1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 395 OF 2004 Pratap S/o Pandurangrao Kande .. Applicant Versus 1. Pralhad S/o Narayanrao Kande and others .. Respondents Shri R. T. Nagargoje, Advocate for the Applicant. Shri Janardhan Murkute, Advocate for the Respondent No. 1. CORAM : N. D. DESHPANDE, J. DATE : 12TH NOVEMBER, 2009. ORAL ORDER : 1. Heard Shri Nagargoje, the learned counsel for the appellant, who is original defendant No. 1, the main contesting party in the suit filed by the respondent No. 1 bearing Regular Civil Suit No. 251 of 1991, in the Court of Civil Judge Junior Division, Parli Vaijnath for declaration of 7 feet wide lane between his house and the open space of the appellant which he purchased from the original defendants No. 2 and 3 to be entitled to use and enjoy. He also prayed for permanent injunction restraining the defendants mainly from obstructing his right of way over the said 2 suit lane for use and for laying pipeline for water and for domestic use, which he acquired by continuous use since long back prescription. The suit was filed on or about 21st June, 1991, eventually after there was obstruction by the defendant No. 1, who started digging work for construction of house in the said site after it was purchased by him from defendants No. 2 and 3 vide sale deed Exhibit 34 dated 25.03.1991. 2. The suit of the plaintiff was dismissed by the Trial Court. Therefore, he preferred first appeal before the Additional District Judge, Ambajogai, and the same was allowed vide impugned judgment and decree dated 31.03.2003 in Regular Civil Appeal No. 42 of 1995. The said judgment and decree is impugned in this second appeal. 3. I heard Shri Nagargoje, the learned counsel for the appellant and also Shri Murkute, the learned counsel for the respondent No. 1. 4. There is dispute between the parties which is confined to a small strip of lane which leads to road on both the sides of their house. The appellant/defendant No. 1 was not in possession or had no title prior to 1991 to the open plots which was opposite to the house of plaintiff. It was purchased by him from the defendants/respondents No. 2 and 3 vide sale deed Exhibit 34. As such, for title and ownership this is the only document, which would be looked into. The disputed lane is a small strip of 7 feet 3 wide is part and parcel of the open site which was earlier owned by the defendants/respondents No. 2 and 3 and subsequently allegedly purchased by the defendant No. 1 who is present appellant. 5. As such, the claim of the appellant/defendant No. 1 cannot go beyond the sale deed Exhibit 34 which is a document filed by the defendant No. 1/appellant in support of his title and ownership. In para 25 of the impugned judgment of the First Appellate Court it is referred and relied for just decision of the case. I have gone through the impugned judgment and also original sale deed where the boundaries are shown from three sides as roads. Thus it refers the existence of road between the house of the plaintiff i. e. respondent No. 1 and the appellant/defendant No. 1 which he had purchased from the original defendants No. 2 and 3. 6. The relief of injunction and declaration has been mainly asked against the respondent No. 1 and not against the other respondents, because after sale they were no more concerned with the property and in the present dispute, there was no objection by them to the plaintiff for use and enjoyment of the suit lane. The trouble started when the appellant/defendant No. 1 purchased the open site from the original defendants No. 2 and 3 which is opposite to the house of plaintiff and started digging for construction of the house. 4 7. The respondent No. 1, therefore, was justified in taking action against the appellant who started digging on the site thereby obstructing his use and enjoyment of the suit lane. 8. I have also gone through the judgment of the learned Trial Court dated 29.11.1994, where the learned Trial Court also observed that it is admitted fact that, after the lane there is open site admeasuring 24 x 18 feet owned by the defendants No. 2 and 3. There is also no dispute that, the defendant No. 1 purchased said open site from the defendants No. 2 and 3. It is further undisputed fact that, towards Eastern side of plaintiffs house, there is village road and the door of plaintiff's house is situated towards Eastern side. There is also no dispute that, towards Northern side of plaintiffs house there is lane. 9. Thus, there are such disputes in villages where there is no proper record of internal roads or lanes between the houses. The disputes arises between the neighbouring occupants after sales and purchase of the open site. The defendant No. 1/appellant who has purchased the said open site from the defendants No. 2 and 3 in the year 1991, except the sale deed he did not substantiate his case by examining his vendors i. e. defendants No. 2 and 3 on the point of his exclusive ownership and possession of the area which is claimed as suit lane and further to deny the plaintiffs claim of right of way along the suit lane. Thus there is clear finding in favour of the plaintiff/respondent No. 1 recorded by the First Appellate Court after re-appreciating the 5 evidence and moreover certain observations recorded by the Trial Court are also found in favour of the plaintiff/respondent No. 1. As such I do not find any merit in the second appeal. The same stands dismissed summarily after hearing both the parties. [ N. D. DESHPANDE, J.] bsb/Nov.09