1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 154 OF 2008 SECOND APPEAL NO. 154 OF 2008 SECOND APPEAL NO. 154 OF 2008 WITH CIVIL APPLICATION NO. 419 OF 2008 Shri Kaluram Baban Sandbhor & Ors. ..Appellants (Orig. Defendants) Versus Shri Eknath Genu Sandbhor ..Respondent (Orig. Plaintif) Mr. R.S.Apte, Advocate, i/b. Mr. M.S.Lagu,Advocate for the appellants. Ms. Sharvani Shailendra, Advocate i/b. Mr. P.S.Dani, Advocate for the Respondent. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 30th July, 2008. DATE: 30th July, 2008. DATE: 30th July, 2008. P.C. P.C. P.C. 1. Heard the learned Counsel for the parties. 2. The respondent is the original plaintiff and owner of the field Survey No.1189/12. According to him, the defendants, who are the appellants, are trying to 2 create a new road with a width of 15’ x 20’ through his land without any right and in a high-handed act. Therefore, he claimed perpetual injunction restraining the defendants from creating a new road and also sought mandatory injunction directing the defendants to remove the material brought by them to construct a road and to restore the land to the position in which it was on the date of the suit. 3. The defendant Nos. 1 to 5 and 9 and 10 had filed the written statements. According to them, the disputed road has been in existence from times immemorial and it has been used by them since the time of their forefathers. They have no alternative right to approach their Village Thitewadi. During the period 1985 to 1995, the plaintiff had tried to close that way. The matter was taken to police and then to Tahsildar and Mamlatdar and they upheld the right of way. That order was confirmed in appeal filed by the plaintiff by the S.D.O. The appeal was dismissed. Thereafter the suit is filed. 4. After hearing the evidence of both the parties, the trial Court dismissed the suit holding that the defendants have failed to prove the right of way through the suit property by way of easement of 3 prescription because they had not filed suit to claim the road as of right. Inspite of this finding, the suit came to be dismissed for which no reason was given. In view of this, the plaintiff preferred Civil Appeal No.108 of 2003. In that Appeal, the appellate Court came to conclusion that the defendants have failed to prove that they had acquired right of easement by prescription and the plaintiff had proved that the defendants are causing unlawful obstruction to his possession and occupation. With these findings, the Appeal came to be allowed and the suit was decreed. Therefore, the Second Appeal is filed by defendants. 5. It appears from the evidence led by the defendants that for a long time, the defendants were using a passage by the side of the boundary or Bandh of so many fields including the land of the plaintiff. This was used for the purpose of taking carts and cattle. As per the evidence before the trial Court led by the defendants, for the first time in 1994-95, the defendants tried to make a tar road and that was obstructed. In view of this admission by the defendants’ witness, it is clear that in the year 1994-95, for the first time, the defendants tried to construct a pucca road, through the land of the plaintiff. It is also material that the defendants 4 nowhere specified what was the width of the passage which they were enjoying for so many years. According to the plaintiff, the defendants were trying to construct a 15’ to 20’ wide road. The Commissioner’s report reveals that on an average, the said passage was about 10’ wide and according to the defendants, it passes through the land of several people including the plaintiff. 6. The learned Counsel for the plaintiff-respondent made a statement before this Court that the plaintiff is not obstructing the defendants from using that 10’ wide passage as shown in the Commission’s report as it was being used prior to 1994-95. From the oral evidence of the defendants, it is clear that for the first time they tried to construct a tar road in 1994-95 and that was obstructed. It indicates that a new road was being constructed and also an attempt was being made to widen the passage which was previously available. Taking into consideration the statement made by the learned Counsel for the plaintiff, the defendants shall have no difficulty in using that passage, but they will not be allowed to make or construct a new tar road or to widen the said passage. In view of this, no dispute should remain. Otherwise also no substantial question of law is involved in the 5 Appeal. 7. Therefore, the Appeal stands dismissed. 8. As the Appeal itself is dismissed, the Civil Application does not survive and stands disposed of accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)