1 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.239 OF 2007 SECOND APPEAL NO.239 OF 2007 SECOND APPEAL NO.239 OF 2007 Jagannath Pandurang Kokare .. Appellant V/s. Maruti Pandurang Kokare & Anr. .. Respondents Mr.Dilip Bodake for the Appellant. Mr.G.S.Godbole with Mr.A.P.Kulkarni for Respondent Nos. 1 and 2. CORAM : R.M. SAVANT, J. CORAM : R.M. SAVANT, J. CORAM : R.M. SAVANT, J. DATE : JULY 16TH, 2008. DATE : JULY 16TH, 2008. DATE : JULY 16TH, 2008. P.C. P.C. P.C. . This Second Appeal arises out of the Judgment and decree dated 18th November, 2006 passed by the learned Ad-Hoc District Judge, Baramati in Regular Civil Appeal No.16 of 2005. 2. The Appellant herein is the original Defendant No.1 in Regular Civil Suit No.43 of 2003 filed by the Respondent No.1 herein for declaration, that he has a right by way of easement of necessity over the cart way in order to have access to the land bearing Gat No.226 2 from land Gat No. 227, and for perpetually restraining the Defendants from causing obstruction to the said cart way. The suit property i.e. Gat No.226 admeasuring 1 acre and 72 R is the ancestral property of the Plaintiff and Defendants. A partition took place between parties about 25 to 35 years back and the said properties were divided as per the rough map annexed to the plaint. The shares in the said properties i.e. Gat No.226 and 227 were taken by allotment of alternate pieces of land in the said Gat numbers. 3. It appears that thereafter, the Plaintiff No.2 purchased 30R land of Gat No.227 on the Northern side and the Defendant purchased 20R lands which was to the southern side of the said Gat No.227. The parties i.e. Plaintiff and the Defendant agreed in writing which agreement is dated 19th May, 1992. By the said agreement dated 19th May, 1992, it was agreed that for the purpose of transportation of agricultural produce and for other purposes, Respondent No.1 will give access to the Appellant herein even from the side of the standing crops. 4. On obstruction being caused by the Defendant, the 3 Plaintiff filed said Regular Civil Suit No.43 of 2003 claiming the said easmentary right over the cart way which is through the portion of the land belonging to the Defendant No.1. In the said suit a Commissioner was appointed and he was directed to submit his report as regards the situation on ground. The said report was accepted by both the parties. The Trial Court considering the evidence on record came to a conclusion that the Plaintiff had not made out a case for injunction as prayed for, on the basis of the easement of necessity. 5. Aggrieved by the said Judgment and order dated 6th January, 2005 of the Trial Court, the Plaintiff filed Regular Civil Appeal No.16 of 2005. The said Appeal was decreed and the decree passed was restricted to Gat No.227 only and the decree sought in respect of Gat No.228 was refused. The Lower Appellate Court held that on account of partition, there was a severance of tenement and therefore the right of easement of necessity came in force. The Lower Appellate Court on the basis of the agreement dated 19th May, 1992 also came to a conclusion that the said right of way was enjoyed both by the Plaintiff and Defendants over a long period of time i.e. more than 14 to 15 years for 4 an effective cultivation of the said land. 6. It is sought to be contended on behalf of the Appellant that if there is an alternative way available to the Plaintiff, than the reliefs on the basis of the easement of necessity cannot be granted. It is pointed out on behalf of the Appellant that on the western side of the land in question there is an alternative way passing from Gat No.223 which is belonging to one Lokhande. The said submission made on behalf of the Appellant has also been considered by the Lower Appellate Court. On the basis of the evidence that was before it the Lower Appellate Court held that the said land Gat No.223 belonging to Lokhande was never allowed to be used by the said Lokhande in order to have access to said Gat No.226 and 227 and therefore the said way could not be said to be an alternate way available to the Plaintiff. The Lower Appellate Court therefore recorded a finding of fact that the right of way through Gat No.227 is only way available to the Plaintiff and that the alternative way is not available to the Plaintiff on account of the fact that the same is through land Gat No.223 belonging to the said Lokhande. 5 7. On behalf of the Appellant, reliance has been placed on the Judgment of a learned Single Judge of this Court reported in 2006(3) ALL MR 410 in case of 2006(3) ALL MR 410 in case of 2006(3) ALL MR 410 in case of Shalini Laxman Wadnerkar V/s. Bank of Baroda Employees Shalini Laxman Wadnerkar V/s. Bank of Baroda Employees Shalini Laxman Wadnerkar V/s. Bank of Baroda Employees Co-Operative Housing Society and Ors. Co-Operative Housing Society and Ors. Co-Operative Housing Society and Ors. wherein it has been held 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. Reliance is also placed on the Judgement of the Apex Court reported in 2005(5) ALL MR 2005(5) ALL MR 2005(5) ALL MR (S.C.) 135 in case of Justiniano Antao & Ors. V/s. (S.C.) 135 in case of Justiniano Antao & Ors. V/s. (S.C.) 135 in case of Justiniano Antao & Ors. V/s. Smt. Bernadette B.Pereira. Smt. Bernadette B.Pereira. Smt. Bernadette B.Pereira. It is contended that in order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. 8. It is submitted on behalf of the Appellant that such is not the case of the Plaintiff in the instant case. In my view, in so far as the Judgments are concerned, the Trial Court has recorded a finding that save and accept the right of way through Gut No.227, there is no other way available to the Plaintiff, as the alternative way as suggested by the Appellant 6 through Gat No.223 has never been used on account of the same being a private property of another person who has not permitted the parties to use the said land. Therefore the cart way through Gat No.227 is the only way available to the Plaintiff. 9. In so far as the second Judgment is concerned, the Lower Appellate Court has arrived at a finding that said right of way has been used by the parties for more than 15 to 20 years. 10. It is significant to note that the parties had entered into an agreement on 19th May, 1992 to formalize the understanding of passing through each others lands for cultivation and for transportation of the agricultural produce. In my view, therefore, the tests laid down in the Judgements (supra) has been satisfied in the instant case. 11. Considering the challenge raised in the Second Appeal, in my view, the Second Appeal does not involve any substantial question of law. 11. The Second Appeal is, accordingly, dismissed. 7 12. In view of the dismissal of the Second Appeal, the Civil Application No. 422 of 2007 does not survive and is disposed of as such. [R.M. SAVANT, J.] [R.M. SAVANT, J.] [R.M. SAVANT, J.]