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2014 Supreme(Bom) 558
In the High Court of Bombay at Aurangabad
T.V. NALAWADE, J.
Karbhari & Others
Versus
Devidas & Others
Appeal From Order Nos. 26 of 2014 & 27 of 2014
Decided on: 04-03-2014
Advocate Appeared
For the Appellants:H.D. Deshmukh, Advocate.
For the Respondents:R2, R.R. Mantri, Advocate.
The central legal point established in the judgment is the importance of considering statutory provisions, statements of fact, and legal principles related to easementary rights and customary rights in determining the existence of claimed rights.
Headnote:
Easementary Right - Dispute over Bandh as Way - Maharashtra Land Revenue (Boundaries and Boundary Marks) Rules, 1969 - The court considered the application of Rule 4 of the Maharashtra Land Revenue (Boundaries and Boundary Marks) Rules, 1969, which governs the maintenance of boundary marks and the use of bandhs as foot-paths. The judgment discussed the legal provisions related to the creation and maintenance of bandhs and the acquisition of easementary rights under the Indian Easement Act, 1882. The court emphasized the importance of considering statutory provisions and statements of fact in determining the existence of claimed rights.
Fact of the Case:
The case involved a dispute over the use of a bandh as a way by the plaintiffs to approach their fields. The Trial Court granted relief of injunction to the plaintiffs, but the District Court set aside the judgment and remanded the suits for fresh trial.
Finding of the Court:
The Court found that the District Court had misconstrued the evidence and committed grave error in remanding the matter. It held that there was sufficient material on the record to decide the appeals on the basis of evidence available.
Issues: The main issue was whether the bandh situated on the western side of the respondents' lands could be used as a way by the plaintiffs to approach their fields. The Court also addressed the jurisdiction of the appeals and the parameters for challenging the order of remand.
Ratio Decidendi: The Court emphasized the importance of considering statutory provisions, statements of fact, and the application of legal principles related to easementary rights and customary rights in determining the existence of claimed rights.
Final Decision: Both the appeals were allowed, the judgments and orders of the District Court were set aside, and the District Court was directed to decide both the appeals on merits based on the available material. The parties were directed to act in accordance with the maintenance of the bandh as a foot-path, and the matters were to be disposed of expeditiously.
1. Both the appeals are admitted. By consent, both the matters are heard for final disposal, after making the notice returnable forthwith after admission.
2. The learned counsel for caveator/respondent No.2 insisted for early hearing in view of the order made by this Court on 3.3.2014 by which stay was granted to the operation and implementation of the judgment and order of First Appellate Court and further, some relief of interim nature was given to the present appellants.
3. The two appeals are filed against judgment and order of Regular Civil Appeal No.615/2012 and Regular Civil Appeal No.614/2012, respectively. The appeals were pending in the Court of Ad-hoc District Judge-2, Ahmednagar.
R.C.A. No.615/2012 was filed against judgment and decree of Regular Civil Suit No.176/2007 and that suit was filed by present respondents. R.C.A. No. 614/2012 was filed against the judgment and decree of Regular Civil Suit No. 179/07 and that suit was filed by the present appellants. The present appellants/plaintiffs from R.C.S. No.179/2007 had prayed for relief of injunction in respect of right of way, for using a bandh situated on western side of lands of defendants/respondents as the way.
4. There are lands of plaintiffs and defendants and beyond their lands, there are lands of other farmers and this bandh is in existence between those lands also. It is the case of appellants that this bandh starts from Majleshahar – Shahartakli road and it goes towards southern side and there are fields situated on both sides of this bandh. This bandh is situated on western side of three lands of present respondents viz. Gat Nos.164/1A, 164/1B, 164/1C and it is on the eastern side of few lands of the appellants. On both the sides, southern and northern side of lands of plaintiffs and defendants, there are lands of other farmers. It is the case of appellants that they have been using this bandh for more than 40-50 years as a way for approaching to their fields. It is contended that this portion is also being used by sugar factory for carrying sugarcane from adjacent fields. It is contended that sugar factory maintains and repairs this way. It is contended that on one side of this bandh, there is land Gat No.168 and there is D.P. of M.S.E.B. in that land and employees of M.S.E.B. also use this way for approaching D.P. It is contended that the present respondents were trying to destroy this bandh, the way which has been in use of the plaintiffs and others by making digging. To prevent these activities of present respondents and for allowing the plaintiffs to use the bandh as a way, the suit was filed. It is the case of present appellants that they are using this bandh, even for taking bullockcarts and tractors to their fields.
5. In R.C.S. No.176/2007 present respondents have contended that they are the owners of lands Gat Nos. 164/1A, 164/1B and 164/1C and defendants of this suit, present appellants have no concern whatsoever with these lands. It is contended that when they were doing the digging work for laying pipeline, they were obstructed by present appellants and so, they were required to file suit. They have prayed for relief of injunction to prevent interference of the appellants in their possession of these three lands.
6. In the written statement filed in R.C.S. No.179/2007, the present respondents denied that there is such way in existence on the western bandh of their three lands. However, they have admitted that in Gat No. 164 there is south-north bandh. It is the case of the present respondents that present appellants are trying to create new way in their aforesaid three lands.
7. In Writ Petition No.855/2013, this Court had directed the Trial Court to decide both the aforesaid suits together. In view of this direction and as issue involved in both suits is the same, both the suits were heard and decided by the Trial Court together. The Trial Court has held that present appellants have been using this bandh as a way since last more
