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SCA/30383/2007 11/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 30383 of 2007
=====================================================
AMAD
HUSEN SIDA & 1 - Petitioner(s)
Versus
KASAM
TAIYAB SIDA - Respondent(s)
=====================================================
Appearance :
MR
MB GANDHI for Petitioner(s) : 1 - 2.MR CHINMAY M GANDHI for
Petitioner(s) : 1 - 2.
MR ASHISH M DAGLI for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 13/11/2008
ORAL
ORDER
1. By
way of this petition under Article 227 of the Constitution of India,
the petitioners original plaintiffs have prayed for an appropriate
writ, direction and / or order quashing and setting aside the order
passed by the learned trial Court passed below Exh. 5 dated
21.12.2006 in Civil Suit No. 365 of 2006 as well as the order passed
by the learned Appellate Court dated 4.10.2007 passed in Civil
Miscellaneous Appeal No. 4 of 2007 in dismissing the same and
confirming the order passed by the learned trial Court passed below
Exh. 5 refusing to grant interim injunction in favour of the
plaintiffs.
2. Dispute
is with respect to right of way by the petitioners to go to their
field bearing Survey No. 44/2 through the field bearing Survey No.
44/1 of belonging to the respondents-defendants and the field of one
Ruda Krshn etc.
3. Petitioners
herein original plaintiffs have instituted Regular Civil Suit No. 365
of 2006 in the Court of learned Civil Judge for declaration and
permanent injunction claiming right of way to their agriculture field
bearing Survey No. 44/2 through the agriculture field bearing Survey
No. 44/1 belonging to the respondents original defendants. At the
outset, it is required to be noted that earlier proceedings were
initiated by the petitioners original plaintiffs claiming right of
way before the Mamlatdar Junagadh under the provisions of the
Mamlatdar Courts Act and by order dated 26.7.2006 Mamlatdar Junagadh
dismissed the said application under Section 5 of the Mamlatdar
Courts Act being R.R.T. Case No. 2 of 2005 and holding that
petitioners have failed to establish and prove that they have got
right of way to their agriculture field bearing Survey No. 44/2 from
the field of the respondents herein and thereafter the petitioners
had instituted aforesaid suit for declaration and permanent
injunction with respect to right of way. In the said suit, the
petitioners-plaintiffs submitted application for interim injunction
below Exh. 5 and on appreciation of evidence and considering the
submissions made on behalf of the rival parties, learned 5th
Additional Senior Civil Judge, Junagadh dismissed the said
application below Exh.5 by order dated 21.12.2006. Being aggrieved
and dissatisfied with the order passed by the learned trial Court
below Exh.5 dated 21.12.2006 in dismissing the same and not granting
the interim injunction as prayed for, the petitioners original
plaintiffs have preferred Civil Miscellaneous Appeal No. 4 of 2007
and the learned Principal District Judge, Junagadh vide impugned
judgment and order dated 4.10.2007 has dismissed the said appeal
confirming the order passed by the learned trial Court passed below
Exh.5. Hence, petitioners original plaintiffs have preferred the
present Special Civil Application under Article 227 of the
Constitution of India.
4. Shri
M.B. Gandhi, learned advocate appearing for the petitioners original
plaintiffs has vehemently submitted that both the Courts below have
materially erred in not granting interim injunction as prayed for
permitting the petitioners-plaintiffs to go to their field bearing
Survey No. 44/2 through the agriculture field of respondents herein
original defendants. It is submitted even in the panchnama there is
no alternative way found upto the defendants land way is found but
thereafter way is missing and, therefore, when there is no
alternative way available to the petitioners-plaintiffs and upto the
defendants lands there is a way found both the Courts below ought to
have granted interim injunction as prayed for. It is also further
submitted that the order passed by the Mamlatdar under the Mamlatdar
Courts Act will not come in the way of the petitioners-plaintiffs as
the same is for temporary measure and subject to rights to be
established and crystallized by the Civil Court. It is also further
submitted that the Courts below have failed to appreciate and
consider that originally there was one common survey No. 44 and it
was subsequently sub-divided into two plots bearing Nos. 44/1 and
44/2 and, therefore, naturally the right of easement of necessity
would arise and in that case, every owner has a right to ask for a
way. It is submitted in the sale deed in favour of the
petitioners-plaintiffs right to fetch the water and pipe lines
passing through adjoining owner has been provided. Therefore, it is
requested to allow the the present Special Civil Application.
5. Petition
is opposed by Shri Ashish Dagli, learned advocate appearing for the
respondents original defendants. It is submitted that there are
concurrent findings given by both the Courts below refusing to grant
any interim injunction in favour of the petitioners and on
appreciation of evidence it is found by both the Courts below that
the petitioners-plaintiffs have failed to establish and prove the
prima facie even right of way through the lands of the respondents
and, therefore, it is requested not to exercise the powers under
Article 227 of the Constitution of India. It is also further
submitted by Shri Dagli learned advocate for the respondents that
when the proceedings were initiated by the petitioners-plaintiffs for
right of way under the Mamlatdar Courts Act, the same has been
dismissed by the learned Mamlatdar specifically holding that the
petitioners-plaintiffs have failed to produce the sale deed in their
favour and consequently failed to establish right of way through
Survey No. 44/1. Relying upon the decision of the learned Single
Judge of this Court in the case of Sorabji Derabji Vesuna &
Ors. Vs. Nanjibhai Jirabhai Umarigar & Ors.
reported in 2001(3) GLH, 759, findings
of the Revenue Court are to be respected at least at the stage of
grant/non-grant of the interim injunction by the Civil Court.
Therefore, it is submitted that the order passed by the Mamlatdar
Junagadh is required to be considered at least at the stage of
considering the application Exh.5. It is also furhter submitted by
Shri Dagli learned advocate for the respondents that even in the sale
deed in favour of the predecessor of petitioners nothing is mentioned
with respect to the right of way of the petitioners through Survey
No. 44/1. It is submitted that in para 5 of the sale deed there is a
blank and no survey number has been mentioned and, therefore, when in
the sale deed of erstwhile owner from whom the petitioners have
purchased the property no right of way has been specifically provided
from Survey No. 44/1, petitioners cannot have any right of way
through survey No. 44/1, which their erstwhile owner was not
possessing. By making above submissions, it is requested to dismiss
the present Special Civil Application.
6. Heard
the learned advocates for the respective parties. At the outset, it
is required to be noted that application for interim injunction below
Exh. 5 came to be dismissed by the learned trial Court on 21.12.2006
and even the appeal against the said order came to be dismissed by
the learned Appellate Court on 4.12.2007 and till date there is no
interim injunction in favour of the petitioners. When a specific
question was asked to the learned advocate for the petitioners, when
there is no injunction in favour of the the petitioners till date and
as per them there is no other alternate way how the petitioners are
going to their agriculture field to that Shri Gandhi learned advocate
for the petitioners has submitted that they have made alternative
arrangement to go their field. Thus, it is not that the petitioners
have no other alternative way at all. Even otherwise, it is required
to be noted that there are concurrent findings of facts given by both
the Courts below specifically holding and observing that the
petitioners have failed to establish and prove any right of way to
survey No. 44/2 through survey No. 44/1 belonging to the respondents
defendants. The said findings are on appreciation of evidence on
record. Even considering the sale deed of erstwhile owner from whom
the petitioners have purchased the land in question i.e. Survey No.
44/2 nothing has been mentioned with respect to right of way of to
survey No. 44/2 through survey No. 44/1. In para 5 of the sale deed
there is no reference to right of way through survey No. 44/1. There
is a blank after right of way but no survey number is mentioned.
Under the circumstances, when the erstwhile owner from whom the
petitioners have purchased the land bearing survey No. 44/2 having no
right of way through survey No. 44/1, petitioners cannot have the
same.
7. Even,
the Mamlatdar Junagadh in the proceedings under Section 5 of the
Mamlatdar Courts Act initiated by the petitioners with respect to
right of way in R.R.T. Case No. 2 of 2005 while dismissing the said
application has specifically observed that petitioners have no right
of way through survey No. 44/1. As held by the learned Single Judge
of this Court in the case of Sorabji Derabji Vesuna &
Ors. (supra) once the Revenue
Court (Mamlatdar) passed an order, the same is required to be
respected by the Civil Court at least at the stage of grant
/non-grant of interim injunction by Civil Court. Under the
circumstances and considering the order passed by the Mamlatdar
Junagadh dated 26.7.2006 passed in R.R.T. Case No. 2 of 2005 passed
under Section 5 of the Mamlatdar Courts Act also petitioners are not
entitled for any relief i.e. interim injunction.
8. Now so
far as the contentions on behalf of the petitioners that in the
panchnama there is no alternative way mentioned is concerned in light
of the observations made herein above said submission cannot be
accepted. As stated above, according to the petitioners they have
made alternative arrangement to go to their field bearing Survey No.
44/2.
9. Under
the circumstances, when the orders passed by both the Courts below
are on appreciation of evidence and considering the order passed by
the Mamlatdar Junagadh under the Mamlatdar Courts Act referred to
herein above, it cannot be said that both the Courts below have
committed any error which calls for the interference of this Court in
exercise the powers under Article 227 of the Constitution of India.
10. Under
the circumstances and for the reasons stated above there is no
substance in the present Special Civil Application and deserves to be
dismissed and is accordingly dismissed. Notice discharged.
(M.R.SHAH,J.)
kaushik
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