SATYANARAYAN RAMAIYYA MADDIWAR Vs. SHANKARRAO RAMAIYYA MADDIWAR

JUDGEMENT

(1.) THIS appeal was admitted on the following substantial questions of law, thus:

(2.) HEARD submissions of learned counsel appearing for rival parties at bar.

(3.) THE dispute pertains to the ancestral property which was subdivided amongst the coparceners bearing City Survey No.571 (old City Survey No.572.. The parties who were brothers had settled their disputes with a consent deed dated 22.12.1996. The brothers namely Shankarrao, Satyanarayan and Tryambak discussed the dispute between them and agreed to reduce into writing consent deed on 22.12.1996 to resolve the dispute regarding the property in their possession shared by them after partition. The dispute was concerned with user of the common way from Aheri main road. The user was enjoyed by them in common from the main road upto the well. It was decided that Satyanarayan would be allowed to put up two slabs with columns so that he can use the area over the slab according to his convenience and the portion, below the slab constructed by Satyanarayan, was to be kept vacant as part of common road for use of all brothers. It was agreed by them that nobody will encroach the space below the slab as the space was agreed to be used as common way from the main road upto the well. The dispute as to water pipe for discharging waste water from the slab was also discussed and it was agreed that no brother would occupy or possess the stairs leading to the terrace in possession of Tryambak and also stairs leading to entry in the house of Tryambak as the space was to be kept in the same position as on 22.12.1996. Satyanarayan was allowed to construct the pipe line from slab to the Gutter lane. The pipe was to be laid by the side of the wall. The parties using the bullock -cart from the main road upto the well were not to be obstructed by any intended construction in view of the agreement between the brothers and columns were to be constructed accordingly so as not to obstruct the way for plying bullock -cart used by the brothers. Accordingly, the agreement averred that the construction of the cement road which was then incomplete was to be completed by Satyanarayan and on that road nobody would discharge waste water or refuse and they will take precautions accordingly by managing disposal of waste water and refuse from their houses respectively. The brothers had specifically agreed that they would not create any obstruction for any drainage line to be constructed by the Government Scheme. The brothers had agreed to take precaution that there would be no obstruction to any drainage line to be constructed underneath the way under the Government Scheme. Any such objection, if any, for obstruction can be taken by any of the signatory to the agreement. This agreement was drafted in Marathi language understood by all signatories and the same was marked at Exh.87 in the suit for permanent injunction which was instituted by Shankarrao and Tryambak against Satyanarayan (third brother. with a prayer that the decree be passed for permanent injunction to restrain Satyanarayan or any person claiming through him from constructing a latrine pipe line, latrine tank or any other construction, addition, alteration and removal which will cause permanent obstruction over user of way upto the well on the suit property.