.docx
defendants to remove the compound wall and provide a proper road
for the plaintiff to approach the south side road.
2. Learned counsel for the appellant submitted that the plaintiff is
a co-owner, along with the defendants, who has one-third of the
undivided share in the suit property. He further submitted that since
the defendants blocked the plaintiff from using the common road in
the suit property, the plaintiff was required to file a suit for
mandatory as well as preventive injunction.
3. The learned counsel for the appellant further submitted that
there is no division of the suit property commonly owned by the
plaintiff and the defendants. He thus submitted that being joint
owners, the plaintiff and the other co-owners are entitled to use the
entire property equally. He submitted that the pleadings and
evidence on record are not properly appreciated by the First
Appellate Court, and the trial court's decree is reversed only by
relying upon one admission.
4. Learned counsel for the appellant referred to paragraph 12 of
the impugned judgment and submitted that the plaintiff's evidence
with regard to the admission that for the last 10 to 15 years, she had
been using the road which is to the north side of the suit property
indicates that the northern portion of the suit property was given to
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her share and rest of the property went to the share of the
defendants. Thus, according to the learned counsel for the
appellant, the First Appellate Court, by relying upon a stray
admission in the cross-examination, reversed the findings recorded
by the trial court. He thus submits that the First Appellate Court has
misread oral evidence and only by relying upon one admission in
the cross-examination ignored the other relevant evidence on
record.
5. Learned counsel for the appellant further submitted that the
oral evidence of PW-2 is completely ignored, wherein he has stated
that in the year 1991, there was a wired compound, and later on,
the compound wall was constructed eight days prior to the filing of
the suit in the year 1999. He thus submits that only after the
construction of the compound wall the plaintiff's right to use the
common road was obstructed, which led to the filing of the suit.
6. Learned counsel for the appellant thus submitted that the
Second Appeal would require consideration on the question of law
as to whether the First Appellate Court has misread oral evidence
and ignored vital evidence which indicates that the plaintiff has the
right to use the common road being co-owner of the property along
with the defendants.
901-SA-203-2018.docx
7. I have considered the submissions made on behalf of the
appellant. I have perused the papers of the Second Appeal and the
paper book of the First Appeal. The suit is filed to enforce
easementary right of necessity. The plaintiff contended that she has
a right to use a 8 feet road kept for common use to approach the
public road on the southern side of the property jointly purchased by
the plaintiff and defendants. The plaintiff contended that she and the
defendants jointly purchased agricultural land on 12 th October 1990.
She further contended that as per the equal 1/3 rd share of the
parties, they constructed their own structures in the area given to
their respective shares. However, according to the plaintiff, they
agreed that 8 feet road on the western side of the land should be
kept for common use to approach the public road on the southern
side. The plaintiff contended that there was no other way to
approach the public road; hence she had an easementary right of
necessity.
8. There is no dispute on the joint purchase of the land by the
parties and the construction of their independent structures on the
area that came to their respective share. However, the defendants
denied that the plaintiff had any easementary right of necessity.
They also denied that there was any agreement to keep the 8 feet
road for common use as pleaded by the plaintiff. The defendants
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alleged that the plaintiff had encroached upon the area given to
their share.
9. The trial court accepted the plaintiff's contention that there
was a common way to the extent of a width of 8 feet to approach
the public road on the south side of the property. The trial court also
accepted the plaintiff's contention regarding obstruction by the
defendants to the right of way. Thus, the trial court, by accepting
the plaintiff's case that the defendants had constructed a compound
wall leading to closing the common road used by the plaintiff, found
it appropriate to decree the suit granting prohibitory as well as
mandatory injunction.
10. A perusal of both judgments indicates that there is no dispute
that the suit property was purchased commonly by the plaintiff and
the defendants. However, the defendants have denied the plaintiff's
case that there was any agreement between the parties to keep 8
feet wide road on the west side of the property for common use.
The defendants contended that the plaintiff had consented to the
construction of the compound wall, and in fact, the plaintiff had
encroached upon more than the area given to her share. The
defendants contended that there is one road on the northern side,
which is used by the general public as well as the plaintiff.
901-SA-203-2018.docx
11. The trial court held that the plaintiff needed a common way to
approach the south road. The court further held that since the
defendants admitted that they had constructed a compound wall
from all sides of the property, it was clear that the defendants had
blocked the plaintiff's way, and thus, the trial court directed the
demolition of the compound wall.
12. The First Appellate Court disbelieved the plaintiff's case
regarding the 8 feet wide road on the west side of the property to be
kept common. The First Appellate Court, after scrutinising the
admissions given by the plaintiff, disbelieved her case that she had
any right to use the road as contended by her for approaching the
public road. The First Appellate Court, in paragraph 12, has
referred to all the admissions given by the plaintiff. A specific
admission given by the plaintiff that the compound wall was
constructed in the year 1993-94 was referred to by the First
Appellate Court to disbelieve the plaintiff's case that the defendants
had constructed the compound wall a few days prior to the filing of
the suit. Thus, the First Appellate Court recorded a finding of fact
that the plaintiff, as per her own admission, had been using the road
on the northern side of the property.
13. The First Appellate Court also referred to the plaintiff's
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admission that she had constructed her bungalow in 1995 on the
land that was given to her share and that defendant no.1 had
constructed the factory premises on the land that was given to his
share. Thus, after examining the evidence thoroughly, the First
Appellate Court recorded reasons for disbelieving the plaintiff's
case.
14. The First Appellate Court reversed the finding recorded by the
trial court regarding the plaintiff's right of way from defendant no. 1's
land by referring to the plaintiff's admission that there was no right
of way through defendant no.1's factory or defendant no.1's land.
Thus, the First Appellate Court disbelieved the plaintiff's case that
there was an agreement between the parties to keep a 8 feet wide
road common for approaching the public road, which was on the
southern side of the property.
15. There is no supporting evidence that at the time of the division
of the property jointly purchased by the parties, they agreed to keep
the 8 feet road for common use as contended by the plaintiff. To
enforce the easementary right of necessity, the plaintiff was under
obligation to plead the particulars of her rights and support it by
evidence. The first appellate court, being the last fact finding court,
has thoroughly examined the pleadings and evidence on record and
901-SA-203-2018.docx
disbelieved the plaintiff's case. I do not find any illegality or
perversity in the reasons recorded by the First Appellate Court. The
grounds raised on behalf of the appellant would require a re-
examination of the facts and evidence on record, which is not
permissible under Section 100 of CPC.
16. Learned counsel for the appellant relied upon the decision of
this Court in the case of Shantaram Balkrishna Vs Waman Gopal
Wadekar1 and Mr. Jehangirji Jamshedji Vs Nariman Burjorji and
Others2. By relying upon the aforesaid decisions, learned counsel
for the appellant submitted that once it is admitted that the parties
jointly own the land and there is no division of the property amongst
the co-owners, all the co-owners would have equal right to use the
properties, which would include the right of the co-owners to use the
common passage also. He thus submitted that the plaintiff,
admittedly being a co-owner of the suit property, could not be
denied her right to use the common property. The legal principles
laid down in the said decisions concern the action of one of the co-
owners to deprive the other co-owner of using the common property
in view of the acts done by the co-owner depriving another co-
owner of using the common property. There cannot be any debate
on the legal principles settled in the aforesaid decisions regarding
1 (1922) 24 BOMLR 1029
2 AIR 1955 BOMBAY 136
901-SA-203-2018.docx
the right of the co-owner to use the common property. However, in
the present case, the plaintiff filed a suit on the ground that she had
an easementary right of necessity to use 8 feet wide road kept
common at the time of allotting respective equal shares to the
parties. Thus, in the present case, the plaintiff seeks to enforce her
easementary right of necessity to approach the public road on the
ground that the parties have constructed their independent
structures on the area given to their share, and the 8 feet road was
to be kept for common use. Thus, as per the plaintiff's case, the
land is not a common property. Hence, the legal principles settled in
the aforesaid decisions relied upon by the learned counsel for the
appellant are not applicable to the facts of the present case.
17. Thus, the arguments made on behalf of the appellant do not
raise any substantial question of law. Since the Second Appeal
does not raise any substantial question of law, the Second Appeal is
dismissed.
18. In view of the dismissal of the Second Appeal, Civil
Application No. 528 of 2018 is disposed of as infructuous.
Digitally
signed by
RAJESHWARI
RAJESHWARI RAMESH
RAMESH PILLAI
PILLAI Date:
2024.08.27
18:30:22
+0530
[GAURI GODSE, J.]
