1.0 Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant herein original defendant to quash and set aside the impugned judgment and order passed by the learned Appellate Court learned 3rd Extra Assistant Judge, Rajkot at Gondal dated 8.2.1989 passed in Regular Civil Appeal No.72 of 1982 by which the learned Appellate Court has quashed and set aside the judgment and decree passed by the learned trial Court learned Civil Judge (J.D.), Jetpur passed in Regular Civil Suit No. 316 of 1978 by which the learned trial Court dismissed the said suit and consequently decreeing the suit and granting declaration and permanent injunction in favour of the original plaintiff as prayed for.
2.0 That the respondent hereinoriginal plaintiff instituted Regular Civil Suit No.316 of 1978 in the Court of learned Civil Judge (J.D.) Jetpur for declaration and permanent injunction alleging that the plaintiff had purchased his house from Ayer Bhima Geiga. That the defendant houses are situated on the northern side of the plaintiff's house. That there open land between two houses. That the plaintiff and his predecessor in title were exercised their right of way from the said land. That the plaintiff right of way was obstructed by defendant on 5.8.1978 by constructing wall overnight. That the plaintiff had given an application to the panchayat and the panchayat had given direction to defendant not to obstruct the plaintiff's right of way and despite the same the obstruction / wall has not been removed and therefore, the plaintiff had instituted aforesaid suit for declaration and permanent injunction as well as for mandatory injunction for removing the obstruction.
2.1. The suit was resisted by the defendant by filing written statement at Exh.18. It was contended that the plaintiff has got no right of way on northern side of the disputed land. It was also submitted that land in which the plaintiff claimed right of way is of the ownership of the defendant and it is open land of defendant's fali (compound) and there was a hedge around the land from the time when the plaintiff purchased his house. That the house belonging to defendant was originally in possession of Aher Jiva Giga, the predecessor in title of the plaintiff. But defendant's house was taken away by State from Aher Jiva Ghela because it was forfeited to State and defendant had purchased it from the State. It was submitted that therefore, suit has been filed by the plaintiff with a mala fide intention. It was also the case on behalf of the defendant that in fact rainy water of defendant's houses passes through plaintiff's land situated on the southern side of the defendant's land and plaintiff had obstructed said rainy water passing from his land. The defendant had given objection to the Taluka Panchayat and there was compromise between the parties in presence of President of Taluka Panchayat and other persons on 5.7.1978 and plaintiff had removed obstruction. It was the case on behalf of the defendant that again the plaintiff had obstructed rainy water on 5.8.1978 and because the defendant may not take any further steps against the plaintiff', plaintiff had filed suit as a counterblast. It was also the case on behalf of the defendant that defendant had constructed the disputed wall before three years before the date of filing of the suit when plaintiff had constructed bim of RCC and had tried to put door of his compound wall on northern side to create new rights. It was also submitted that there was hedge and dispute is raised since last 30 years and plaintiff's right of way is from Souther direction of his fali. Therefore, it was requested to dismiss the suit. That the learned trial Court framed the issues. Both the sides led evidence documentary as well as oral and the learned trial Court by judgment and decree dated 30.4.1982 dismissed the suit being Regular Civil Suit No.316 of 1978.
2.2. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dismissing the suit, the original plaintiff preferred Regular Civil Appeal No.72 of 1982 before the learned Appellate Court and the learned Appellate Court learned 3rd Extra Assistant Judge, Rajkot at Gondal by impugned judgment and order dated 8.2.1989 has allowed the said appeal quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit and consequently decreeing the suit and granting declaration and permanent injunction as prayed for declaring that the plaintiff has right of way through open land situated in the northern of plaintiff's house and in front of defendant's house. Consequently the injunction was granted restraining the defendant from obstructing the plaintiff from exercising said right of way permanently. The learned Appellate Court also directed the defendant to remove the disputed wall made by putting bella under the slab constructed by the plaintiff.
2.3. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court, the appellant hereinoriginal defendant has preferred Second Appeal under Section 100 of the Code of Civil Procedure.
3.0 At the outset, it is required to be noted that while admitting the present Second Appeal the learned Single Judge has framed the following substantial question of law only.
“Whether the first appellate Court has erred in assuming that the right claimed by the plaintiff was a right of easement by prescription despite the fact that the ownership of the defendant on the suit land was not admitted If so what is its effect ?”
4.0 Shri S.M. Shah, learned advocate for the appellant original defendant has vehemently submitted that learned Appellate Court has materially erred in holding that the plaintiff has right of way from the land in question as alleged it has been obstructed by the defendant. It is submitted that as such it has been found that defendant was not the owner of the disputed land in question which was alleged to have been used by the plaintiff for way there is no question of granting any relief on easement by prescription. Relying upon Section 15 of the Easement Act, it is submitted that the right of easement by prescription can be exercised by the plaintiff and / or claimed by the plaintiff against the defendant only if it is established and proved that the defendant is owner of the land or property over which the right of easement by prescription was claimed. Therefore, it is submitted that learned Appellate Court has erred in assuming that right claimed by the plaintiff or a right of way by prescription despite the fact that ownership of the defendant on the suit land was not admitted. By making above submissions, it is requested to allow the present Second Appeal. No other submissions have been made.
5.0 Present Second Appeal is opposed by Shri D.M. Thakkar, learned advocate for the respondent. It is submitted that on re appreciation of entire evidence on record and considering the documentary evidence on record, more particularly Exhs. 72,73 and 74 as well as Sanand issued by the Mamlatdar when it was proved that the plaintiff was using the disputed land as a way to go to the market and the same was being exercised by the plaintiff as well as his predecessor in title and when it has been found that same is obstructed by the defendant by putting wall overnight and when the learned Appellate Court has allowed the appeal and decreed the suit granting declaration, permanent injunction and mandatory injunction it cannot be said that the learned Appellate Court has committed any error and / or illegality which call for the interference of this Court in exercise of powers under Section 100 of the Code of Civil Procedure. It is submitted that as such on appreciation of evidence it has been found that the defendant has put up and / or constructed the wall obstructing the right of way of the plaintiff' overnight on 5.8.1978 the learned Appellate Court has not committed any error and / or illegality. It is further submitted that as such learned Appellate Court has not granted the relief that the plaintiff has right of easement by prescription. It is submitted that as such on facts when it has been found that the disputed land is a government land even it is reflected in the Sanad issued by the Mamlatdar and the same was used by the plaintiff and even same as right of way to go to the market and that the same has been obstructed by the defendant by putting up wall overnight on 5.8.1978 and therefore, the learned Appellate Court has granted declaration, permanent injunction and mandatory injunction as prayed for. By making above submissions, it is requested to dismiss the present Second Appeal.
6.0 Heard the learned advocates for the respective parties at length and considered the impugned judgment and order passed by both the Courts below as well as evidence on record from the Record and Proceedings available from the learned Appellate Court.
7.0 At the outset, it is required to be noted that the plaintiff instituted suit for declaration, permanent injunction and mandatory injunction contending inter alia that the suit land was used by the plaintiff and / or even his predecessor in title as way to go to the market and same has been obstructed by the defendant by putting up wall overnight on 5.8.1978. On appreciation of evidence, more particularly, documentary evidence is produced at Exh.s 72 to 74 and even Sanad issued by the Mamlatdar it has been established that the disputed land is government land which was being used as a way by the plaintiff and even his predecessor in title. It has also come on record that even the disputed land in question does not belong to the defendant. Therefore, on appreciation of evidence, it has been found that the plaintiff was using the suit land as a way to go to the market and the land in question was not even belonging to and / or ownership of the defendant and when the defendant obstructing the plaintiff right of way by putting up the wall overnight on 5.8.1978 when the learned trial Court was granted declaration, permanent injunction and mandatory injunction as prayed for it cannot be said that the learned Appellate Court has committed any error and/ or illegality in decreeing the suit. It is required to be noted that as such defendant had also admitted that he is not even claiming the ownership over the suit land in question. Under the circumstances, when the suit land is not of the ownership of the defendant and when the same was used by the plaintiff and even his predecessor in title as a way to go to the market as such he was not having any authority and / or right to obstruct the plaintiff and put up the wall so as to obstruct the right of way of the plaintiff. Under the circumstances, as such no illegality has been committed by the learned Appellate Court in allowing the appeal and consequently decreeing the suit.
8.0 Now, so far as the substantial question of law raised by the learned Single Judge referred hereinabove is concerned, at the outset it is required to be noted that considering the impugned judgment and order passed by the Appellate Court it appears that as such learned Appellate Court has not decreed the suit on the ground of easement by prescription. The learned Appellate Court has considered the documentary evidence on record and has held that disputed land in question is not of the ownership of the appellantoriginal defendant and that the disputed land was being used by the original plaintiff as well as his predecessor in title as way to go to the market and the same has been obstructed by the appellantoriginal defendant by putting up the wall by bricks overnight and therefore, learned Appellate Court has allowed the appeal by quashing and setting aside the judgment and order passed by the learned trial Court dismissing the suit and consequently decreeing the suit and granting declaration, permanent injunction and mandatory injunction as prayed for.
9.0 Considering the aforesaid facts and circumstances of the case, no illegality has been committed by the learned Appellate Court which calls for the interference of this Court in exercise of powers under Section 100 of the Code of Civil Procedure.
10. In view of the above and for the reasons stated above, present appeal fails and same deserves to be dismissed and is accordingly dismissed. No costs.
“kaushik”
sd/ ( M. R. Shah, J. )