Bombay High Court
Mahadav S/O Gujoba Lende vs Keshav S/O Gujoba Lende on 25 February, 2019
Author: Swapna Joshi
Bench: Swapna Joshi
SA367.05.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
SECOND APPEAL NO. 367/2005
Madhav s/o Gujoba Lende
Aged about 41 years, occu: Agriculturist
R/o Raje Dahegaon
Tah. & Dist. Bhandara (Post Jawaharnagar O.F.) ..APPELLANT
(ori.defendant)
versus
Keshav s/o Gujoba Lende
Aged about 46 years, occu: Agriculturist
R/o Raje Dahegaon Tah.& Dist.
Bhandara Post Jawaharnagar O.F. ..RESPONDENT
(ori.plaintiff)
..................................................................................................................
Shri S.G. Karmarkar, Adv. for the appellant
Shri N.G.Solao, Adv.for respondent
...................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED: 25th February, 2019
ORAL JUDGMENT:
1. Being aggrieved by the judgment and decree dated 8th February, 2005 in Regular Civil Appeal No.107/2003 passed by learned 1 st Ad-hoc Additional District Judge, Bhandara, arising out of the judgment and decree in Regular Civil Suit No.72/2001 dated 19.9.2003 passed by learned 2nd Joint Civil Judge, Junior Division, Bhandara, dismissing the suit of the original plaintiff for permanent and mandatory injunction, the appellant/original ::: Uploaded on - 05/03/2019 ::: Downloaded on - 21/03/2019 14:36:42 ::: SA367.05.odt 2 defendant herein, has preferred the present Second Appeal.
2. The facts leading to the litigation can be stated thus :-
The plaintiff and defendant are real brothers inter se. They claimed to be in possession and cultivation of field Gut Nos.235 and 209. Field bearing Survey No.235, 209 and 189 were owned by father of the plaintiff and defendant, namely, Gujoba. The partition was effected in the year 1988 between the parties and their father. Gujoba took Gut No.189 to his share and after his death in the year 1991, Gut No.189 was divided between the plaintiff and defendant. The plaintiff and defendant got the share of one acre of land in Gut No.209 and received half share in Gut No.235. It is the case of the plaintiff that names of other four persons are figured in 7/12 extract of Gut No.235. Hence to delete the names, the plaintiff applied for Government measurement on 25.11.2000. On 28.11.2000, the Taluqa Inspector of Land Records measured Gut No.235 and deleted the name of other four persons. Gut No.235 was divided into two parts - 235/1 was given to the share of the plaintiff, whereas defendant got Gut No.235/3. The plaintiff as well as defendant dug well in their respective share in Gut No.209 and laid a pipeline in Gut No.235. The plaintiff laid a pipeline of 3 ft. wide abutting the dhura in Gut No.235 from the well. The dhura was 4 ft. wide and 80 ft. in length and was used for cultivating Gut No.235 since their father. It is the case of the plaintiff that in the lifetime of their father they used the said dhura of Gut No.209 till nullah and after crossing it reached the dhura of Gut No.235 and ::: Uploaded on - 05/03/2019 ::: Downloaded on - 21/03/2019 14:36:42 ::: SA367.05.odt 3 the said dhura was used even after the partition was effected. According to the plaintiff, his land is locked by field of other persons therefore he has no other way to reach his field Gut No.235/1 and 235/2. It is the case of the plaintiff that on 28.8.2002 the defendant dug the dhura and levelled it. In the said process he damaged the pipeline and therefore the suit came to be filed.
3. The defendant filed his written statement admitting the construction of well and laying of pipeline from Gut No.209. It was however denied that the plaintiff's field is surrounded by other agricultural land leaving no other way to reach his field. It was submitted that the plaintiff can lay pipeline through Gut No.235/2 and Gut No.235/1 through the northern dhura. It is submitted that the land Gut No.209 is divided into three parts. There is a north-south divide in dhura, 6 ft. wide between the land Gut No.235/3 and 235/2, which is used for carrying bullock cart and agricultural implements. It was alleged that the plaintiff has merged some portion of the dhura in his field Gut No.235/1 and as a result, the dhura is only two ft. wide. On these counts, the defendant prayed for dismissal of the suit.
4. The trial Court after recording the evidence and hearing both sides, came to the conclusion that the plaintiff failed to prove that he has right of way and right to lay pipeline to his field Gut No.235/1 and 235/2 through ::: Uploaded on - 05/03/2019 ::: Downloaded on - 21/03/2019 14:36:42 ::: SA367.05.odt 4 the dhura of defendant's field Gut No.235/3 of village Raje-Dahegaon. The trial Court held that the plaintiff is not entitled for declaration, permanent and mandatory injunction, as claimed and dismissed the suit.
5. The respondent/ plaintiff preferred Appeal against the said judgment and order. The lower Appellate Court observed that as per the survey map (Exh.35) there is no other way in existence for the plaintiff to approach his share bearing Gut No.235/1, unless the plaintiff pases through the land Gut No. 235/3 by the other corner of the said land. It was observed that the defendant himself has admitted that the plaintiff has constructed a well and laid pipeline to his land Gut No. 235/2 and 235/1, but he has not specifically pleaded as to by which way the pipeline has been laid by the plaintiff. It was further observed that the defendant has not specifically denied that the plaintiff has not laid the pipeline to his land Gut No.235/1 by dhura in the land bearing Gut No.235/3. Under these circumstances, it was observed that by having not specifically denied the defendant has admitted the presence of pipeline of the plaintiff through his land Gut No. 235/3. It was held that the plaintiff has proved that he has got right of way on the land of defendant Gut No.235/3 to his locked land Gut No.235/1 there is no direct access from Gut No.235/2 to his land bearing Gut No. 235/1 and as per the Nistar-patrak (Exh.33) the plaintiff had right to go through the land of the defendant to his land by dhura. Further, it was held that the plaintiff has ::: Uploaded on - 05/03/2019 ::: Downloaded on - 21/03/2019 14:36:42 ::: SA367.05.odt 5 proved that he has a right of way through dhura of Gut No.235/3 to his Gut No. 235/1. The lower Appellate Court observed that after filing of the suit and on obtaining interim injunction, the defendant destroyed the dhura and levelled it and sow paddy crop. It was suggested to the plaintiff by the defendant that he should shift the pipeline which according to the Appellate Court, goes to show the existence of pipelines of the plaintiff to the land of defendant Gut No.235/3. It was also noted by the appellate court that the level of dhura, in question in Gut No.235 was admitted by the defendant. The lower Appellate Court noted that the plaintiff has proved that the pipelline is laid through the land of the defendant and he has no other way to go through his field 235/1 except through the land of defendant bearing No. 235/3 and that there is dhura 80 ft. in length to the field of defendant. It was also noted that during the pendency of the suit the dhura which was in existence from Gut No.235/1 through the land of Gut No. 235/3 has been destroyed during the pendency of the suit and therefore the court held that the plaintiff has proved the existence of pipeline and his right to pass through the land bearing Gut No.235/3. Therefore, the appellate court directed the plaintiff to restore the dhura and the pipeline as status quo ante and held that the plaintiff is entitled for permanent as well as mandatory injunction.
6. The following substantial question of law was framed by this Court on 19th September, 2018:-
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SA367.05.odt 6 "Whether the finding recorded by the appellate Court that the plaintiff had proved the right to go to his filed being Gut No. 235/1 through the land of the defendant which is Gut No.235/3 is based on the evidence on record or whether the same is perverse.?
7. Shri S.G.Karmarkar, Learned counsel for the appellant/original defendant contended that both the plaintiff and the defendant have separate access and there is no reason for disturbing another's share. The disputed dhura is used by the plaintiff in his field. Only because it is convenient for him, and when there is an alternative way in existence the plaintiff has no right of easement of necessity and he cannot use the way through his field. As against this, Shri N.G. Solao, learned Advocate for respondent/ original plaintiff contended that there is no other way to reach to the field of plaintiff and the said way is being used by the plaintiff since long, even prior to the partition. It was contended that as the defendant has demolished the said dhura prior to the filing of the suit as well as during the pendency of the suit, the defendant is duty- bound to construct it and mandatory injunction was accordingly granted by the lower Appellate Court.
8. On a perusal of the judgment of the lower Appellate Court, it is noticed that the said Court has emphasized on the events which had taken place during the pendency of the suit and, therefore, it came to the ::: Uploaded on - 05/03/2019 ::: Downloaded on - 21/03/2019 14:36:42 ::: SA367.05.odt 7 conclusion that the plaintiff had no other way to go to his field than the way through the field of the defendant, whereas the trial court based on the evidence led by both the parties, has concluded that since the plaintiff has failed to prove that it was an easementary right and necessity to pass through the defendant's field and as the plaintiff has other way to reach to his field, the suit filed by the plaintiff was dismissed. In this context it is necessary to go through the provision of Section 13 of the Easement Act.
9. Easement of necessity, as per the provisions under Section 13 of the Indian Easements Act arises, only where by a transfer, bequest or partition, a single tenement is divided into distinct and separate tenements and any of the separate tenements is so situated that it cannot be used at all without enjoying an easement over the other such tenement or tenements. It is an established proposition of law that the mere fact that the servient and dominant tenements belong to a common owner does not give rise to an easement of necessity. It must be established that both the tenements had constituted a single unit and after the severance, the situation of a dominant tenement became such that it cannot be used at all without the easement claimed in the suit over the servient tenement.
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SA367.05.odt 8
10. After the oral partition in the year 1988 the defendant came into possession of Gut No.235/3. The dhura was being used by the father of plaintiff and defendant namely, Gujoba. There was no question of any construction as he was the owner of the entire Gut. After the partition in the year 1988 the question remains as to whether it can be said that the plaintiff acquired easement of necessity since prior to 1988. No easement of necessity can be found in favour of plaintiff. The necessity must be absolute necessity and not a convenient mode of enjoyment of the property. Thus, convenience is not the test but there should be absolute necessity. In the case reported in (2010) 2 SCC 689 in the case of Sree Swayam Prakash Ashramam and another vs. G.Anandavally Amma and others, it is observed by the Hon'ble Apex Court that if there exists any other way there can be no easement of necessity.
11. Thus, the lower Appellate Court has not considered the evidence led by the parties in its right perspective. The plaintiff has failed to prove that he has only easementary right of way through the field of defendant i.e. Gut No.235/3. In my opinion, the trial Court has rightly held that the plaintiff has other way to go to his field Gut No.235/1 and 235/2. In view of the facts and circumstances as well as judicial pronouncement cited supra, the following order would subserve the ends ::: Uploaded on - 05/03/2019 ::: Downloaded on - 21/03/2019 14:36:42 ::: SA367.05.odt 9 of justice. Hence the order:-
ORDER
1) The Second Appeal is allowed.
2) The judgment and decree dated 8.2.2005 passed by learned 1 st Adhoc Addl. District Judge,Bhandara in Regular Civil Appeal No.170/2003 is set aside.
3) The judgment and decree dated 19.9.2003 passed by learned 2 nd Joint Civil Judge, Jr.Dn. Bhandara in Regular Civil Suit No.72/2001 is hereby restored and confirmed.
4) Decree be drawn up accordingly.
JUDGE
sahare
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