SA/65/2008 1/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 65 of 2008 With CIVIL APPLICATION NO.2978 OF 2008 ====================================================== KESHAVLAL VALABHAI VANKAR - Appellant(s) Versus VIMLABEN WIFE OF HARMANBHAI BHILALBHAI & 2 - Defendant(s) ====================================================== Appearance : MR AJAY L PANDAV for Appellant(s) : 1, None for Defendant(s) : 1 - 3. ====================================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 09/07/2008 ORAL ORDER
1. This
appeal is directed against the judgement and decree dated 18.8.2006
passed by the learned Presiding Officer, Fast Track Court No.11,
Nadiad, in Regular Civil Appeal No.127 of 2000 confirming the
judgement and decree dated 16.4.1998 passed by the 5th
Joint Civil Judge (S.D.), Nadiad, in Regular civil Suit No.188 of
1991.
2. The
present appellant-original plaintiff is the owner of Survey No.178
situated in the sim of village Gangapur, Taluka Nadiad. The defendant
no.1 is the owner of survey No.184 and defendant nos.2 and 4 are
cultivating the same. The appellant was approaching the survey
no.178 through the Nalia situated on the southern side of Survey
Nos.188 and 189. Thereafter there is survey No.187 abutting the said
Nalia and on the eastern boundary of survey no.187 there is a 12 ft.
wide say. Thereafter there is survey No.184 and on the southern side
of survey no.184, towards east, there was a way to approach survey
No.178 and thereafter survey No.188 belongs to defendant nos.2 and 3.
According to the appellant-plaintiff the defendant nos.2 and 3 tried
to erect a water tank and lay pipelines in the way through which the
plaintiff was passing with bullock cart, tractor for approaching
their survey no.178. In spite of requests the defendants with a view
to closing the said way dug there and cultivated tobacco crop in the
way and thereby created obstruction in the way of the plaintiff. The
appellant-plaintiff therefore asked the original owner of survey
No.187 who wrote a chit/letter to the husband of defendant no.1 and
Sarpanch as a result of which defendant no.1 allowed the
appellant-plaintiff to use the said way for going to survey No.178.
However, on 16.1.1991 the defendants closed the said way and
therefore the appellant filed Regular Civil Suit No.188 of 1991 for
declaration and permanent injunction restraining the defendants from
interfering or obstructing the plaintiff while going through the suit
way with bullock-card, tractor, etc. in the court of Civil Judge
(S.D.) Nadiad, which came to be dismissed. Against the said order
Regular Civil Appeal No.127 of 2000 was filed before District Court,
Nadiad, which also came to be dismissed.
3. Heard
Mr. Ajay Pandav for the appellant at length who has taken this court
to the impugned judgement and entire documents on record.
4. As
a result of hearing it is evident that both the courts below were
impressed upon the fact that the Chit issued by Manubhai and
non-examination of the original owner. Learned Advocate for the
appellant contended that the Chit which is the crucial document was
not allowed to be produced on record and the trial court has
therefore committed an error. However, the fact remains that the
original owner was not examined before the courts below. The courts
below after examining the witnesses and evidence on record have
found that the present appellant has no right whatsoever on the basis
of document dated 7th November 1947. The appellate court
has also considered the matter in depth and concurred with the view
taken by the trial court. I am, therefore, in complete agreement with
the concurrent findings arrived at by the courts below and no
substantial question of law is pointed out to this court. Hence the
appeal is summarily dismissed.
5. Since
the main appeal has been dismissed Civil Application No.2978 of 2008
would not survive and is accordingly disposed of.
[K.S.
JHAVERI, J.]
ar