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PETITIONER: MOTILAL DAULATRAM BORA & ORS.

       Vs.

RESPONDENT: MURLIDHAR RAMCHANDRA BHUTABE[SINCE DECEASED] BY HIS LRS & OR

DATE OF JUDGMENT:       16/04/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. BHARUCHA S.P. (J)

CITATION:  JT 1996 (5)   615        1996 SCALE  (4)37

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The 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. Whether it  extends to the width of 30 feet is the question. The 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:      "The 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.           The defendant  No.1 is  hereby      enjoined to remove the encroachment      made by  him on  this road as shown

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    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".      The appellate Court also equally extensively considered all the  documentary  and  oral  evidence  and  reached  the conclusion given at pages 79-80 thus:           "All this  oral  evidence  has      been considered  carefully by   the      Learned Judge  of the  Lower Court.      He has  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.      He 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.      Considering 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. That 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

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Bombay High Court stating that the same have been destroyed. Consequently,  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.      Shri 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 unjustified.      The 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. Having 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 road.      Shri 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. Under 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.      The 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.