1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APEPAL NO.382/2010 KISAN HARI MAHAJAN ..VS..R AGHO DOMAJI KAMBLE & ONE ANOTHER Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Registrar’s orders Court’s or judges Orders. CORAM: SMT. VASANTI A. NAIK, J. DATE: 17/8/2010 Heard Shri Gandhi, the learned counsel for the appellant and Shri S.L. Kotwal, the learned counsel for respondent no.1/ caveator. The appellant is the original defendant no.1. A suit was filed by respondent no.1/ plaintiff for a declaration that the plaintiff had an easmentry right of prescription over the suit way. It was the case of the plaintiff that he was using the suit way for a period of 20 years. It was pleaded by the plaintiff that the suit property was a government land. The plaintiff had joined the State of Maharashtra as defendant no.2 to the suit. The appellant / defendant no.1 denied the claim of the plaintiff and further denied that the plaintiff had an easmentry right of way over the suit property. the defendant claimed to be in possession of the suit property. The defendant no.1 sought for the dismissal of the suit. The State of Maharashtra did not appear in the matter and also not file any written statement. The parties tendered evidence. The plaintiff entered into the witness box and stated that he was using the suit way for a period of 40-50 years prior to the institution of the suit. It 2 is conspicuous to note that the plaintiff was not cross- examined by the defendant on this aspect. Trial court however, on an appreciation of the record, held that the plaintiff’s suit was liable to be dismissed, mainly in view of the provisions of section 15 of the Easement Act 1882 which provide that for claiming easmentry right of prescription, in respect of government land, the person must have enjoyed the easement without interruption for a period of 30 years, instead of the period of 20 years, which is the prescribed period, in case of claiming easement against a private party. In the first appellate court the plaintiffs sought for the amendment of the plaint. The first appellate court granted the request for amendment. The plaintiff amended the plaint and pleaded that the plaintiff was using the right of way for a period of 40-50 years prior to institution of the suit. The first appellate court on an appreciation of the evidence on record, held that the plaintiff was using the way for a period of 40-50 years and hence he was entitled to declaration as sought by him. The first appellate court decreed the suit of the plaintiff. The findings recorded by the first appellate court are pure findings of facts based on a proper appreciation of the material evidence on record. It is necessary to note that the plaintiff had categorically stated in his oral evidence that he was using the suit way for a period of 40-50 years and defendant had not cross-examined the plaintiff on this aspect. Secondly, it is necessary to note that the state did not oppose the relief claimed by the plaintiff in this case and only the defendant no.1 opposed the relief sought by the plaintiff. The submissions made on behalf of the appellant that during the pendency of the proceedings, some land was allotted to the defendant no.1/ appellant and in view of this subsequent 3 development the plaintiff could not have claimed a right of way through the plot, which was allotted in favour of the appellant, is liable to be rejected for the reason that the pleadings and the documents in regard to allotment were not produced by the appellant before the first appellate court by seeking permission under the provisions of order 41 rule 27 of the Code of Civil Procedure, as stated by the counsel for the respondent. Even assuming, that the land was allotted to the appellant/ defendant no.1 during the pendency of these proceedings, would not be detrimental to the case of the plaintiff for the simple reason that the plaintiff is not claiming ownership or title to the suit property and is claiming an easmentry right of prescription over the property. The same can be claimed if the government is the owner of the property or even if the plot is allotted to the defendant no.1/ appellant or for that matter,to any other third party. The judgment reported in AIR 2005 SC 236, and relied on by the learned counsel for the appellant is hardly of any assistance to the case of the appellant. The findings recorded by the first appellate court do not give rise to any substantial question of law. In the result, the second appeal fails and is dismissed with no order as to costs. JUDGE SMP.