Case Note & Summary
The case involves a dispute over a right of way between two sets of parties in village Bhombodi, Tahsil Tirora, District Gondia. The respondents/plaintiffs owned agricultural land bearing Survey No.351 and 352, while the appellants/defendants owned adjacent Survey No.376. The plaintiffs claimed a right of way over the defendants' land to access their houses and a school building, as recorded in the wajib-ul-arz (Exh.88). The trial court dismissed the suit, but the first appellate court (Principal District Judge, Gondia) partly allowed the appeal, restraining the defendants from obstructing the way and directing removal of any obstruction. The defendants filed a second appeal under Section 100 CPC. The High Court framed a substantial question of law regarding the conclusiveness of the wajib-ul-arz entry. After hearing counsel, the court held that the entry in Exh.88 was a revenue record that clearly indicated a right of way, and the first appellate court had correctly relied on it. The High Court found no perversity or error of law, and dismissed the second appeal, affirming the decree of the first appellate court.
Headnote
A) Easement - Right of Way - Wajib-ul-arz Entry - Section 13(b) Easements Act, 1882 - The entry in the wajib-ul-arz (Exh.88) recorded a right of way in favour of the plaintiffs over the defendants' land. The first appellate court held that such entry is conclusive evidence of the easement right and decreed the suit. The High Court affirmed, finding no substantial question of law. (Paras 1-5) B) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC, 1908 - The High Court held that the first appellate court's findings were based on evidence and did not raise any substantial question of law. The second appeal was dismissed. (Paras 4-5)
Issue of Consideration
Whether the entry in the wajib-ul-arz (Exh.88) is conclusive evidence of a right of way and whether the first appellate court was justified in decreeing the suit based on such entry.
Final Decision
Second appeal dismissed. Judgment and decree of the first appellate court dated 23.7.2013 in Regular Civil Appeal No.160 of 2012 is confirmed. No order as to costs.
Law Points
- Easement by prescription
- Right of way
- Wajib-ul-arz as evidence
- Section 13(b) Easements Act
- 1882
- Substantial question of law
- Second appeal limited to substantial questions
