IMPORTANT POINTS
Easementary rights of access – Witnesses on record clearly deposed about use of way by defendants.

JUDGMENT

By this Appeal filed under Sec. 100 of the Civil Procedure Code, 1908, the appellants-defendants have impugned the judgment and order dtd. 1/4/2013 passed by learned Ad-hoc District Judge-III, Washim thereby allowing Regular Civil Appeal No. 136 of 2010 filed by appellants-plaintiffs. By allowing the said Appeal the learned first Appellate Court had partly decreed the R.C.S. No. 06 of 2008 (old R.C.S. No.91 of 2007) and appellants-defendants herein are restrained by decree of perpetual injunction from interfering in the possession of the respondents-plaintiffs over their fields prescribed in Part-1 of the plaint.

2. The parties in the judgment are described as per their original status in the proceedings before the learned trial Judge.

3. The relevant facts for the purpose of deciding this Appeal are as under: Plaintiffs and defendants are agriculturists and having their lands adjacent to each other. Survey No. 33/1 situate at mouje Talap-Budruk is owned by plaintiff No. 2 while survey No.28/1 and 27/1 are owned by plaintiff No.1. Defendant No.1 is owner of survey No. 27/2 and 25/1 whereas defendant No.2 is owner of survey No. 27/3. Similarly, defendant No.4 is owner of survey No. 27/2v- All the defendants are closed relatives.

4. According to plaintiffs, there is neither cart way nor foot way through suit lands so as to access or approach the fields of defendants. The defendants being of quarrelsome nature, they filed a false application before Tahasildar claiming their right of way through the suit lands but by order dtd. 28/8/2007 and after Spot Inspection and considering the report of Talathi and Circle Officer, the Tahasildar found that there is no such way as claimed by the defendants.

5. The plaintiffs alleged that not only the defendants are obstructing and creating interference in their peaceful possession over the suit lands but also caused damage to udid and Turi crops and thereby further caused damage in the sum of Rs.21,000.00. Therefore, the suit for perpetual injunction and damages.

6. Defendant Nos. 1, 2, 4 and 5 resisted the Suit by filing their joint written statement (Exh.11). At the outset, they admitted the ownership and locations of the landed properties belonging to both the parties. However, they denied that there is no cart way or foot way through the suit lands. They further denied the alleged damages claimed by plaintiffs.

7. By way of additional written statement, according to defendants, originally all the lands belonged to one joint family. Since the time of their forefathers defendants are using the suit lands while approaching their lands, inasmuch as there is no other way.

8. According to defendants, the Order passed by the Tahasildar is in ignorance of law and the same has been assailed before the Sub Divisional Officer, Mangarulpir. If any Order of perpetual injunction is passed against them, they would be put to an irreparable loss and therefore, prayed for dismissal of the suit.

9. Learned trial Judge on the basis of pleadings of both the parties framed six issues and after considering oral and documentary evidence laid by parties dismissed the Suit with costs vide Order dtd. 29/10/2010.

10. Being aggrieved by the judgment and decree dtd. 29/10/2010 passed by learned Civil Judge, Junior Division, Manora, the plaintiffs preferred Regular Civil Appeal No. 136 of 2010 in the Court of Ad-hoc District Judge-III, Washim. The first Appellate Court also framed six points for determination and by judgment and order dtd. 1/4/2013 allowed the Appeal. Being aggrieved by the said judgment and decree dtd. 1/4/2013, the defendants have filed the present second Appeal.

11. By an Order dtd. 13/6/2014 this Court admitted this Appeal on the following Substantial Question of Law:—

“Whether the Lower Appellate Court committed an error in holding that there was a cart way, i.e., through Nullah, for the appellants to approach their field, ignoring the material evidence of the previous owner DW 5- Jairam