[1.0] Present Second Appeal under Section 100 opposite the Code of Civil Procedure, 1908 has been preferred by the appellants herein – original defendants to quash and set aside the impugned judgment and decree dated 22.03.1984 passed by the learned Civil Judge (Junior Division), Bardoli in Regular Civil Suit No.119 of 1979 decreeing the suit filed by the original plaintiff and granting permanent injunction restraining the appellants herein – original defendants from passing through the plaintiff's land bearing block No.18 and also declaring that the defendants have any right of way over to plaintiff's land bearing survey No.18 to go in their land bearing block No.46 as well as the impugned judgment and order dated 23.08.1988 in Regular Civil Appeal No.82 of 1984 by which the learned Appellate Court has dismissed the said Appeal preferred by the appellants herein – original defendants and has confirmed the judgment and decree passed by the learned trial Court. [2.0] That the original plaintiff instituted Regular Civil Suit No.119 of 1979 in the Court of learned Civil Judge (Junior Division) for declaration and permanent injunction to declare that the defendants have no right of way from the plaintiff's land bearing survey No.18 to go their agricultural land bearing block No.46 and that they may be restrained permanently to pass through the plaintiff's land bearing block No.18. That on appreciation of evidence, the learned trial Court decreed the suit which has been confirmed by the learned Appellate Court by impugned judgment and order.
[3.0] Ms. Varsha Brahmbhatt, learned advocate appearing on behalf of the appellants has vehemently submitted that as such the learned trial Court was not justified in not permitting the appellants – original defendants to amend the written statement and to produce on record the document at Exh.148 and even the learned Appellate Court has materially erred in not considering the same. It is submitted that under the document at Exh.148, the defendants have a right of way to go to their agricultural field from the land of the plaintiffs. It is, therefore, requested to allow the present Second Appeal.
[4.0] Heard Ms. Brahmbhatt, learned advocate appearing on behalf of the appellants and considered the impugned judgment and order passed by both the Courts below. At the outset it is required to be noted that there are concurrent finding of facts given by both the Courts below on appreciation of evidence that the defendants were trying to create a new way / road from the agricultural land of the plaintiff and therefore, it is held that the appellants herein – original defendants have no right of way and granted the permanent injunction. Even this Court has also considered the document produced at Exh.148 and even considering the same, it does not permit the appellants herein – original defendants to create a new road/right of new way. Under the circumstances, no illegality has been committed by both the Courts below in granting declaration/permanent injunction in favour of the plaintiff which calls for interference of this Court in exercise of powers under Section 100 of the Code of Civil Procedure, 1908.
[5.0] In view of the above and for the reasons stated above, present Second Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs.
(M.R. Shah, J.) menon