1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.40 OF 1993 Tukaram Supdu Patil, age: 55 years, Occ: Agri., R/o Tekwadi Kd., Post Wade, Taluka Chalisgaon, District Jalgaon. Appellant Versus 1 Tulsiram Gangaram Patil, age: 60 years, Occ: Agri., R/o Tekwade Kd., Post Wade, Taluka Chalisgaon, District Jalgaon. 2 Budha Rajaram Patil, age: 55 years, Occ: Agri., R/o Tekwade Kd., Post Wade, Taluka Chalisgaon, District Jalgaon. Respondents Mr.L.V.Sangit, advocate holding for Mr.V.J.Dixit, Senior Counsel for the appellant. Mr.G.R.Syed, advocate holding for Mr.P.R.Katneshwarkar, advocate for Respondent NO.1. Appeal abated against Respondent No.2 vide Additional Registrar’s order dated 02.02.1994. CORAM: R.M.BORDE, J. DATE : 04 th August, 2009. ORAL JUDGMENT: 1 This is an appeal by original defendant no.1 raising 2 exception to the judgment and decree dated 14.08.1992, passed by II Additional District Judge, Jalgaon in Regular Civil Appeal No.289/1984. 2 Appellant – original plaintiff instituted Regular Civil Suit No. 118/79 claiming right of way through land G.Nos.31 and 32 for reaching to his own agricultural property bearing land G.No.30. Plaintiff claimed right by way of easement of necessity. He also contended that he is using the disputed way since last more than 100 years. He also claimed prescriptive right in relation to the disputed access. According to plaintiff, he is owner of land G.No.30, whereas land G.No.31 belongs to defendant no.1 and land G.No.32 belongs to defendant no.2. It is his contention that he has an access through land G.Nos.31 and 32 for reaching to Tekwade- Chalisgaon road. According to him, he is using the way since last 100 years openly, peacefully and without any obstruction. There has been obstruction for the first time on 30.04.1979 at the hands of defendant no.1. He, therefore, presented instant suit claiming declaratory relief in respect of right of user of disputed way as well as decree of perpetual injunction restraining defendants from causing obstruction in the user of disputed way by the plaintiff. 3 In response to the suit summons, defendant no.1 appeared and resisted the suit by filing written statement. Defendant no.1 denied the contentions raised by plaintiff in respect of prescriptive right in relation to the disputed way being in existence since last more than 100 years, as contended by the plaintiff. According to defendant no.1, there is no such way in existence as pleaded by the plaintiff through common `bandh’ running through land G.Nos.31 and 32. Therefore, no question arose for 3 causing obstruction to the plaintiff on 30 th April 1979, as contended by the plaintiff. According to defendant no.1, there is way available for the plaintiff and it is being used by him for reaching to his agricultural land G.No.30, which passes through land G.Nos.33 and 34 and in view of availability of alternate road, plaintiff cannot claim user of disputed way as an easement of necessity. Defendant No.1, as such, prayed for dismissal of the suit. Defendant no.2 filed his written statement and supported the case pleaded by plaintiff. 4 The trial Court, after recording evidence of the parties, came to the conclusion that the plaintiff has established his case in respect of prescriptive right as well as regarding easement of necessity and as such, granted decree in favour of the plaintiff. 5 Defendant no.1, being aggrieved by the judgment and decree passed by the trial Court, approached the appellate Court by filing Civil Appeal No.289 of 1984, which was decided in favour of defendant no.1 and judgment and decree passed by the trial Court came to be set aside. 6 At the stage of admission of appeal, this Court has recorded that Grounds No.3, 7, 11 an 12, set out in the grounds of appeal, involve substantial questions of law. Those are: (3) Whether the suit of the appellant – plaintiff can be dismissed only 4 on the basis of the Commissioner’s Report Exh.25 and the Map at Exh.70 prepared by the Court Commissioner as against the observation and spot inspection made by the learned trial Court ? (7) The lower appellate Court has erred in relying on the Commissioner’s Report and map submitted by the Court Commissioner exclusively in dismissing the suit of the appellant- plaintiff without going into the merits and demerits of the depositions and evidence of the parties. (11)The lower appellate Court has not at all addressed himself to the point whether the applicant – plaintiff has acquired easement by prescription under Sec. 15 of the Indian Easement Act and without recording finding either way, the suit of the appellant – plaintiff was dismissed by the lower appellate Court. (12)The lower appellate Court has also erred in not considering the case of the appellant – plaintiff with regard to the easement claimed by the appellant by way of necessity as contemplated under Section 13 of the Easement Act. 7 I have perused the judgments delivered by both the Courts below and heard arguments advanced by Shri L.V.Sangit, learned Counsel holding for Shri V.J.Dixit, Senior Counsel for the appellant and Shri G.R.Syed, learned Counsel holding for Shri P.R.Katneshwarkar, advocate for Respondent No.1. 8 It is vehemently contended by learned Counsel for the appellant – original plaintiff that the first appellate Court has not considered the oral evidence placed on record by plaintiff and has only 5 considered the report of Court Commissioner as well as evidence of Commissioner Mr.K.K.Surana and reversed the finding recorded by the trial Court. 9 That, so far as oral evidence of the plaintiff as well as defendants is considered, it is in the nature of oath against oath. There is no evidence in respect of right of user of disputed way since last more than 100 years. Except statement of plaintiff and his witnesses P.W.2 Fulchand and P.W.3 Hari, plaintiff has not led any other evidence. P.W.3 Hari is owner of land G.No.34. Defendant no.1 has specifically contended that plaintiff has right of access through land G.Nos.33 and 34. The owner of land G.No.34, for his own reasons, is supporting the case put up by the plaintiff in respect of availability of alternate road. However, evidence led by the plaintiff is not sufficient to arrive at a conclusion that he is using the disputed way since last more than 100 years, as contended by him. There is rebuttal evidence of defendant no.1 as well as his three witnesses. Defendant no.1 has pleaded a case in respect of availability of alternate access through land G.Nos.33 and 34. As the oral evidence led by both the parties is in conflict with each other, the first appellate Court was justified in placing reliance on the evidence of P.W.2 – K.K.Surana, advocate practicing in Chalisgaon Court, who was appointed as Court Commissioner and who conducted spot inspection. He conducted spot inspection on 23.11.1980 and submitted his report. The Court Commissioner has specifically reported to the Court that he did not find availability of cart road through land G.Nos.31 and 32. He has specifically reported that there are number of trees standing on the bandh between land G.Nos.31 and 32, so also there are two wells which are in dilapidated 6 condition situate just near the bandh which passes through land G.Nos.31 and 32. The Commissioner has reported that there is an access available for the plaintiff for reaching to his land G.No.30 through land G.Nos.33 and 34. The version stated by the Commissioner in his examination-in -chief has not been challenged by the plaintiff in cross examination. There was no reason for the trial Court to reject the version of Court Commissioner, who has visited the spot and reported his findings to the Court. 10 The learned Judge of the trial Court has himself visited the spot and has relied upon his own impression as regards the situation. It is noted that the learned Judge, during his visit, found that there is canal passing through the disputed way, so also there are many trees standing on the disputed way, as claimed by the Court Commissioner. However, in spite of recording his observations, the learned Judge of trial Court, strangely enough, has recorded a finding that the way passing through land G.Nos.31 and 32 is more convenient for the plaintiff. In order to claim easement of necessity, convenience of the party is not required to be looked into, but availability of alternate way is a matter of consideration. The learned Judge of the trial Court has not recorded specifically that alternate road is not available. In these circumstances, it was an error on the part of the learned Judge of the trial Court to record a finding that the plaintiff is entitled to have an access through land G.Nos.31 and 32, as a matter of easement of necessity. 11 It is also surprising to note that although report of Commissioner was not challenged by the plaintiff, learned Judge of the 7 trial Court proceeded for inspection of the spot in spite of there being an objection in writing placed on record by the contesting defendant. The appreciation of evidence by learned Judge of the trial Court is perverse and finding recorded, as such, is rightly set aside by the first appellate Court. No substantial question of law arises for consideration in the Second Appeal. 12 Appeal, being devoid of merit, liable to be dismissed and is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/sa4093