Bombay High Court
Ravindra Nagorao Ingole & 3 Others vs Babarao Namdeorao Bhusari on 4 July, 2018
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
SA172.03.odt 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.172 OF 2003
APPELLANTS: 1. Ravindra S/o Nagorao Ingole, Aged
about 30 years,
2. Subhash S/o Nagorao Ingole, Aged
about 28 years,
3. Sanjay S/o Nagorao Ingole, Aged about
26 years,
4. Sharad S/o Nagorao Ingole, Aged about
23 years,
All R/o Maiwadi, Tq. Morshi, Dist.
Amravati.
-VERSUS-
RESPONDENT: Babarao S/o Namdeorao Bhusari, Aged
about 50 years, R/o Maiwadi, Tq.
Morshi, Distt. Amravati.
Shri A. J. Gilda, Advocate for the appellants.
Shri A. M. Sudame, Advocate for the respondent.
CORAM: A.S. CHANDURKAR, J.
DATED: 4th
JULY, 2018.
ORAL JUDGMENT :
1. The appellants are the original defendants who are aggrieved by the decree passed by the appellate Court in the suit claiming declaration of easementary right and perpetual injunction ::: Uploaded on - 12/07/2018 ::: Downloaded on - 14/07/2018 00:10:29 ::: SA172.03.odt 2/9 granted in favour of the respondent.
2. The facts giving rise to the present second appeal are that the plaintiff is the owner of field Survey No.3/2 admeasuring 1 hectare 60 R at mouza Maiwadi, Tah. Morshi, District Amravati. The defendant is the owner of field Survey No.3/1. According to the plaintiff, he had right by way of easement of necessity to approach his field from the way of the defendant's field and was enjoying the same for more than twenty years. On 8-2-1995 an obstruction was caused by the defendant and hence the plaintiff approached the Civil Court by filing the aforesaid suit. In the written statement the claim as made by the plaintiff was denied. It was pleaded that the plaintiff as well as other cultivators from Survey No.3 were using an alternate way that was available through Survey No.51. This way was initially passing through the field Survey No.3/3 and thereafter proceeded towards the field Survey No.3/2 and 3/1. It was therefore pleaded that the suit was liable to be dismissed.
3. During pendency of the suit, the plaintiff amended the plaint as according to him the defendants in violation of the order of temporary injunction had dug a well on the suit way so as to obstruct the way of the plaintiff. By amending the plaint, a relief of filling up well was also prayed for. According to the defendants, ::: Uploaded on - 12/07/2018 ::: Downloaded on - 14/07/2018 00:10:29 ::: SA172.03.odt 3/9 this well was in existence prior to filing of the suit and the allegations as made by the plaintiff were incorrect.
4. The parties led evidence and the trial Court after considering the evidence including the report of the Court Commissioner held that the plaintiff did not have any easementary right as alleged. The plaintiff was in fact seeking a new approach way. On that basis, the suit came to be dismissed. The appellate Court in the appeal filed by the plaintiff held that the way as shown in the suit map by letters ABC was the customary approach road and that the plaintiff had proved the right to approach his field by way of necessity. The suit was accordingly decreed granting the right of ingress and egress to the plaintiff. Being aggrieved the defendants have filed this appeal.
5. The following substantial questions of law were framed while admitting the second appeal:
(1) As to whether the learned appellate Court was right in relying wholly on the report of the Court Commissioner on a premise that it is not objected by either of the parties when as a matter of fact plaintiff as well as defendant had raised the objection to the said report and when the learned trial Court had arrived at a finding of fact after taking into consideration the entire evidence including the Court Commissioner's report?
(2) As to whether the appellate Court was right in holding ::: Uploaded on - 12/07/2018 ::: Downloaded on - 14/07/2018 00:10:29 ::: SA172.03.odt 4/9 that the plaintiff has proved his customary right of approach road, when there was no pleading nor evidence to that effect?
6. Shri A. J. Gilda, learned Counsel for the appellants- defendants submitted that the Court Commissioner was appointed by the trial Court to inspect the suit way. His report at Exhibit-50 was placed on record. The same was objected to by the plaintiff by filing his objections below Exhibit-51. The defendants had also filed their objections vide Exhibit-54. The appellate Court however observed that the report of the Court Commissioner had not been objected to by either of the parties and proceeded to take the same into consideration. This approach indicated that the appellate Court without considering the material on record gave undue importance to the report of the Court Commissioner and passed the decree. He referred to the deposition of the Court Commissioner at Exhibit-70 and submitted that the alternate way as pleaded by the defendants was available to the plaintiff for approaching his field. The trial Court after a proper appreciation of the evidence on record had clearly held that an alternate way was available to the plaintiff and therefore rightly dismissed the suit. According to the learned Counsel the suit way as shown by the letters AB could not be used in view of the uneven level of said way. The well on the approach way also caused obstruction and it ::: Uploaded on - 12/07/2018 ::: Downloaded on - 14/07/2018 00:10:29 ::: SA172.03.odt 5/9 could not be said that the said well was dug up during pendency of the suit. It was then submitted that in absence of the sufficient pleadings and evidence, the appellate Court could not have held that the plaintiff had proved his customary right of way. That relief was granted without satisfying the necessary ingredients as regards pleadings and proof. It was thus submitted that the judgment of the appellate Court deserves to be set aside and the judgment of the trial Court deserves to be restored.
7. Shri A. M. Sudame, learned Counsel for the respondent supported the impugned judgment. He submitted that it was a fact that the report of the Court Commissioner at Exhibit- 50 had been objected to by both the parties. The Court Commissioner was thereafter examined below Exhibit-70 and he was also cross-examined by both the parties. Referring to the provisions of Order XXVI Rule 10 of the Code of Civil Procedure, 1908 (for short, the Code), it was submitted that by permitting the parties to cross-examine the Court Commissioner, the requirements of considering objections to his report was satisfied. It was urged that on a reading of the deposition of the Court Commissioner, it was clear that an alternate way was not available to the plaintiff. Referring to the averments in the plaint and especially para 4 thereof, it was submitted that the necessary ::: Uploaded on - 12/07/2018 ::: Downloaded on - 14/07/2018 00:10:29 ::: SA172.03.odt 6/9 pleadings with regard to easement of necessity were present. The evidence on record also indicated the same. Though it was the case of the defendants that an alternate way was available through field Survey No.3/3, the owners of said field were not examined. It was thus submitted that the appellate Court rightly decreed the suit after considering the entire material and no interference was called for.
8. I have heard the learned Counsel for the parties at length and with their assistance, I have gone through the records of the case. The record indicates that the trial Court appointed a Court Commissioner who along with the parties and their Counsel visited the suit way on 15-8-1997. He submitted his report at Exhibit-50. The plaintiff raised an objection to that report at Exhibit-51 while the defendants raised their objection at Exhibit-
54. The appellate Court was not correct in observing that the parties had not objected to the report of the Court Commissioner. It is a fact that such objections were raised. The provisions of Order XXVI Rule 10 of the Code stipulate the examination of the Court Commissioner and it is open for the parties objecting to the report of the Court Commissioner to cross-examine him on that report. Such course was followed and the Court Commissioner was examined below Exhibit-70. He was cross-examined by the ::: Uploaded on - 12/07/2018 ::: Downloaded on - 14/07/2018 00:10:29 ::: SA172.03.odt 7/9 plaintiff as well as by the defendants. Perusal of the evidence of the Court Commissioner indicates that he has been cross-examined by both parties in the light of the objections raised by them to his report. Thus, in effect, the objections as raised by the parties were put to the Court Commissioner in his cross-examination and his evidence was accordingly recorded. The provisions of Order XXVI Rule 10(2) of the Code have been duly complied with.
It therefore cannot be said that parties were prejudiced on account of non-consideration of their objections. It is found that the deposition of the Court Commissioner considers those objections. Hence, substantial question of law No.1 is answered by holding that the Court Commissioner having been cross-examined by both the parties, the objections raised by them to his report have been taken into consideration and the provisions of Order XXVI Rule 10 of the Code stand complied with.
9. As regards the aspect of customary right of approach way of the plaintiff, in the plaint it has been pleaded that the plaintiff was in possession of field Survey No.3/2002 since the year 1972 after mutual partition between his family members. It has further been pleaded that for more than twenty years, the plaintiff was using the way as shown in the suit map as an easement of necessity as there was no alternate way. In the evidence of PW-3 at ::: Uploaded on - 12/07/2018 ::: Downloaded on - 14/07/2018 00:10:29 ::: SA172.03.odt 8/9 Exhibit-71 it has been deposed that initially Survey No.3 was owned by the plaintiff's grandfather. It was thereafter partitioned and field Survey No.3/1 came to the share of the plaintiff's uncle Ramrao. The defendants purchased field Survey No.3/1 from the son of Ramrao in the year 1991. The obstruction for the first time was made in the year 1995.
It can thus be seen that it had been pleaded by the plaintiff that the suit way was being for more than twenty years as of right of easement of necessity and that it was the only way available. The fact that the defendants had purchased the field Survey No.3/2 some time in the year 1991 is not in dispute. Though it was claimed by the defendant that there was a reference to the alternate way in the defendant's sale deed, the same was not produced on record. When these pleadings and the evidence is considered alongwith the report of the Court Commissioner at Exhibit-50, it can be seen that an alternate way as suggested by the defendants was not found existing as there was no signs in that regard found. It has also been found that the plaintiff's field is landlocked and he has no other approach way to his field. Considering this material on record, it cannot be said that the conclusion arrived at by the appellate Court is not based on any evidence on record or that it is not supported by the necessary ::: Uploaded on - 12/07/2018 ::: Downloaded on - 14/07/2018 00:10:29 ::: SA172.03.odt 9/9 pleadings. In the light of that evidence on record, no error has been committed by the appellate Court while dismissing the suit and no other view appears possible. The appellate Court has described that way as a customary way and has also found that the plaintiff had a right of easement by way of necessity. Said right of easement of necessity has been considered in para 19 of the judgment of the appellate Court. The observations therefore would have to be understood in that context.
Accordingly, substantial question of law No.2 is answered by holding that the plaintiff had proved his right to use the approach way and the same is based on the pleadings and evidence on record.
10. In view of aforesaid answers to the substantial questions of law, there is no case made out to interfere with the judgment of the appellate Court. The second appeal is thus dismissed with no order as to costs.
JUDGE //MULEY// ::: Uploaded on - 12/07/2018 ::: Downloaded on - 14/07/2018 00:10:29 :::