Bombay High Court
Bhausaheb Baburao Sonawane vs Yashwant Sadashiv Valhekar And Others on 10 June, 2021
Equivalent citations: AIR 2021 BOMBAY 215, AIRONLINE 2021 BOM 1550
Author: R. G. Avachat
Bench: R. G. Avachat
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 652 OF 2020
Bhausaheb s/o Baburao Sonawane
Age: 67 years, Occu. Agril.,
R/o. Ashwi (Kh), Tq. Sangamner,
Dist. Ahmednagar ... Petitioner
(Orig.Deft.No.2)
Versus
1. Yashwant s/o Sadashiv Valhekar
Age - 40 years, Occu - Agril.,
2. Ganpat s/o Sadashiv Valhekar
Age - 55 years, Occu - Agril.,
3. Balasaheb s/o Sadashiv Valhekar
Age - 50 years, Occu - Agril.,
4. Mayur s/o Ganpat Valhekar
Age - 24 years, Occu - Agril.,
5. Vijay s/o Balasaheb Valhekar
Age - 22 years, Occu - Agril.,
6. Goraksha s/o Laxman Sable
Age - 47 years, Occu - Agril.,
7. Gokul s/o Laxman Sable
Age - 37 years, Occu - Agril.,
8. Machindra s/o Laxman Sable
Age - 44 years, Occu - Agril.,
9. Mangal Vitthal Sable
Age - 52 years, Occu - Agril.,
10. Asha w/o Sanjay Sable
Age - 37 years, Occu - Agril.,
All R/o Ashvi (Kh), Tq. Sangamner,
Dist. Ahmednagar
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11. Bharti Baban Datir
Age - 54 years, Occu - Agril.,
R/o Ashvi (Bk), Tq. Sangamner,
Dist. Ahmednagar
12. Sharda Tukaram Markad
Age - 52 years, Occu - Agril.,
R/o Pandhurli, Tq. Sinnar,
Dist. Nashik
13. Sunita Prakash Karde
Age - 47 years, Occu - Agril.,
R/o Kanhegaon, Kopergaon,
Tq. Kopergaon,
Dist. Ahmednagar
14. Anita Vijay Bargal
Age - 42 years, Occu - Agril.,
R/o Mayuri Nagari-2,
Navi Sangvi, Pune
15. Sangita w/o Bhimaji Veerkar
Age - 40 years, Occu - Agril.,
R/o Loni Kalvhar, Tq. Haveli,
Dist. Pune
16. Ramrao s/o Baburao Sonawane
Age - 60 years, Occu - Agril.,
R/o Ashvi (Bk), Tq. Sangamner,
Dist. Ahmednagar
17. Vasant s/o Baburao Sonawane
Age - 54 years, Occu - Agril.,
R/o Ashvi (Bk), Tq. Sangamner,
Dist. Ahmednagar ... Respondents
(Respondent Nos.1 to 5
are Orig. Plaintiffs and
Respondent Nos. 6 to 17
are Orig. Defts.)
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....
Shri K. N. Shermale, Advocate for petitioner
Shri N. T. Tribhuvan, Advocate for respondent No.1
Shri M. R. Kutwad, Advocate for respondent Nos. 2 to 5
Shri U. S. Mote, Advocate for respondent Nos.16 and 17
....
CORAM : R. G. AVACHAT, J.
RESERVED ON : 17th FEBRUARY, 2021
PRONOUNCED ON : 10th JUNE, 2021
J U D G M E N T :-
. Rule. Rule made returnable forthwith and heard finally, by consent of the parties.
2. The challenge in this writ petition is to the judgment and order dated 07.12.2019, passed by the District Judge-1, Sangamner, in Civil Miscellaneous Appeal No.6 of 2018.
3. The petitioner is the original defendant in Regular Civil Suit No.1064 of 2017 before the Civil Judge, Junior Division, Sangamner. The said suit has been filed by the respondent Nos. 1 to 5 against the petitioner and other respondents. The suit is for the relief of declaration that there exists a way (prescribed by letters A, B, C and D in plaint map) (for short 'the disputed way'), that goes along Southern side bandh of the lands Gut No.230/1 and 230/2.
3 of 16 ::: Uploaded on - 11/06/2021 ::: Downloaded on - 11/06/2021 22:39:10 ::: 4 wp-652-2020-judgment.doc The consequential relief of injunction was also prayed for restraining the petitioner and respondent Nos. 6 to 10, 16 and 17 herein (i.e. defendant Nos. 1 to 8), from obstructing respondent Nos. 1 to 5 (plaintiffs) from using the suit way.
4. The petitioner and the contesting respondents appeared in the suit and filed a counter claim. They admitted existence of the suit way. It is, however, their case that the suit way has been used by the petitioner and other respondents (defendants and plaintiffs) to negotiate with their lands. It is their further case that lands Gut Nos.199 and 200, belonging to the petitioner and respondent Nos. 1 and 3 (defendant Nos. 1 to 3), are situated to the South of the respondent Nos. 1 to 5's (plaintiffs') land Gut No.231. There exists a way (described with letter E-F in the sketch accompanying the counter claim). It goes through the land Gut No.231 belonging to respondent Nos. 1 to 5 (plaintiffs). The disputed way has been used by the petitioner and respondent Nos.16 and 17 (original defendant Nos. 1 to 3) for long, as of necessity. The respondent Nos. 1 to 5 have blocked/obstructed the disputed way. It was therefore prayed in the counter claim that it be declared that the disputed way has been in existence for long and the petitioner and respondent Nos. 16 4 of 16 ::: Uploaded on - 11/06/2021 ::: Downloaded on - 11/06/2021 22:39:10 ::: 5 wp-652-2020-judgment.doc and 17 (original defendant Nos. 1 to 3) have been using the same. The consequential relief of injunction, restraining the respondent Nos. 1 to 5 (plaintiffs) from obstructing the petitioner and the respondent Nos.16 and 17 from making use of the disputed way has been asked for. In the suit, the plaintiffs and defendant Nos. 1 to 3, moved applications Exh-5 and Exh.25 for interim injunction against each other. The trial Court vide its order dated 15.01.2018, rejected application Exh-5 moved by the plaintiffs (respondent Nos. 1 to 5 herein) and allowed Exh-25 and restrained the plaintiffs (respondent Nos. 1 to 5 herein) from obstructing the petitioner and respondent Nos. 16 and 17 (defendant Nos.1 to 3) from making use of the disputed way. The respondent Nos. 1 to 5 (original plaintiffs), therefore, preferred Miscellaneous Civil Appeal No.6 of 2018 before the learned District Judge-1, Sangamner. The learned District Judge-1, Sangamner, allowed the appeal and set aside the order of rejection of application Exh-5 passed by the trial Court. It allowed the application Exh-5 and restrained the respondents (defendant Nos. 1 to 3) from interfering with the respondent Nos.1 to 5's (original plaintiffs) user of the suit way. The application Exh.25 moved by the petitioner and respondent Nos. 16 and 17 (defendant Nos. 1 to 3) came to be rejected, setting aside the order passed by 5 of 16 ::: Uploaded on - 11/06/2021 ::: Downloaded on - 11/06/2021 22:39:10 ::: 6 wp-652-2020-judgment.doc the trial Court allowing the said application. The original defendant No.2 has therefore preferred the present writ petition.
5. From the submissions advanced, it does appear that there is no challenge to the order allowing application Exh.5. The petitioner and respondent Nos. 16 and 17 (original defendant Nos. 1 to 3) admitted existence of the suit way and denied to have ever obstructed the respondents (original plaintiffs) from using of the suit way. As such, the issue involved in this writ petition is confined to the dispute as to the existence of the disputed way and user thereof, as has been contended in the counter claim.
6. Heard.
Shri K. N. Shermale, learned Advocate for the petitioner would submit that the Court Commissioner was appointed by the trial Court. The Commissioner paid visit to the suit lands. The Court Commissioner's report undoubtedly indicated the existence of the disputed way. The report further indicates disputed way to have been blocked/closed by the plaintiffs (respondent Nos. 1 to 5). The trial Court, therefore rightly allowed the application Exh.25. According to the learned Advocate, the appellate Court overlooked the Court Commissioner's report. It gave undue emphasise to Section 6 of 16 ::: Uploaded on - 11/06/2021 ::: Downloaded on - 11/06/2021 22:39:10 ::: 7 wp-652-2020-judgment.doc 22 of the Indian Easements Act, 1882 (for short 'the Easements Act') and the case of the plaintiffs as to existence of suitable alternative way. The learned Advocate further submits that the Court Commissioner has been appointed in this Writ Petition, since the petitioner did not have way to harvest standing sugarcane. The Court Commissioner gave his report. A temporary arrangement was made for harvesting the sugarcane in the light of the Court Commissioner's report. According to the learned Advocate, the appellate Court ought not to have interfered with the order passed by the trial Court. He, therefore, urged for allowing the writ petition.
7. Shri N. T. Tribhuvan, learned Advocate for respondent No.1, Shri M. R. Kutwad, learned Advocate for respondent Nos. 2 to 5 and Shri U. S.Mote, learned Advocate for respondent Nos. 16 and 17, would on the other hand submit that the appellate Court rightly took into consideration provisions of Section 22 of the Easements Act. The village map indicates existence of suitable alternative way. There are no pleadings regarding the easementary right of way. An affidavit-in-reply has also been filed, reiterating the reasons given by the District Judge for rejecting the application Exh-25. The learned Advocates, ultimately urged for dismissal of the writ petition.
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8. Admittedly, the suit land bearing Gut No.231 belongs to the respondent Nos. 1 to 5 (original plaintiffs). The land bearing Gut No.230/1 and Gut No.230/2 belong to the defendant Nos.1 to 8. These lands are situated to the North of the suit land Gut No.231. The suit way separates these lands, Gut No.231 on one side and lands Gut Nos. 230/1 and 230/2 on the other. The suit way runs along the bandh that runs through the lands Gut Nos.230/1 and 230/2. The existence of the suit way is undisputed (adjoining the suit land Gut No.231). There are lands Gut Nos. 199 and 200 belonging to the petitioner and respondent Nos. 16 and 17 (original defendant Nos. 1 to 3). The disputed way (E-----F) is said to be off-shoot of the suit way. The trial Court had appointed a Court Commissioner to visit the site and make report. The Court Commissioner gave his report on 22.12.2017. The Court Commissioner in para 3 of his report, observed thus:-
"3½ iz-oknh ua-1 rs 3 ;kauh nk[kfoysY;k b rs Q ;k jLR;kP;k tkxsph nf{k.kksRrj ykach 1000 QwV vlwu] :anh 1- QwV vkgs- ;k jLR;kph tkxk Eglksck iknqdkaiklwu Eg.ktsp M@b ;k fBdk.kkiklwu oknhaps xV uacj&231 ;k tehuhae/kwu nf{k.kksRrj udk"kkr n"kZfoysY;k Q ;k fBdk.kki;Zar vkgs- ;k jLR;kps tkxsps iwosZyk o if"pesyk oknhaphp xV uacj&231 gh tehu vkgs- iz-oknh ua-1 rs 3 ;kauh nk[kfoysY;k b rs Q ;k jLR;kps tkxsr mRrjsdMhy Hkkxkr dik"khps fidkph dkgh >kMs miVwu R;kfBdk.kh o R;kps iwosZyk vlysY;k tehuhr oknhauh xOgkps fid dsysys fnlwu vkys- rlsp e/;Hkkxkr oknhauh jLR;kph tkxk ukax:u R;kHkkxkr Ålkph csankMs ¼csVs½ nqlÚ;k Ålkrwu dk<wu vk.kwu ykoysyh fnlwu vkyh] 8 of 16 ::: Uploaded on - 11/06/2021 ::: Downloaded on - 11/06/2021 22:39:10 ::: 9 wp-652-2020-judgment.doc rh lqdysyh vkgsr- rlsp nf{k.ksdMhy Hkkxkr fxUuh xorkph jksis ykoysyh vk<Gwu vkyh- rh jksis lqdysyh vkgsr- izfroknh ua- 1 rs 3 ;kauh nk[kfoysY;k b] Q ;k laiw.kZ Hkkxkr ik.kh lksMysys vlwu dkgh fBdk.kh fp[ky o dkgh fBdk.kh ik.kh lksMyssys fnlwu vkys"
9. The aforesaid report indicates that there existed the disputed way. The plaintiffs, however, blocked/obstructed it by bringing it under cultivation immediately before the counter claim was filed. Learned Advocate for the plaintiffs (respondent Nos. 1 to
5) admitted the Court Commissioner's report partially. The report that goes against the plaintiffs has been disputed. There was prima- facie nothing to indicate that the report of the Court Commissioner was not in accordance with the fact situation at the site. In my view therefore, the trial Court had rightly allowed application Exh.25.
The learned District Judge, gave the following reasons to set aside the order granting application Exh.25:-
"13. The commission map Exh.42 depicts that the Gat No.231 belonging to the plaintiffs in divided by two parts and between those two parts, there is newly planted sugarcane stumps and fodder-grass seedlings. The Ld.Advocate Shri. Wakchaure for the defendant Nos. 1 to 3 pointing out this fact submitted that previously there was way 'E-F' in existence but the plaintiffs have destroyed this way and had planted sugarcane stumps and fodder-grass seedlings and whereby obstructed the defendant Nos. 1 to 3's easementary right of way to approach their agricultural lands bearing Gat No.199 and 200, which are situated at northern side of plaintiffs' Gat No.231. The commission report Exh.42 nowhere depicts their exist way 'A-B-C-D' as pleaded in the counter-claim 9 of 16 ::: Uploaded on - 11/06/2021 ::: Downloaded on - 11/06/2021 22:39:10 ::: 10 wp-652-2020-judgment.doc and further from 'F' point there is also cart-track way on the common ridge of Gat Nos. 199 & 200.
14. Section 22 of the Easement Act provides that the dominant owner must exercise his right in the mode which is least onerous to the servient owner; and, when the exercise of an easement can without detriment to the dominant owner be, confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner be so confined. To explain the aforesaid Section 22, there are two illustrations. Amongst them, illustration (a) is relevant in this case and it runs as under:
(a) A has a right of way over B's field. A must enter the way at either end and not at any intermediate point.
15. Thus, from the aforesaid Section 22, it is clear that the dominant owner of the land can not have any right of easement as per his pleasure. As per the commission map Exh.42 and as per the pleadings of the parties thereto, the said cart-track way 'E-F' divides plaintiffs' land into two portion and as such same violates the provisions of Sec.22 of the Easement Act. That being so, the Ld. Trial Judge seriously erred in holding that the defendants have prima facie case for the simple reason that the easement can not be acquired in contravention of provisions of the Indian Easement Act. The Ld. Trial Judge had not taken into consideration and appreciated Section 22 of the Act, which provides that the right of easement must be exercised in mode which is least onerous to the servient owner and there is clear limitation on the right of dominant owner to exercise his right of easement. In the present case, the division of Gat No.231 belonging to the plaintiffs into two parts is detriment to the plaintiffs, who are servient owners and as such the defendants cannot be said to have prima facie case.
16. Admittedly, there is no evidence on record that Gat Nos.199 and 200 were part of Gat No.231. The defendants have also not brought on record to show that whether 10 of 16 ::: Uploaded on - 11/06/2021 ::: Downloaded on - 11/06/2021 22:39:10 ::: 11 wp-652-2020-judgment.doc these three Gat numbers were the part of the same survey numbers. Therefore, in the absence of several tenements, the defendants can not claim right of easement as necessity through the plaintiffs' land bearing Gat No.231 dividing into two parts. Further, it can not be also the case of the defendant Nos. 1 to 3 that they do not have access for their lands bearing Gat Nos. 199 and 200 because from the village map, it can be seen that quite near to their land, there is road (shiv) on its southern side and the defendant Nos. 1 to 3 could approach their lands, which are on its southern side as same road (shiv) is at nearby distance as has been urged by the Ld. Advocate Shri. Gavane for the plaintiffs.
17. The totality of the above discussion is that there exist a strong probability that the plaintiffs have an ultimate chance of success in the suit as it appears that the defendant Nos. 1 to 3 are not entitled for easement of necessity over the north-south way running through Gat No.231 dividing into two portion. The commission report Exh.42 does not clearly supports the defendants' case for easement of necessity or prescription for the reasons that dividing of Gat No.231 into two parts, which resulting into contravention of Section 22 of the Easement Act. ....... "
10. I am not in agreement with the reasons given by the learned District Judge. The mofussil pleadings are to be construed liberally. Whether it is a case of easement of necessity or easement by prescription or it is a case of grant etc., could only be decided during trial of the suit. It has been specifically averred in the counter claim that there existed the disputed way for long. This pleadings indicate that it may be a case of lost grant. It has also been averred in the counter claim that the disputed way had all along been used, 11 of 16 ::: Uploaded on - 11/06/2021 ::: Downloaded on - 11/06/2021 22:39:10 ::: 12 wp-652-2020-judgment.doc but the same has recently been closed by the plaintiffs/respondents, prima-facie does not mean likelihood of success. For being a prima-
facie case, it is sufficient to make out a triable case. A prima-facie case cannot be equated with proof but the expression may mean that there is a good ground for proceeding with a particular matter (AIR 1960 SC 1352). Prima-facie case means that it needs serious consideration, investigation or determination. It does not mean proof at this stage. It means bona fide dsispute regarding determination without pre-judging the case. In order to find out whether there exists any prima-facie case in favour of a party or not, it would be enough if it could be established that there was a seriously arguable question and it is not necessary that the point be proved to the hilt at that stage. Showing a reasonable chance of success is enough.
11. When the learned District Judge relies on Section 22 of the Easement Act, it impliedly suggests acceptance of existence of the disputed way.
- A right of way imports the right of passing in a particular line and not the right of varying it at pleasure. Where the dominant owner's right over the servient heritage is only a right of way, the servient owner is bound to supply only a sufficient space for passage. A right of way merely extends to that portion of the centre of the road, which is necessary for the due exercise of the right of passage. The only obligation upon the servient owner is that he shall 12 of 16 ::: Uploaded on - 11/06/2021 ::: Downloaded on - 11/06/2021 22:39:10 ::: 13 wp-652-2020-judgment.doc not unreasonably contract the width of the road, or render the right of passage less easy than it was at the time of the grant. Where the right is simply to pass from one point to another, the party desiring to exercise the right cannot claim to pass in a particular tortuous and indirect course between the two points. Courts in this country have given effect to the general rule that when once the line of way has been definitely set out, neither the dominant nor the servient owner can compel the other to give or to accept a different and a substituted way. If any person has a right of way from one place to another over a particular line, if he and his ancestors have been accustomed to use that way from a long time past, he has right to go over it, and cannot be compelled to use a different and substituted way. Illustration A to Sec.22 of the Act provides that if A had a right of way over B's field, A must enter the way at either end and not at any intermediate point. Similarly, where between two termini, a way is not a demarcated one, the servient owner is entitled to demarcate it so as to be least onerous to him. But where a defined way is claimed to have been acquired by express grant, the servient owner cannot compel the owner of the dominant tenement to accept a different way."
(Commentary by Sanjiva Row on the Indian Easements Act, 1882, 8th Edition)
12. As stated above, the Court Commissioner's report delineate the existence of the disputed ways, same has been brought under cultivation a few days before filing of the counter claim. The trial Court observed the plaintiffs/respondents to have not produced any evidence to show the existence of a suitable alternative way. The learned District Judge relied on the village map. It needs to be stated that the report of the Court Commissioner submitted in this Court, 13 of 16 ::: Uploaded on - 11/06/2021 ::: Downloaded on - 11/06/2021 22:39:10 ::: 14 wp-652-2020-judgment.doc does not disclose the existence of situation in terms of the village map. The Court Commissioner vide his report dated 03.02.2020 has observed thus:
"fiVh"kuj ;kaP;k xV ua- 199 o 200 e/khy rksM.khl vkysY;k Ålkph okgrqd dj.;klkBh xV ua-199 o 200 Ik;Zar xkMh jLrk ulY;kps fnlwu vkys- xV ua- 241 iklwu f"kcykiqj&vk"oh jksMyk feG.kkjk jLrk] xV ua- 250 P;k iqoZ&cka/kkyxrkpk jLrk] xV ua-189 iklwu f"kos Ik;Zarpk jLrk rlsp xV ua-207 e/kqu lq: >kysyk o vk"oh [kqnZ & fiizh ykSdh vteiqj jLR;kl feG.kkjk jLrk gs loZ [kktxh ekydhps vlY;kps fnlqu vkys- udk"kkr nk[kfoysyk M &Q gk jLrk xgq o Ålkps ihd ?ksrysys vlY;kus fnlqu ;sr ukgh- v&c&d&M gk jLrk o M&Q uarj xV ua-199 o 200 P;k cka/kkoj nf{k.kksRrj vlk ofgokVhpk jLrk vk<Gwu vkyk- v&c&d&M gk jLrk iqoZ cktql xV ua-230 o 231 P;k cka/kko:u iqosZl us Åu xV ua- 231 e/;s iqoZ cka/kkyxr vlysY;k vks<~;krqu nf{k.kksRrj vlk xV ua- 200 Ik;Zar usÅu iq<s xV ua-199 o 200 P;k njE;ku vfLrRokr vlysY;k nf{k.kksRrj xkMh jLR;kl feGfoY;kl xV ua-231 ps jLR;keqGs nksu Hkkxkr foHkktu gks.kkj ukgh-"
13. The Court Commissioner also gave a sketch delineating the fact situation at the site. From the report and the sketch, it can be prima-facie observed that there is no suitable alternative way, which the petitioner could use it as of right. On the contrary, the existence of the disputed way is evident from the Court Commissioner's report dated 22.12.2017. The same is re-enforced by the Court Commissioner's report dated 03.02.2020 filed in this Court. The disputed way was found under grown up crops.
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14. Be that as it may, since there exists disputed way and there being no suitable alternative way which could be used by the petitioner and respondent Nos.16 and 17 (defendant Nos. 1 to 3) as of right (as claimed), the order dated 07.12.2019, passed by the learned District Judge-1, Sangamner, deserves to be set aside restoring the order passed by the trial Court below Exh-25.
15. The aforesaid are prima-facie observations. The trial Court shall not be influenced by the same in deciding the suit. A wayout, however is suggested to the contesting respondents. If the contesting respondents are ready and willing to continue with the interim arrangement that was made by this Court in terms of the order dated 05.02.2020, passed in the light of the Court Commissioner's report dated 03.02.2020, the same shall continue pending the suit. The plaintiffs are at liberty to give the petitioner and respondent Nos.16 and 17 (defendant Nos.1 to 3) a right to access through their land as suggested by the Court Commissioner and worked out as temporary arrangement. The respondents are given one month's time for election. If they are agreeable for continuation of the temporary arrangement as has been suggested by 15 of 16 ::: Uploaded on - 11/06/2021 ::: Downloaded on - 11/06/2021 22:39:10 ::: 16 wp-652-2020-judgment.doc the Court Commissioner in his report dated 03.02.2020, the same to continue pending the suit, if not agreeable thereto, the order of the trial Court granting application Exh.25 shall stand restored with effect from one month after time given to the respondents for election.
16. In view of the above, the writ petition is allowed. Rule is made absolute in the above terms.
[ R. G. AVACHAT, J. ] SMS 16 of 16 ::: Uploaded on - 11/06/2021 ::: Downloaded on - 11/06/2021 22:39:10 :::