Case Note & Summary
The present second appeal was filed by the original defendant, Ashok Vishwanath Dange, challenging the judgment and decree passed in Regular Civil Appeal No.66/2013 by the learned District Judge-5, Nanded, dated 17.10.2016, which dismissed his appeal. The said appeal had challenged the judgment and decree of the learned Civil Judge Junior Division, Ardhapur, in R.C.S. No.12/2010 dated 25.03.2013, which decreed the suit for perpetual injunction filed by the original plaintiffs, Govind Vishwanath Dange and Chandrakant Vishwanath Dange. The admitted facts were that the father of the parties, Vishwanath Dange, was the original owner of agricultural land Block Nos.35 and 37. He had five sons: Govind, Chandrakant, Ashok, Shivaji, and Gopinath. After the father's death, the sons mutually partitioned the land on Gudi Padwa of 2002. Portions of 00 Hectare 60 Ares and 01 Hectare from Block No.37 were allotted to plaintiff Nos.1 and 2 respectively. Gopinath was given 01 Hectare 04 Ares from Block No.37. Shivaji and the defendant got 70 Ares each from Block No.35. The plaintiffs contended that there was an ancestral well in Block No.35, and it was mutually agreed at the time of partition that it would be used commonly, along with the electric motor, pump, and pipeline installed by their father. However, the defendant obstructed them from using the well and equipment, giving a threat on 21.02.2010, leading to the suit. The defendant denied that the well was common, stating there were two wells—one in each block—and that only those who got shares in Block No.35 could use its well. The trial court framed issues, and both sides led oral and documentary evidence. The trial court decreed the suit, and the first appellate court confirmed the decree. In the second appeal, the appellant argued that the courts below erred in holding the well as common without proper evidence. The High Court, after hearing counsel, found that the concurrent findings of fact were based on evidence and did not give rise to any substantial question of law. The appeal was dismissed with no order as to costs.
Headnote
A) Property Law - Perpetual Injunction - Common Well - The suit was for perpetual injunction to restrain the defendant from obstructing the plaintiffs' use of a well and electric motor. The trial court decreed the suit, and the first appellate court confirmed. The second appeal was dismissed as no substantial question of law arose. Held that concurrent findings of fact based on evidence cannot be interfered with in second appeal (Paras 1-5).
Issue of Consideration
Whether the well in Block No.35 was common to all brothers and whether the defendant could obstruct the plaintiffs from using it.
Final Decision
The second appeal is dismissed with no order as to costs.
Law Points
- Perpetual injunction
- common well
- partition
- oral evidence
- concurrent findings
- substantial question of law
- second appeal
