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SA/182/2009 1/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 182 of 2009
===============================================
JAYDEVPRASAD
RAMANLA THAKAR & 1 - Appellants
Versus
RAMESHCHANDRA
BHAGVATICHANDRA THAKAR & 1 - Respondents
===============================================
Appearance
:
MR KIRTIDEV R DAVE for
Appellant(s) : 1 - 2.MR RAHUL K DAVE for Appellant(s) : 1 - 2.
MR
BUCH for MR YASH N NANAVATY for
Respondents.
===============================================
CORAM
:
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 19/10/2010
ORAL
ORDER
1. Appellants
have preferred this Second Appeal under Section 100 of Civil
Procedure Code on the following substantial questions of law
formulated in the memo of appeal.
(A)
Whether the Courts below have erred in law by eliminating the entire
evidence of PW 1-2 as have not been cross-examined?
(B)
Whether the First Appellate Court has erred in holding that the
suit is bared by O.23 R.4 of the CPC more particularly when the trial
court had hold contrary and there was no cross objection ?
(C)
Whether the Courts below have erred in holding that the suit for
easement is bad in law as the plaintiff has not produced the order of
the previous suit more particularly when the plaint of the suit is
got produced by the plaintiff ?
(D)
Whether the Courts below have erred in holding the issue of
res-judicata against the plaintiff when the onus was on the
defendants ?
(E)
Whether the Courts below have erred in holding that the duct is of
Government when as the servient owner the defendants claims right and
ownership over it ?
2.
According to the appellants original plaintiffs, plaintiff No.1
is residing in Lot B property and plaintiff No.2 is residing in Lot A
property of Gram Panchayat Nos.90 and 88 respectively. There is a
Jalia ad-measuring about 2′ 6 x 3′ 6 on the
ground floor on southern side of Lot A property and a ventilator on
the first floor ad-measuring about 1′ 6 x 1′ 6 and a
Jalia on the souther side on the ground floor of Lot B
property. According to the plaintiffs, they have been using the same
since last about 30 years for air and light without any obstruction
and thereby they have acquired easement by prescription but the
defendants are trying to make construction of wall which would
obstruct their right of air and light through Jalia . Therefore
the suit was filed claiming right of easement as mentioned
hereinabove.
3.
The plaintiffs also stated that earlier Regular Civil Suit No.280 of
1982 was filed by plaintiff No.1 Jaydevprasad Ramanlal Thakar
against the defendants wherein it was stated that there is a naveli
on the southern side of suit property belonging to the Government,
but as the suit was not maintainable, it was withdrawn with the
permission of the Court and therefore a fresh suit was filed claiming
the right of easement.
4.
The defendants appeared and contested the suit by filing written
statement at Exh.25 denying the averments made in the suit. The
defendants contended that there is an open land on the southern side
of plaintiffs’ property belonging to the defendants and it is wrongly
described as naveli . A wall is constructed to protect their
privacy. There was no Jalia as claimed by the plaintiffs in
the suit wall but new Jalias were put after filing of the
suit. It was also contended that the earlier suit was withdrawn
by the plaintiffs, therefore, the suit is barred by res-judicata and
estoppel and therefore the suit is required to be dismissed.
5.
The trial Court after considering the documents produced by the
plaintiffs recorded that the documents do not establish that there
were Ventilator and Jalia in the suit property as alleged
and therefore dismissed the suit. Being aggrieved by the said
decision, the plaintiffs preferred Regular Civil Appeal No.106 of
1996 in the Court of learned District Judge, Bharuch. The first
appellate court by judgment dated 30th June, 2005,
dismissed the appeal and confirmed the judgment and decree passed by
the trial court. Therefore the present appeal has been filed.
6.
I have heard learned advocate Mr.Dave for the appellants at length
and in great detail.
7.
Learned advocate Mr.Dave has mainly submitted that the first
appellate court has not formulated the points for determination as
required under Order 41 Rule 31 of CPC and therefore the impugned
judgment is required to be set aside. He has also submitted that the
earlier suit filed in respect of easement right was withdrawn with a
permission to file a fresh suit on the same cause of action and
therefore there was no bar of res-judicata. He has also submitted
that the Courts below committed error in discarding the evidence of
plaintiffs’ witnesses only because they were not cross-examined by
the defendants. It was also submitted that the evidence adduced
before the trial court clearly establish that the plaintiffs had a
right of easement in respect of the property and therefore the
findings recorded by the Courts below are required to be set aside
and appeal is required to be entertained.
8.
Learned advocate Mr.Buch for the respondents has submitted that the
Courts below were justified in dismissing the suit as there was no
evidence to indicate that the plaintiffs had a right of easement. He
has also submitted that there was due compliance of Order 41 Rule 31
of CPC and therefore the appeal cannot be entertained and therefore
it is required to be dismissed.
9.
In the decision of G.Amalorpavam and others vs. R.C.Diocese of
Madurai and others reported in (2006) 3 SCC 224, the Hon’ble
Supreme Court has held that if it is possible to make out from the
judgment of appellate court that there is substantial compliance with
requirements of Order 41 Rule 31 of CPC, and that justice has not
thereby suffered then it would be sufficient compliance of the
provision. It is also held that where the appellate court has
considered entire evidence and discussed in detail and the findings
are supported by reasons then though no point has been framed, there
is substantial compliance with provisions of Order 41 Rule 31 of CPC.
10.
In another decision of the Hon’ble Supreme Court in the case of
Nopany Investments (P) Ltd vs. Santokh Singh (HUF) reported in (2008)
2 SCC 728, the Hon’ble Supreme Court has held that when findings
arrived at by first appellate court affirming the judgment of the
trial court were neither cryptic nor base on non-consideration of
arguments advanced by parties before it, there was substantial
compliance of the provisions of Order 41 Rule 31 of CPC. In the
instant case, it appears from the observations made by the first
appellate court that it considered the entire evidence led before
the trial court and also the submission made by the learned counsel
for the parties. Therefore, in my view, there was substantial
compliance of Order 41 Rule 31 of CPC. Therefore the arguments that
the first appellate court committed error in passing the impugned
judgment without framing points for determination.
11.
It appears that the plaintiffs earlier filed a suit claiming same
relief against the defendants but the suit was withdrawn and a fresh
suit was filed on the same cause of action. According to the learned
advocate for the appellants, the earlier suit was withdrawn with a
permission to file a fresh suit on the same cause of action, but the
observations of the first appellate court indicate that no evidence
was produced before the trial court to indicate that the earlier suit
was withdrawn with a permission to file a fresh suit on the same
cause of action. Therefore the courts below were justified in
holding that the suit was barred by principle of res-judicata.
12.
It also emerges that after recording of the plaintiffs evidence, the
defendants did not cross-examine the plaintiffs’ witness and
therefore their right to cross-examine the witnesses was closed.
Thereafter the defendants right to cross-examine the witnesses was
reopened but the plaintiffs’ witnesses did not remain present for
cross-examination. Therefore the evidence of plaintiffs’ witness
does not carry any weight in support of plaintiffs’ case and the
trial court was justified in dismissing the suit as there was no
legal evidence in support of the plaintiffs’ case.
13.
In view of above, no substantial questions of law as formulated by
the appellants arise for determination by this Court. Therefore the
Second Appeal cannot be entertained and hence it is required to be
dismissed and accordingly it is dismissed. Notice issued earlier
stands discharged with no order as to costs.
(
BANKIM N. MEHTA, J. )
syed/
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