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SA/4/1984 3/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 4 of 1984
WITH
CIVIL
APPLICATION No.53 of 1984
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ Sd/-
===================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2.
To
be referred to the Reporter or not ?
NO
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4.
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
NO
5.
Whether
it is to be circulated to the civil judge ?
NO
===================================
KANBI
MAGAN VALLABHBHAI - Appellant
Versus
KANBI
BHAVAN MADHU & 1 - Defendants
===================================
Appearance
:
MR UTKARSH
SHARMA FOR HL
PATEL ADVOCATES for Appellant.
NOTICE SERVED for
Defendants.
===================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 27/08/2010
COMMON ORAL JUDGMENT
The
appellant original defendant No.1 has filed this Second Appeal
under Section 100 of the Code of Civil Procedure challenging the
judgment and decree dated 20.12.1983 passed by the learned Extra
Assistant Judge, Bhavnagar in Regular Civil Appeal No.17 of 1982
whereby the judgment and decree passed by the learned Civil Judge
(J.D.), Mahuva on 30.11.1982 in Regular Civil Suit No.224 of 1978
was set aside.
It
appears from the record that the Court has passed the first order on
10.01.1984 whereby the records and proceedings were called for.
However, no order of admission of the Second Appeal is found nor
there is any order for framing the substantial questions of law.
The
appellant has suggested the following substantial questions of law
for the determination and consideration of this Court :-
Whether in the
facts and circumstances of the case as disclosed in the Panchnamas
Exh.53, 54, 55, 56 and 60 drawn by the Commissioner appointed by the
Trial Court, there is a way to the field of Survey No.11/2 of the
respondent No.1 plaintiff passing through the appellant’s field
Survey No.7 ?
Whether the
Panchnamas Exh.53, 54, 55, 56 and 60 and the Sale Deeds Exh.83 &
84 establish any such right of way to the plaintiff’s field Survey
No.11/2 through the appellant’s field Survey No.7 ?
Whether
the plaintiff’s suit is bad for mis-joinder of causes of action ?
Heard
Mr. Utkarsh Sharma, learned advocate appearing for HL Patel
Advocates for the appellant. The Board shows that the notice is
served on the respondents. Despite service of notice, no one has
filed his appearance on behalf of the respondents.
The
brief facts giving rise to the present Second Appeal are that the
plaintiff is an agriculturist and the defendants are also
agriculturists. The plaintiff is having a land in the sim of
village Kinkaria. The plaintiff has got a land bearing Survey No.6
admeasuring 23 Acres 03 Gunthas. From this land, a water canal is
also passing. On the south of the plaintiff’s land, there is a land
bearing Survey No.7 which originally belonged to Kanbi Kanji Jadav.
The said land was purchased by Balu Vagha in an auction and from
Balu Vagha, the said land was purchased by Mangalshi Dulabhai and
from Mangalshi Dulabhai, defendant No.1 purchased the said land and
he is in possession of the same. It is the case of the defendant
No.1 that the land of Survey No.7 was purchased by defendant No.2.
The way for going to Survey No.7 is adjacent to Dudhala road and
then there is west land of Nerda which is situated in the northern
side of Survey No.7. The defendant is not having any right of way
through the plaintiff’s field. Yet the defendant has tried to pass
through the plaintiff’s field. Hence, he filed the suit. It is
also the case of the plaintiff that he is the owner of the field
bearing Survey Nos.6 & 11/2 and defendant is the owner of
portion of land which is part of Survey No.7 and situated in the
same land of village Kinkaria. The plaintiff has contended that
there is field of defendants’ father in west of Survey No.6 and in
the south from it, there is a field of defendant. According to
plaintiff, the way of defendants for going to Survey No.7 is first
along Kinkaria Dudhala road and then there is a Narda which is
situated on the northern side of Survey No.7. According to the say
of plaintiff, his way for Survey No.6 is first along the Kinkaria
Dudhala road and then in the western Narda and then in the field of
Survey No.7 which is in possession of Hari Harkha and Arvind Limba.
According to plaintiff, he has enjoyed his right to way as an
easement and without obstruction. He has contended that he has no
other way except as described in the plaint.
The
defendants have filed their written statement and objected to the
relief claimed by the plaintiff in the suit. The Trial Court after
considering the rival submissions and documentary evidence on
record, has dismissed the plaintiff’s suit for declaration and
permanent injunction.
The
said judgment and decree was challenged in Regular Civil Appeal
before the learned Extra Assistant Judge, Bhavnagar who partly
allowed the appeal and held that the plaintiff has got right of way
to his Survey No.11/2 admeasuring 5 Acres 13 Gunthas from the
eastern shedha of defendants Survey No.7 as easement and the
defendants were permanently restrained from obstructing plaintiff
and his persons from using the said way. The defendants were also
restrained from obstructing the plaintiff and his persons from
taking cattle from the said way. The rest of the prayers of the
plaintiffs were, however, rejected by the lower Appellate Court.
It
is this order of the learned Extra Assistant Judge which is under
challenge in the present Second Appeal.
I
have heard learned advocate appearing for the appellant and perused
the orders passed by the Courts below. From the plain reading of
the orders passed by both the Courts below, it clearly appears that
the dispute between the parties center round the factual data and no
substantial question of law arises out of the orders of the Courts
below. The learned lower Appellate Court has considered the rival
submissions and also discussed at great length the order passed by
the Trial Court and then arrived at the aforesaid conclusion. It is
nothing but appreciation of facts and evidence on record. The Court
is of the view that no infirmity or illegality is committed by the
lower Appellate Court. This Second Appeal does not call for any
interference by the Court. It is accordingly dismissed. There
shall be no order as to costs.
In
view of the order passed in Second Appeal, Civil Application does
not survive and it is accordingly disposed of.
Sd/-
[K. A. PUJ, J.]
Savariya
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