SM 1 910.ao.60.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 60 OF 2011 Shri. Yashwant Walaba Barkade ] Age – 62 years, occupation – agriculturist, ] through power of attorney holder his ] Son namely Balkrishan Yashwant ] Barkade, Age – 34 years, ] Occupation – Agriculture and service, ] At post Dhagewadi, Limb, ] Taluka and District – Satara. ] ....Appellant Versus 1. Shri. Tatyaba Walaba Barkade, ] Age-58 years, occupation – agriculture, ] 2. Sou. Indubai Tatyaba Barkade, ] Age – 55 years, occupation- household, ] 3. Shri. Ananda Tatyaba Barkade, ] Age – 525 years, occupation- agriculture, ] 4. Shri. Sachin Tatyaba Barkade, ] Age – 23 years, occupation- agriculture, ] Nos. 1 to 4 R/o. At Dhagewadi, ] Post Limb, Taluka and District – Satara. ] 5. Bhagirthi Haribhau Barkade, ] Age – 47 years, occupation- household, ] R/o. At post Limb, Taluka – Satara, ] District – Satara. ] 6. Mangal Balkrushna Chavare, ] Age – 25 years, occupation – household, ] R/o. Khandobachiwadi, Post – Gove, ] Taluka and District – Satara. ] SM 2 910.ao.60.11 7. Sou. Sangita Suresh Thombare, ] Age – 22 years, occupation – household, ] C/o. Suresh Baban Thombare, ] R/o. At Post Andori, Taluka – Khandala, ] District – Satara. ] 8. Shri. Dinkar Haribhau Barkade, ] Age – 23 years, occupation – household, ] R/o. At post Limb, Taluka – Stara, ] District – Satara. ] 9. Sou. Sharada Ramdas Dhaygude, ] Age – 20 years, occupation – household, ] R/. C/o. Ramdas Baban Dhaygude, ] At post Andori, Taluka – Khandala, ] District – Satara. ] 10. Shri. Maruti Walaba Barkade, ] Age – 55 years, occupation – agriculture, ] 11. Smt. Laxmibai Walaba Barkade, ] Age – 80 years, occupation – household, ] Nos. 10 and 11 R/o. Dhagewadi, ] Post – Lilmb, Taluka and District – Satara. ] 12. Shri. Namdeo Sakharam Barkade, ] Age – 72 years, occupation – agriculture, ] R/o. At post Limb, Taluka – Satara, ] District – Satara. ] 13. Shri. Vilas Ananda Barkade, ] Age – 39 years, occupation – agriculture, ] R/o. At post Songaon Bungalow, ] Taluka – Phaltan, District – Satara. ] 14. Shri. Ramchandra Dondiba Barkade, ] Age – 69 years, occupation – agriculture, ] R/o. At post Limb, Taluka – Satara, ] District – Satara. ] 15. Shri. Sanjay Uttam Sawant, ] Age – 37 years, occupation – agriculture, ] SM 3 910.ao.60.11 16. Shri. Ajay Uttam Sawant, ] Age – 30 years, occupation – agriculture, ] Nos. 15 and 16 R/o. At Chatur Bet, ] Post Limt, Taluka and District – Satara. ] ....Respondents ____________ Shri. Prajakt M. Arjunwadkar for the Appellant. Shri. Vinod Jadhav for the Respondent Nos. 1 and 3. CORAM: J. H. BHATIA, J. DATED : 1 ST JULY, 2011. ORAL JUDGMENT.: The Appeal is preferred by the original Plaintiff against the rejection of his application Exhibit-5, whereby the Plaintiff had sought right of access from his house to the public road to the Northern side by 8 feet vide open space to the eastern side of the house of the Defendants. 2. The Plaintiff and Defendant No. 1 are brothers interse and other Defendants are the family members of the Defendant No. 1. Plaintiff filed the Civil Suit NO. 291 of 2009 in the Court of Civil Judge, Senior Division, Satara for partition of the joint family property. According to the Plaintiff, the joint family property also includes a residential house situated on Gat No. 942. Though partition has not taken place, brothers are living separately. About two years before filing the Suit, Plaintiff had constructed a house towards southern side of the house of the Defendants. Towards SM 4 910.ao.60.11 the northern side of the house of the Plaintiff, there is a public road. As this house is locked from all the sides by the properties of different persons, he has no access to approach the public road. According to him, there was 8 feet vide open space from the eastern side of the house of the Defendants and this was being used by him as passage to approach the road to the North. The Defendants erected a temporary shed and also dumped garbage on that way and obstructed the said passage. Therefore, by the Application Ex. 5, he sought a direction to the Defendants not to create obstruction in his right of way from his house to public road by the said 8 feet vide eastern side open space. The application was opposed by the Defendants. According to him -Defendant No.1, there was no such passage in existence and that the shed and heap of the garbage are already there for a long time and he has not created any obstruction in the passage. The Court Commissioner was appointed by the Trial Court. Court Commissioner pointed out that the shed on that space appeared to have been constructed recently. However, the Trial Court rejected the Court Commissioner's report and also rejected the Application Ex. 5 holding that the Plaintiff had no right of way from the eastern side. That order is challenged in the present Appeal. 3. Heard the learned Counsel for the parties and perused SM 5 910.ao.60.11 the record. Court Commissioner's report, which includes the map of the site and the surrounding lands, goes to show that to the northern side of the house of the Defendants, there is a public road. House of the Plaintiff is behind the house of the Defendants towards southern side. To the east, west and south of the house of the Plaintiff and Defendants, there are agricultural lands of different parties and they are cultivated and having standing crops. On perusal of that map, it appears that except from the space from eastern side of the house of the Defendants, the Plaintiff has no approach or access to the public road. The learned Counsel for the Defendants pointed out that in paragraph 5 of the application Exhibit-5, the Plaintiff had pleaded that he had no way except from the eastern side passage and from the western side lane. According to him, it shows that there is a lane from the Western Side available to the Plaintiff to approach the public road. After this point was raised, the matter was yesterday adjourned as the learned Counsel for the Plaintiff wanted to take instructions. Today, the learned Counsel for the Plaintiff, having taken instructions, makes a statement that the statement in paragraph no. 5 of that application about the existence of lane from the western side is a mistake in typing and no such passage is available from the western side. In fact, the Court Commissioner's report and the map also do not reveal existence of any such lane from the western SM 6 910.ao.60.11 side. Admittedly, the parties are brother and sisters and the suit for partition is pending. If the suit is decreed and if the residential properties are directed to be partitioned, the Court will have to give some direction for providing passage to the plaintiff, who is residing to the southern side and behind the house of the Defendants. If the said passage is not given, his house is completely blocked and will have no approach to the public road. The learned Counsel for the Defendants/Respondents contended that the Plaintiff can find passage to the public road from southern side because there are agricultural lands and in villages, people use the boundaries of the lands as passage. Such argument cannot be accepted. When the parties are brothers and sisters holding same joint family property, the Plaintiff cannot be asked to find passage through the property of the third parties. That may create further complications and litigation. 4. The learned Counsel for the Defendants also pointed out from paragraph 32 of the reply filed by the Defendants before the Trial Court, that the Defendants have contended that the matter was also taken to the Tahasildar for ascertaining the passage and the Plaintiff had offered to surrender equal land from his share if the passage is given to him. According to him, the Plaintiff is not willing to abide by that. In fact, this goes to provide SM 7 910.ao.60.11 corroboration to the plea of the Plaintiff that he has no other way and he was ready to surrender the land from his share if he gets the passage to approach the public road. Any way, that can be looked into at the time of deciding the suit or in case the suit for partition is decreed, while effecting partition. 5. Taking into consideration the facts and circumstances, it appears that the Trial Court has not appreciated the case properly and committed an error in refusing the right of passage to the Plaintiff which appears to be a necessity. However, it may be noted that the Plaintiff requires the passage only as a foot path to approach the public road. For that purpose 8 feet passage may not be required. 5 feet wide space may be sufficient for use as foot path or for taking two wheelers, if any, from the house of the Plaintiff to the public road. 6. For the aforesaid reasons, the Appeal is allowed. Impugned order is hereby set aside. Application Exhibit-5 filed by the Plaintiff before the Trial Court is allowed and the Defendants are hereby directed to keep open 5 feet vide space from the eastern end side of the said property, so that the Plaintiff may approach from his house to public road towards the northern side. The Plaintiff shall be allowed to use the same as foot path or to take SM 8 910.ao.60.11 two wheelers from that passage. This arrangement shall continue till the disposal of the suit. Rule is made absolute accordingly. 7. As Appeal is finally disposed off, Civil Application No. 85 of 2011 and Civil Application No. 891 of 2011 do not survive and the stand disposed off. 8. The learned Counsel for the Defendants seeks stay to this order for four weeks. Request refused. (J. H. BHATIA, J.)