Bombay High Court
Uddhav Ranoba Kale And Others vs Prabhakar Prataprao Pangavhane And ... on 16 September, 2025
2025:BHC-AUG:24774
1 sa 646.13 with sa 645.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 646 OF 2013
Uddhav Ranoba Kale and others .. Appellants
Versus
Prabhakar Prataprao Pangavhane
and others .. Respondents
WITH
SECOND APPEAL NO. 645 OF 2013
Uddhav Ranoba Kale and others .. Appellants
Versus
Prabhakar Prataprao Pangavhane
and others .. Respondents
Shri Shailesh S. Chapalgaonkar, Advocate for the Appellants in
both matters.
Ms. Madhaveshwari Mhase, Advocate for the Respondent No. 1
in both matters.
CORAM : SHAILESH P. BRAHME, J
CLOSED FOR ORDER ON : 09.09.2025
ORDER PRONOUNCED ON : 16.09.2025
FINAL ORDER :-
. Heard both sides finally.
2. These second appeals are arising out of R.C.S. No. 413 of
2 sa 646.13 with sa 645.13
2000 instituted by appellants/plaintiffs for declaration and
injunction. The suit was dismissed by the Trial Court and the
decree was modified by the lower Appellate Court in R.C.A. No.
132 of 2006 by allowing the appeal partly. Against those findings
of facts Second Appeal No. 646 of 2013 is preferred.
3. In the suit referred above, respondents - defendants
submitted counter claim of injunction. It was rejected by the
Trial Court. Being aggrieved R.C.A. No. 134 of 2006 was
preferred, which was allowed partly. Hence Second Appeal No.
645 of 2013 is preferred. By common judgment dated 24.01.2013
appeals were decided by lower appellate court.
4. Appellants are owners of land gut No. 172 and they claim
approach road through gut No. 364 belonging to respondents. It
is pleaded that it was easement by prescription. The approach
road was obstructed by the respondents, which was cause to
approach Civil Court.
5. Respondents contested the suit on all counts. The claim of
any easementary right is disputed. It is contended that while
executing the commission work a road was created which did not
exist. The appellants are said to have access from towards west.
6. Both parties led evidence before the Trial Court. The suit
as well as counter claim were dismissed, but equitable relief was
granted on certain conditions. Both the parties assailed the
3 sa 646.13 with sa 645.13
judgment of the Trial Court. Lower Appellate Court confirmed
the dismissal of the suit as well as the counter claim. The
equitable relief was quashed and set aside and appellants are
directed to restore the land to the defendants to its original
position.
7. Learned counsel Mr. Chapalgaonkar appearing for the
appellants submits that both courts below committed grave error
of jurisdiction in appreciating the evidence. It is submitted that
the oral evidence of the appellants is discarded, whereas that of
respondents was accepted without valid reasons. It is submitted
that convincing evidence was brought on record to show
existence of easement by prescription, which is wrongly rejected.
Interpretation of the Commissioners' reports is stated to be
substantial question of law. It is submitted that commissioner's
report at Exhibit 58 should have been accepted.
8. Per contra, learned counsel Ms. Mhase submits that no
evidence is placed on record to indicate any approach road.
Appellants failed to prove easement by prescription as
contemplated by Sec. 15 of the Easement Act. It is submitted
that a road was created at the time of executing the commission.
It is further submitted that the reports have no probative value,
because commissioners did not step into witness box.
9. I have considered rival submissions of the parties. With
the assistance of both the learned counsels, I have gone through
4 sa 646.13 with sa 645.13
the record and proceedings. Initially commissioner was
appointed and report was submitted at Exhibit 26. It was found
to be of no assistance. Hence commissioner advocate Mr. Hase
was appointed, who submitted report at Exhibit 48. He further
submitted report at Exhibit 58.
10. Interestingly, the Presiding Officer visited the site and
notes of local inspection were prepared and placed on record are
at Exhibit 131, along with a sketch. The report and the sketch is
referred to by both the Courts below. I have also gone through
sketch at Exhibit 131 to comprehend the topography of the lands
of the parties, alleged easement and alternate road. The portion
EIMF indicates the disputed road, which is passing through gut
No. 363. Pertinently, an alternate approach road is noticed
towards northern side of gut No. 173 shown by BDHC. The
alternate road shown as BDHC is referred by the Trial Court in
para No. 16 of the judgment. I have verified the existence of it
from Exhibit 131 prepared after local inspection by the Presiding
Officer. There is no reason to discard the same. Both the
learned counsels did not object the same. When alternate access
is available, the claim of the appellants that disputed road is the
only access cannot be countenanced.
11. Appellants are under obligation to make out a case of
easement by prescription. No revenue record, village map, sale
transaction or reliable material is placed on record indicating
existence of easement. There is no evidence on record that the
5 sa 646.13 with sa 645.13
easement as claimed by the appellant was in existence for more
than twenty (20) years prior to filing of the suit. Both the Courts
below have rightly dealt with the aspect of the matter in holding
that the appellants failed to prove easement by prescription.
12. It transpires from record that the commissioner appointed
by the Court himself created a road by filling up the pits. That
cannot be said to be easement by prescription. I have already
observed that appellants have alternate way shown by BDHC,
then such a subsequently created way cannot be permitted to be
used. Both the Courts below have recorded possible findings of
facts, which need no interference.
13. Oral evidence led by the parties is properly appreciated by
both the Courts below. They have assigned reasons for
discarding the depositions of the appellants' witnesses. The
appreciation of facts cannot be gone into in the second appeal. No
perversity or apparent illegality is pointed out by the appellants.
14. I find that no substantial question of law is involved in the
second appeals. Second appeals are dismissed.
[ SHAILESH P. BRAHME J. ]
bsb/Sept. 25
