Dhirajbai W/O Tilakchand Shah and 1 Anr. Vs Bhikulal Ramdulare Gupta and 1 Anr.

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2025:BHC-NAG:145

Judgment

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.

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SECOND APPEAL NO.52 OF 2006

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1. Dhirajbai w/o Tilakchand Shah,
aged 85 years, occupation:
household work.

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2. Navinchand s/o Tilakchand Shah,
aged 67 years, occupation : business.

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3. Dwarkadas s/o Tilakchand Shah,
aged 56 years, occupation: business.

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All residents of Paratwada, taluka
Achalpur, district Amravati. ….. Appellants.

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:: V E R S U S ::

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1. Bhikulal Ramdulare Gupta,
aged 59 years, occupation:
teacher.

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2. Mohanlal Ramdulare Gupta,
aged 55 years, occupation: service,
both residents of Paratwada,
taluka Achalpur, district Amravati.

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(2-a) Mrs.Pushpa wd/o Mohanlal Gupta, aged
about 68 years, occupation: housewife.

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(2-b) Ms.Anjali d/o Mohanlal Gupta, aged
about 44 years, occupation: teacher.

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(2-c) Ms.Amruta d/o Mohanlal Gupta, aged
about 32 years, occupation:legal.

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all R/o Suraksha Apartment, Hindustan

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Colony, Amravati Road, Nagpur 440 033. ….. Respondents.

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================================

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Shri Abhay Sambre, Counsel Appellants.
Shri Rohit Vaidya, Advocate h/f Shri R.L.Khapre, Senior
Counsel for Respondent Nos.1 and 2.

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================================

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CORAM : URMILA JOSHI-PHALKE, J. CLOSED ON : 11/12/2024 PRONOUNCED ON : 06/01/2025

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JUDGMENT

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By this appeal, appellants have challenged judgment and decree passed in RCA No.6/1994 by learned 2^nd Ad Hoc Additional District Judge, Achalpur dated 29.9.2005 by which the appeal of respondents was allowed and the judgment and decree of the trial court to the extent of counter claim in respect of the injunction on user of JC door to go to the eastern service lane was set aside. It was further directed that the plaintiffs’ claim to restrain the defendants permanently from interfering with their right to repair their southern wall by going through the door JC is decreed. The defendants were permanently restrained from interfering the plaintiffs to use JC door to repair their southern wall.

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Brief facts of the plaintiffs case are as under:

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The plaintiff Nos.1 and 2 are brothers and they are

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owners of house bearing municipal No.71, situated on nazul
plot No.127, sheet No.19, in ward No.8, Paratwada. The
original owner of the said house property was their
grandfather Ramdhin who purchased it by registered sale
deed dated 28.7.1975 and reconstructed it in the same year.
The house of the defendants is situated on south of their
house. As per contentions of the plaintiffs, the wall between
both the houses belongs to them. One Shankarlal Agrawal
was initially tenant in the house of the defendants. In the
October 1984, the defendants took possession of their house
from the tenant. In December 1984, the defendants raised the
height of the room by two feet by lifting the curb roof. While
lifting the height of room, the defendants removed and
refixed beams and rafters two feet above in the middle wall
unauthorizedly. The defendants also scratched the middle
wall from southern side and there are scratches on the wall
inside north-south. The plaintiffs have incurred the expenses

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to repair the wall. As soon as the plaintiffs came to know
about illegal and unauthorized act of the defendants, by
issuing notice dated 2.1.1985 the defendants were called
upon to maintain the status quo and also asked to repair the
wall. Despite the service of notice on them, they neither
repaired the wall nor maintained the status quo. It is further
contended by the plaintiffs that there is a door on the east
side of the middle wall which opened in the house of the
defendants. The plaintiffs have right to use the door to go
towards east to repair the southern side of the middle wall by
entering into the defendants’ house. But, the defendants by
notice reply called the plaintiffs to close the door. As per the
plaintiffs, they have an easementary right by prescription as
well as by way of necessity to use the door and, therefore,
they preferred the suit for declaration that the middle wall
belongs to them exclusively and they have right to use the
eastern door in the middle wall by way of easementary right
and also claimed the compensation towards the repair of the
southern side wall.

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The defendants contested the suit with contention

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that the plaintiffs have no easementary right to enter into the
house of the defendants to repair the wall. In fact, no damage
is caused to the middle wall. The middle wall is common
wall. The defendants have admitted that they have obtained
the possession in October 1994 and raised the height of roof
by two feet and prayed for dismissal of the suit. The
defendants have also claimed by way of counter claim that the
door which opens in their house be closed permanently and
the plaintiffs are not entitled to have door on the south east
corner and sought mandatory injunction against the plaintiffs.

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Considering the rival contentions of the parties,

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necessary issues were framed by the trial court. In support of
the contentions, the plaintiffs examined as many as five
witnesses namely PW1 Ramkrishna Sahastrabuddhe Exh.43,
PW2 Bhikulal Ramdulare Gupta plaintiff himself vide Exh.55,
PW3 Shankarlal Agrawal vide Exh.64 the tenant of the
defendants, PW4 Ramratan Gupta vide Exh.65 and PW5 Sham
Deshpande vide Exh.66. DW1 defendant No.1(b) has also

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examined himself vide Exh.81, DW2 Premshanklar Sharma
vide Exh.84, DW3 Pradip Bhansali vide Exh.107, and DW4
Keshav Bhide vide Exh.111.

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On appreciating the evidence, learned Civil Judge Senior Division decreed the suit partly and it was declared that the suit wall belongs to the plaintiffs exclusively and the defendants are restrained by perpetual injunction from damaging the southern side of the suit wall. The defendants further by way of mandatory injunction are directed to restore the western side roof of their house to its original height and to cover scratches caused by removal of south-north wall embedded in the suit wall. The defendants were further directed to pay the costs of Rs.100/- which was incurred by the plaintiffs for repairing the said wall. The easementary right claimed by the plaintiffs to enter the defendants house by the JC door was denied and they are directed by mandatory injunction to close the said door.

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7. Being aggrieved and dissatisfied with dismissal of

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the some of prayers, the original plaintiffs preferred an appeal
bearing Regular Civil Appeal No.6/1994. While allowing the
appeal, the appellate court set aside the judgment and decree
to the extent of counter claim in respect of the injunction by
which restrictions were imposed on the plaintiffs to use the JC
door. The appellate court further restrained the defendants
from interfering with their right to repair their southern wall
by going through the door JC and the defendants are
permanently restrained from interfering the plaintiffs to use
JC door to repair their southern wall.

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Being aggrieved with the same, the present appeal is preferred by the defendants.

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The substantial questions of law involved in the

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appeal are as follows:

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Whether the appellate court was justified in law in
reversing the findings recorded by the trial court by
relying on the testimony of PW3 Shankarlal Agrawal

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which was disbelieved by the trial court for
convincing reasons and disbelieved the evidence of
DW4 Keshav Bhide whose testimony was believed by
the trial court?

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The parties hereinafter are referred as per their original nomenclature.

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Heard learned counsel Shri Abhay Sambre for the defendants and Advocate Shri Rohit Vaidya h/f learned Senior Counsel Shri R.L.Khapre for the plaintiffs.

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Learned counsel for the defendants submitted that

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by the suit for declaration and injunction the plaintiffs have
claimed the easementary right by prescription and the suit
was partly decreed by the trial court. The easementary right
was denied by the trial court by observing that the plaintiffs
failed to establish the easementary right by way of
prescription as well as by way of necessity. The burden of
proof of all ingredients of Section 15 of the Easements Acts
was not discharged by the plaintiffs. The plaintiffs have to
prove the acquisition of the said right and also have to prove

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that they have enjoyed the said right peacefully and openly
for a period of 20 years. The first appellate court without
assigning any reason set aside the decree of the trial court by
which the right of easement was denied to the plaintiffs.
Thus, incorrect finding is recorded by the first appellate court
and, therefore, the judgment of the first appellate court is
perverse and liable to be quashed and set aside.

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Per contra, learned counsel for the plaintiffs invited my intention towards the entire evidence and submitted that there is a pleading in para No.1A of the plaint as well as para No.5 as to the right of easement. Thus, requirement of law is satisfied by the pleading. The evidence of the plaintiffs is substantiated by the independent witness PW3 Shankarlal Agrawal. The case of the plaintiffs is also covered by right of easement by way of necessity. The requirement of Section 15 of the Easements Act are fulfilled. If the explanation given under Section 15 of the said Act is considered, there is no evidence to show that there was any obstruction to the use of the said door. The plaintiffs have enjoyed the said right

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without interruption for more than 20 years and, therefore,
the first appellate court rightly considered the same and set
aside the decree to that extent and, therefore, there is no
perversity in the judgment of the first appellate court.
Moreover, no substantial question of law is involved.
Therefore, the appeal deserves to be dismissed.

¶85

On appreciating the evidence on record, it is undisputed that the suit house belonging to the plaintiffs is East West in length and house belonging to the defendants situates on south and adjoining to the plaintiffs’ house. It is also East West in length. Admittedly, there is a wall between both the houses which is a suit wall. There is no dispute that the plaintiffs’ grandfather Rama purchased the house by registered sale deed dated 28.7.1995. The sale deed is at Exh.56. The deceased defendants purchased the southern house by way of registered sale deed on 31.5.1962 which is at Exh.80 in the name of Dwarkadas who is defendant No.1-C. The plaintiffs have not claimed any ownership or possession of the southern house. The contention of the plaintiffs is that

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roofs of both the adjoining houses rest on middle East-West
wall which is the suit wall. The said suit wall according to the
plaintiffs exclusively owned and possessed by them. As far as
contention of the plaintiffs is concerned, that the rooms of
both houses rest on the middle wall, is undisputed fact.
Whereas, ownership of the middle wall of the plaintiffs is
denied by the defendants. As per the contention of the
defendants, it is common wall of both of them. In support of
his contentions, the plaintiffs and defendants both have
placed reliance on survey record concerning both the houses
and their measurements in order to locate the exact situation
of the suit wall, but none of parties have adduced the
evidence to establish the said fact.

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In the light of the admitted facts, if the evidence is appreciated, it reveals that Exh.56 sale deed dated 28.7.1995 the plaintiffs house is bounded by defendants house on South which has walls on four sides. The sale deed Exh.80 in respect of the defendants’ house nowhere reflects that there is a northern or southern wall. Though there is a reference to

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the western door of wooden plants and eastern courtyard and

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the door to proceed towards east. This evidence as to the
both the sale deeds were executed when the parties were not
in dispute in respect of the middle wall which shows that in
both the sale deeds the suit wall was shown to be part and
parcel of the suit house. Even the pleading and the evidence
of the defendants substantiates the same. The contentions of
the defendants that the suit wall is common wall but the
evidence of the defendants is not certain about the same.
They rest their evidence on the fact that the roofs of their
houses as well as of the houses of the plaintiffs are rest on the
middle wall and, therefore, they claimed that it is common
wall. The commissioner’s report which is part and parcel of
the evidence also shows that the rafters, beams, and south
north inside walls of the defendants house have been
embedded in the suit wall to support of their rooms. Besides
the support taken from the middle wall to the defendants
house, there are five cupboards without doors in the suit wall
and the same opens in the defendants house. The defendants

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claimed that this facts itself is sufficient to show that it was a

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common wall and placed reliance on the principle of res ipsa
loquitur which means things speaks for itself and claimed
that the suit wall is the common wall. Even accepting the
same, the evidence of the plaintiffs is more cogent and
convincing as in the sale deed at Exh.56 it is mentioned that
the middle suit wall exclusively belongs to the plaintiffs.
Wheres, Exh.80 the sale deed executed in favour of the
defendants is silent as to the aspect of middle suit wall. It is
nowhere mentioned in Exh.80 that it is common wall. If it
would have been a common wall, there has to be mention
about the same in the sale deed Exh.80 and, therefore, the
contention of the plaintiffs that the suit wall is exclusively
owned by them is not only supported by the oral evidence but
also it is supported by Exh.56. Therefore, the contention of
the defendants that the suit wall is a common wall has no
substance. The defendants have only right to support from
the said wall to their house.

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The controversy arises between the parties when

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the defendants came into possession of the said suit house

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from their tenants in October 1984 and thereafter in

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December 1984 they have raised the height of western roof by
two feet after removing the woods beams and rafters and re-

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fixing them two feet above in the suit wall. Though the
defendants denied the plaintiffs’ case of raising heights of
eastern room by removing eastern beams and rafters and
revising them above in the suit wall, the plaintiffs have
produced a map Exh.46. The defendants have also produced
map Exh.108 and the Commissioner map is also on record.
From the report of the commissioner, it reveals that the
defendants house is of a curve room slanting on west and
east. The defendants admitted during his cross examination
that they have increased the height of western room by two
feet after removing and re-fixing them above in the suit wall.
The evidence of PW2 Bhikulal Gupta shows that the
defendants removed eastern beams and rafters and re-fixed
them above to raise the height of eastern rooms of the
defendants by two feet. PW3 Shankarlal Agrawal who was
tenant of the defendants has also substantiated the said fact.
Thus, the evidence on record sufficiently shows that the

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defendants have raised the height of western roof by two feet
after removing the woods, beams, and rafter.

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PW4 Ramratan Gupta who is cousin of Bhikulal also supports the said contentions. The photograph Exh.68 shows lifting of both the roofs. PW5 Sham Deshpande who was appointed as court commissioner has obtained photographs. Thus, as far as the evidence is concerned, the same shows that there was a lifting of western beam and room by two feet, but there was no evidence to show that there was lifting of the eastern beam and roof towards the eastern side.

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Exh.68 is the photograph to show the lifting of

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roof of both the rooms. PW5 Sham Deshpande who was
appointed as court commissioner had taken the photographs
which are at Exh.68. As already observed, that as far a lifting
of western beam is concerned, there is evidence, but there is
no evidence to show that height of the eastern roof was also
raised. Considering the same, the plaintiffs have proved lifting

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of western beams but could not prove the lifting of eastern
beam.

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The plaintiffs have also claimed the damages towards the repairing of the suit wall. The evidence of defendant Naveenchandra shows that he obtained the possession from his tenant PW3 Shankarlal Agrawal in the year 1984. Learned Civil Judge Senior Division has considered the evidence and observed that the evidence on record shows that the house was renovated by removing south north inside wall which was embedded in the middle wall and there appeared to be scratch portion in the suit wall on southern side. He has also admitted as to the damages to the suit wall and the same was not repaired. The scratches are also apparent from photograph Exh.70. Thus, the suit wall belongs to the plaintiffs and the plaintiffs have to repair it and, therefore, the trial court rightly granted the relief as prayed by the plaintiffs that he is entitled to receive amount of Rs.100/- towards the repair.

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The relief of the plaintiffs as to the easementary

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right by way of necessity and prescription was denied by the
trial court and allowed by the first appellate court. The
houses of the plaintiffs and defendants are facing towards the
west. There is a service lane on east of both the houses. There
is a door to the defendants house opening the service lane.
There is also door in the east west suit wall situated between
both the houses which was shown in the map. The door has
been referred by the letters “JC” in the plaint map Exh.46.
The plaintiffs have claimed an easementary right to way by
prescription to enter into the defendants adjoining house to
go to the eastern service lane and to repair the middle suit
wall from south. It is well settled that the pleading in a case
dealing with easement have to be very precise. In a book ‘Law
relating to easement in British India’ by Peacock 3rd Edition, at
page No.608, it is stated that “as an easement is not one of
ordinary rights of ownership, it is necessary that either party
claiming or relying on an easement should plead the nature of
his title thereto as to clearly to show the origin of the right,

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whether it arises by statutory prescription or express or

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implied grant, or the old common law method of a lost grant.”
It is required to be mentioned that easement of necessity must
be an absolute necessity and not merely a convenient mode of
enjoyment of property and an easement of necessity cannot be
granted merely on the ground of convenience and advantage.
It is solely depend upon absolute necessity. The necessity
cannot be understood as mere rule of convenience. Whether
there was absolute necessity or not, is to be determined with
reference to the circumstances and environments of each case.

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Easements are certain rights in the property of another (jura in re aliena). Section 13 of the Indian Easements Act reads thus:

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13. Easements of necessity and quasi-easements. -
Where one person transfers or bequeaths
immovable property to another, -

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(a) if an easement in other immovable
property of the transferor or testator is
necessary for enjoying the subject of the

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transfer or bequest, the transferee or legatee
shall be entitled to such easement; or

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(b) if such an easement is apparent and
continuous and necessary for enjoying the
said subject as it was enjoyed when the
transfer or bequest took effect, the
transferee or legatee shall, unless a different
intention is expressed or necessarily implied,
be entitled to such easement; or

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(c) if an easement in the subject of the
transfer or bequest is necessary, for enjoying
other immovable property of the transferor
or testator, the transferor or the legal
representative of the testator shall be
entitled to such easement; or

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(d) if such an easement is apparent and
continuous and necessary for enjoying the
said property as it was enjoyed when the
transfer or bequest took effect, the
transferor, or the legal representative of the
testator, shall, unless a different intention is
expressed or necessarily implied, be entitled
to such easement.

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Where a partition is made of the joint
property of several person,--

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(e) if an easement over the share of one of
them is necessary for enjoying the share of
another of them, the latter shall be entitled
to such easement, or

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(f) if such an easement is apparent and
continuous and necessary for enjoying the
share of the latter as it was enjoyed when
the partition took effect, he shall, unless a
different intention is expressed or
necessarily implied, be entitled to such
easement.

¶157

The easements mentioned in this section, clauses (a),

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(c), and (e) are called easements of necessity. Section 15 of
the Indian Easements Act deals with acquisition by
prescription which reads as under:

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15. Section 15 of the Indian Easements Act reads

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thus.

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15. Acquisition by prescription. - Where the access
and use of light or air to and for any building have
been peaceably enjoyed therewith, as an
easement, without interruption, and for twenty
years, and where support from one person's land,
or things affixed thereto, has been peaceably
received by another person's land subjected to
artificial pressure or by things affixed thereto, as
an easement, without interruption, and for twenty
years, and where a right of way or any other
easement has been peaceably and openly enjoyed
by any person claiming title thereto, as an
easement, and as of right, without interruption,
and for twenty years, the right to such access and
use of light or air, support or other easement, shall
be absolute.

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Each of the said periods of twenty years shall be
taken to be a period ending within two years next

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before the institution of the suit wherein the claim
to which such period relates is contested.

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Explanation I. - Nothing is an enjoyment within
the meaning of this section when it has been had
in pursuance of an agreement with the owner or
occupier of the property over which the right is
claimed, and it is apparent from the agreement
that such right has not been granted as an
easement, or, if granted as an easement, that it has
been granted for a limited period, or subject to a
condition on the fulfilment of which it is to cease.

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Explanation II. - Nothing is an interruption within
the meaning of this section unless where there is
an actual cessation of the enjoyment by reason of
an obstruction by the act of some person other
than the claimant, and unless such obstruction is
submitted to or acquiesced in for one year after

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the claimant has notice thereof and of the person
making or authorizing the same to be made.

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Explanation III. - Suspension of enjoyment in
pursuance of a contract between the dominant
and servient owners is not an interruption within
the meaning of this section.

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Explanation IV.- In the case of an easement to
pollute water, the said period of twenty years
begins when the pollution first prejudices
perceptibly the servient heritage.

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When the property over which a right is claimed
under this section belongs to the [Government],
this section shall be read as if, for the words
twenty years the words [ thirty years ] where
substituted.

¶182

Combined reading of Sections 13 and 15 of the Act

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shows that they are independent provisions providing for

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easementary rights on different nature of rights. Section 13
of the Act provides for easements of necessity and quasi-
easements, while Section 15 of the Act provides for easements
by prescription. In other words, if a party has easementary
right under Section 13 of the Act and also under Section 15 of
the Act, it is can be claimed simultaneously. In view of
Section 15, requirements necessary to be satisfied to claim
right of way by easement of prescription are : (a) right must
be certain, (b) it must have been enjoyed, (c) the enjoyment
must be independent, and (d) it must be peaceably and
openly as of right without any interruption for more than 20
years.

¶189

An easement can be acquired by prescription under Section 15 of the said Act. Every occupier of the land is prima facie entitled to the exclusive use and enjoyment thereof and of the natural advantages arising from its situation and environments without let or hindrance. Every right of easement claimed is a restriction on such exclusive right and is an evasion of it. Hence, the burden of proof of

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the element constituting a right of easement lies on the person
who asserts that right and thereby invades the natural right of
the occupier of the land on which the right is claimed. The
law is jealous of a claim to an easement, and the burden is on
the party asserting such a claim to prove it clearly. Such right
can be proved by showing a grant conferring an easement in
express terms or by necessary implication or where an
easement by prescription, he must prove the facts essential to
the acquisition of the prescriptive title. Thus, party who
claims easementary right must show that the user was open
and it was with the knowledge and acquiescence of the owner
of the servient tenement that the use was continuous and
uninterrupted hostile and under a claim of right, exclusive
and continued for the period requisite for the acquisition of an
easement by prescription, without change or material
variation. A right of way may be acquired by prescription
where the same has been peaceably and properly enjoyed by
any person claiming title thereto as an easement, and as of
right, without any interruption and for 20 years.

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Easements may relate to a right of way, a right to

¶200

light and air, right to draw water, right to support, right to
have overhanging eaves, right of drainage, right to a water
course etc. Easements can be acquired by different ways and
are of different kinds, that is, easement by grant, easement of
necessity, easement by prescription. The pleading necessary
to establish an easement by prescription and different
pleading and proof is necessary for easement of necessity. As
already observed that the party claiming right of easement is
under obligation to prove the same.

¶201

Here, in the present case, the plaintiffs have claimed the right of easement by necessity as well as by way of prescription. Section 15 of the Easements Act determines two requirements; (i) the enjoyment must be upto within two years of the date of suit and (ii) that upto that time it must have been enjoyed for 20 years and without interruption.

¶202

In the light of the above well settled principles, the facts and evidence of the present case show that the plaintiffs’

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grandfather purchased the house i.e. the servient heritage
within the meaning of Section 4 of the Indian Easements Act
on 28.7.1925 by way of registered sale deed Exh.56. Perusal

¶208

of the sale deed shows that there is no reference as to
existence of the door in the suit wall and opening of the same
in the adjoining southern house in the sale deed. On the
contrary, the sale deed by which the house was purchased
shows that its own door opening on east sufficiently shows
that the door allegedly shown by the plaintiffs to enter
towards east from the house of defendants was not in
existence in the year 1925. The evidence on record shows
that when the house was purchased by the grandfather of the
plaintiffs was single storey. Subsequently, it was constructed
and made double storey. The oral evidence of the plaintiffs
nowhere states that on actual what date the said door was
fixed in the suit wall. As per the evidence of PW2 Bhikulal
Ramdulare Gupta, the middle suit wall was reconstructed
within a year after 1925. This fact itself is not sufficient as the
requirement of law is that period to acquire right thereby
putting some restrictions upon owner of the land to use and

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enjoy it and, therefore, it is for the plaintiffs to specifically
plead when the door was opened and whether it was by
express or implied grant. The pleading of the plaintiffs
nowhere shows that it was an express grant but it is the case
of implied grant by way of prescription. The evidence of PW2
Bhikulal Gupta and PW4 Ramratan Gupta who have no
knowledge as to exactly since when the door was fixed in the
suit wall. Evidence of PW3 Shankarlal Agrawal is also silent
about the same. The evidence of DW1 Navinchandra also
shows his ignorance as to when the door was fixed. The
subsequent sale deed in favour of the defendants dated
31.5.1962 is also silent about existence of the door on the suit
wall. The enjoyment of the right through the said door and
the time of fixing of the door is sine qua non as statutory
period of 20 years is to be computed from the day of fixing of
the door. There is no evidence that any permission was
obtained from the defendants predecessors in title while fixing
the door. Thus, absolutely, there is no material to show that
since when the said door is in existence. The plaintiffs have
claimed the easementary right by way of necessity. As far as

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right of necessity is concerned, it reveals from the evidence
that there is a door in the east west suit wall situated between
both the houses. When the plaintiffs claimed the right of
necessity, the plaintiffs have to show the right by showing
that it is an absolute necessity and not merely a convenient
mode of enjoyment of the property.

¶219

It is well settled that an easement of necessity

¶220

cannot be granted merely on the ground of convenience and
advantage. It solely dependent upon absolute necessity. The
plaintiffs also claimed the easementary right by way of
prescription. In order to acquire an easementary right by
way prescription, the exercise of the right should be open so
that the person against whom the right is claimed and that too
as to right should know their about as the hostile act causes
the statutory period to run. The plaintiffs have not adduced
any such evidence to prove his right by way of easementary
right either by prescription or by necessity.

.....29/-

Judgment

335 sa52.06.odt

30

29. In the present case, after going through the

¶226

pleadings as well as the evidence of the witnesses, it is clear
that the plaintiffs have failed to establish that they have been
using the access peacefully, openly as the right for the last 20
years the material placed on record and especially the oral
evidence as well as the documentary evidence which nowhere
shows exactly when the said door was fixed and since when
the plaintiffs are using the said door uninterruptedly. There is
no evidence also that there is no other way available to the
plaintiffs to enter into the eastern side and, therefore,
easement by way of necessity is available to the plaintiffs.
The pleading as to when such right was created is also absent
in the present case. Therefore, on the basis of the evidence,
the trial court rightly considered that the plaintiffs failed to
establish his easementary right by way of prescription or by
way of necessity. The first appellate court has ignored the
requirement of law while granting such relief. The evidence
on record shows that the suit wall belongs to the plaintiffs
exclusively and the defendants have no title or possession
over the suit wall. They have simply a right to take support to

.....30/-

Judgment

335 sa52.06.odt

31

the roof of their house without changing its structure and
place for enjoyment. The defendants have no right to cause
any damage to the southern side of the suit wall. The
plaintiffs failed to establish their right to use the door shown
in the map which has been fixed on the suit wall on east and
thus the plaintiffs failed to establish the easementary right to
sue the door to go to eastern service lane and to enter
defendants’ house to repair the southern side of the suit wall.

¶232

The scope of second appeal in view of Section 100 of the Civil Procedure Code is very limited. In numerous judgments, it has been held that concurrent finding of fact of the trial court and the first appellate cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of the Code. It is not the principal of law that where the High Court finds that if there is a concurrent finding of two courts, such finding becomes unassailable in the second appeal. However, it has been laid down in several decisions that concurrent findings of fact is usually binding on this court while hearing the second appeals under the said Code. It is

.....31/-

Judgment

335 sa52.06.odt

32

trite law that in order to record any findings on facts, the trial
court is required to appreciate the entire evidence oral as well
as documentary in the light of the pleading of the parties. The
appellate court has jurisdiction to appreciate the evidence
while hearing the first appeals either affirming the findings of
the trial court or reversing the same.

¶238

In the case of Kondiba Dagadu Kadam vs. Savitkibai Sopan Gujar and ors 1, the Hon’ble Apex Court held that from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court.

¶239

32. In the case of State of Rajasthan vs. Shiv Dayal2,

¶240

the Hon’ble Apex Court held that a concurrent finding of the
fact is binding unless it is pointed out that it was recorded de
hors the pleadings or it was based on no evidence or based on
mis-reading of the material on records and documents. The
Hon’ble Apex Court held that when any concurrent finding of
fact is assailed in second appeal, the appellant is entitled to

¶241

1 (1999)3 SCC 722

¶242

2 (2019)8 SCC 636

.....32/-

Judgment

335 sa52.06.odt

33

point out that it is bad in law because it was recorded de hors
the pleadings or it was based on no evidence or it was based
on misreading of material documentary evidence or it was
recorded against any provision of law and lastly, the decision
is one which no Judge acting judicially could reasonably have
reached.

¶248

In view of the above, the judgment and decree passed by learned Civil Judge Senior Division at Achalpur is to be maintained and the judgment and decree passed by the first appellate court to the extent of counter claim giving right to the plaintiffs to use the JC door to go to eastern service lane is required to be set aside. The judgment and decree passed by the first appellate court restraining the defendants permanently from interfering with their right to repair their southern wall by going through the door JC is also set aside. The decree to the extent of restraining the defendants from interfering the plaintiffs use to the JC Door to repair their southern wall is also set aside. The decree passed by learned Civil Judge Senior Division declaring that the plaintiffs have

.....33/-

Judgment

335 sa52.06.odt

34

no right to enter the defendants’ house by the door JC as
shown in the plaint map to go to eastern service lane and to
repair the southern side of the suit wall by entering into the
defendants’ house is maintained. The decree passed by
learned Civil Judge Senior Division directing the plaintiffs by
way of mandatory injunction to close the door is also
maintained. The decree passed by learned Civil Judge Senior
Division declaring that the suit wall belongs to the plaintiffs
exclusively and the defendants are restrained by way of
perpetual injunction to cause any damage to the southern side
of the suit wall and by way of mandatory injunction directed
the defendants to restore the western roof of their wall of
their house to its original height by covering the holes in the
suit wall and to cover the scratches caused by removal of
south north wall embedded in the south wall is also
maintained. The decree directing the defendants to restore
the western side roof to its original position and height and to
cover the scratches in the suit wall and on failure to do so
declaring the entitlement of the plaintiffs to implement the

.....34/-

Judgment

335 sa52.06.odt

35

order of the court by executing the decree including the
damages of Rs.100/- is hereby maintained.

¶259

With these directions, the appeal is allowed and

¶260

the judgment and decree passed by the first appellate court is
quashed and set aside.

¶261

 (URMILA JOSHI-PHALKE, J.)

¶262

!! BrWankhede !!

¶263

.....35/-

Dhirajbai W/O Tilakchand Shah and 1 Anr. v. Bhikulal Ramdulare Gupta and 1 Anr.

Case brief

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Dhirajbai W/O Tilakchand Shah and 1 Anr. v. Bhikulal Ramdulare Gupta and 1 Anr.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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