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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
SECOND APPEAL NO. 67 OF 1994
Vishwanath Welchand Saraf
(since deceased through LRs)
1. Smt. Gulabbai Vishwanath Saraf
aged 70 years, occupation -
Household work.
2. Shri Chandrakant Vishwanath
Saraf, aged about 56 years,
occupation - Business.
3. Shri Bipinkumar Vishwanath
Saraf, aged 54 years,
occupation - Business.
4. Sau. Manjulal Rajnikant Shah,
aged 52 years, occupation -
Household work.
5. Shri Rajendra Vishwanath Saraf
aged 40 years, occupation -
Service.
All resident of Ratanlal Plots, Akola,
Tq. & District - Akola. ... APPELLANTS
Versus
Smt. Dwarkabai Sadashiv Pawar
(since deceased through LRs)
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A) Sadashiv Khanduji Pawar,
aged about 80 years,
occupation - Business, r/o
"Shivdwar" Building,
Ratanlal Plots, Civil Lines,
Akola, Tq. & District - Akola.
B) Dattatraya Sadashiv Pawar,
aged about 55 years,
occupation - Service, r/o
"Shivdwar" Building,
Ratanlal Plots, Civil Lines,
Akola, Tq. & District - Akola.
C) Ashok Sadashiv Pawar,
aged about 45 years,
occupation - Service, r/o
"Shivdwar" Building,
Ratanlal Plots, Civil Lines,
Akola, Tq. & District - Akola.
D) Nalini Sadashiv Pawar,
aged about - Adult,
occupation - Household, r/o
"Shivdwar" Building,
Ratanlal Plots, Civil Lines,
Akola, Tq. & District - Akola.
E) Sunita Sadashiv Pawar,
aged about - Adult,
occupation - Service, r/o
"Shivdwar" Building,
Ratanlal Plots, Civil Lines,
Akola, Tq. & District - Akola.
... RESPONDENTS
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Shri S. G. Joshi, Advocate for the appellants.
Shri B.N. Mohta, Advocate for the respondents.
.....
CORAM : B.P. DHARMADHIKARI, J.
JANUARY 28, 2009.
ORAL JUDGMENT :
The original – defendant in Regular Civil Suit No. 365
of 1985 is challenging the judgment of reversal delivered by the
lower appellate Court. The respondents before this Court are the
heirs of original plaintiff and appellants are the heirs of original
defendants. The suit filed by Smt. Dwarkabai was for permanent
and mandatory injunctions. She claimed that she purchased a
plot vide sale deed dated 15.3.1979 and the said plot was on its
South having lane of 5 feet so as to enable her to approach
common service lane situated on the back side of her plot/ house.
The plot/ house of defendant was after that lane. She contended
that defendant who claimed to have purchased that plot was duty
bound to leave 5 feet portion open to sky for use as lane and by
constructing a toilet on said part of land and by erecting a
fencing, the defendants obstructed her way to the common
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service lane. She, therefore, sought injunction directing the
defendants to remove said construction and to make available
said 5 feet lane. The trial Court found that she could not prove
that there was 5 feet lane on South side of her house, she could
not prove the user of said lane without any interruptions since
1949 and she also could not prove that the construction of latrine
made by him was is any way illegal. The plaintiff then filed
Regular Civil Appeal No. 151 of 1990 and the Additional District
Judge, Akola, vide judgment and decree dated 18.12.1993 found
that the lane was mentioned in two sale deeds through which
vendor of plaintiff Shri Jadhao derived title from the original
owner Shri Potdukhe. It appreciated the oral evidence and found
that the area of plot was not inclusive of the lane and ultimately
it reversed the judgment and decree of trial Court and decreed
the suit. This Court has admitted Second Appeal on 21.2.1994 by
formulating a substantial question of law which reads : “Whether
the first Appellate Court’s decision is vitiated on account of non
consideration of oral evidence on record ?”
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2. In this background, I have heard Shri Joshi, learned
counsel for the appellants and Shri Mohta, learned counsel for
the respondents.
3. Shri Joshi, learned counsel has after narrating the facts
invited attention to both the judgments to point out that in sale
deed of plaintiff executed by Shri Jadhao, no such lane has been
mentioned. He further states that the evidence which has come
on record clearly shows that there is no material to show
existence of any such lane or its use by the plaintiff. He has read
out the relevant portion of the evidence in support of his
contentions and he attempts to point out that appreciation of this
evidence by the trial Court is proper and that by lower appellate
Court is perverse. According to him, when it is an admitted
position that plot purchased by the defendants begins
immediately after Southern boundary of plaintiff’s plot, there is
no question of any lane between two plots or then in the land of
defendants plot. He has also invited attention to relevant sale
deeds i.e. Exhs. 84, 85, 95 and 83 in this connection. He points
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out that suit has been filed on 15.6.1985 and there are no
pleadings to establish any right to such lane in it. He, therefore,
contends that in view of question of law formulated at the time of
admission, the appeal needs to be allowed and the reversing
judgment of lower appellate Court needs to be quashed and set
aside and that of trial Court needs to be restored.
4.
Shri Mohta, learned counsel for the respondent, on the
other hand, states that the evidence on record has been correctly
appreciated and the findings reached by lower appellate Court
cannot be labelled as erroneous or perverse. He points out that in
sale deeds Exhs. 84 and 85 executed by original owner Potdukhe
in favour of Jadhao (also known as Deshmukh), the said lane on
Southern side is also clearly mentioned. He further states that
existence of lane on Southern side is also appearing in sale deed
dated 15.3.1979 obtained by the plaintiff from Jadhao. He
argues that sale deed Exh. 95 obtained by defendant on 9.2.1953
from Potdukhe is subsequent in point of time and hence is subject
to stipulations in Exhs. 84 and 85. According to him, the
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situation has been rightly evaluated by the lower appellate Court.
He points out that there is no way for the plaintiff to reach the
common service lane which runs behind her plot as also plot of
present appellant.
5. The first sale deed Exh. 84 is dated 8.6.1949 and by it
Potdukhe sold a plot admeasuring 35′ x 40′ to Jadhao. While
describing the boundaries, it has been mentioned that on
Southern side of said plot, there is 5′ lane. In second sale deed
Exh. 85, which is dated 24.1.1951 between same parties, plot
sold is 65′ x 35′ and a lane of 5′ is mentioned on its Southern side.
There is some dispute between the parties about the words which
occur after mention of this Southern boundary. Those words are
“as owner for generations you can enjoy the property”. According
to Shri Mohta, learned counsel, these words qualify lane on
Southern side while according to defendants, the words qualify
“the plot sold” and not the lane. Looking to the nature of dispute,
it is apparent that the plaintiff is not claiming any ownership on
said lane of 5′. Therefore, there is no question of lane being
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transferred to him as owner for generations. The words,
therefore, do not relate to 5′ lane on Southern side.
6. The next document in chronology is Exh. 95 i.e. sale
deed dated 9.2.1953 by which Potdukhe has sold the plot to
defendants. There is no dispute in relation to said sale deed. Plot
sold is 70′ x 50′ and while describing its boundaries, it is
mentioned that it has got government road on its East, open land
and bunglow of a Nakheram on its West, one road on its South
side and rooms of Deshmukh on its North side. It is to be noted
that this Deshmukh is the predecessor in title of plaintiff. Thus,
this sale deed does not show existence of any lane on Northern
side and the plot purchased by the defendants stretches right up
to the rooms of Deshmukh (also known as Jadhao). It is not in
dispute that rooms constructed by Deshmukh/ Jadhao are on
extreme Southern boundary of the plot purchased. Thus,
according to the plaintiff after those rooms, there is a lane of 5′
while Exh. 95 mentions that plot purchased by defendants
stretches up to those rooms. The sale deed in favour of plaintiff is
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at Exh. 83 and it is executed by Jadhao in her favour on
15.3.1979. It is the last document in chronology. In this sale
deed, the Southern boundary has been described as 5′ lane and
thereafter house of defendant. It is, therefore, clear that as per
this sale deed in favour of plaintiff, after the rooms constructed at
the edge of Southern boundary, there is lane of 5′ width and
thereafter plot of defendants.
7. When the evidence on record is viewed in this
background, the perusal of plaint shows that the prayer was to
restrain the defendants permanently from making any
construction in 5′ lane situated on Southern side of plaintiff’s plot.
This prayer was later on amended and an injunction for
demolition of the construction effected was sought. The cause of
action for filing of suit was mentioned as arising on 18.6.1985
and thereafter on 17.12.1985 on 31.12.1985. In para 3B, which
is amended subsequently, it is stated that during the pendency of
suit, the defendant has constructed a latrine on 5′ lane and lane
was necessary as it was plaintiff’s approach road to service lane
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and therefore, it was for common use. The opening part of the
plaint shows that the plaintiff contended that she always used
said lane after the property was purchased by her and there was
no other way except 5′ lane which was left open on the Southern
side of her house. All these allegations are denied by the present
appellants by filing their written statement. If the stipulation in
sale deed at Exh. 83 in favour of plaintiff is presumed to be true,
it follows that the lane did not belong to defendants and
therefore the defendants could not have constructed anything in
that lane as their plot itself began after the said lane. The plaint
does not disclose any such case and it does not even mention that
defendants have constructed on part of land not belonging to
them or not forming their plot.
8. During arguments, the respondent has urged that the
respondent is not claiming any title over said 5′ portion and
respondent cannot challenge the act of its transfer by Potdukhe to
defendants. It is contended that though the defendants have
purchased it, defendants have to keep it open. Such a right on
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the property of Potdukhe or then on property of present
appellants can be claimed by plaintiff only after raising necessary
pleas either of grant or of easement in the plaint. There are
absolutely no pleadings on these lines in the entire plaint. The
contention that the defendants, therefore, are duty bound to keep
said portion of his plot open, cannot be accepted. Even perusal of
sale deed at Exh. 84 reveals that what is mentioned as Southern
boundary is 5′ lane. It is obvious that on Southern side, there was
no lane but it was the property or plot belonging to Potdukhe
only. Same also holds good in relation to sale deed at Exh. 95.
The mention of lane of 5′ on Southern side of plaintiff’s plot in
both these sale deeds is, therefore, factually incorrect. The sale
deeds nowhere show that the vendor Potdukhe has stated that he
would provide 5′ lane on Southern side. It has not been brought
on record by the plaintiff that her plots were in any sanctioned
lay out and there was a public lane of 5′ width on Southern side.
It was the case of the appellants/ defendants that they were
constructing toilet as per sanctioned plan on their own plot. It,
therefore, appears that the defendants had a sanctioned plan in
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their favour. In view of this position, the finding of trial Court
that there existed no lane on Southern side, appears to be just
and proper. It is to be noted that it was open to Potdukhe to
encumber his plot by providing a lane of 5′ width open in favour
of plaintiff for going to common service lane. No sale deed
stipulates accordingly and there is no pleadings on these lines by
the plaintiff. The plaint is solely based upon the case that in sale
deed on Southern side, the lane has been mentioned. As already
held above, Southern lane stipulated in the sale deed is incorrect.
It is also to be noticed that the plaintiff has purchased the
property on 15.3.1979 while sale deed in favour of defendants is
dated 9.2.1953. In this sale deed, plot of defendants is
mentioned right up to Southern boundary of plot of plaintiff. In
other words, it does not mention any 5′ lane between two plots.
It is, therefore, obvious that mention in Exh. 83 on Southern side,
there is a lane of 5′ width and then plot of defendants, is again
incorrect. In any case, if there was any promise by Potdukhe to
provide 5′ lane to defendants on Southern side, no such promise
has been pleaded and if any action was possible for violation of
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such presumed promise, Potdukhe has not been joined as party
defendant. It is, therefore, apparent that the trial Court has
correctly appreciated the controversy and has found that there
was no lane of 5′ width on Southern side. The issues answered
by the trial Court, therefore, show proper appreciation of material
on record.
9.
The lower appellate Court has not considered either the
pleadings or the effect of documents before it in correct
perspective. The material on record clearly demonstrated that
the plot of plaintiff was on its Southern edge and this admission
is given in para 11 by husband of plaintiff. The plaintiff
Dwarkabai has not entered the witness box and she has examined
her husband as witness. Though, it has been repeated that there
is no approach way for going to the service lane, it has also been
admitted that on West side of plot of plaintiff, by creating a door,
the service lane could have been approached. The husband has
admitted in cross examination that service lane was about 300′ in
length and it could have been approached by public road on
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Northern and Southern side. He admitted in cross examination
that Exh. 83 did not mention that the plaintiff was permitted to
use Southern lane and there was no document with plaintiff to
show that she was given any right over Southern lane. He also
accepted that said 5′ lane portion was not purchased by the
plaintiff and in government records, there is no mention about
alleged Southern side 5′ lane. He also accepted that in Exh. 95
there was recital that on Northern side of defendants plot, there
was property of plaintiff’s then held by Shri Deshmukh. The
plaintiff examined her vendor Rajabhau Deshmukh @ Jadhao and
he only pointed out the mention of lane of 5′ width in Exhs. 83,
84 & 85. He has stated that on rare occasions he used this 5′ lane
but on most of the occasions, he used to approach service lane
from his plot. He further stated that there was no approach to
service lane except 5′ lane. He further accepted that there was no
mention in sale deed of giving any right to use lane of 5′. He
accepted that in sale deed of executed by him in favour of the
plaintiff, there is no mention that said lane can be used in
ownership rights. In English translation of deposition as
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recorded, the words “is not mentioned” appeared to be missing
but in Marathi those words are specifically written and from next
answer given by this witness that he could not assign any reason
for said omission, the error in recording of evidence in English is
apparent. He has further admitted that said recital was omitted
as no right to use lane was given to him by his vendor. He has
further stated that he was residing there for 30 years and he was
approaching western service lane from his house and there was
no occasion for him to use Southern lane. He used to drive the
cattles if he found them in Southern lane. He also admitted that
after his plot, there was no lane on Southern side. This entire
evidence is lost sight of by the lower appellate Court and the
lower appellate Court has been swayed away by the mention of 5′
lane in sale deeds at Exhs. 83, 84 and 85. Its finding that area in
possession of defendant is 3550 sq. feet instead of 3500 sq. feet
and hence defendant has taken lane inside his plot overlooking
the fact that area of lane has to be minimum 500 sq. feet. What
is the significance of that stipulation in sale deeds, whether such
stipulation had the effect of creating a 5′ lane which never existed
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and whether a suit of such nature could have been filed on the
basis of such stipulations are the questions which are not
addressed to by the lower appellate Court. These questions arise
from pleadings of parties and also from the evidence which has
come on record.
10. Shri Mohta, learned counsel has argued that if this
Court finds that some evidence relevant to the controversy has
not been considered, the matter should be made over to lower
appellate Court again so that the plaintiff – respondent does not
loose the right of appeal under Section 100 of Civil Procedure
Code. The arguments were opposed by Shri Joshi, learned
counsel for the appellants. It is settled law that the Court has to
be loath to remand the matter. In present circumstances, I find
that there is no scope for remand because suit as filed is itself
misconceived.
11. In view of these findings, I find that substantial
question of law as formulated needs to be answered in favour of
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present appellant. Second Appeal, therefore, needs to be
allowed. Accordingly, judgment and decree dated 18.12.1993
delivered in Regular Civil Appeal No. 151 of 1990 is quashed and
set aside. The judgment and decree dated 26.3.1990 delivered by
the 6th Joint Civil Judge, Junior Division, Akola, in Regular Civil
Suit No. 365 of 1985 is hereby restored. However, in the
circumstances of the case, there shall be no order as to costs.
JUDGE
*******
*GS.
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