1 S.A.NO.73.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 73 OF 1992 Govindrao S/o Ganpatrao Paul, Age 44 years, Occupation Agriculture, R/o Banchincholi, Ta. Hadgaon, District Nanded APPELLANT V E R S U S 1] Nagorao S/o Ganpatrao Paul, Age 41 Years, Occupatio Agriculture R/oBanchincholi, Taluka Hadgaon, District Nanded. 2] Narayanrao S/o Bapuji Paul, age 60 years occupation agriculture R/o Banchincholi, Ta. Hadgaon, District Nanded. RESPONDENTS ... Mr. G.N.Chincholkar,Advocate for Appellant Respondent though served remained absent. ... CORAM : A.V. NIRGUDE, J. DATED : 15th JANUARY, 2010 ORAL JUDGMENT 1] Respondent No.1 Nagorao filed Regular Civil Suit No.113 of 1982, in the Court of Civil Judge Junior Division, Hadgaon, District Nanded against the present appellant and respondent No.2. 2] Case of the respondent no.1 in the plaint was as under- The respondent No.1 had stated that the appellant and respondent No.2 recently made 2 S.A.NO.73.92 encroachment on 30 feet wide passage which he used as public way between his two houses. He showed on the plaint-map passage as well as the offending structures erected by the appellant as well as respondent No.2. The respondent No.1 on such allegation sought declaration that areas under the offending structures was a public way and for mandatory injunction for removal of the offending structure and further sought perpetual injunction to restrain the defendants from making such encroachment in future. 3] The defendants, namely the appellant and the respondent no.2 both, took up stands that they had made no encroachment on the public way and contended that though constructions were made recently they stood on their own properties and not on the public way. During the pendancy of the suit the respondent No.2 removed his offending structure and thus respondent No.1 did not press the case against him. The contest, thus, remained between the respondent No.1-plaintiff and appellant-defendant No.1. 4] Having regard to the conflicting pleadings of the parties, the learned Judge of the Trial Court framed issues, and held that respondent No.1 could not prove that the portion where the offending structures were erected were parts of public road. However, when the matter was taken to the Appellate Court the learned Judge held that 3 S.A.NO.73.92 respondent No.1 could prove that the offending structures were erected on the passage that was under use of not only the respondent No.1-original plaintiff- but also neighbours and thus though it was not proved to be public road, plaintiff would succeed in getting the decree as prayed for. 5] Having heard learned counsel appearing for the appellants, the following substantial question of Law would arise for my consideration. 1] Whether the portion on which the offending structure of the appellant is situated is part of passage which is used by villagers as passage as of right? 2] Whether the appellant could prove that the area under offending structure was part of his ancestral property ? 6] The correctness of the plaint map was not seriously challenged by the appellant. He even did not deny the fact that the offending structure was constructed about two years prior to filing of the suit. He even admitted that the area on which offending structure was constructed, fell to his share when partition between him and his brother took place. He admitted that to the west of the offending structure there used to be an Ota and to the west of the Ota, he admitted that, there is his house. This position is clearly shown on the plaint-map. The appellant tried to contend that 4 S.A.NO.73.92 the offending structure was not constructed by him, but by his mother Radhabai. He tried to suggest that his mother constructed this offending structure because she could not stay with him due to discontent in the family. He also tried to suggest that newly constructed structure has been given number by Gram Panchyat bearing House No.86, and in the Gram Panchayat record it stood in her name. The appellant, thus, tried to shirk his concern to the offending structure. In other words, it is clear that the appellant had allowed his mother to utilise his property for erecting the offending structure, which fell to his share in the partition. 7] The question is whether the land beneath the offending structure could be part of appellants ancestral property? In order to prove this, the appellant contended in his deposition that on that spot, he used to tether his bullocks and parked his bullock cart. This could not be true because there was, admittedly, ota on eastern side of his house, which was of lessor width. The learned Judge of the lower Appellate Court did not believe this part of the appellant’s case. It is, thus, clear that before the offending structure were erected, two years prior to filing of the suit this area was part of passage utilised by the villagers as road between their houses. 8] The question now is whether the respondent 5 S.A.NO.73.92 No.1 was under obligation to prove that the land beneath the offending structure was part of the road? The answer is in negative. The respondent No.1 amply proved and I concur with the finding recorded by the First Appellate Court that this piece was passage utilised by the villagers as of right. In other words, though, the learned Judge of the lower Appellate Court did not use the term 'easement', it is clear that the land beneath offending structure was passage, which was used as of right, by not only by the respondent/plaintiff, but all villagers. Thus, they had easementary right on the same. The respondent No.1, thus, clearly proved that the easementary right in respect of land beneath the offending structure was violated by the appellant and on that the finding of the learned Judge of the First Appellate Court decreed the suit to the extent of the offending structure that stood next to house of the appellant. The appeal should therefore fail. Hence, the Second Appeal stands dismissed. Sd/- (A.V. NIRGUDE, J.) MTK/ ok