Case Note & Summary
The case involves a second appeal before the Bombay High Court, Nagpur Bench, arising from a suit for injunction filed by the appellants (plaintiffs) against the respondents (defendants) seeking to restrain the defendants from using a Dhura (a narrow passage) over the plaintiffs' field survey no. 28 as a way. The plaintiffs are Keshav Vithoba Khatdeo, Ashok Keshav Khatdeo, and Vijay Keshav Khatdeo (minor represented by GAL Keshav Vithoba Khatdeo), all agriculturists residing in Ambada, Tq. Morshi, Dist. Amravati. The respondents are Gopal Sakharam Mundare (deleted), Gumphabai Gopalrao Mundare, Ramesh Gopalrao Mundare, and Ku. Chhaya d/o Gopalrao Mundare, also agriculturists from the same village. The dispute concerns the right of way over the Dhura of field survey no. 28. The trial court and the first appellate court had decreed the suit in favor of the plaintiffs, but the defendants appealed. The High Court heard the second appeal along with Appeal From Order No.99/2013, as the result of the A.O. depended on the second appeal. The court reframed substantial questions of law: (i) whether the suit for injunction should be decreed in view of non-existence of way by Dhura or any Government Pandhan or road through Dhura of field survey no. 28; (ii) whether the defendants were entitled to use the Dhura in the absence of documentary proof from the revenue department; (iii) whether the civil court could allow the way over Dhura only on the ground of necessity without existing right of way or easement by prescription. The court answered the first question in the affirmative (YES), the second in the negative (NO), and the third in the negative (NO). Consequently, the court allowed the second appeal, set aside the judgments of the lower courts, and decreed the suit for injunction in favor of the plaintiffs. The court held that the plaintiffs are entitled to an injunction restraining the defendants from using the Dhura over field survey no. 28 as a way, as there was no existing right of way, no government road or Pandhan, and no documentary proof from the revenue department to support the defendants' claim. The court also held that necessity alone cannot create an easement by prescription.
Headnote
A) Easement - Right of Way - Prescription - Non-Existence of Government Road - The suit for injunction from using Dhura to field No. 28 as way for the defendants should be decreed in view of non-existence of way by Dhura or any Government Pandhan or road through Dhura of field survey no. 28. Held that the plaintiffs are entitled to injunction as there is no existing right of way. (Paras 2-3) B) Easement - Right of Way - Documentary Proof - Absence of Revenue Records - The defendants were not entitled to use Dhura of field survey no. 28 belonging to the appellants-plaintiffs in the absence of any documentary proof from the revenue department for claiming such a right. Held that without revenue records, no right of way can be claimed. (Paras 2-3) C) Easement - Right of Way - Prescription - Necessity - In the absence of any existing right of way over Dhura of survey no. 28 or in the absence of access to the defendants set out for claiming easement by prescription, the civil Court could not have allowed the way over Dhura of field survey no. 28 as way for the defendants only on the ground of necessity. Held that necessity alone is not sufficient to create an easement by prescription. (Paras 2-3)
Issue of Consideration
Whether the suit for injunction from using Dhura to field No. 28 as way for the defendants should be decreed in view of non-existence of way by Dhura or any Government Pandhan or road through Dhura of field survey no. 28; Whether the defendants were entitled to use Dhura of field survey no. 28 belonging to the appellants-plaintiffs in the absence of any documentary proof from the revenue department for claiming such a right; Whether in the absence of any existing right of way over Dhura of survey no. 28 or in the absence of access to the defendants set out for claiming easement by prescription, the civil Court could have allowed the way over Dhura of field survey no. 28 as way for the defendants only on the ground of necessity.
Final Decision
Second Appeal No.426/1999 is allowed. The judgments and decrees of the lower courts are set aside. The suit for injunction is decreed in favor of the plaintiffs, restraining the defendants from using the Dhura over field survey no. 28 as a way.
Law Points
- Easement by prescription requires documentary proof from revenue department
- Non-existence of government road or Pandhan through Dhura
- Absence of existing right of way over Dhura
- Civil Court cannot allow way without proof of easement by prescription
