1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.51 OF 1991(A’BAD) SECOND APPEAL NO.28 OF 1988 (BOMBAY) 1) Sarangdhar Narayan Wagh 2) Nandu Narayan Wageh ..APPELLANTS (orig.Plaintiffs) VERSUS 1) Laxman Lahanu Dhanage; 2) Mohan Lahanu Dhanage; 3) Sakharam Tukaram Wagh; 4) Bhaskar Keruji Tavale; 5) Subhadrabai Gangadhar Wagh 6) Gangadhar Tukaram Wagh; 7) Suman Eknath Wagh; 8) Ranubai Ganpat Wagh; 9) Tanhabai Nivrutti Wagh; 10) Pandurang Jagannath Wagh. .. RESPONDENTS (orig.Defendants) ***** Mr.Satyajit S.Bora Advocate for Appellants; Mr.RA Tambe, Adv.h/for Mr.RN Dhorde,Adv.for Respondents nos.1,2,4,5,6,8,9 & 10. ----- CORAM : K.U.CHANDIWAL, J. DATE : 3rd July, 2009. ORAL JUDGMENT : 1) Heard learned Counsel. 2) This is plaintiff’s Second Appeal, wherein he challenges the Judgment and Decree 2 passed by 2nd Additional District Judge, Ahmednagar, in Regular Civil Appeal No. 219 of 1987, whereby the judgment and decree of the court of first instance in RCS No. 164/1985 is set aside. 3) The appeal is admitted on 25th January, 1988 by formulating following substantial question of law between the parties. “Approach and conclusion of the appellate court are scrappy and unsatisfactory. Proper points for determination have not been framed and evidence has not at all been considered. Apart from anything, substantial question of law will be whether appeals can be disposed of in such cavalier manner ? 4) Before the learned Judge of the Court of first instance, genealogy between the parties was produced. There is no controversy about the independent rights of the parties to the agricultural fields. The controversy revolves about user of water from suit land block no.113 situate at Waghwadi, under Lohgaon taluka Newasa and the well situated in it. 5) On assessing the evidence, the learned 3 Judge of the first appellate Court found that there was Commissioner appointed on behalf of the Court, whose report with the map indicated that the land Gut Nos. 101, 105, 110, 111, 112 and 118 get well water and channels to take well water to the above quoted Gut nos. is shown in the said map of the Court Commissioner. According to learned Commissioner the water course is old. It was accepted position that there were two runways to the north and south side of the well and two water tharolas (transit water storage platform) to ensure free momentum at the single time, there were four manual instruments for extracting the water from the well. At the time of inspection, there were already oil engines fitted. The defendants were by taking water to their fields, cultivated cash crops in irrigated lands. This has been so established from persistent revenue entries also. 6) The findings recorded by the first Appellate Court, placing reliance to the evidence of 85 years old witness – Bhaskar Keru Tavale, who was known to both the parties, acquainted to 4 the facts and had seen the respective users of extracting water, does not need any adverse comment . The assessment of evidence of DW – Gangaram and DW Bala Namdeo, will not defuse the existing rights in favour of defendants, as evidence needs to be properly evaluated. 7) Before the courts the plaintiff had produced details of Regular Darkhast No.19/1970 at Exh.58. It was the decree in RCS No. 32/1968 executed by Pandharinath Nama Wagh against Bala Nama Wagh and others. There was possession receipt dated 11th September, 1978. In the said Darkhast, though the said possession receipt indicated that the suit lands were allotted to Pandharinath along with 1/3rd share in the suit well, it could not be disturbing the rights in prevalence to the owners of land Gut Nos. 101, 105, 110, 111, 112 and 118. The rights accrued to the owner, i.e. The plaintiff, of extracting the water from Gut No. 113, do exist and persist, but in addition thereto, the evidence display existence of such rights of the defendants. The findings recorded by the first Appellate Court 5 cannot be said to be perverse or contrary to record. Points for determination spell out controversy in condensed form, and hence, cannot be said, wanting additional points. It is not that the evidence has not at all been considered. The order does not warrant any interference. Second Appeal dismissed. No costs. sd/- ( K.U.CHANDIWAL ) JUDGE bdv/sa51.91 Authenticate copy (BD VADNERE,PS)