- (1.) The only question in this case is: whether the High court of Bombay in SA No. 698 of 1965 would be justified in its judgment dated 8/4/1974/10/4/19744 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 Nos. 108/1/1, 109/1-A and 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 thedefendants 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 pp. 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. Defendant I 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. 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 uniform 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
(2.) The appellate court also equally extensively considered all the documentary and oral evidence and reached the conclusion given at pp. 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 as 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 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
(3.) The High court while opening the case, has found itself holding that it is a 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 10/4/1974 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 the last occasion for hearing on 13/12/1995, we directed theregistry to obtain the original report of the Commission. Objections were filed by the appellants in the High court. Letter has been sent by the Registrar of the Bombay High court staling that the same has 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;