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Sunday, 22 June 2014

When court should not grant right over way from boundary of field of other person?


 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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