IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL No. 179 of 2006 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH
========================================================= 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 ========================================================= CHAMAR RAMJIBHAI MAGANBHAI - Appellant(s) Versus CHAMAR KANTIBHAI VIRABHAI - Defendant(s) ========================================================= Appearance :
MR Jay Thakkar for Appellant(s) : 1, None for Defendant(s) : 1, MR PRATIK B BAROT for Defendant(s) : 1.2.1, 1.2.2,1.2.3 =========================================================
CORAM : HONOURABLE MR.JUSTICE M.R. SHAH
ORAL JUDGMENT
Date : 08/08/2012 1.00. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellant – original plaintiff to quash and set aside the impugned judgement and decree passed by the learned Civil Judge (J.D.), Kadi in Regular Civil Suit No.34 of 1999 dtd.7/2/2005 as well as the impugned Judgement and Order / decree passed by the learned appellate court - learned Joint District Judge (3rd Fast Track Court), Mehsana in Regular Civil Appeal No. 18 of 2005 dtd.30/6/2006, by which the learned appellate court has dismissed the said appeal confirming the judgement and decree passed by the learned trial court dismissing the suit.
2.00. That the plaintiff herein – original plaintiff instituted Regular Civil Suit No.34 of 1999 against the respondents – original defendants in the court of learned Civil Judge (J.D.), Kadi for a declaration to declare that the defendants have no right of way from the land bearing Survey No.1283 belonging to the plaintiff and that they have got alternative way to go to their agricultural field bearing Survey No.1282 from other Survey Numbers.
2.01. It appears that the evidence on behalf of the respective parties was closed and the matter was kept for judgement and at that stage and before the judgement could be delivered, on behalf of the defendants document Ex.112 came to be produced by submitting application Ex.111 requesting to exhibit the sale deed Ex.112 executed by one Patel Joitaram Jaykarandas in favour of the defendant – Chamar Vira Lala with respect to land bearing Survey No.1282 and by passing order dtd.18/1/2005, the learned trial court passed an order to exhibit the said sale deed, which was executed in favour of the original defendants, executed by his predecessor in title with respect to the land bearing Survey No.1282.
2.02. It appears that relying upon the aforesaid sale deed Ex.112 and without giving any further opportunity to the plaintiff to dispute the contents of the said sale deed Ex.112 and without even proving the contents of the said document Ex.112 by the defendants, the learned trial court relied upon the said Ex.112 and held that the defendants have a right of way to go to their agricultural field bearing Survey No.1282 through the land bearing Survey No.1283 belonging to the plaintiff and consequently the learned trial court dismissed the suit.
2.03. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned trial court in dismissing the suit, the appellant herein – original plaintiff preferred Regular Civil Appeal No. 18 of 2005 before the learned District Judge, Mehsana and the learned appellate court - learned Joint District Judge (3rd Fast Track Court), Mehsana by the impugned Judgement and Order dtd.30/6/2006 has dismissed the said appeal confirming the judgement and decree passed by the learned trial court in dismissing the suit.
2.04. Being aggrieved by and dissatisfied with the Judgement and Orders / decrees passed by both the courts below, appellant herein – original plaintiff has preferred present Second Appeal under section 100 of the Code of Civil Procedure.
3.00. Present Second Appeal has been admitted for consideration of the following substantial question of law :-
(i) Whether on the facts and in the circumstances of the case, the learned first appellate Court and the trial court could rely upon the copy of the sale deed, execution of which was not proved and the recitals were also not proved?
(ii) Whether on the facts and in the circumstances of the case, the courts below were justified in basing their entire judgement on the sale deed Exh.112?
4.00. Having heard Mr.Jay Thakkar, learned advocate appearing on behalf of the appellant and Mr.Pratik Barot, learned advocate appearing on behalf of the contesting respondents – original defendants and considering the impugned Judgement and Orders passed by both the courts below, more particularly the judgement and decree passed by the learned trial court as well as evidence on record from the record and proceedings received from the learned trial court, it is not in dispute that as such the learned trial court has relied upon the copy of the sale deed Ex.112, though the execution of the same and recital of the same were not proved by the defendants. It cannot be disputed that even if any document is exhibited in that case also the contents of the document is required to be proved by the person who is relying upon that document and even an opportunity is required to be given to the other-side to controvert and/or explain the contents of the same. As such without even proving the execution and/or recital and/or contents of the document at Ex.112, the learned trial court has straightway relied upon the same, which was even produced after the evidence of the respective parties was closed and matter was reserved for judgement. Under the circumstances, the learned trial court ought not to have relied upon the sale deed produced at Ex.112, execution of which was not proved and the recital were also not proved.
The aforesaid is not disputed by Mr.Pratik Barot, learned advocate appearing on behalf of the respondents herein – original defendants.
4.01. Under the circumstances, the impugned judgement and decree passed by the learned trial court confirmed by the learned appellate court is required to be quashed and set aside and the matter is to be remanded to the learned trial court to decide and dispose of the suit afresh in accordance with law and on merits and to consider the sale deed produced at Ex.112 after the contents of the Ex.112 are proved in accordance with the provisions of the Indian Evidence Act.
5.00. In view of the above and for the reasons stated above, present Second Appeal is allowed. The impugned judgement and decree passed by the learned Civil Judge (J.D.), Kadi in Regular Civil Suit No.34 of 1999 dtd.7/2/2005 as well as the impugned Judgement and Order / decree passed by the learned appellate court - learned Joint District Judge (3rd Fast Track Court), Mehsana in Regular Civil Appeal No. 18 of 2005 dtd.30/6/2006 are hereby quashed and set aside and the matter is remanded to the learned trial court to decide and dispose of the suit afresh in accordance with law and on merits and after giving an opportunity to the defendants to prove the contents of the sale deed Ex.112 and after giving an opportunity to the plaintiff to controvert / challenge the same in accordance with law, considering the provisions of the Evidence Act. The aforesaid exercise shall be completed by the learned trial court at the earliest preferably within a period of nine months from the date of receipt of the present Judgement and Order and in the meantime all the parties are directed to maintain status-quo as on today. All concerned are hereby directed to cooperate the learned trial court in early disposal of the suit on remand as stated hereinabove.
Present Second Appeal is allowed to the aforesaid extent.
Registry is hereby directed to return the Record and Proceedings of the case to the learned trial court at the earliest.
[M.R. SHAH, J.] rafik