Bombay High Court
Vasant Balkrishna Pathak vs Ramrao Jaggannath Raut & Anor on 1 October, 2019
Author: M. G. Giratkar
Bench: M. G. Giratkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 538 OF 2007
WITH
CROSS-OBJECTION NO.68 OF 2019
APPELLANT : Vasant s/o Balkrishna Pathak (Dead)
(Original Through LRs.
Defendant)
1. Malini wd/o Vasantrao Pathak
(Deleted)
2. Vajay s/o Vasantrao Pathak,
Aged : 43 years,
Occupation : Service.
3. Abhay s/o Vasantrao Pathak,
Aged : 39 years,
Occupation : Service.
4. Sanjay s/o Vasantrao Pathak,
Aged : 37 years,
Occupation : Private Service &
Poojari.
Nos. 1 to 4 residents of Tulsibag
Road, Near Gujar Akhada, Mahal,
Nagpur.
5. Smt. Jayshree w/o Rajendra Halwai,
Aged : 41 years, R/o 109,
Vitthalwadi, Hudkeshwar Road,
Nagpur.
VERSUS
RESPONDENTS: 1. Ramrao s/o Jagannath Raut,
(Original Aged about : 57 years,
Plaintiffs) Occupation : Business. [
2. Smt. Gangubai wd/o Jagannath
Raut. (Deleted).
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Both residents of Tulsibag Road,
Near Gujar Akhada, Mahal, Nagpur.
WITH
CROSS-OBJECTION NO.68 OF 2019
IN
SECOND APPEAL NO.538 OF 2007
APPELLANT : Vasant s/o Balkrishna Pathak (Dead)
Through LRs.
1. Malini wd/o Vasantrao Pathak,
Aged : 69 years,
Occupation : Household.
2. Vajay s/o Vasantrao Pathak,
Aged : 43 years,
Occupation : Service.
3. Abhay s/o Vasantrao Pathak,
Aged : 39 years,
Occupation : Service.
4. Sanjay s/o Vasantrao Pathak,
Aged : 37 years,
Occupation : Private Service &
Poojari.
Nos. 1 to 4 residents of Tulsibag
Road, Near Gujar Akhada, Mahal,
Nagpur.
5. Smt. Jayshree w/o Rajendra Halwai,
Aged : 41 years, R/o 109,
Vitthalwadi, Hudkeshwar Road,
Nagpur.
VERSUS
RESPONDENTS: 1. Ramrao Jagannath Raut,
Aged about : 57 years,
Occ.: Business.
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2. Gangubai Jagannath Raut.
Aged about : 72 years, Occ. Nil.
Both R/o Tulsibag Road,
Near Gujar Akhada, Mahal, Nagpur.
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S/Shri S. P. Bhandarkar / R. M. Pande, Advocates for
appellants.
Shri S. R. Bhongade, Advocate for respondent/Cross-
Objector.
----------------------------------------------------------------------------------
CORAM:- M. G. GIRATKAR, J.
DATED : 01/10/2019.
ORAL JUDGMENT :
1. Second Appeal was admitted on 29th October, 2007 on following substantial question of law.
"Whether the reasons recorded by the st 1 Appellate Court in paragraphs 14 and 15 of the judgment to hold that the plaintiff had right of easement to use the open space for the purpose of making necessary repairs are perverse and whether the said judgment is liable to be set aside ?"
The facts giving rise to the present appeal can be summarized as under :-
2. The plaintiffs / respondents (parties are referred to as per their status before the Trial Court) have ::: Uploaded on - 07/10/2019 ::: Downloaded on - 20/04/2020 10:11:41 ::: 4 371-J-SA-538-07.odt filed R.C.S. No.1497/1989 before the Civil Judge, Junior Division, Nagpur claiming relief of easement on the land of defendant. Application for temporary injunction was rejected and therefore, plaint was amended and claimed the relief of possession against the defendant. The suit was dismissed by the Trial Court. The First Appeal was filed before the District Judge, Nagpur. Regular Civil Appeal No.278/2003 came to be allowed and decree was granted in favour of the plaintiffs. It was declared that the plaintiffs have right of easement for repairing and white washing the western side of wall of their house. The decree of mandatory injunction was refused. Hence, the second appeal before this Court.
3. Heard S/Shri S. P. Bhandarkar and R. M. Pande, learned counsel for the appellants. The learned counsel for the appellants have pointed out photograph filed on record and submitted that the house of plaintiffs is now demolished. There is no dispute about the photograph filed on record.
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4. The learned counsel for the appellants have pointed out Section 45 of Indian Easements Act, 1882. Section 45 is reproduced below.
Section 45 : Extinction by destruction of either heritage - An easement is extinguished when either the dominant or the servient heritage is completely destroyed.
5. Now, there is no dispute that house of plaintiffs is demolished and as per Section 45 of the Indian Easements Act, 1882, an easement is extinguished when either the dominant or the servient heritage is completely destroyed. Therefore, at this stage, plaintiffs cannot claim easementary rights. Hence, the decree passed by the First Appellate Court in respect of easementary rights of plaintiffs now does not survive. Therefore, appeal is dismissed as nothing survives in it.
CROSS-OBJECTION NO.68 OF 2019
6. Shri Bhongade, learned counsel for the plaintiffs/respondents has submitted that the suit was ::: Uploaded on - 07/10/2019 ::: Downloaded on - 20/04/2020 10:11:41 ::: 6 371-J-SA-538-07.odt amended and decree for possession was sought. During the pendency of the suit, Court Commissioner was appointed and defendants (appellants) never disputed the same. The learned counsel has submitted that the plaintiffs have proved encroachment of defendant over his land and therefore, he is entitled for decree of possession. The First Appellate Court granted decree in respect of easement and has not granted decree of possession. The Trial Court has also not considered the plea of plaintiffs in respect of encroachment by the defendant.
7. The plaintiffs had filed civil suit for declaration of easementary rights over the land of defendant. In para 2 of the plaint, the plaintiffs have specifically pleaded that his house is an old house which is standing on the same place and in its original position since last 40 years from its construction. The plaintiffs have also constructed their tiled roof and this roof and eaves of this roof are projected towards West by 3 and ½ ft. over the land of the defendant. The plaintiffs have been enjoying this right of eaves dropping and carrying rain waters from his roof through the eaves downwards on the ::: Uploaded on - 07/10/2019 ::: Downloaded on - 20/04/2020 10:11:41 ::: 7 371-J-SA-538-07.odt open land of the defendant from last more than 40 years i.e. from the date of construction of the house. Therefore, the plaintiffs are entitled for easementary rights and prayed to restrain the defendant from obstructing the same.
8. The particular admission / pleading of the plaintiffs in paragraph 2 of the plaint clearly shows that he has admitted the ownership of the defendant over the disputed portion. When the application for temporary injunction was rejected then the plaintiffs amended the suit and claimed the relief of possession.
9. The Court Commissioner was appointed and he had measured the suit site as per the direction of the Court. The evidence of Court Commissioner was not found reliable by the Courts below. The specific reasons are given by the First Appellate Court while recording the finding in respect of encroachment by the defendant. It is clear from the evidence on record that Court Commissioner has not measured the house property / plot of the defendant. The factual situation is not shown in his ::: Uploaded on - 07/10/2019 ::: Downloaded on - 20/04/2020 10:11:41 ::: 8 371-J-SA-538-07.odt map at Exh. 94. The defendants (appellants) have proved that they have constructed their house as per the sanctioned map vide Exh.100. The plaintiffs failed to prove that the defendant encroached on the area admeasuring 8.5 square meters. The plaintiffs cannot take a different plea. Once he has admitted the ownership of the defendant, he cannot change his stand and come with a plea that the defendant is not the owner and encroached upon the land of plaintiffs. There is no dispute about the photographs filed on record. The photographs show that the plaintiffs have demolished their house and now, they are constructing new building on their plot. The photographs show that there is no any obstruction by the side of the defendant for the construction of the plaintiffs. Hence, there is no merit in the cross-objection.
10. Hence, appeal as well as cross-objection are dismissed. No order as to costs.
11. R & P be sent back to the Trial Court.
JUDGE Choulwar ::: Uploaded on - 07/10/2019 ::: Downloaded on - 20/04/2020 10:11:41 :::