- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION SECOND APPEAL 305 OF 2009 Smt Manisha Mahendra Gala & ors .... Appellants vs Smt Shalini Bhagwan Avatramani & ors .. Respondents Mr.G.S.Godbole with Mr.P.K.Shroff with Mr.Himanshu Mahajan with Mr.D.V.Deokar i.b Parimal Shroff & Co for Appellants in both matters. Mr.R.A.Dada, Sr.Counsel with Ms Mohana Nair i.b JMB Partners for Respondent nos. 1 to 4 CORAM: R.V.MORE,J DATED: October 1st, 2009 P.C. 1. The appellants are original plaintiff nos. 2,3 and 4. The respondent nos. 1,2,3 and 4 are original defendant nos. 2 to 5. Respondent no. 6 is the original defendant no.1 and predecessor in title of respondent no. 5 is the original plaintiff. The respondent no. 5 was owner of the land bearing survey no. 48 hissa no.15 admeasuring 1 hectares and 76 ares situated at Mouje Korlai Taluka Murud. The respondent no. 6 was the original owner of land bearing survey no.57 hissa no.13A 1/1. The respondent nos. 1 to 4 have purchased land bearing survey no.57 hissa no.13A 1/1 from the respondent no.6. Land of respondent nos. 1 to 4 is situated on the western side of the land of survey no.48 hissa no.15 - 2 - originally belonging to the predecessor in title of respondent no.5. 2. The predecessor-in-title of respondent no. 5 initially filed a suit on the averments that there is 20 feet in width road passing from the land of respondent no. 1 to 4 and the said road is being used by him in order to approach from his land to Murud Salav road. The said road since long is being used without any interupption continuously to the knowledge of respondent nos. 1 to 4 and 6. Earlier, the respondents never obstructed use of the said road. However, recently they have created obstruction and therefore the predecessor in title of respondent no.5 filed a suit. It was also alleged that there is no other alternative way to have access to the plaintiff’s land except the road passing from the land of respondent nos. 1 to 4. In the above facts and circumstances relief of declaration was claimed to the effect that the plaintiffs have right to use the 20 feet width road in order to have access to his land bearing survey no.48/15 which road is passing from the land bearing survey no.57 1/1. An injunction was also claimed restraining the respondents from obstructing the plaintiffs from using the aforesaid right of way. 3. During the pendency of the suit, the predecessor- in-title of respondent no. 5 transferred land survey no. - 3 - 48/15 to one Mahendra Gala. Since Mahendra Gala expired during the pendency of the suit, the present appellants were brought on record as his legal heirs and representatives. 4. The trial court after hearting both the sides decreed the suit thereby declaring that the plaintiffs are having a right of way through survey no.57 hissa no. 13A 1/1 situate at Korlai Taluka Murud and consequently injunction was also issued in favour of the plaintiff. 5. The respondent nos. 1 to 4 preferred an appeal before the District Court and the learned Ad hoc District Judge-2 Raigad by the order impugned in the Second Appeal allowed the appeal and the trial court decree came to be quashed and set aside. 6. The case of the appellants as made out in the plaint and evidence adduced discloses that they are claiming easementary right of way by prescription as well as of necessity. In order to prove the easementary right by way of prescription, the appellants must prove that they are using the way continuously, openly without any interruption and as of right for a period of 20 years. Perusal of the pleadings of the appellants reveals that they have averred that they are using the suit way continuously, without any obstruction, as of - 4 - right for many years. They have not stated specifically that they are using the said way for a period more than 20 years. 7. In order to substantiate their case of easement by way of prescription, the appellants/plaintiffs examined one Navnit Liladhar Haria as PW1, Bhalchandra Nathura Choradhekar as PW2, Dattratray Shankar Sawant PW3 and Bhalchandra Dattaram Tandel as PW 4. PW1 Haria gave evidence on behalf of the appellants as power of attorney holder. He admitted that the deceased Mahendra Gala was only having knowledge about the transaction of the sale deed of survey no.48 hissa no.15. The appellants purchased land bearing survey no.48 hissa no.15 in the year 1994 and therefore they could have examined the original owner of the land i.e. The predecessor-in-title of respondent no.5 to prove the use of the suit land for a period of more than 20 years. However, they have not examined him. PW 2 is the sarpanch of village Korlai. He has deposed that there is a road to approach the suit property. It started from Murud-Salav road up to the suit property. However, he has not deposed that the said road is being used by the appellants/plaintiffs continuously without any obstruction and as of right for a period of 20 years. His cross-examination discloses that he has given evidence in respect of another land of the plaintiff bearing survey no.43. PW 3 Dattatray Sawant - 5 - deposed that he owned survey no.43 which has been sold to the appellants/plaintiffs. There is a road starting from Salav-Murud Road through the respondent’s property upto to his land since long. This witness does not speak about the access road to survey no.48/15. He further does not say anything about the continuous use withoiut any obstruction of the said road by the appellants. PW 4 Bhalchandra Tandel is the Surveyor working in the DILR office. He was examined to prove the measurement map at Exhibit 157. This witness also cannot throw any light on the appellant’s right to the suit way by easementary right of prescription. Thus, the evidence led by the appellants does not prove their case. 8. So far as easement of necessity is concerned, the same arises only in case of cessation in ownership. It is not the case of the appellants/plaintiffs that easement of necessity has arisen because of any transfer or bequest or a single tenement is divided into two or more tenements. Their case is that the suit way is the only way to have access to their land bearing survey no. 48/15 which fact is of course denied by the respondent nos. 1 to 4. In that view of the matter, the appellants/plaintiffs cannot get a declaration on the basis of easement by way of necessity. Be that as it may, the appellate Court in para 14 has recorded a finding of fact that the appellants/ plaintiffs are having an - 6 - alternate way in between their two lands namely survey nos. 43 and survey no.48 hissa no.15, passing through the lands bearing survey no. 44 and 47 where locality of villge Talavli is situated. 9. Mr.Godbole, learned counsel for the appellants relied upon the judgment of the apex court in Ram Swarup Gupta vs Bishun Narain Inter College (1987) 2 Supreme Court cases 555, to contend that the pleadings need not contain any exact statutory language and the same are to be construed liberally. There is no dispute about the proposition laid down by the apex court in the aforesaid decisions. However in the present case, the appellant/plaintiffs have failed to prove the right of easement either by way of prescription or necessity. 10. Mr.Dada, learned senior counsel for the respondents relied upon the apex court judgment in Rajgopal vs Kishan Gopal AIR 2003 SUPREME COURT 4319. In the aforesaid decision, the apex court held that the finding of fact cannot be interfered in a Second Appeal filed under section 10 of the Code of Civil Procedure. In the present case, the last fact finding court recorded a finding that the appellants have an alternate way to have access to their road in survey no. 48/15. The finding of fact also recorded that the appellants could not prove the right of way by easement of prescription. - 7 - 11. Taking the totality of the circumstances into consideration, I do not find any question of law much less substantial question of law involved in the above appeal. Second Appeal is accordingly dismissed being devoid of any substance. R.V.More, J