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 and confirmed the decree of the trial court. The suit was filed by the respondents (original plaintiffs) Govind Vishwanath Dange and Chandrakant Vishwanath Dange for a perpetual injunction restraining the defendant from obstructing their use of a common well, electric motor, pump sets, and pipeline in agricultural land Block No.35. The admitted facts were that the father of the parties, Vishwanath Dange, owned agricultural land Block Nos.35 and 37. After his death, his five sons mutually partitioned the land on Gudi Padwa of 2002. The plaintiffs were allotted portions from Block No.37, while the defendant and another brother Shivaji got shares from Block No.35. There was an ancestral well in Block No.35, which the plaintiffs claimed was agreed to be used commonly by all brothers. The defendant denied this, asserting that the well was only for those who got land in Block No.35. The trial court decreed the suit, and the first appellate court affirmed. In the second appeal, the High Court examined whether any substantial question of law arose. The court noted that the findings of fact by the lower courts were based on oral and documentary evidence, including the testimony of the plaintiffs and the defendant's admission in cross-examination that the well was common. The court held that there was no perversity or error of law, and the appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The appeal challenged concurrent findings of fact by the trial court and first appellate court in a suit for perpetual injunction regarding common well usage. The High Court held that no substantial question of law arose as the findings were based on appreciation of evidence and not perverse. (Paras 1-10) B) Property Law - Common Well - Right to Use - Partition - The plaintiffs and defendant were brothers who partitioned ancestral land. The well in Block No.35 was used commonly by all brothers as per mutual agreement. The defendant's obstruction was illegal. The court upheld the decree of perpetual injunction restraining the defendant from interfering with the plaintiffs' use of the well and electric motor. (Paras 2-9)
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
Second appeal dismissed. No order as to costs.
Law Points
- Perpetual injunction
- common well
- partition
- oral evidence
- concurrent findings
- substantial question of law
- second appeal
