YADAV NINU PATIL Vs. NARAYAN KASHIRAM PATIL

JUDGEMENT

(1.) By this Second Appeal, the original plaintiffs, who had filed a suit for declaration of right of way, are challenging the reversing judgment of lower appellate Court. The details in relation to way claimed are not very relevant for adjudication of this Second Appeal. The issues framed by the trial Court in Regular Civil Suit No. 304 of 1976 with its findings are as under :

(2.) In this background, I have heard Shri Khapre with Shri Paliwal, Advocates for the appellants and Shri Badhe, Advocate for respondents No. 1, 2 & 6(a) to 6(e).

(3.) Shri Khapre, Advocate has argued that the trial Court has correctly understood the controversy and has rightly appreciated the evidence. He relies upon the findings recorded by the trial Court to hold that suit way and its existence has been proved by present appellants. He contends that all these details are not looked into by lower appellate Court which has given importance only to minor discrepancies and has taken a pedantic view of the matter. According to him, the questions as formulated, therefore, clearly arise because case of acquisition of easement of right of way by prescription was pleaded in the alternative. He further states that co-defendants i.e. defendants No. 3 & 4 accepted the existence of such way and its user by plaintiffs and therefore said acceptance was binding even on other defendants (present respondents). He points out that a map drawn by D.I.L.R. had a statutory backing and therefore there was a presumption in favour of its correctness. He further states that in plaint itself, the case was land in the field of defendants adjacent to their dhura was being used. It is argued that Marathi word used in plaint 'Dhuralagat' does not necessarily mean touching or adjacent to dhura. It only means near dhura. He has taken the Court through both the judgments and evidence on record in support of his contentions.