The High Court in this second appeal dismissed the challenge against the first appellate court's finding that the plaintiff failed to prove an existing easementary right of way over the adjacent property, holding it a question of fact.
Appeal dismissed; leave to appeal granted for six weeks; Civil Application No. 1824 of 2004 also dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 1367 OF 2004
Shri Shivaji M. Shinde ... Appellant
(Ori.Plaintiff)
V/s
Shri Parashram B. Shinde ... Respondent
(Ori.Defendant)
Mr. Vinod Jadhav holding for Mr. S.S. Pakale for the
appellant.
Mr. A.B. VAgyani for the respondent.
CORAM: P.V. KAKADE, J.
DATED: 23RD AUGUST, 2005
P.C.:
1. The appellant has preferred this appeal against the
judgment and order passed by the Addl. District Judge,
Sangli, dated 27.10.2004 allowing the appeal of the
defendant and setting aside the decree passed by the
Trial Court in R.C.S. No. 51 of 1997, by which the
suit came to be decreed and defendant was perpetually
restrained from obstructing, interfering, ingress and
egress in the suit property from other property.
2. I have heard the learned counsel for both parties.
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Perused the record.
3. The plaintiff filed the suit for perpetual
injunction against the defendant who hold adjacent
property and that the plaintiff had right of ingress and
egress to the extent of 4.5 ft. in width through C.T.S.
No. 116 belonging to the defendant. According to the
plaintiff, it was easementary right since their
ancestors. C.T.S. No. 115 is owned by the plaintiff.
It was alleged that, towards south side of the said
property, there is a cattle shed. To the eastern side
there is a protection wall and "Dindi Darwaja" and the
said door is not being used for ingress and egress for
the animals or the persons carrying water containers.
The said road is not being used since his ancestors
which is on the southern side for the ingress and egress
for the cattle. It is the case of the plaintiff that
plaintiff and his ancestors were using the way as shown
in the hand sketch on the southern side of the. Both
the houses of the plaintiff and defendant are facing
towards eastern side. There is open land beyond the
same. The plaintiff came with the case that defendant
obstructed his right of way to have the cattle through
the suit way and hence the suit.
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4. The defendant contested the suit on various grounds
inter-alia submitting that the allegation made by the
defendant-plaintiff were not correct and there was no
easementary right existing as alleged to pass the cattle
from the so-called suit way, and sought dismissal of the
suit.
5. The learned Trial Judge adjudicated the dispute on
merits and came to the conclusion that the plaintiff had
proved that there is three hand width road since
beginning at the south of shed of house No.115. It also
recorded the finding to the effect that there is no way
existing except the suit way and hence the plaintiff was
held entitled for perpetual injunction against the
defendant and suit came to be decreed.
6. The appeal was carried to the District Court,
Sangli. The learned Addl. District Judge, after
hearing both parties adjudicated the appeal on merits
and came to the conclusion that the Trial Court had
erred in holding that there was right of way vested in
the plaintiff in the suit way and, as such, the appeal
was allowed and the suit came to be dismissed. Hence
the present appeal.
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7. At the outset, it may be noted that there is
absolutely no substantial question of law involved in
this appeal. The existence of right of way is purely a
question of fact which is seen to be adjudicated by the
lower appellate Court holding that the plaintiff has
failed to prove easementary right of way over the suit
property. The learned counsel for the appellant
submitted that the findings recorded by the lower
appellate Court were perverse and, therefore, needed
interference by this Court. However, in this regard, it
must be noted that there are in all three maps involved
in this case, one drawn by the plaintiff himself at the
time of filing of the suit, second was that of the Court
Commissioner with his report and the third was the City
Survey map of the suit property. So far as the City
Survey map is concerned, it is of no use because it does
not show any right of way through the said defendant’s
property vested in the plaintiff. So far as the Court
Commissioner’s map is concerned, alongwith its report,
the observations made by the Court Commissioner in his
report are taken into account by the lower appellate
Court which show that at the relevant spot there is a
flowering plant and a bath-room with walls of loose
stones which is quite evident. Therefore, if there is
loose stone walled bath-room coupled with a flowering
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plant, it cannot be said that both the aspects, namely,
the flowering plant and loose stone walled bath-room are
in existence for time immemmorial. On the basis of this
aspect, the lower appellate Court has come to the
conclusion that there is absolutely no way available for
the plaintiff. The appellate Court has further
proceeded to assess the evidence of agreement dated
25.3.1984 Exh.67 and has come to the conclusion that the
document is unable to show that the plaintiff is
entitled to the alleged right. In view of this
position, I have no doubt whatsoever that the learned
lower appellate Court has rightly appreciated the
factual aspects of the evidence and it cannot be said
that the reasoning adopted by the lower appellate Court
is perverse in any manner.
8. Time and again the Apex Court, in the case of
Kondiba Dagadu Kadam v/s Savitribai Sopan Gujar,
reported in A.I.R. 1999 SC 2213, has observed that, in
a case wherefrom a given set of circumstances two
inferences are possible, one drawn by the lower
appellate Court is binding on the High Court in second
appeal. Adopting any other approach is not permissible
and the High Court cannot substitute its opinion for the
opinion of the first appellate Court unless it is found
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that the conclusions drawn by the lower appellate Court
were erroneous being contrary to the mandatory
provisions of law applicable or its settled position on
the basis of pronouncements made by the Apex Court or
was based upon inadmissible evidence. It is not within
the domain of the High Court to investigate the grounds
on which the findings were being drawn by the last Court
of fact, being the first appellate Court. In view of
these aspects, I am not inclined to interfere with the
findings recorded by the learned lower appellate Court
Judge as those relate to the issue of facts and, as
such, find that there is no merit in the appeal and
hence appeal deserves to be dismissed.
In the result, the appeal stands dismissed with no order
as to costs. Consequently, Civil Application No. 1824
of 2004 also stands dismissed with no order as to costs.
9. At this stage, the learned counsel appearing for the
appellant prays for stay of the order. In view of the
facts and circumstances, the order stands stayed for six
weeks.
3 issues framed by the court
Whether the findings of the first appellate court regarding the non-existence of an easementary right of way were perverse or contrary to mandatory provisions of law.
Whether the High Court can substitute its opinion for that of the first appellate court on questions of fact in a second appeal.
Whether there is any merit in the appellant's challenge to the finding regarding the permanent injuction right.
Colour shows how this judgement treated each authority
Kondiba Dagadu Kadam v. Savitribai Sopan GujarReferred¶25
Kondiba Dagadu Kadam v/s Savitribai Sopan Gujar, A.I.R. 1999 SC 2213 · Who else cites this
Shri Shivaji M. Shinde
Shri Parashram B. Shinde
P.V. KAKADE
As recorded by the court registry
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