Mrs. Arcanjela Minguel Monteiro and Another vs Mr. Luis Lowrence Fernandes

N.A. Britto, J.—Heard Shri Lawande, the learned Counsel on behalf of the appellants. The appellants are the plaintiffs who had filed Regular Civil Suit No. 28/1999 for a right of way through the defendant''s property surveyed under No. 82, which lies to the South of the property in which they reside, namely Survey No. 160/21 and 22. The suit was filed for permanent injunction to restrain the defendants from using the said passage of a width of about 0.75 meters. The case of the plaintiffs was that the said pathway was being used by the plaintiffs and other villagers to come to the main road as a traditional access for over 100 years. On the other hand, it was the case of the defendant that there was a pathway in between the said property surveyed under no. 160 and the defendant''s property surveyed under no. 82/0 which leads to Tithe and which was existing from times immemorial. The defendant had denied that there was any rain water drain on the said pathway or in other words the said pathway was a rain water drain as contended by the plaintiffs. On evidence being led by both the parties, both the Courts below have come to the conclusion that the plaintiffs have failed to prove the existence of the pathway through the property of the defendant. It can be seen from the judgment of the learned appellate Court that at one one stage, the Director of Settlement and the Land Records had referred to the said pathway as a nullah and thereafter by a subsequent letter, as a dry nullah. The learned appellate Court in appreciating the evidence produced, had also referred to the documents executed by the defendant on or about 13/02/1969 on which it was shown that the property of the defendant had a road on the North, which documents, as per the learned first appellate Court supported the defence case that on the North of the said Survey No. 82/0 there was a village road. Learned Counsel on behalf of the appellants has submitted that both the Courts below did not consider the certificates issued by the Panchayat. However, it can be seen that this matter has been dealt with by the learned first appellate Court in para 30 of the judgment observing that the said certificates were obtained after the filing of the suit and the Sarpanch was not examined in support thereof to prove the records on the basis of which the said certificates were issued. Learned Counsel on behalf of the appellants referring to the judgment of the learned first appellate Court submits that the learned first appellate Court has referred to the statements of PW6, the son of the plaintiff no.1, which were not made by him, in his evidence. It may be so. Nevertheless, the fact remains that upon consideration of the evidence produced, both the Courts below have come to the conclusion that the plaintiffs have failed to prove the existence of the pathway claimed by them through the property of the defendant surveyed under no. 82/0. These are, but, concurrent findings of fact which cannot be interfered in Second Appeal.

Learned Counsel also made strenuous effort to submit that the learned first appellate Court ought to have appointed a commissioner to find out whether the said pathway shown by the defendant was in fact a water drain. In fact, such an effort ought to have been made by the plaintiffs before the trial Court. I have perused the judgments relied upon by Shri Lawande, the learned Counsel on behalf of the appellants/plaintiffs reported in the case of Kashinath Chopade Vs. Purushottam Tulshiram Tekade and Others, and Prabhakar s/o. Bhagwantrao Mahajan, President Sarafa Vyapari Association, Amravati V/s. Satyanarayan s/o. Shriwallabh Laddha 7 Ors. ( 2004 [106 (3)] Bom. L.R. 177), which, in my view, considering the facts of the case, are clearly inapplicable to the facts of the case. Both the Courts below have negative the plaintiffs'' claim based on evidence produced and, as such, no substantial question of law either as framed or otherwise, arise in this Second Appeal. The appeal, therefore, is hereby dismissed.