1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 304/2006 (Shri Raje Wakatak Wachnalaya Vs. Ramesh Bhawarilal Laddha) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : Smt. Vasanti A. Naik, J. DATED : 13 th AUGUST, 2008. Heard Shri Khapre for the appellant, and Shri Mehadia for the respondent. The appellant is the original defendant. A suit was filed by the respondent for permanent and mandatory injunction on a plea that the landlord of the plaintiff i.e. Tilak Smarak Trust had purchased the property which was in possession of the plaintiff, in the year 1931, from one Janardhan Bhalchandra Sane by two different sale deeds. A cinema theater which was situated besides Tilak Smarak Mandir was let out to the plaintiff's father by the Trust in the year 1952. According to the plaintiff, on the southern side of defendant's premises, there was open space and lane which was admeasuring 55 ft. east-west and 10.6 ft. in width. It was the plaintiff's case that since 1952, the plaintiff and the cinema viewers and customers were using the suit way to go 2 to cinema theater. It was pleaded that there was a gate fixed by the plaintiff on the eastern end of the lane since long. It was further pleaded that the defendant made attempts to construct a wall so as to prevent the plaintiff from using the way on the southern side of the defendant's property. According to the plaintiff, in the lease deed also, there was a specific mention of the said passage on the south of the defendant's library building and that use of the plaintiff was interrupted. The plaintiff, therefore, prayed for injunction restraining the defendant from obstructing the use of the lane. The defendant denied the claim of the plaintiff and also filed counter-claim for a declaration that the defendant was the owner of the suit lane and the plaintiff be directed to remove the lock on the gate to the northern side of the property of the plaintiff and the defendant. The defendant denied that the plaintiff had a right to use the passage way as an easement or otherwise, and Tilak Smarak Trust had no right or authority to grant the right to use the space to the plaintiff. According to the defendant, the use of the way would cause great inconvenience to the defendant. The defendant, therefore, sought for dismissal of the suit. The trial Court framed the issues and dismissed the suit of the plaintiff. The trial Court 3 held that the defendant had succeeded in proving his title to the suit property and the plaintiff had failed to prove that he acquired the easementary right to use the suit lane. The trial Court then held that the plaintiff further failed to prove that the defendant was obstructing the plaintiff from using the suit lane. The Court also held that the plaintiff failed to prove that he was in possession of the suit lane as a tenant of Tilak Smarak Trust. In an appeal filed by the plaintiff, the first appellate Court reversed the findings recorded by the trial Court. On an appreciation of the material evidence on record, the first appellate Court held that the plaintiff had succeeded in proving that he had a right to use the space on the south of the defendant's site. The first appellate Court held that the suit was not bad for non-joinder of Tilak Smarak Trust as party to the suit and was not liable to be dismissed in view of the provisions of the Bombay Public Trusts Act. While recording a finding that the plaintiff had a right to use the suit lane, the first appellate Court considered the sale deeds executed in favour of the landlord of the plaintiff and the defendant, the lease deed executed in favour of the plaintiff, the map which was produced on record, the record of the Revenue Department, the Sanad, the evidence pertaining to the settlement between 4 the plaintiff and the defendant and the other oral and documentary evidence on record. The first appellate Court also relied on certain admissions of the defendant's witness by name Vyankatesh, who was the President of the defendant Library for thirty years. This witness had categorically admitted in his cross-examination that there was a common wall and an open space on the southern side of the defendant's property. He admitted that the common space on the southern side was being used by the plaintiff and the defendant. He further admitted that though the well was a common well, after the well had dried up, they had made a construction on that portion as well as on the part of the common space. It was also admitted by the witness, in his cross-examination, that the lane was not in existence earlier, but came into existence in the year 1986-87. The first appellate Court gave due weightage to the admissions of the witness of the defendant Library and the other documentary evidence on record, which, according to the first appellate Court, clearly showed that there was a lane on the southern side of the defendant's property which was for common use. The first appellate Court recorded a finding that the disputed strip of land was not a part of plot No. 2067 belonging to the defendant Library. The findings recorded by the first 5 appellate Court are based on a proper appreciation of the material evidence on record. They do not give rise to any substantial question of law. The judgment reported in AIR 1983 Supreme Court 355 and relied on by the counsel for the appellant, cannot be made applicable to the facts of this case. The second appeal is, therefore, dismissed with no order as to costs. JUDGE RMP