VISHWANATH WELCHAND SARAF Vs. DWARKABAI SADASHIV PAWAR

JUDGEMENT

(1.) The original - defendant in Regular Civil Suit No. 365 of 1985 is challenging the judgment of reversal delivered by the lower Appellate Court. The respondents before this Court are the heirs of original plaintiff and appellants are the heirs of original defendants. The suit filed by Smt. Dwarkabai was for permanent and mandatory injunctions. She claimed that she purchased a plot vide sale deed dated 15-3-1979 and the said plot was on its South having lane of 5 feet so as to enable her to approach common service lane situated on the back side of her plot/ house. The plot/ house of defendant was after that lane. She contended that defendant who claimed to have purchased that plot was duty bound to leave 5 feet portion open to sky for use as lane and by constructing a toilet on said part of land and by erecting a fencing, the defendants obstructed her way to the common service lane. She, therefore, sought injunction directing the defendants to remove said construction and to make available said 5 feet lane. The trial Court found that she could not prove that there was 5 feet lane on South side of her house, she could not prove the user of said lane without any interruptions since 1949 and she also could not prove that the construction of latrine made by him was in any way illegal. The plaintiff then filed Regular Civil Appeal No. 151 of 1990 and the Additional District Judge, Akola, vide judgment and decree dated 18-12-1993 found that the lane was mentioned in two sale deeds through which vendor of plaintiff Shri Jadhao derived title from the original owner Shri Potdukhe. It appreciated the oral evidence and found that the area of plot was not inclusive of the lane and ultimately it reversed the judgment and decree of trial Court and decreed the suit. This Court has admitted Second Appeal on 21-2-1994 by formulating a substantial question of law which reads : "Whether the first Appellate Court's decision is vitiated on account of non-consideration of oral evidence on record -

(2.) In this background, I have heard Shri Joshi, learned counsel for the appellants and Shri Mohta, learned counsel for the respondents.

(3.) Shri Joshi, learned counsel has after narrating the facts invited attention to both the judgments to point out that in sale deed of plaintiff executed by Shri Jadhao, no such lane has been mentioned. He further states that the evidence which has come on record clearly shows that there is no material to show existence of any such lane or its use by the plaintiff. He has read out the relevant portion of the evidence in support of his contentions and he attempts to point out that appreciation of this evidence by the trial Court is proper and that by lower Appellate Court is perverse. According to him, when it is an admitted position that plot purchased by the defendants begins immediately after Southern boundary of plaintiff s plot, there is no question of any lane between two plots or then in the land of defendants plot. He has also invited attention to relevant sale deeds i.e. Exhs. 84, 85, 95 and 83 in this connection. He points out that suit has been filed on 15-6-1985 and there are no pleadings to establish any right to such lane in it. He, therefore, contends that in view of question of law formulated at the time of admission, the appeal needs to be allowed and the reversing judgment of lower Appellate Court needs to be quashed and set aside and that of trial Court needs to be restored.