1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.555/1991 Bajirao Krishnaji Sathe, age 65 yrs, Occ. Agriculturist, r/o Narayandoho, Tq. Nagar, Dist. Ahmednagar. Appellant (orig.plaintiff.) Versus 1. Suryakant Krishnaji Sathe, age 40 yrs. 2. Haribhau Baburao Sathe, age 40 yrs. 3. Shivaji Baburao Sathe, age 35 yrs. All agriculturists, r/o Narayandoho, Tq. Nagar,’ Dist. Ahmednagar. Respondents (orig. defendants.) Shri A.C. Darandale, adv. h/f Shri R.N.Dhorde, for the appellant. CORAM: R.K. DESHPANDE, J. DATE : 23 rd SEPTEMBER, 2009. ORAL JUDGMENT :- 1. This appeal is preferred by the original plaintiff who had filed RCS No.72/1982 for perpetual injunction restraining the defendant No.1 from taking water from the well situated in land gat no.372/A of village Narayandoho Tq. Nagar owned by the plaintiff. The plaintiff and 2 defendant No.1 are the real brothers. The trial court dismissed the suit by its judgment and decree dated 31.03.1987 holding that the plaintiff has failed to prove that the defendant No.1 has no right to take water from the suit well. It was further held that the plaintiff has further failed to prove that defendant was illegally taking water from the well situated in gat No. 372/A owned by the plaintiff. The RCA No.434/1987 preferred by the appellant-plaintiff has been dismissed by the learned 3rd Assistant District Judge Ahmednagar confirming the findings recorded by the trial court. The plaintiff has thus filed the instant second appeal challenging the judgments delivered by both the Courts below. 2. Although, this Court admitted the instant Second appeal on 04.03.1992, no substantial question of law was framed. The learned counsel for the appellant Shri A.C. Darandale has invited my attention to the substantial questions of law framed at Sr. No.3, 4 and 7, which are reproduced below : [3]- Whether both the courts have misread and misconstrued the documentary evidence namely Exh.44 dated 16.04.1977 filed before the Collector which does not mention the well still both the courts have erroneously held that the respondent no.1 has right to take the water from the well ? 3 [4]- Whether both the courts have erroneously rejected the documentary evidence namely Exh.44 dated 16.04.1977 which out waives the oral evidence ? [7]- Whether both the courts have misread and misconstrued the document dated 23.02.1977 which is not a registered document and has held that the respondent original defendant has right to take the water from the well ? 3- The learned counsel urged that Exh.44 was the application dated 16.04.1977 made to the Collector for carrying out mutation entry on the basis of partition dated 23.02.1977 at Exh.51. The learned counsel urged that in the said application, there was no mention either about the existence of well or about the right of the defendant to take water from the well in question. According to the learned counsel, the courts below ought to have held that if at all any right was conferred upon the defendant No.1, to take water, from the well in question in the compromise entered into between them in RD No.43/1974, same was waived, as a result, the defendant No.1 did not have any right to take water from the well. 4- It is not in dispute that in RD No.43/1974 there was a compromise arrived at between the plaintiff and defendant No.1 4 real brothers and in the said compromise the defendant No.1 was conferred with the right to take water from the well situated in gat No.372/A allotted to the share of the plaintiff. In the same settlement gat No.372/B was allotted to the share of the defendant No.1. The trial court has recorded a finding that the perusal of the agreement of partition dated 23.02.1977 at Exh.51 shows that a right on the well water is reserved in favour of the defendant No.1 and the defendant No.1 agreed to take use of water of the well situated in land gat No.372/A according to their proportionate share. Thus specific finding is recorded that even in partition dated 23.02.1977 the right on the well water was reserved in favour of the defendant no.1. The trial Court also considered the admission of the plaintiff in his cross examination that settlement which was arrived at between the plaintiff and the defendant No.1 was also communicated to the Collector to finalize the partition and carry out the mutation entry and simply because there is no mention of the right to take water from well, mentioned in the application dated 16.04.1974 at Exh.44, does not mean that the defendant no.1 had no right to take water 5 from the well. The trial Court further recorded a finding that even otherwise on the basis of easementary right available to the defendant under section 13 of the Easement Act the defendant No. 1 had right to take water from the well situated in gat No.372/A. 5. The appellate Court has recorded a finding that admittedly, well is ancestral property and in respect of other portion of field S.No.372/B the defendant No.1 had right in the well to the extent of 50%. The appellate Court further held that simply because there is no mention of right over the well in the application at Exh.44, does not mean that the respondent No.1 had no right to take well water. The appellate Court also relied upon the provisions of section 13 of the Easement Act and held that the defendant No. 1 who is respondent No.1 had right to take water from well. 6. From the findings recorded by both the Courts below it is apparent that same are based on compromise arrived at in RD No.43/1974 in between the plaintiff and defendant No.1, such right of the defendant No.1 to take water from well situated in gat No. 372/A was also reserved in the partition dated 23.02.1977 at Exh.51. 6 The findings of the Courts below are also based upon the admission given by the plaintiff. Thus, both the courts below have recorded concurrent finding of facts holding that the defendant No.1 has right to take water from the well situated in gat No.372/A. Issue regarding non mentioning of said right in mutation entry No.1522 at Exh.36 and in the application dated 16.04.1974 at Exh.44 has also been considered by both the Courts below. At any rate, it is a possible view taken by both the Courts below based on evidence available on record. It cannot therefore be said that view taken by the Courts below in any manner perverse. In view of this in my opinion, no question of law arises in the present second appeal. Same is therefore dismissed with no order as to costs. ( R.K. DESHPANDE ) JUDGE ******* aaa/555.91