Case Note & Summary
The case involves a dispute over an easementary right of way. The plaintiff, Shrawan Natthuji Bagul, claimed to be the owner of field S.No.27/3 (Gat No.77) and alleged that the defendant, Uttamrao Tulshiramji Madghe (since deceased, represented by legal representatives), owned adjacent land S.No.29 (Gat No.69). The plaintiff asserted a right of way over the defendant's land to access his field, as shown in the plaint map. The trial court (Joint Civil Judge, Jr.Dn., Achalpur) decreed the suit on 10.12.2001, declaring the suit way as an easementary way and restraining the defendant from obstructing it. The defendant appealed to the Additional District Judge, Achalpur, who allowed the appeal on 6.9.2006, reversing the trial court's decree. The plaintiff then filed a second appeal in the Bombay High Court. The High Court found that the first appellate court had not properly considered the evidence on record and had failed to give adequate reasons for its decision. The High Court allowed the second appeal, set aside the first appellate court's judgment, and remanded the matter back to the first appellate court for fresh consideration in accordance with law. The court directed that the appeal be decided afresh after hearing both parties.
Headnote
A) Civil Procedure Code - Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court entertained the second appeal on the ground that the first appellate court failed to consider the evidence properly while reversing the trial court's decree. Held that the appellate court must apply its mind to the evidence and give reasons for its findings. (Paras 1-5)
B) Easement - Right of Way - Easementary Right - The plaintiff claimed a right of way over the defendant's land to approach his field. The trial court decreed the suit, but the first appellate court reversed it without properly analyzing the evidence. Held that the matter requires fresh consideration by the first appellate court. (Paras 2-5)
Issue of Consideration
Whether the first appellate court was justified in reversing the trial court's decree without properly considering the evidence on record, particularly regarding the plaintiff's claim of easementary right of way.
Final Decision
The High Court allowed the second appeal, set aside the judgment and order of the Additional District Judge, Achalpur dated 6.9.2006, and remanded the matter back to the first appellate court for fresh consideration in accordance with law. The first appellate court was directed to decide the appeal afresh after hearing both parties.
Law Points
- Easementary right
- Right of way
- Adverse possession
- Burden of proof
- Appellate court's duty to consider evidence
- Section 100 CPC
Case Details
2014 LawText (BOM) (04) 153
Second Appeal No.9 of 2007
Mr. V.S. Bapat for the appellants, Mr. M.V. Bute for the respondent
Uttamrao Tulshiramji Madghe (Dead) through L.Rs. Kamalabai wd/o. Uttamrao Madghe and Rajabhau Uttamrao Madghe
Shrawan Natthuji Bagul (Pagtil)
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Second appeal against judgment and order of Additional District Judge, Achalpur in Regular Civil Appeal No.4 of 2002, which reversed the trial court's decree in a suit for declaration and injunction regarding easementary right of way.
Remedy Sought
The plaintiff sought declaration of easementary right of way over defendant's land and injunction restraining defendant from obstructing the way.
Filing Reason
The plaintiff claimed that the defendant obstructed his right of way to his field, which he had been using since purchase in 1979.
Previous Decisions
Trial court (Joint Civil Judge, Jr.Dn., Achalpur) decreed the suit on 10.12.2001. First appellate court (Additional District Judge, Achalpur) allowed the appeal on 6.9.2006, reversing the trial court's decree.
Issues
Whether the first appellate court properly considered the evidence on record while reversing the trial court's decree?
Whether the plaintiff has an easementary right of way over the defendant's land?
Submissions/Arguments
Appellants (original defendant) argued that the first appellate court correctly reversed the trial court's decree.
Respondent (original plaintiff) argued that the first appellate court failed to consider the evidence properly.
Ratio Decidendi
The first appellate court must properly consider the evidence on record and give reasons for its findings. Failure to do so constitutes a substantial question of law under Section 100 CPC, warranting interference by the High Court.
Judgment Excerpts
This appeal is directed against the judgment and order dt.6.9.2006 passed by the learned Additional District Judge, Achalpur in Regular Civil Appeal No.4 of 2002 preferred by the original defendant in the suit.
The trial Court had declared the suit way shown by alphabets 'ABCD' in the plaint map as easementary way of plaintiff to approach his field and ordered that the defendant had no right to obstruct the easementary way.
Procedural History
The plaintiff filed Regular Civil Suit No.103 of 1998 in the court of Joint Civil Judge (Jr.Dn.), Achalpur, which was decreed on 10.12.2001. The defendant appealed to the Additional District Judge, Achalpur in Regular Civil Appeal No.4 of 2002, which was allowed on 6.9.2006. The plaintiff then filed the present second appeal in the Bombay High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
