Judgment:
P.R. Borkar, J.
1. This is a second appeal preferred by legal representatives of original Plaintiff Alimoddin, being aggrieved by the judgment and decree passed by the learned III Additional District Judge, Nanded, in Regular Civil Appeal No. 246 of 1984 on 19.1.1990, thereby setting aside the judgment and decree passed by learned Civil Judge, Junior Division, Degloor, in Regular Civil Suit No. 75 of 1980 decided on 12.9.1984.
2. At the time of admission of this second appeal on 2.4.1990, no substantial question of law was framed. The substantial question of law that may be raised is whether the District Court committed an error in allowing the appeal and dismissing the suit holding that no right of easement by prescription is proved by the plaintiffs and my answer to the said question of law is in the negative for the reasons discussed hereinafter.
3. It is the case of the appellants that they are the owners of house No. 116 situated at Degloor. Original Plaintiff Alimoddin purchased it for Rs. 400/= by sale deed dated 19.2.1952 from Defendant No. 2 and has been in possession of the said property. There is an open space adjoining the property of the appellants, which was sold by original Defendant No. 2 to Defendant No. 1 by a registered sale deed dated 17.11.1979. The Plaintiffs have claimed right of way by prescription through the property which is purchased by Defendant No. 1. It is further stated that Respondent No. 1 has obtained permission from Municipal Council for making construction and was about to raise the construction on the property purchased by him and, therefore, suit is filed, praying that the Defendants be perpetually restrained from interfering into the right of way by making any construction or raising structure on the suit property and that the registered sale deed executed by Defendant No. 2 in favour of Defendant No. 1 be treated as ineffective and not binding on the plaintiff.
4. It may be noted that the open space, regarding which the dispute is raised, admeasures 7.62 x 6.10 meters. The Plaintiffs appellants do not come with a case that the Respondents defendants should leave a particular lane for approaching the road on northern side of their property but they want that the no part of open space should be used for any construction.
5. The appellants have produced a map/sketch along with list Exhibit 4 in which they clarified the situation of open space in question and the District Court, after referring to the said sketch / map along with the sketch drawn by the court commissioner on spot inspection and also considering the map annexed to the sale deed dated 17.11.1979, held that it is one and the same property which is purchased by Defendant No. 1 from Defendant No. 2 in respect of which the right of easement is claimed.
6. After considering the case of the plaintiffs, it is observed that on the eastern side of the property of the plaintiffs, there is a lane upto northern road and the said lane can safely be used as a way for approaching northern road without making use of disputed site. We find discussion to that effect at the end of paragraph 8 of the judgment of the District Court.
7. In paragraph 9 of the judgment, it is stated that the plaintiff in his cross examination admitted that there is a road on the western side of his house No. 116 and also admitted that there is Ashrukhana. The Plaintiff, in his cross examination, pleaded ignorance regrading map that was produced by him along with list Exhibit 4.
8. It is admitted by PW1 Mohammad Shamshuddin, who deposed on behalf of the appellants, that the original plaintiff Alimoddin had constructed one hotel in disputed plot after obtaining permission from the Municipal Council. The hotel is said to be there for 25 years and thereafter the Municipal Authorities dismantled the same. He further admitted that the said space for hotel was earlier given to his father by Municipal Council on rent and his father was paying rent to the Municipality. We find these admissions in paragraph 3 of deposition of Mohammad Shamshuddin at Exh.42. Thus, it is an admitted position that the Plaintiff's father was using the disputed site for the purpose of running a hotel and it was a site obtained by him on rent from Municipal Council.
9. Even PW2 Shankar Jaiswal admitted in his cross examination that he had seen hotel run by original plaintiff Alimoddin in the disputed portion of the property. He was running hotel for 6 to 7 years. So, it is clear that the original Plaintiff was in occupation of the said property as a tenant of the Municipality, Degloor and under such circumstances, it cannot be said that during the period of tenancy, any right of way by prescription can be acquired. Since the plaintiff's father was using the property for running a hotel, it cannot be said that it was a property of somebody else and plaintiffs and their father were using the same only as a right of way.
10. It is observed by the District Court in paragraph 11 of its judgment that Defendant No. 1 was President of Masjid Darbari and on behalf of Kasjid Darbari, he had purchased the suit site for religious purposes and thereafter they made application to the Municipality, requesting to cancel the lease deed in favour of the original plaintiff. Accordingly, Municipality passed resolution in 1980 and evicted the plaintiffs' father and took vacant possession of the premises. The documents to that effect are at Exhibit 46. Certified copy of the resolution passed by Municipal Council can be read in evidence, being a certified copy of public document.
11. Section 15 of the Indian Easement Act, 1982, so far as right of way is concerned, lays down that right of way can be acquired by prescription, if such right of way has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption and for 20 years.
12. So, there is no evidence to show that without interruption for twenty years or more prior to the filing of the suit, Plaintiffs' father had a right of way, as an easement as of right over the suit property. Easement is defined in Section 4 which reads thus;
4. An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own.
Thus, it has been proved through admissions of PW1 Shamsuddin and PW2 Shankar that the original plaintiff Alimoddin was occupying disputed property as a tenant for some years and it is not that the property was in occupation of someone else continuously for twenty years prior to filing of the suit. Looking from this angle, in my opinion, this second appeal has no merits and it deserves to be dismissed. The District Court has considered all aspects of the matter.
13. In view of above, Second Appeal dismissed. Parties to bear their own costs.