1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 114 OF 1993 Shankar Vishnu Dongare ... Appellant v/s Shashikant Yeshwant Tribhuvane (Kasar) ... Respondent Mr.N.R.Bubna with Manisha Salekar for the appellant. Mr.P.D.Dalvi i/by Mr.K.V.Saste for the respondent. CORAM: SMT.NISHITA MHATRE, J. DATED: 3RD MAY, 2010 ORAL JUDGMENT: 1. The second appeal has been preferred by the plaintiff i.e. the appellant herein, to challenge the decisions of the Trial Court as well as the Appellate Court, in dismissing the suit. 2. The second appeal has been admitted on the following substantial questions of law:- (i) Whether the plaintiff was entitled in law to claim a 2 prescriptive right under the Easements Act to the access to the suit well as well as use of the water thereof peacefully ? (ii) Whether, in any case, the plaintiff was entitled to claim quasi-easement in respect of the suit property on the basis of the enjoyment of the transferor of the same easement before the transfer of the property ? (iii) Whether the Courts below erred in law in ignoring that the evidence on affidavits was taken without any sufficient reason and that the said evidence in the absence of cross-examination was vitiated in view of the provisions of Rules 1 and 2 of Order XIX of the Code of Civil Procedure ? 2. The facts relating to the present appeal are as follows:- The suit was filed for permanent injunction by the plaintiff to restrain the defendant from obstructing the plaintiff using the water from the well and washing clothes near suit well. According to the plaintiff, he is the owner of the property which is adjacent to the property owned by the defendant. He claims that the suit well is situated on the southern side of the defendant’s property. A stone has also been placed near the well for washing clothes and according to the plaintiff his predecessor-in-title was extended the facility of drawing water from the well and washing 3 clothes near the well on the stone placed there. The plaintiff claimed that the predecessor of the respondent/defendant sold the property to the defendant, who thereafter tried to obstruct the plaintiff’s use of the well and the stone by erecting a wall. It is in these circumstances the plaintiff filed the suit for an injunction against the defendant restraining him from disturbing the plaintiff’s use of the well and the stone for washing clothes. 4. The defendant resisted the suit by denying that the plaintiff or his predecessor-in-title was using the well or using the place adjacent to the well for washing clothes for the past 20 years. 5. On the basis of the pleadings and the evidence before the Court, the Trial Court held that the plaintiff was unable to prove that he had access to the suit well and had been drawing water and washing clothes near the well for a period of 20 years, prior to the filing of the suit. The Trial Court further held that the plaintiff had failed to prove that he had any easementary right to the water or was entitled to a quasi- easementary right. The Trial Court therefore concluded that the defendant was entitled to erect the wall, which was admittedly, in his own property. The injunction was therefore denied to the plaintiff. 4 6. Being aggrieved by the decision of the Trial court, the plaintiff preferred an appeal in the District Court. The District Court had confirmed the findings of the Trial Court except the finding that the plaintiff was not using the suit premises for more than 20 years prior to the filing of the suit. The Appellate Court reversed that finding and held that the plaintiff and his predecessor were using the suit well for more than 20 years. The Appellate Court concurred with the finding of the Trial Court that the use of the water from the suit well could not be termed as an easementary right by prescription which the plaintiff had acquired. 7. It is submitted by the learned advocate Mr.Bubna for the plaintiff that the very fact that the plaintiff draws water from a well which is well defined, would indicate that he has acquired an easementary right by prescription as he was enjoying this right uninterrupted for over 20 years. He submits that the plaintiff draws water from the suit well which has an under ground source of water which passes through a defined channel. Therefore, submits the learned advocate, to draw water from the suit well would be a right which can be acquired by prescription under Section 15 of the Easementary Act. According to him, Section 17(d) which stipulates that the right to underground water, not passing in 5 a defined channel, cannot be acquired as an easementary right, is not attracted in the present case. 8. He has tried to distinguish the judgments of the Allahabad High Court which have been relied on by the Trial Court. The learned advocate then relied on the judgments of this Court in the case of Watsalabai wife of Kothiram Parate & anr. v/s Shripat Parasram Gaikwad, reported in 1987(1) Bom.C.R. 105, in support of his submission that the right of drawing water from a well is a prescriptive right and, therefore, the appellant is entitled to an injunction against the respondent. He has also relied on the judgment in the case of Shivlingamva Irappa Birajdar & ors. v/s yeshwantrao Hanumantrao Vorpetti & ors., reported in 1978 U.C.R. (Bom.) 606, in support of his submission. 9. On the other hand, Mr.Dalvi points out that the suit has been filed for an injunction restraining the defendant from obstructing the plaintiff’s right of drawing water from the well and using the stone for washing clothes. He submits that the plaintiff has not sought a declaration that he has acquired an easementary right to draw water from the well or to wash clothes on the stone near the well. According to him, unless such a declaration is sought, the question of 6 granting any right to the plaintiff to draw water from the well or to use the stone for washing clothes does not arise. He further submits that when two Courts below have held, on the basis of the evidence on record, that plaintiff has failed to prove that he was entitled to an injunction to restrain the defendant from obstructing the plaintiff’s use of the water and the stone, the question of considering plaintiff’s easementary right to the water from the well does not arise. 10. On perusal of the pleadings they indicate that the immediate prayer sought by the plaintiff is for an injunction restraining the defendant from creating an obstruction (i) in his use of the water from the well, (ii) access to the well and (iii) washing clothes near the well. The other prayer sought was for the use of the wall which, according to the plaintiff, had been erected without his consent. 11. Undisputedly, the wall has been constructed in the defendant’s property. Therefore, the question of obtaining the plaintiff’s consent to erect a wall in the defendant’s property does not arise. As regards the issue as to whether drawing water from the well would amount to an acquisition of easementary rights, in my opinion, it is not necessary for me to consider the issue. This is because the suit has not 7 been filed for a declaration that the plaintiff has any easementary right of prescription. Without that declaration being sought, the question of granting an injunction does not arise. Assuming such a declaration had been sought, whether drawing water from a well would amount to an easementary right would be based on the facts and circumstances of the case. The plaintiff has not led any evidence to prove that the water that has been accessed was passing through a defined channel. Once a well is dug the water percolates into the well through springs. The water is drawn from that well and is used. It is not possible to accept Mr.Bubna’s submission that the underground water flows into the well passes in a defined channel. Thus the plaintiff does not have any easementary right to accept the suit well. 12. The plaintiff has not adduced any evidence to establish his case that his transferor was enjoying any easementary right in respect of the suit property. Therefore the question of the plaintiff being entitled to a quasi easement under the provisions of Section 13 of the Act does not arise. 13. With regard to the third question on which the Second Appeal has been admitted, in my opinion, the trial Court has not committed any illegality. The trial Court has not placed 8 reliance on the affidavit of the witness who was not offered for cross examination. Instead, the trial Court has disbelieved the evidence led by the plaintiff and has dismissed the suit. 14. In my view, therefore, the suit and the appeal were rightly dismissed. 15. The Second Appeal has no merit as no substantial questions of law arise. 16. The second appeal stands dismissed. ..... 9