SCA/891020/2008 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8910 of 2008 ========================================================= KHIMABHAI AALSHIBHAI BORKHATARIYA - Petitioner(s) Versus TAPUBHAI PUNJABHAI CHANDRAVADIYA & 1 - Respondent(s) ========================================================= Appearance : MR CL SONI for Petitioner(s) : 1, MR TULSHI R SAVANI for Respondent(s) : 1, DS AFF.NOT FILED (N) for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 17/09/2008 ORAL ORDER
Heard
the learned advocates appearing for the parties.
Petitioner
has challenged an order dated 18.06.2008 passed by the learned
Presiding Officer, Fast Track Court No.10, Gondal Camp at Upleta in
Civil Misc. Appeal No.18 of 2008. By the said order, the learned
Judge was pleased to allow the appeal of respondent No.1 herein
original plaintiff and reversed the order passed by the Trial Court
on 24.03.2008 below application Exh.5 in Regular Civil Suit No.12 of
2008.
Present
respondent No.1 filed the above-mentioned Civil Suit ascertaining
his right of way to the field of defendant No.1 present
petitioner. He also prayed for interim injunction restraining the
defendants from preventing him from using such way from his land.
The Trial Court did not grant interim injunction by order dated
24.03.2008. Present respondent No.1, therefore, preferred an appeal
which came to be allowed by the District Court by the impugned
order. Original defendant No.1 is, therefore, before this Court in
the present petition.
Upon
hearing the learned advocates appearing for the parties and upon
perusing the material on record, it appears that the plaintiff owns
northern portion of part of Survey No.114/1 and defendant No.1 owns
remaining portion of Survey No.114/1 i.e. the southern portion of
land admeasuring 2 acres and 16 gunthas. It is the case of the
plaintiff that from the western boarder of the land of defendant
No.1, he has been accessing his land since decades. That he has no
other access to his
agricultural land.
The
Appellate Court relied on the Panchnama drawn by the Court
Commissioner which suggested that on the western portion of the land
of defendant No.1, there is a cart road which is about 2 ft. higher
than the rest of the level. From the map produced by the Court
Commissioner, it can be seen that the land of the plaintiff is
locked from all the sides by other agricultural land. Though there
is some dispute about the presence of one Mulubhai Mepabhai
cultivating the land on the western side of the field of the
plaintiff as well as defendant No.1, it appears from the map
prepared by the Commissioner that wheat crop of Mulubhai Mepabhai
was standing on the said land when the Panchnama was drawn. Prima
facie it, therefore, appears that from the western border of the
field of defendant No.1 alone can the plaintiff access his land.
This is also conclusion of the lower Appellate Court. In exercise
of writ jurisdiction under Articles 226 and 227 of the Constitution
of India, I see no reason to interfere.
In
the result, the petition is devoid of merits. All the above
observations made in the order as well as those made by the orders
passed by the Courts below are purely prima facie in nature and will
not prejudice either side in pursuing their contentions in the
pending suit.
Subject
to above observations, the petition is dismissed. Notice is
discharged.
(Akil
Kureshi, J.)
mrpandya*