MOTILAL DAULATRAM BORA AND ORS. versus MURLIDHAR RAMCHANDRA BHUTABE (SINCE DECEASED) BY HIS LRS. AND ORS.

Citation: [1996] SUPP. 1 S.C.R. 393 · Decided: 16-04-1996 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Appeal(s) allowed

Judgment (excerpt)

MOTILAL DAULATRAM BORA AND ORS. 
v. 
MURLIDHAR RAMCHANDRA BHUTABE (SINCE DECEASED) 
BY HIS LRS. AND ORS. 
APRIL 16, 1996 
[K. RAMASWAMY AND S.P. BHARUCHA, JJ.] 
Code of Civil Procedure, 1908: 
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S.101>-Concwrentfindings of fact recorded by t1ial cowt and appellate C 
cowt-lnte1ference by High Cowt-Held, not justifiecf-Reasoning of the High 
Cowt that the Cowts below have not considered the documents is clearly 
unjustified. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 858 (N) D 
of 1979. 
From the Judgment and Order dated 10.4.74 of the Bombay High 
Court in A. No. 698 of 1965. 
P.H. Parekh and E.R. Kumar for the Appellants. 
E.C. Agarwala for the Respondents. 
The following Order of the Court was delivered : 
The only question in this case is: whether the High Court of Bombay 
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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, 109/1-A and 109/2-A situated near 
'Peth' road in Panchawati Area, Nasik City. The claim of the plaintiffs in G 
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 H 
393 
394 
SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R. 
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appellants-plaintiffs the width is 30 feet and according to the respondents-
defcndants the width, after exduding the encroachment, would range 
between 10-15 feet at one point and at another 20-22 feel. 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 : 
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'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 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 
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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 
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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 the Southern portion. The 
conclusion arrived &t 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 
.. 
M.D. BORA v. M.R. BHUTABE 
395 
permanent injunction claimed by them. I hold that they are entitled A 
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 r

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