1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR SECOND APPEAL NO.59 OF 1995 1-A. Kausalyabai wd/o. Trimbak Muley, 1-B. Vasant s/o. Trimbak Muley, 1-C. Shobha d/o. Trimbak Muley, 1-D. Vijay Trimbakrao Muley, 1-E. Ashok Trimbakrao Muley, 1-F. Sau. Mangala w/o. Sriram Dawale, 1-G. Sau. Nirmala Vithalrao Kale ….... APPELLANTS/ ORIGINAL PLAINTIFFS // VERSUS // 1. Vishnu s/o. Govind Khirodkar (Dead) Through L.R.s : a) Smt. Laxmibai wd/o. Vishnu Khirodkar, aged about 60 yrs., Occ. Household, r/o. Malipeth, Tq.Mehkar, Distt. Buldana. b) Pandurang Vishnu Khirodkar, Asstt. Teacher, r/o. Naravel, Tq. Malkapur, Distt. Buldana. 2. Rambhau Vishnu Khirodkar, 3. Sadashio Vishnu Khirodkar. ........ RESPONDENTS 2 -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Mr. S.R.Deshpande, Adv. for the Appellants. Mr.D.P.Jaiswal, Adv. holding for Mr.R.L.Khapre, Adv. for the respondents. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Coram: A.B.CHAUDHARI, J. Date : 10/06/2011. ORAL JUDGMENT : 1. Being aggrieved by the judgment and decree dated 6th July, 1988 passed by the Joint Civil Judge (Jr.Dn.), Mehkar in Regular Civil Suit No.101 of 1982 confirming the judgment and decree dt.12.10.1994 passed by 3rd Additional District Judge, Buldana, the present Second Appeal was filed in this Court by the aggrieved original plaintiffs/appellants herein. 2. In support of the appeal, Mr.S.R.Deshpande, Adv. for the appellants has argued that the appellant/original plaintiff was entitled to enjoy easementary right by way of prescription referable to Section 15 of the Indian Easement Act, 1882. He fairly states that, for claiming such easementary rights, the plaintiff does not have any document and that is why the plaintiff chose to rely on the parole evidence. According to him, the evidence of plaintiff before the trial Court was enough to hold that the plaintiff got the right of easement 3 in question by way of prescription. However, the Courts below have landed in error in the matter of appreciation of evidence. Per contra, Mr. D.P.Jaiswal, Adv. for the respondents opposed the appeal and argued that there is neither any oral evidence on record, much less satisfactory to support the case of the plaintiff over the said alleged right of easement by way of prescription nor the plaintiff has placed any evidence on record to satisfy the ingredients of Section 15 of the Indian Easement Act,1882 and therefore, no substantial question of law arises in the present appeal. 3. At the stage of admission, this Court had framed substantial question of law, which I re-frame thus : “ Whether the appellant/plaintiff was entitled to exercise easementary right by way of prescription over the suit area within the meaning of Section 15 of the Indian Easement Act, 1882 ? “ 4. I have gone through the impugned Judgment and decree passed by the Courts below. I have also gone through the evidence of plaintiff and defendants pointed out to me by the learned Counsel for the respective parties. Having heard the learned Counsel for the rival parties, at the outset, I find that the plaintiff has chosen not to rely on any documentary evidence to prove his case about 4 easement by way of prescription in respect of the lane between the two houses i.e. the house of the plaintiff and the defendants. In the absence of documentary evidence, the plaintiff relies on his oral evidence. I have gone through the evidence tendered by the plaintiff, who has not said a word about the previous period during which any such easement was enjoyed by the plaintiff. On the contrary, Mr.Deshpande, Adv. wanted this Court to draw inference that easement was well enjoyed for more than twenty years. I do not agree with the submission made by Mr.Deshpande since the Court will not draw conclusions by inferences but will do so based on evidence. The plaintiff ought to have categorically stated about existence of easement for more than 20 years. He has not done that and Mr.Deshpande tried to reply on the so called admission of the defendant that the easement was enjoyed for the last 15 to 20 years. Such a vague evidence does not satisfy the mind of the Court and therefore, the concurrent findings of facts recorded by the Courts below refusing to believe such evidence of easement by way of prescription cannot be faulted. In the result, therefore, the afore- said question of law framed will have to be answered in the negative. The appeal, therefore, must fail and is dismissed. No order as to costs. JUDGE jaiswal 5