*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10264/2009 Suresh Ratna Mali. ..Petitioner -VERSUS- Carolyin Co-operative Housing Society and another. ..Respondents ............... Mr.Ketan Chothani, Advocate for the Petitioner. Ms.Vaijaymati R. Kalekar, Advocate for the Respondents. ............... CORAM: A.P. DESHPANDE, J. Dated 11th December, 2009. PC:- 1 Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 2 The present Petitioner is the original Defendant against whom a suit has been filed by the Respondents/Plaintiffs. The Plaintiffs are two co-operative housing societies who have raised construction over a property owned and possessed by them. The property of the Respondents is touching the main road and at rear side of the said property there is hut of the present Petitioner/ Defendant. The Respondents instituted the suit making a grievance that the compound wall of the Respondents came to be demolished by the Petitioner with a view to have ingress and egress for reaching the main road from the hut. In the Written Statement, the Petitioner claimed an easementary right for approaching from the hut to the main road. The construction of houses by the Respondents has come in between the hut of Petitioner and the main road. The Trial Court *2* framed the issues. The Respondents moved an application for modification of the Issue No.4 and for framing of an additional issue. The prayer for framing of additional issue has been rejected and the Respondents have not challenged that part of order. Thus, the challenge in this Writ Petition at the behest of the Petitioner/ Defendant is only to the extent of modification of the Issue No.4 granted by the Court below. 3 The Trial Court has framed originally Issue No.4 which is reproduced herein below :- “Issue No.4: Whether the Defendant proves he and his family members have been using the strip of land situated on the plot of land bearing CTS No.44/C, as a means of access for ingress and egress through the compound wall of the Plaintiffs to reach the main road for last more than 50 years?” 4 Reading of the said issue would indicate that the Trial Court did not pin pointedly referred to the actual location of the approach way which the Petitioner claims to be in his use over a period of time. Thus, with a view to fix the location of approach road allegedly used by the Petitioner over years, the Trial Court modified the said Issue No.4 and re-casted the same which is reproduced herein below:- “Whether, the Defendant proves that he and his family members have been using the strip of land situated on the plot of land bearing CTS No.44-C as a means of *3* access for ingress and egress from the compound wall of the Plaintiffs through the 20% recreation ground/garden of Plaintiffs’ property, to reach the main 44 feet D.P. Road for the last more than 50 years?” 5 The Petitioner is objecting reference of “20% recreation ground/garden of Plaintiffs’ property” by contending that it is the case of the Plaintiffs and not that of the Defendant, hence, burden cannot be shifted on the Defendant. 6 The learned counsel for the Petitioner is not right in contending so. It is the Petitioner/ Defendant who is claiming right of easementary way over a strip of land through the property of the Respondents. Only with a view to pin-pointedly fix the approach way the Court has referred to “through the 20% recreation ground/garden of Plaintiffs’ property”. Thus, modification of the Issue No.4 is proper and correct and the same does not call for any interference. The Petitioner then tried to contend that the Issue No.3 ought to have been deleted as the same is not necessary to be framed. The Petitioner did not move any application before the Trial Court and there has been no consideration in regard to the necessity of the Issue No.3 or otherwise in the impugned order. In that view of the matter, I refrain from considering the submission in regard to need of Issue No.3 as framed. 7 As there is no merit in the petition, the same is dismissed. Rule is discharged. (A.P. Deshpande, J)