Bombay High Court
Suresh S/O Jivanlal Chhallani vs Dnyaneshwar S/O Sadashiv Fulkari ... on 6 February, 2020
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
0602sa405.19.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.405/2019
Suresh s/o Jivanmal Chhallani
...Versus...
Dnyaneshwar s/o Sadashiv Fulkari (D) By Lrs.
Leela wd/o Dnyaneshwar Fulkari and others
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Mrs. A.R. Khare, Counsel for appellant
CORAM : AVINASH G. GHAROTE, J.
DATE : 06/02/2020 Heard learned Counsel for the appellant. It is not in dispute that the appellant is the owner of City Survey/Plot No.551 situated at Waifal Tah. Deoli, District Wardha. The title to the said property was originally held by the Fulkari family, who by deed of sale (Exh.28), transferred the same to one Jitmal Marwadi, upon whose death, his wife inherited the same, who consequently willed the same vide Exh.57 to the present plaintiff.
The suit before the Trial Court relates to the existence of way from the back side of plot No.551 which opens into a common area denoted by Survey No.602. The owner of Survey No.602 caused obstruction to this right of way forcing the plaintiff to file a suit for permanent and ::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 02:28:30 ::: 0602sa405.19.odt 2 mandatory injunction for removal of the obstruction. The learned Trial Court in para 6 of its judgment dated 31/12/2009 records an undisputed position regarding the existence of the way towards western side of the house of the plaintiff. It, however, dismissed the suit on account of discrepancy in the area of the suit house as shown in the sale-deed (Exh.28), in comparison to the dimensions contained in Will (Exh.57) and also absence of mention of the same in the sale-deed. It is contended by the learned Counsel for the appellant that the dimensions of the suit property in sale-deed (Exh.28) were in hands whereas the dimensions in the Will were in feets, which has resulted in the figures being different in these two documents. She contends that the conversion has resulted into this difference, which has been ignored by the Trial Court.
She further contends that the First Appellate Court in para 7 of the judgment erred in denying the claim on a specious consideration that since the house was facing north, an easement could not have been created on the western side.
Following substantial questions of law may arise for consideration.
(1) Whether an easement as to right of way, passes along with the title to the subsequent purchaser ?
::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 02:28:30 :::0602sa405.19.odt 3 (2) Whether absence of any mention as to right of way or easement in the document of title would obliterate such a right, if the position is admitted that there is a passageway available ?
Issue notice to the respondents, returnable 05/03/2020.
The appellant to take appropriate steps to serve the respondents by all means.
JUDGE Wadkar, P.S. ::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 02:28:30 :::