1 fa532 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.532 OF 2010 Najma Abdul Majeed Shaikh and others ...Appellants vs. The Maharashtra Housing & Area Development Authority ...Respondent Mr.Nitin Ghawre for the appellant Mr.P.G.Lad for the respondent CORAM : A.S.OKA,J. DATE : AUGUST 20, 2011 P.C.: 1 The submissions were fully heard on the earlier date. The appellants are the original plaintiffs and the respondent is the defendant. A compilation of containing true copies of the pleadings, true copies of the documents on record of the Trial Court and notes of evidence has been filed on record. 2 The challenge is to the decree dismissing the suit filed by the appellants before the City Civil Court. On 9 th June 2010, parties were put to notice that the appeal will be decided finally at the stage of admission. 3 The appellants (original plaintiffs) are claiming to be residing in the residential premises on the property described in paragraph 1 of the plaint. It is alleged that in front of the 2 fa532 residential premises of the appellants, there is a plot vesting in respondent- the Maharashtra Housing & Area Development Authority (hereinafter referred to as MHADA ). It is alleged that there is an access road in existence through the said plot of MHADA for egress and ingress to the residential premises of the appellants. It is stated in the plaint that the appellant nos.1 to 10 are in possession of the premises which are being used for residence. It is contended that the land on which the suit premises are situated is declared as a slum area. It is contended that the suit road passing through the plot of MHADA is the only road available which is being used by the appellants from the inception. Therefore, prayer is made in the suit for injunction restraining the respondent from causing obstruction and blocking ingress and egress of the appellants by constructing a boundary wall over the suit road. The sketch of the alleged suit road has been annexed to the plaint and marked as Exh.A. 4 The respondent contested the suit by filing written statement. Apart from other defences such as absence of statutory notice, it was contended that there is an another access road available to the appellants from the southern side of the premises of the appellants. The respondent denied that there is a right of easement available to the appellants over the plot of the respondent. 5 The parties adduced evidence and the trial Court proceeded to dismissed the suit on merits. Apart 3 fa532 from oral and documentary evidence, the Trial Court had appointed Court Commissioner for local investigation. The report of the Court Commissioner was placed on record. The trial Court held that the appellants have failed to prove that they have any right of easement over the plot of the respondent. The trial Court held that there was another road available by way of access to the premises of the appellants. 6 The learned counsel for the appellants submitted that the report of the Commissioner shows that the width of the road available to the appellants is very narrow and it is impossible to bring in the goods by using the said access. His submission is that the appellants have proved by oral and documentary evidence that they have been using the suit road right from inception. His contention is that as the appellants have proved existence of right of way, injunction ought to have been granted. The learned counsel for the respondent supported the impugned Judgment and decree. 7 The first question is whether the appellants have established the right of way or right of easement. As far as the alleged right of easement is concerned, only pleading which is found is in paragraph 5 of the plaint which reads thus: 5 The plaintiffs submit that the Suit Road is being used by the plaintiffs since inception of their respective premises. The Plaintiffs have no other access road save and except the Suit Road. The 4 fa532 plaintiffs claim right of way through prescriptive easement as well as by way of necessity. The plaintiffs submit that the Defendants have started construction of boundary wall on 22-3-2003 over their said plot of land. The plaintiffs protested as if the wall will be constructed, the plaintiffs will be deprived from their sole excess way to their respective premises.... 8 Thus, the appellants were themselves not sure whether they have acquired the right of easement of necessity or by way of prescription. Appellant no. 5 filed an affidavit in lieu of examination-in- chief. Even in the said affidavit in lieu of examination-in-chief, the appellant no.5 has not set out the exact nature of the alleged right of easement claimed in the suit. The only contention seems to be that the appellants have been using the access for a long time. In paragraph 6 of the affidavit, it is contented that the right of easement is by way of necessity. The appellants filed an affidavit in lieu of examination-in-chief of witness Juman Baig Rashid Baig. Except for stating about the long standing user, the said affidavit does not show that the respondents established the right of way. Moreover, it is not the case of the appellants that they are owners of the lands on which their premises are situated. In fact, they are not claiming any right in respect of the land. Therefore, they cannot claim easement of necessity. The report of the Court Commissioner records that there is another passage/road available for reaching the premises of the 5 fa532 appellants from the main road. 9 The appellants have failed to lead and prove the exact nature of the right of easement claimed by them. The entire suit is founded on right of easement the existence of which the appellants have failed to establish. There is no merit in the appeal and the same is accordingly dismissed with no order as to costs. 10 Civil application no.1199 of 2010 does no survive and the same is disposed of. JUDGE