Bombay High Court

SHANKAR NIVRUTTI PATILversusPRAKASH NIVRUTTI PATIL

Disposal: Allowed

Holding

The court held that the petitioner is entitled to an easement by necessity and restored the trial court's injunction, quashing the appellate court's reversal.

Summary

The petitioners, real brothers, were allotted separate plots of land (Gat Nos. 16/1 and 17/1 to the petitioner and 16/2 and 17/2 to the respondent) following a partition under Section 85 of the Maharashtra Land Revenue Code. The petitioner claimed an easement along the northern side of the respondent's land to access the National Highway, asserting that no alternative route existed, and obtained an injunction from the trial court. The appellate court reversed this injunction, relying on the quashing of a mutation entry, but the petitioner contended that the mutation issue was pending before the Additional Collector and that the easement was necessary. The High Court examined the evidence, including affidavits and a rough map, and found that the respondent had not shown any alternate access, establishing a claim of easement by necessity. The Court held that the appellate court erred in overlooking material facts and quashed its order, restoring the trial court's injunction. Consequently, the writ petition was allowed in part, reinstating the petitioner’s right to the easement.

Issues considered

Whether an easement by necessity exists for the petitioner to access the National Highway.
Whether the quashing of the mutation entry by the Sub Divisional Officer defeats the claim of easement.
Whether the partition under Section 85 of the Maharashtra Land Revenue Code creates any easement rights.
Whether the respondent has an alternative route that negates the necessity of the easement.

Legislation cited

Maharashtra Land Revenue Code — s. 85

Subjects

easement
easement by necessity
partition
injunction
mutation entry
Maharashtra Land Revenue Code
civil suit
writ petition
appellate court reversal

Judgment

                                                        70 WP 3854 OF 2026.odt

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIRCUIT BENCH AT KOLHAPUR
                    CIVIL APPELLATE JURISDICTION

                  70 WRIT PETITION NO. 3854 OF 2026

                        SHANKAR NIVRUTTI PATIL
                                 VERSUS
                        PRAKASH NIVRUTTI PATIL
                                     ...
           Advocate for Petitioner : Mr. Ajit Vishwanath Alange
          Advocate for Respondents : Mr. Amol Amarnath Kanaki
                                     ...
                    CORAM                 : SHAILESH P. BRAHME, J.
                     DATE                : 17.08.2026


PER COURT :

      Heard both sides.

2.    The petitioner takes exception to the judgment and order dated
11.06.2026 passed by the Appellate Court in Misc. Civil Appeal No.
64/2024, thereby reversing the order of injunction granted by the Trial
Court on 08.07.2024 below Exh. 5 in Regular Civil Suit No. 302/2023.

3.    The parties are real brothers.      The factum of partition by an
intervention of Tahsildar under Section 85 of the Maharashtra Land Revenue
Code is not disputed much. Gat Nos. 16/1 and 17/1 are allotted to the
petitioner, whereas, Gat Nos. 16/2 and 17/2 are allotted to respondent. The
record of Tahsildar would indicate that the petitioner was being allotted 2-
Are land in excess than the respondent.     He claims an easement which
passes along the boundary of Gat No. 16/2 belonging to respondent from
eastern side national high way to connect his land Gat No. 16/1.         The
easement is stated to be east-west on the Northern side.       The same is
disputed by the respondent, which is cause for preferring Regular Civil Suit
No. 302/2023 for declaration and injunction.


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4.    The Trial Court granted injunction by order below Exh. 5 passed on
08.07.2024 for using the easement. The Appellate Court reversed it vide
impugned judgment and order dated 11.06.2026.

5.    The learned counsel for petitioner submits that there is no alternate
way and the easement claimed i.e. East-West access on the Northern side is
the only approach road for the petitioner. He would rely upon mutation
entry No. 1198 and Roznama of acquisition proceedings to show that there
existed a road. It is submitted that though the mutation entry was quashed
by judgment of the Sub Divisional Officer, the appeal has been preferred
before the Additional Collector, which is pending. It is submitted that the
affidavits of witnesses in support of the petitioner have not been taken into
account.

6.    Per contra, learned counsel for the respondent submits that the
proceedings under Section 85 of M.L.R.C. before the Tahsildar do not refer
to any easement. The acquisition is solely from land of the respondent and
there was no question of any settlement between the parties before the
acquisition authority. It is further submitted that fraudulent mutation entry
No. 1698 has been quashed by the Sub Divisional Officer in R.T.S. 540/2025
and there exist no material to show the road in question. It is submitted
that Appellate Court rightly reversed the order.

7.    Learned counsel for the petitioner has tendered on record additional
documents, which are born from the record and which are not objected by
the respondent.

8.    The plant is accompanied by rough map. National high way is located
on the Eastern side of Gat No. 16/2 and 17/2 allotted to respondent. The
proceedings before the Tahsildar under Section 85 of the Code do not spell
out any easement for the petitioner. It is also an admitted fact that order
passed by the Sub Divisional Officer dated 31/10/2025 in R.T.S. Appeal No.
540/2024 is further subjected to appeal before the Additional Collector,
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which is pending.

9.    I have carefully gone through written statement-cum-say filed by the
respondent, which is silent regarding alternate way for the petitioner, either
to approach Eastern side National High Way from his field or any other road
from his field. The mutation entry No. 1698, which was effected somewhere
in 2008, was not promptly challenged by the respondent. He had preferred
R.T.S. Appeal No. 92/2020, which is renumbered as RTS Appeal No.
540/2024. Both sides have filed affidavits of the witnesses to corroborate
their claims. Though there was partition between the parties, no alternate
way is shown by the respondent and hence          case is made out by the
petitioner for the easement by necessity.

10.   The appellate Court reversed the order passed by the Trial Court
mainly on the ground that mutation entry was quashed by the Sub
Divisional Officer in RTS No. 540/2024 but the said decision is further
subjected to challenge before the Additional Collector, which is pending. In
any case, the Civil Court will have to determine as to whether there exist
easement by grant or easement of necessity by permitting the parties to
adduce the evidence.

11.   I find that judgment of the Lower Appellate Court is unsustainable
because it overlooks material aspects of the matter. Interestingly, the
acquisition is from land allotted to the respondent. In all probabilities, the
petitioners might have been allotted excess 2-Are land because those were
not abutting the National High Way. Therefore, merely because excess land
was allotted in partition to the petitioner, cannot be said to be a ground to
deny easementary right to him.       I find that case is made out to cause
interference in the impugned judgment and order.          I, therefore, pass,
following order :

                                   ORDER

(A)   The writ petition is allowed partly.

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(B)     Impugned judgment and order dated 11.06.2026, passed in Misc.
Civil Appeal No. 64/2024, is quashed and set aside and order of the Trial
Court below Exh. 5 passed on 08.07.2024 in Regular Civil Suit No.
302/2023 shall stand restored.

(C)     Needless to mention that the observations are prima faice in nature.



                                       ( SHAILESH P. BRAHME, J.)




mkd/-




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