1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 507 OF 1991 Tryambakrao Baliram Patil Age 34 years, Occ. Agriculturist and service, R/o. Mayagaon, Taluka Jamner, District Jalgaon. ...Appellant (Original Plaintiff) Versus 1] Atmaram Tulshiram Chavan, Age 39 years, Occ. Agriculturist R/o. Shahapur, Tq. Jamner, Dist. Jalgaon. 2] Rajaram Tulshiram Chavan, Died LRs. 2-A] Shaligram S/o. Rajaram Chavan, Age 40 years, 2-B] Dilip S/o. Rajaram Chavan, Age 37 years, Both R/o. C/o. Nutan Maratha College, Navi Peth, Jalgaon. 2-C] Tukaram S/o. Rajaram Chavan, Age 35 years, R/o. Palaskheda, Shahapur, Tq. Jamner, Dist. Jalgoan. 2-D] Purushottam S/o. Rajaram Chavan, Age 22 years, R/o. As above. 2-E} Mrs. Bebabai Hari Chhatre, Age 32 years, Occ. Household R/o. Rajani, Tq. Jamner. 2-F] Smt. Indubai Rajaram Chavan, Age 50 years, Occ. Household, R/o. Shahapur, Tq. Jamner, Dist. Jalgaon. ...Respondents 2 ..... Mr. V.J. Dixit, Advocate for the appellant Mr. S.R. Barlinge, Advocate for respondents ..... CORAM: K.U. CHANDIWAL,J. DATED: 1ST APRIL 2010. ORAL JUDGMENT:- 1] The appeal is admitted on 14/1/1992, without there being formulation of a substantial question of law. 2] After hearing the counsel extensively, a substantial question of law between the parties,that could be formulated is ,:- . " Whether in the facts and circumstances, the courts were justified in ignoring admission of the defendant having widened the area to carve out a road abutting the Patsari ( small water channel).” 3] The plaintiff purchased the land Gat No. 467 to the extent of 3 Hectare 86 R, in February, 1979 from Narayan Mahadu Patil of Ahmedpur while the defendant has his land bearing Gat No. 479, admeasuring 3 Hectare 73R, enjoyed since long by him. There exists a Patsari ( small water channel) since time immemorial, flowing south- North from eastern side of the plaintiff and defendant No.1's agricultural field. The plaintiff has averred that there was no access usable by the defendant No.1 for his carts and bullocks to move from either patsari or from area abutting patsari. However, he took 3 advantage of absence of the plaintiff, he being in employment at Malegaon, Taluka Jamner, removed the bushes and made land even to make it feasible for movement of the cart and hence, he filed a suit for injunction. . The plaintiff had indeed in the plaint, sought an injunction t to restrain the defendant not to move from eastern side of Gat No.467, by cart , or not to carry his animals. . The learned C.J.J.D., taking a diverse view allowed the prayers and decreed the suit as under :- “The suit of the plaintiff is allowed, the defendants are hereby permanently restrained from preparing the road through the so called Nalla Patsari and also restrained to remove the mud and cut the trees and dug the edges of the so called Nala Patsari. Both parties shall bear their own costs.” 4] The matter was carried by the plaintiff and also by the defendant to the Additional District Judge, Jalgaon, who allowed the defendant's appeal and set aside the judgment and decree referred to heareinabove, thereby dismissed the suit. 5] Several witnesses were examined by the plaintiff to establish his contention, which included his predecessor in title, predecessor in title of the defendant No.1, adjoining land holder, two Cadastral surveyor, the labour Sunil Dagdu Patil, who was engaged by 4 the defendant No.1 for digging land near the Patsari, 6] The first appellate court, on analysis of evidence, found, rather rightly, that the plaintiffs own saying that though he purchased the land referred above, about a year or two, before filing of the suit, though the predecessor in title is examined, however, the very sale deed, which is the genesis of the title bestowing the right in the plaintiff, is not furnished. Failure of establishing title to the land, in particular, the areas abutting the patsari or including in patsari, created a doubt of the bonafides of the plaintiff. The learned Judge observed that, " It is not made known as to why plaintiff was shy of filing of the sale deed on his favour." 7] That apart, no measurement or the map of measurement was tendered by the plaintiff. The examination of the Cadastral surveyor indeed, was of no use, as the cadestral surveyer did not throw any light ameliorating the plaintiff's contention. Evidence of the adjacent owner Shanti, though demonstrated erroneous or illegal activities of the defendant, supported by Rajaram, the predecessor in title of the defendant, however, that by itself will not tantamount to indicate that the area where the defendant has tried to carve out the cartable road, could be exclusive property belonging to the plaintiff or it was a part of the land purchased by the plaintiff. . This impression is generated as, there was a map produced by the parties before the learned Judge, which indicate, after 5 the land of the plaintiff some open space which was shown including a nallah. In the scenario, since the plaintiff could not prove his title to the area/space encroached upon for road by the defendant, the first appellate court rightly negatived the contention. 8] As stated above, without there being formulation of a substantial question of law, the luxury of reading entire evidence in second appeal, even otherwise, could not culminate into putting a clog to the enjoyment of the defendant to the property, the patsari, in which he was ambivalently moving at the material time. 9] Inspite of these odds, the fact remains, the defendant has in his version, accepted that in recent past he has made the space/area near the patsari even, to make it usable as a cart track and consequently he used it. This user, demonstrated by witnesses to be illegal, has lost track, for want of plaintiffs title deed and clear message from cadestral surveyer. The defendant has, indeed, mileage of benefits, owing to plaintiffs mistakes. 10] Taking these aspects into consideration, the second appeal sans merit. The substantial question of law, formulated hereinbove, is answered against the plaintiff/appellant. However, in the fact situation of the present case,since the mistakes of the plaintiff are innocuous but apparent, may be inadvertent in its nature, the 6 injunction which was flowing as granted by the learned Additional District Judge, Jalgaon, on 11th August, 1980, at Exhibit 14, in Misc. Civil Appeal No. 35/1980, permitting user of the defendant to the extent of 3 feet width, is extended by today's order, by 1 feet, i.e. 4 feet width and the defendant is allowed to move from the said patsari, in an area of 4 feet width. Other directions as were issued by the learned District Judge, dated 11th August, 1980, to remain unaltered. This arrangement is made and to remain in force till 30th September, 2010. Liberty to the plaintiff to adopt appropriate course, as is permissible under law. The appeal stands dismissed. No costs. (K.U. CHANDIWAL, J.) GRT/