1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.830 OF 2007 Keda Bala Chavan & ors. : Appellants. Versus Mahadu Giri Borse (Deceased) 1A Deoram Mahadu Borse & ors. : Respondents. Mr.Y. A.Sakhare i/by YKS Legal for the Appellants. Mr.B.Haridas i/by Mr.P.N Joshi for Respondent Nos.1A & 1B. CORAM : R.M.SAVANT, J DATED : September 10, 2008 P.C. 1. The above Second Appeal takes exception to the Judgment and Decree dated 3.3.2007 passed by the learned Ad-hoc District Judge-1, Malegaon by which the Judgment and Decree dated 29.11.1997 passed by the learned Civil Judge, Senior Division, Malegaon came to be set aside and the suit filed by the Respondent Nos.1A and 1B herein came to be decreed. 2. The bone of contention in the proceedings is one Chari 2 (Canal) which is 4.5 feet in width and 3 feet in depth. The said Chari or Ayakut Kora is in the land of the Plaintiffs, who are the Respondents herein, being Gat No.277. Since the Plaintiffs apprehended obstruction of the Appellants as regards the Ayakut Kora or Chari, the Plaintiffs filed Regular Civil Suit No.18 of 1990 for declaration that the Ayakut Kora in question is owned and possessed by them and nobody had any interest in the said Ayakut Kora. The Plaintiffs further prayed for possession of the said Ayakut Kora from the Defendants by removing the obstruction of the Defendants. 3. The Defendant Nos.1, 2 and 3 filed their written statement and contended that the Soil Conservation Department had constructed the said Ayakut Kora in the year 1972-73 between Survey Nos.246 and 247 for the purposes of drainage of excess water from the fields surrounding the said Gat No.277. It was also the case of the Defendants that the said Ayakut Kora was used as a way whenever there was no water for approaching the fields bearing Gat Nos.274, 276 and 194 etc. It was further the case of the Defendants that the Plaintiffs sought to obstruct the rights of the Defendants by 3 planting trees of Nilgiri etc. 4. The parties went to trial. The trial Court on the basis of the oral and documentary evidence and, mainly on the basis that the said Ayakut Kora was constructed for the purposes of drainage of excess rain water by the Soil Conservation Department, held that the Plaintiffs did not have any right over the said Ayakut Kora and, therefore, dismissed the said suit. 5. Being aggrieved by the dismissal of the said suit, the Plaintiffs filed Regular Civil Appeal No.7 of 1998. The said Appeal came to be allowed by the Lower Appellate Court by its Judgment and Order dated 3.3.2007 and resultantly the suit filed by the Plaintiffs came to be decreed. During pendency of the said Appeal, the Lower Appellate Court had appointed a Court Commissioner to visit the site and submit his report. Accordingly, the Court Commissioner Shri U. D. Ahirrao visited the site and submitted his report. The Court Commissioner reported that there was no road or way and that the Ayakut Kora was passing through the land of the Plaintiffs. It appears 4 that during pendency of the said suit, the Plaintiffs had made an application for measurement of their land. Pursuant to the said application, the Circle Officer by name Pardeshi visited the site in question and through, there was an order of status quo operating in the said Appeal, the said Pardeshi had got about 60 trees removed. The Lower Appellate Court, considering the said two reports i.e. One by Shri Ahirrao – the Court Commissioner and another by Shri Pardeshi – the Circle Officer held that the case of the Defendants that the said Ayakut Kora was for the benefit of the villagers could not be accepted as the land under Ayakut Kora had not been acquired nor the Plaintiffs have been paid any compensation by the State Government, merely because it is the case of the Defendants that the villagers had contributed towards the construction of the said Ayakut Kora, the rights of the Plaintiffs over the land in question wherein Ayakut Kora has been constructed cannot be obliterated. The Lower Appellate Court, therefore, recorded a finding of fact that the said Ayakut Kora being in the land of the Plaintiffs and since there was no right of way, the said suit was required to be decreed and accordingly allowed the Appeal and decreed the said suit. 5 6. It is sought to be contended on behalf of the Appellants that the finding recorded by the Lower Appellate Court that the land has not been acquired or that no contribution has been paid by the villagers is perverse in the teeth of the documentary evidence by way of 7 x 12 extracts on record. It is further contended that the Ayakut Kora has been used as a right of way whenever there is no water in it. 7. Per contra, it is submitted on behalf of the Respondents/Plaintiffs that Ayakut Kora was constructed for drainage of excess water and not as a right of way. It is further submitted on behalf of Respondents/Plaintiffs that merely because it is the case of the Defendants that the villagers had contributed to the construction of the said Ayakut Kora, it could not be said that the right of the Plaintiffs over the land in question on which Ayakut Kora is constructed, is obliterated. 8. Apart from the fact that the submissions made on behalf of the Appellants would entail an inquiry into facts. In my view, the 6 submissions made on behalf of the Appellants that Ayakut Kora is used as a right of way cannot be accepted more so when the Appellants are claiming the said right as and by way of prescription. Going by the case of the Appellants themselves that they are using the said Ayakut Kora as a right of way whenever there is no water in it, the said right cannot be said to have been crystalised into any right by way of prescription, moreover a water channel cannot be used as a right of way merely because at some point of time in the year there is no water in it, and, therefore, the findings recorded by the Lower Appellate Court while decreeing the said suit, in my view, cannot be faulted with. 9. Hence the challenge raised in the above Second Appeal does not involve any substantial question of law. The Appeal is accordingly dismissed. 10. In view of dismissal of the Appeal, the Civil Application No.871 of 2008 does not survive and the same is disposed of as such. 7 [R.M.SAVANT, J]