1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 823 OF 2001 Mrs.Irene N.Heredia and anr. ....Appellants (Orig.Defnds) V/s. Mr.John Thomas Pareira & anr. ...Respondents (Orig.Plffs) ========= Mr.P.S.Dani, adv.for appellants. Mr.Vijay Thorat, Senior Counsel a/w.Mr.Vaibhav Sughdare and Mahesh Swami i/by. Vigil Juris adv.for respondents. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 1ST JULY, 2009. P.C. :- 1. This Second Appeal arises out of a representative suit, Regular Civil Suit No.154 of 1989 filed by the respondents for a declaration that the passage running through Survey No.114 upto the south eastern boundary of the cremation ground at survey no. 125B is a public road for the use of the villagers of Nagaon and Mhatavali and the adjoining property owners and that the respondents alongwith the other villagers have a right to use the same. The second prayer in the suit was for permanent 2 injunction to restrain the appellants from creating obstruction in the road or reducing its width. The trial court by its judgment and decree dated 22nd March, 1996 decreed the suit in terms of the prayer of declaration and injunction. Being aggrieved by the decree, the appellants preferred Regular Civil Appeal No.116 of 1996 in the District Court, Raigad, Alibaug. By the judgment and order dated 22nd August, 2000 the Civil Appeal was dismissed upholding all the findings of the trial court. 2. The respondents are the owners of the property at Survey No.185A/8B, 185A/8A and 185A/8C situate at village-Kegaon. They are running a hotel by name “Uran Plaza Pvt Ltd” therefrom. The appellants are the owners of adjoining land at Survey No.124 situate at village-Nagaon. Both the properties though abutting to each other, fall in different villages. The respondents filed the suit contending that there is a road with the width of 10 to 12 feet running through the property of the appellants upto the seashore. This road has always been used by the villagers of Nagaon and Mhatavali for carrying dead bodies to the cremation ground, lifting agricultural produce, vehicular trafic for building material, arranging fire woods for burning dead bodies and for going to the seashore. The respondents thus 3 have been using the passage since the year 1965 without interruption. On 11th February, 1976, the appellants however published a notice in `Kulaba Samachar’ a weekly stating that the passage will remain closed not on 28th February, 1976 but on 29th February, 1976. The Sarpanch of Nagaon then wrote to the Tahsildar requesting him that the road be not closed as threatened by the appellants. Later, he also got published a public reply in the same weekly on 31st March, 1976 objecting to the closure. The Sarpanch indicated that such notice is misleading and amounts to interference with the rights of the villagers of Nagaon and Mhatavali to the use of the road. It is further alleged by respondents that they have also been using the said passage since the purchase of the properties in the year 1965 without interruption. With these averments, they sought the relief of declaration and injunction as described above. 3. The appellants contended in the written statement that the representative suit as filed by the respondents was not maintainable and that respondents had not taken permission from the Court to file the suit in representative capacity as per the provisions of Order 1, Rule 8 Code of Civil Procedure. As regards the merits of the case, the appellants dispute existence 4 of passage as alleged by respondents. They have however contended that the passage forms part and parcel of their property and they have permitted the villagers to have access over the passage only for the purpose of carrying dead bodies for cremation. They deny that the passage is a public road or it has been used for various other purposes for the period as claimed by respondents. They allege that respondents when started the hotel business on the adjoining plot of land started running their vehicles, trucks etc. through the passage causing damage to their plants and trees besides causing considerable noise, pollution and irritation to the appellants. It is further alleged that respondents are trying to grab their property by using road for lorry and truck traffic. In other words what is alleged is that the concession given by the appellants to the villagers for carrying dead bodies for cremation is being mis-used by the appellants. 4. On the above contentions, the trial Court framed following issues. Issues 1. Does defendants prove that suit is not tenable in law under Order 1 Rule 8 of C.P.C. ? 2. Do plaintiffs prove that they have an easementary right of way leading their property as shown in the map attached ? 5 3. Do plaintiffs prove that defendants are unlawfully obstructing them in their peaceful use of the way? 4. Are plaintiffs entitled to permanent injunction as prayed for ? 5. What order and decree ? For the reasons stated in the judgment, it held that the suit as filed under Order 1 Rule 8 is maintainable. It is also held that the respondents have an easementary right of way leading to their property and that the appellants have been unlawfully obstructing the same. With these findings, the suit was decreed. The first appeal preferred therefrom was also dismissed. The appellate Court has held that respondents have proved their right over the suit passage and are entitled to the relief of declaration and injunction as prayed. Thus, there is concurrent finding of fact as regards the existence of the road as alleged by the respondents. The record shows that the respondents examined respondent no.1 (P.W.No.1), Deputy Sarpanch of village Kegaon (P.W.No.2), two residents of Negaon (P.W.No.3 and P.W.No.4), a surveyor from Government Survey Department (P.W.No.5). The appellants examined appellant no.1 (D.W.No.1) and Deputy Sarpanch of village Negaon (D.W.No.2). The concurrent finding is seen to be based on the evidence before the Court. The finding is reasonable and probable, hence finding cannot be disturbed at the stage of the 6 Second Appeal. 4. Mr.Dani, the learned counsel for the appellants submits that there is a serious error in the decision of both the Courts below in acknowledging easementary right of way in favour of the appellant where there is none pleaded. He points out to the decree passed by the trial Court declaring that “plaintiffs have right of easement to use the suit property i.e. the road situate in survey no.124 as a public road to permit traction of traffic such as cars, trucks, bullock cart and other traffic for effective users by the plaintiffs”. He has taken me through the plaint to show that there is no right of easement of way as claimed by respondents. Mr.Thorat, learned counsel for respondents has rightly pointed out that they have not sought any private easementary right based on user. What is claimed by respondents in their representative capacity is a declaration of existence of public road. The plaint is required to be read as a whole. It is filed by the respondents in representative capacity. The necessary procedure for that purpose has been followed by them. The entire tenor to the plaint is to seek declaration of existence of public road. Therefore, the words used by the trial Court “a right of easement,” in it’s operative 7 part of the decree must be ignored. What has been sought and granted is a declaration that an access as a public road, based on its continuous user by the general public of villages Nagaon and Mhatavali. In that circumstance, I find no substance in the submission advanced on behalf of the appellants. 6. It has been next submitted that there cannot be any declaration of a road as public road unless the same is declared to be so in the development plans. The declaration sought by the respondents is not that the road is road under Development Plans. According to them, this is a public road since it has been used by general public for long period of time. In these circumstances, there is no substantial question of law arising in the proceedings. Hence, the Appeal is dismissed in limine. (Smt.R.P. SondurBaldota.J.)