1 S.A. 611/1992 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 611/1992 Ashokkumar s/o Nagnath Shetti, since deceased through the Purchasers of the property from him viz. (1) Kash Goud s/o Rama Goud; (2) K. Kista Goud s/o Rama Goud. ...Appellants. Versus Shankar S/o Krishnaji Hanmod; ...Respondent. Mr. A.G. Godhamgaonkar, Advocate for the appellants. Mr. Milind Patil Beedkar, Advocate, for respondent. CORAM : A.V. NIRGUDE, J. DATED : 5th October, 2011. ORAL JUDGMENT: 1. This appeal challenges concurrent findings of facts that the suit sheri / passage is common passage useful for residents of adjoining houses and that the appellant / defendant ought not to have made encroachment on it. After perusal of the record, it is seen that though this is almost an open and shut case for the respondent / plaintiff, got delayed for more than 30 yeas. The facts leading to this litigation in short can be stated as under:- There exists a common passage which runs north south between the houses belonging to the respondent and others on east side and the house and open plot belonging to the appellants on the western side. It is the case of the respondent / plaintiff that the width of this sheri since beginning was about little above 6 feet and so it was 2 S.A. 611/1992 used as passage since long time. He said that despite of this, the appellant proposed construction of his house in such a manner that the eastern wall of his house caused encroachment in the passage by about 2 ½ feet. When the construction started in 1976, the respondent protested first by filing a complaint to the Municipal Council. Because of his complaint, the Municipal council directed the stoppage of the construction work. It is case of the respondent that since the appellant did not stop the work, he was constrained to file this suit, for perpetual and mandatory injunction, seeking removal of encroachment on 6 feet wide common passage. The appellant came with a case that what is said to be common passage by the respondent since beginning was only three feet wide and therefore, his construction could not have caused encroachment on such three feet wife passage. He thereby admitted that there existed a common passage between his property on eastern side and respondents and others’ property on the western side. In view of this controversy, at initial stage, the Court Commissioner was appointed for taking measurement of the passage and during the evidence of the plaintiff, the report of the Court Commissioner has come on record and was exhibited. In view of the cross examination of the appellant’ advocate, on the Court Commissioner’s report and location sketch, both were exhibited and are now part of the record. Although the learned counsel appearing for the appellant, tried to suggest initially that these two documents could not have been read in evidence because they were not properly proved and he contended that since the learned judge of the first appellate Court placed reliance on the contents of these documents, the findings are perverse. I am afraid, these submissions are not 3 S.A. 611/1992 acceptable because as said above, both the Commissioner’s reports and location sketch drawn by the Commissioner in presence of the parties were exhibited and read in evidence, after they were properly proved. The Commissioner’s report so brought on record clearly shows that prior to construction of the new house by the appellants, there indeed existed a passage having width of six feet. It further clearly established the fact that due to new construction initiated by the appellant, the width of the passage got reduced to three feet. Besides this evidence, the respondent examined as many as two witnesses, who deposed that the width of the passage since beginning was six feet. All these witnesses very clearly stated that this six feet passage was used by all the members of public as passage, thereby indicating that this passage was almost a public way and that the respondent on this area had easement right to it. Although the respondent / plaintiff himself adduced this evidence orally in cross examination, he admitted the suggestion of the appellants’ advocate that Sheri could be common property between the owners of the properties of either sides. This of course was not his case at all. 2. On the other hand, now it was the appellant’s turn to prove his case that the width of the passage was never more than three feet but it is an admitted fact on record that on south end of the passage, there exist an old house belonging to the appellants adjoining the passage and the width of the passage adjoining old house is six feet. Even the commissioner’s report confirmed this. The Court Commissioner’s report further establishes that even towards northern side, the width of the passage was more than six feet. So, there is 4 S.A. 611/1992 practically no evidence on record to prove the appellants’ case that the passage since beginning was of only three feet width. The appellant could not prove his document of title and so he was deprived of showing the boundaries of his property which lie on the western side of the passage. Besides, it is further admitted fact that though the length of the passage is more than 100 feet, the appellant initially had only one old house adjoining this passage on the south side. Towards north of such house he had no construction. However, it has come on record that, to demarcate his area beyond the passage, the appellant had grown a hedge. It has come on record that this hedge was the boundary of the appellant’s property up to the northern most end and beyond the hedge, there still existed six feet wide passage. The appellants thus could not prove his case at all. In view of this, the learned judge of the trial Court held that the respondent/plaintiff had proved his case that there existed a common passage of six feet width but he did not grant mandatory injunction for removal of encroachment caused by the appellant. The respondent/plaintiff went in appeal against refusal of mandatory injunction and learned judge of the first appellate court, granted mandatory injunction holding that the encroachment made by the appellant ought to be removed. When the second appeal was admitted, following grounds were held to be giving rise to the substantial question of law. They are quoted below in verbatim. (2) It is also not taken into account the aspect of the case that in case relief No.4 mentioned in the Judgment of the learned lower Appellants Judge is executed, the entire house of the Petitioners at the eastern side would be exposed to a should which is to be objected as the entire one side of the house requires to removed needing virtually reconstruction of a pucca constructed house of two storied. It is also not taken into account 5 S.A. 611/1992 the aspect of the case that the Plaintiff has miserably failed to show that the suit Sheri, keeping aside the question of its width for the time being, is the exclusive way approach the main road from his house. On the contrary at the eastern side of his house there is a door which opens on the main road i.e. the station road and the Sheri at the rear of his house is not the exclusive arrangement of the house of the Plaintiff and it is with oblique intention to put the petitioners to such monetary loss which can not be computed that the Plaintiff is coming with the present case. (3) There is nothing in the Judgment of the learned lower Appellate Judge, which deals with the aspect of the case viz. (1) Whether the Plaintiff has got easementary right over the Sheri, (2) that is the only available to the Plaintiff when both these aspects are not dealt with, is it legal and proper to order for mandatory injunction directing the Defendant to remove the structure to the extent of 2 ½ feet by 90 feet and 7 inches. (4) The case of the Defendant can not be ignored wholly considering his evidence when it is a case of the deceased Defendant that the Sheri is his personal property and that the Plaintiff has encroached upon the sheri to the extent of 1 ½ feet while constructing a stair case and that the Sheri width is reduced to three feet only, it is wrong to decree the relief of mandatory injunction to direct the deceased Defendant to pull down the construction. I would now discuss the ground mentioned above, to find out whether they really gave rise to any substantial question of law. 3. It is submitted by the appellant in ground No.2 that if the decree of mandatory injunction is executed against him, his house would be destroyed from eastern side. He pointed out further that this house is construction in cement concrete and is two storied. The appellant can not make capital out of the fact that he has constructed a pakka and large structure. The moment he started construction of this house, a serious objection was raised by the respondent/plaintiff and despite of such objection and pendency of the suit which is filed in 1976, it seems, the appellant continued construction blatantly violating 6 S.A. 611/1992 directions of the Court and taking gross risk. In view of this, the equity does not favour the appellant. In the same ground, (ground NO.2) the appellant also suggested that even the respondent/plaintiff had made similar encroachment on the common passage. This can not help the appellant because the alleged encroachment made by the respondent/plaintiff is not subject mater of this case. 4. In ground No.3 the appellant asserted that the judgment of the lower appellate Court is silent on the aspect as to whether the respondent/plaintiff can prove easementary right over the passage and whether it was a easement of necessity. Indeed this objection raised by the appellant could lead to framing of substantial question of law which is as under. “Whether the Courts below erred in not recording finding of easementary right to the suit passage?” In view of the discussion above on facts, the evidence clearly establishes the fact that the passage is in existence since time immemorial and had width of six feet. It has also been proved that this passage is used by the members of public since many years. So, although there is no express finding recorded by the Courts below that the respondent or his neighbours has easementary right to the passage, he could sufficiently prove that the appellant had no right to the suit passage but the same is used as of right by public at large. I think, the evidence of the respondent/ plaintiff was sufficient to prove his case of easement also. What is stated in ground No.4 is already considered above. It is 7 S.A. 611/1992 in respect of the appellant’s evidence on the claim that the width of the passage was only three feet etc. 5. I have discussed the facts and evidence of this case above and of course I am also inclined to hold that the learned judges of the Courts below did not deal with this important aspect of the case properly. The respondent / plaintiff clearly stated in his pleadings that he and others had easementary right to the suit passage. But the question became insignificant because the appellant / defendant admitted that there existed a passage since prior to he had purchased the property and that the passage was used by all. So he did not specifically deny easementary right of the appellant over the suit passage. As said above, the only dispute between the parties was whether the the passage had three feet width or six feet width. 6. I have already considered this aspect above and held against the appellant. ORDER The appeal is dismissed. At the request of appellant’s advocate, effect of the decree is kept in abeyance for a period of eight weeks, though learned counsel appearing for respondent strongly opposed to this request. [A.V. NIRGUDE,J.] ts k/Oct.2011/5th/sa611.92/ok