Daulatram Bora & Ors Vs. Murlidhar Ramchandra Bhutabe & Ors  INSC
550 (16 April 1996)
K.Ramaswamy, K.Bharucha S.P. (J)
JT 1996 (5) 615 1996 SCALE (4)37
O R D
only question in this case is: whether the High Court of Bombay in S.A. No. 698
of 1965 would be justified in its judgment dated April 8/10, 1974 to interfere
with the concurrent findings of fact recorded by the trial Court and the
appellate Court? The admitted position is that both the appellants and the
respondents purchased from the common owner property bearing Survey No.
108/1/1, 109/2-A situated near 'Peth' road in Panchwati Area, Nasik City. The claim of the plaintiffs in a suit for injunction to
restrain the respondents from use of the road, practically not in dispute, is
that there was a common road in existence.
it extends to the width of 30 feet is the question.
existence of the road for use of both the plaintiffs and the defendants as well
as access to the well existing in the property also is not in dispute. The only
area of dispute at the trial was the width of the road. According to the
appellants-plaintiffs the width is 30 feet and according to the
respondents-defendants the width, after excluding the encroachment, would range
between 10-15 feet at one point and at another 20-22 feet. After elaborate
consideration of the evidence by the trial Court, it came to the conclusion
given at pages 58-59 of the paper book thus:
suit road mentioned by letters A.B.E.F. in the plan Ext. 42 of the uniform
breadth of 30' throughout is hereby declared to be of the common ownership and
user of the plaintiffs and the defendants. The defendants are hereby
perpetually restrained from obstructing the plaintiffs right and user to the
same road in any way.
defendant No.1 is hereby enjoined to remove the encroachment made by him on
this road as shown in Ext. 42 in red colour and to shift his compound backwards
so as to leave the same road of the uniform breadth of 30' on the Southern Side
of his land. The defendants 2 and 3 are also enjoined to remove the
encroachment made by them on this road as shown in Ext. 42 in red colour and to
shift their compound backwards so as to leave the same road of the inform
breadth of 30' on the Southern Side of their land. The defendants are directed
to do this within fifteen days from hence. On their failure the plaintiffs are
at liberty to get the same encroachment removed through court".
appellate Court also equally extensively considered all the documentary and
oral evidence and reached the conclusion given at pages 79-80 thus:
this oral evidence has been considered carefully by the Learned Judge of the Lower Court.
accepted the version of the plaintiffs are regards the situation of the road
and its width and has disbelieved the version of the defendants that the road
was on the Southern Side and it has been encroached upon by the plaintiffs.
has, however, accepted the right of the defendants to take water from the well
situated in Southern portion. The conclusion arrived at by the Learned Judge of
the Lower Court is fully borne out by the documentary and circumstantial
evidence to which I have already made a detailed reference.
the entire evidence on record, it cannot be said that the plaintiffs are not
entitled to the reliefs of declaration, mandatory injunction and permanent
injunction claimed by them. I hold that they are entitled to these reliefs and
find accordingly on Point No. 7" The High Court while opening the case,
has found itself holding that it is difficult situation to identify the land.
difficult question was sought to be resolved in the second appeal by
appreciation of evidence. It sought to place reliance on an order passed by one
of the learned single Judges at an interlocutory stage for appointment of a
Commissioner on April
10, 1974 and the
report submitted by the Commissioner in support thereof. Practically, in the
judgment in Second Appeal the report of the Commissioner formed foundation. The
question is: whether the High Court was justified in reversing the concurrent
findings of fact based solely on the Commissioner's report. When the matter had
come up on last occasion for hearing on December 13, 1995, we directed the Registry to obtain
the original report of the Commission, objections filed by the appellants in
the High Court. Letter has been sent by the Registrar of the Bombay High Court
stating that the same have been destroyed.
we do not have the benefit of findings recorded by the Commissioner as to the
circumstances in which he came to the conclusion with regard to the existence
of the road.
P.H. Parekh, learned counsel appearing for the appellants has contended that in
view of the concurrent finding recorded by the courts below and the High Court
having noticed that difficult question of fact had arisen for decision in the case,
the High Court would not have embarked upon re-appreciation of the evidence to
come to its own conclusion. We find force in the contention. The High Court was
not right in stating that the documentary evidence was not considered by both
the courts and the effect that could be reached on consideration of the
evidence is not a question of law. In fact, the trial Court and the appellate
Court have extensively considered all the documentary as well as oral evidence
on the basis of which they reached the finding that road did exist, as
contended by the learned counsel for the appellants. So, the High Court's
reasoning that the courts below did not consider the said documents is clearly
question then is: whether the High Court would be justified in appointing a
Commissioner and reversing the finding of fact on the basis of the report of
the Commissioner? It is admitted position that in the trial Court an
application had, in fact, come to be made for appointment of Commissioner. The
Commissioner had gone to the property, identified the location and submitted
his report together with the plan. That report came to be objected by both the
parties. Consequently, it was rejected.
had rejected the report, the High Court was not right in again appointing a
Commissioner to localise the land and then decide as to the existence of the
E.C. Agrawala, learned counsel appearing for the respondents, has contended
that by virtue of the device adopted by the appointment, the appellants are
seeking to take the property in excess of the land actually purchased by them.
Consequently, the respondents are being denied of the extent of the land they
had purchased. He contends that the appellants and the respondents had
purchased the property in equal shares from a common owner. By virtue of the
existence of the road, the appellants stand to gain much more than they
actually purchased. Unfortunately, that was not the defence taken in the
written statement nor adduced any evidence. We find that no argument in this
behalf was addressed either in the High Court or in the courts below.
those circumstances, as parties have gone on trial regarding the width of the
road and the demarcation thereof having been put in issue, the High Court was
not right in disturbing the findings of facts recorded by the courts below.
appeal is accordingly allowed. The judgment and decree of the High Court is set
aside and that of the courts below stand confirmed. No costs.