High Court
Facts
(1) sa-540-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.540 OF 2023WITHCIVIL APPLICATION NO.13956 OF 20231.Shivaji Namdeo BhusalAge 61 years, Occ. Agriculture2.Anita Tukaram BhusalAge 51 years, Occ. Agri & Household3.Sukdev Mhatarba BhusalAge 59 years, Occ. Agriculture4.Tukaram Mhatarba BhusalAge 56 years, Occ. Agriculture5.Vijaya Shivaji BhusalAge 46 years, Occ. Agri & Household6.Bapu s/o Mhatarba BhusalAge 65 years, Occ. Agriculture7.Parvatabai Madhav KashidAge 76 years, Occ. Agri & Household8.Sanjay Changdev BhusalAge 46 years, Occ. Agriculture9.Vijay Changdev BhusalAge 44 years, Occ. Agriculture10.Anil Bhagwat BhusalAge 51 years, Occ. Agriculture11.Popat Bhagwat BhusalAge 53 years, Occ. Agriculture12.Sanjay Bhagwat BhusalAge 49 years, Occ. Agriculture13.Abajai Sonyabapu BhusalAge 71 years, Occ. AgricultureAll R/o. Umabari Balapur,Tq. Sangamner, Dist. Ahmednagar..Appellants (Ori. Defendants) (2) sa-540-2023.odtVersus1.Bhimraj Bansi BhusalAge 60 years, Occ. Agriculture2.Lahanbhau Bansi BhusalAge 57 years, Occ. AgricultureBoth R/o. UmbariUmabari Balapur,Tq. Sangamner, Dist. Ahmednagar..Respondents (Ori. Plaintiffs)…Mr. V. D. Hon, Senior Advocate i/by Mr. A. V. Hon, Advocate forthe Appellants.Mr. S. S. Dixit, Advocate for the Respondents.… CORAM : S. G. CHAPALGAONKAR, J. DATE : 04th MARCH, 2025.ORDER:-1.The appellants/original defendants impugn judgment anddecree dated 20.10.2023 passed by the District Judge-1,Sangamner in Regular Civil Appeal No.21/2022, thereby upholdingjudgment and decree dated 02.03.2022 passed by Joint Civil Judge,Junior Division, Sangamner in Regular Civil Suit No.348/2013.(Hereinafter, parties are referred to by their original status for thesake of convenience and brevity).2.The respondents/original plaintiffs instituted Regular CivilSuit No.348/2013 claiming relief of declaration and injunctionagainst defendants contending that they are absolute owners andpossessors of the agriculture land bearing Gut No.309/1 at villageUmbri, Tal. Sangamner. According to plaintiffs, defendants areowners of Gut Nos.307, 296, 395, 308 and 310 to 313 and they were (3) sa-540-2023.odtintending to create way through plaintiffs land. This has given riseto to cause of action to file suit seeking decree of perpetualinjunction restraining defendants from interfering in plaintiffs’possession over the suit land. 3.The defendants while refuting claim of plaintiffs contendedthat since 1997, a 12 feet width way is in existence betweenplaintiffs’ lands bearing Gut Nos.309/1 and 310, which runs Northto South direction upto Gut Nos.307, 296, 295, 308 and 310 andends at Gut No.313 of village Umbri. They contend that in theyear 1997, Padmashree Vitthalrao Vikhe Patil Sahakari SakharKarkhana constructed suit way on requisition of farmers,facilitating irrigation for their lands. The existence of the road andwater channels has been duly recorded with Grampanchayat.However, plaintiffs are unlawfully obstructing defendants' use ofthe road and attempting to close it. 4.The Trial Court framed issues on the basis of rival pleadings,recorded evidence of the parties and finally held that plaintiffs areentitle for declaration as claimed and consequential relief ofperpetual injunction against defendants. Aggrieved defendantsfiled Appeal before the District Judge, Sangamner, who concurredwith findings recorded by the Trial Court and dismissed theAppeal. (4) sa-540-2023.odt5.Mr. Hon, learned Senior Advocate appearing for theappellants submits that defendants were using way since 1997.The plaintiffs have obstructed use of way without any right causinginconvenience to large number of farmers. Further, Mamlatdar inexercise of jurisdiction under Section 5 of the Mamlatdar CourtsAct, on verification of existence of way, injuncted plaintiffs fromcausing obstruction to defendants. He would submit thatNizameneshwar Irrigation Project is in existence since last 15 to 16years and plaintiffs are continuously using way abutting to thewater canal. The Courts below failed to consider aforesaid aspectsof the matter and decreed suit of plaintiffs. The defendants haveevery right of way over boundaries of Gut Nos.309 and 310. Hewould further urge that plaintiffs’ suit is beyond prescribed periodof limitation. According to him, Article 58 of the Limitation Actapplies to present suit. The plaintiffs ought to have filed suitwithin a period of three years from the date of cause of action. Insupport of his contentions he relies upon observations of SupremeCourt of India in case of Vasantha (Dead) through legalrepresentative Vs. Rajalakshmi Alias Rajam (Dead) throughlegal representatives1.6.Per contra, Mr. Dixit, learned Advocate appearing for therespondents submits that defendants admitted ownership ofplaintiffs over Gut No.309/1. There is no pleading in the written1(2024) 5 SCC 282.
Legal Reasoning
(5) sa-540-2023.odtstatement as to easementary right of defendants. In support of hiscontentions he relies upon observations of Supreme Court of Indiain case of Bachhaj Nahar Vs. Nilima Mandal and Another2,Zarif Ahmad and another Vs. Mohd. Farooq3 and unreportedjudgment of this Court in case of Digambar Vs. Vasant (SecondAppeal No.111/2017 dated 11.01.2022).7.Having considered submissions advanced, it can be observedthat there is no dispute that plaintiffs are owners of land GutNo.309/1. The disputed way runs North-South on Western side ofGut No.309 and Eastern side of Gut Nos.310, 311, 312 and reachesto Gut No.295. The defendants filed written statement andclaimed that in the year 1997, on request of farmers, Sugar Factoryhas created aforesaid way. On both sides of this way waterchannels of Nizameneshwar Irrigation Project exists and farmersare taking water from those channels, so also using way. Theplaintiffs contend that on 08.04.2013, defendants unauthorizelyremoved East-West bandh of their lands and attempted to createroad. In that view of the matter, question is whether defendantscan raise lawful claim to use way passing from Gut No.309 ownedby plaintiffs. 8.Apparently, as per pleadings in written statementdefendants have not claimed easementary right to use way. Even2(2008) 17 SCC 491.3(2015) 13 SCC 673. (6) sa-540-2023.odtit is assumed that they wish to assert acquisition of right byprescription, it is for them to plead and establish peaceful use ofway as easement without interruption for 20 years, then only suchright would be treated as absolute right. Evidently, whendefendants are claiming creation of road in the year 1997, then tillthe date of institution of suit, period of 16 years has been lapsed.Therefore, plaintiffs cannot assert right of way by way of easementin terms of Section 15 of the Indian Easement Act. As rightlyobserved by Appellate Court, defendants cannot assert acquisitionof right of way by prescription. The Appellate Court furtherobserved that in case defendants wish to establish their rights ofway by necessity, they shall independently plead and establish thesame. They may resort to file independent suit. However, oncethey admit ownership of plaintiffs over land Gut No.309/1, theycannot assert right of user without fulfilling mandate of Section 15of the Indian Easement Act.9.So far as issue as to the limitation is concerned, the plaintiffshave pleaded that on 08.04.2013, defendants destroyed East-Westbandh of suit property and made attempt to create road, which isstated as cause of action to file present suit. The defendants do notdeny that they asserted their right of user on plaintiffs’ land. Theycontend that plaintiffs are unconcerned with the part of landshown in the suit map. In this background, considering the cause (7) sa-540-2023.odtof action as pleaded in the plaint, limitation period of three yearsprescribed under Article 58 shall begin to run from the date whenright to sue is accrued. Therefore, suit filed immediately afteroccurrence of cause of action dated 08.04.2013 will have to betreated within prescribed period of limitation. Pertinently,defendants have not raised plea of limitation in the writtenstatement nor it has been raised before the Appellate Court. Firsttime such an issue is sought to be raised. Recently in case of JaiRam Vs. Som Prakash & Anr. Etc. (Special Leave Petition(C) Nos.1073-1074 of 2023 decided on 03.02.2025), SupremeCourt observed that in absence of objection as to limitation inwritten statement, issue before Trial Court and evidence on issue,High Court could not have upset order on point of limitation ofDistrict Court. In that view of the matter, there is no force incontention of the appellants on this point. In result, no substantialquestion of law arises for consideration in this Appeal. 10.Consequently, Second Appeal stands dismissed.11.In view of dismissal of Second Appeal, nothing survives inCivil Application and same is accordingly disposed of.(S. G. CHAPALGAONKAR)JUDGE12.After pronouncement of judgment, Mr. Hon, learned SeniorAdvocate requested to continue interim relief as was in operation (8) sa-540-2023.odtduring pendency of Appeal as appellants may take their chancebefore Hon’ble Supreme Court.13.In view of submissions advanced, execution andimplementation of decree passed in Regular Civil Suit No.348/2013and confirmed by First Appellate Court and this Court shall bekept in abeyance for the period of four weeks from today. (S. G. CHAPALGAONKAR)JUDGEDevendra/March-2025