No easementary right under
Easement Act was even set up before the civil Court. In the
absence of existing right of way or in the absence of legal right in
respondentsdefendants, even by way of prescription under
Easement Act, merely because it was convenient for them to use
the said way, I am afraid the Civil Court could not have converted
sympathy into creation of way over Dhura of field no.28 belonging
to the appellantsplaintiffs. The courts below even have gone to
the extent of saying that some witness stated that the said way
from Dhura of survey no. 28 was being used for six years and
some witness stated that it was being used for more than 20 years
but the sale deed did not show the way on Dhura of field survey
no.28 at all. The vendor of the sale deed denied any such way. In
such state of affairs, it was risky for the civil court to create an
altogether new right of way for the defendants and thus allow the
defendants to use Dhura of field survey no.28 by destroying the
crops or as the case may be, in the field of the plaintiffs.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Keshav Vithoba Khatdeo,
...V E R S U S...
Gopal Sakharam Mundare
CORAM: A. B. CHAUDHARI, J.
DATED : 03.03.2014
Citation;2014(3) MHLJ612
This second appeal was not board. However, Appeal
From Order No.99/2013 is on today's admission board at
Sr. No.22. Mrs. Deshpande, learned counsel for the appellants,
commenced her arguments on A. O. No.99/2013 and during the
course of hearing it was noticed that the result of this A.O.
depends fully upon the result of Second Appeal No.426/99. That
being so, with the consent of learned counsel for both the parties,
present A. O. as well as S. A. were posted for final hearing and
disposal at 2.30 p.m. and accordingly both the appeals have been
heard together.
2.
Since result of A.O. No.99/2013 depends on the result
of S.A.No. 426/1999, I have taken the said appeal for hearing and
disposal first. Upon hearing learned counsel for the rival parties, I
find that the following substantial questions of law will have to be
reframed since the question of law framed on 20.12.2001 in the
light of the arguments advanced before me do not arise. Hence,
following substantial questions of law are reframed:
Whether the suit of the plaintiffs for
injunction from using Dhura to field No. 28 as way
for the defendants, should be decreed in view of non
(i)
existence of way by Dhura of field survey no. 28 or
non existence of any Government Pandhan or road
through Dhura of field survey no. 28?
... YES.
(ii)Whether the defendants were entitled to use
Dhura of field survey no.28 belonging to the
appellantsplaintiffs in the absence of any
documentary proof from the revenue department for
claiming such a right?
...NO.
(iii)
Whether in the absence of any existing
right of way over Dhura of survey no. 28 or in the
absence of access to the defendants set out for
claiming easement by prescription, the civil Court
could have allowed the way over Dhura of field
survey no. 28 as way for the defendants only on the
ground that it was reasonable access for the
defendants?
3.
...NO.
Perused the impugned judgments recorded by the
courts below. Heard learned counsel for the rival parties. It is not
in dispute that none of the parties relied on any revenue
documentary evidence for showing the way over Dhura of survey
no.28 belonging to the appellantsplaintiffs. Since according to
the plaintiffs, there was no such right of way over Dhura there was
no question of plaintiffs bringing on record any such revenue
entries or revenue records but then the courts below have
criticised the appellantsplaintiffs for claiming negative
declaration. When it was the case of the plaintiffs that there was
no way over Dhura of the plaintiffs, the plaintiffs obviously
required an order of injunction against the defendants which
cannot be described as 'negative declaration'. Be that as it may.
Upon perusal of the evidence and judgments of the
4.
courts below, it appears that they relied upon village map Exh.50
and oral evidence of both the parties and the report of
CommissionerLawyer appointed by the court. In my opinion, the
said report of Commissionerlawyer could not be a substitute for
the authentic proof of right of way. However, the village map
Exh.50 having been perused by the courts below, both the courts
felt sympathy for the defendants that they were required to
approach their field by the alternate long way suggested by the
plaintiffs from AmbadaIrur and MalkapurIrur and CClass land
showed in the said map Exh.50. No easementary right under
Easement Act was even set up before the civil Court. In the
absence of existing right of way or in the absence of legal right in
respondentsdefendants, even by way of prescription under
Easement Act, merely because it was convenient for them to use
the said way, I am afraid the Civil Court could not have converted
sympathy into creation of way over Dhura of field no.28 belonging
to the appellantsplaintiffs. The courts below even have gone to
the extent of saying that some witness stated that the said way
from Dhura of survey no. 28 was being used for six years and
some witness stated that it was being used for more than 20 years
but the sale deed did not show the way on Dhura of field survey
no.28 at all. The vendor of the sale deed denied any such way. In
such state of affairs, it was risky for the civil court to create an
altogether new right of way for the defendants and thus allow the
defendants to use Dhura of field survey no.28 by destroying the
crops or as the case may be, in the field of the plaintiffs. Suffice it
to say, therefore, that in the absence of any right of way to the
defendants for the use of Dhura in field survey no.28 of plaintiffs,
the plaintiffs had a right to claim injunction against the erring
defendants who, according to them, wanted to create a reasonable
access over Dhura of field survey no. 28. Thus both the courts
have erred in not decreeing the suit.
4.
There is one more reason why the civil court should not
have done so. The reason is that the job of finding out right of
way in wajibularz or in any other manner or removal of
obstruction from the existing right of way or for enquiring into and
deciding the claims for right of way over the boundaries of other
ig
survey numbers or to decide such claims having regard to the
needs of cultivators for reasonable access to their field is, in my
opinion, an expert job and perhaps the Civil Court may not be
equipped with such an expertise. That is the reason why, in my
opinion, creation of such right and enquiring into such rights
deciding such right or claims even for reasonable access or over
the boundaries for that matter should be left to the land and
survey and revenue officers who do have expertise in their
working. It is, in this context, I quote section 143 of of the
Maharashtra Land Revenue Code, which reads thus:
143. Right of way over boundaries.
(1) The Tahsildar may inquire into and
decide claims by persons holding land in a survey
number to a right of way over the boundaries of
other survey numbers.
(2)
In deciding such claims, the Tahsildar
reasonable access to their field.
The Tahsildar's decision under this
(3)
shall have regard to the needs of cultivators for
section shall, subject to the provisions of sub
sections (4) and (5), be subject to appeal and
revision in accordance with the provisions of this
Code.
(4)
Any person who is aggrieved by a
decision of the Tahsildar under this section may,
within a period of one year from the date of such
modified.
(5)
decision, institute a civil suit to have it set aside or
Where a civil suit has been instituted
under subsection (4) against the Tahsildar's
decision, such decisions shall not be subject to
appeal or revision. ”
5.
Perusal of the above provision, in particular sub section
(1) and (2) shows a wide nature of power in Tahsildar or revenue
department to find out a way or, as the case may be, reasonable
access for the benefit of cultivators. If a party is aggrieved by his
decision, appeals and revisions are also provided or even under
section 143 (4) and (5) by filing a suit, for which a period of one
year has been allowed. There must be some reason why
Legislature has given a period of one year for filing a suit against
such a decision and the reason appears to be that the cultivators
can file appeals and revisions as per Section 143 (2) and (3) supra
before the revenue officers as per the hierarchy mentioned in
Schedule “E” of the Maharashtra Land Revenue Code.
6.
The net result of the above discussion is that the courts
below erred in dismissing the suit. The question No. (i) is
answered in the affirmative, while the question nos. (ii) and (iii)
are answered in the negative.
Apart from the above, I think, the defendants having
6.
not taken recourse to the proper legal remedy, cannot be
prevented from doing so. Therefore, I am inclined to grant liberty
in favour of the defendants, if they have any claim for reasonable
access or, as the case may be, before such a forum as is permissible
in law. Hence, I pass the following order:
O R D E R
(i) Second Appeal No. 426/1999 is allowed.
(ii) The impugned judgment and decree
passed by both the courts below are set aside.
(iii)
Regular Civil Suit No.31/1993 filed by
the appellants is decred and it is declared that the
defendants do not have any right to pass through or
use SouthEast Dhura of field survey No.28 for
approaching their field as their way save and except
any enquiry and decision into any claim by
competent authorities.
(iv)
The defendants are restrained from
using/utilizing the said SouthEast Dhura of survey
no.28 by decree of permanent injunction save and
except any decision by a competent authority.
Decree be drawn up accordingly.
JUDGE
No order as to costs.
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