1. Draft amendment allowed.
2. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant- original defendant to quash and set aside the impugned judgment and decree passed by the learned 2nd Joint Civil Judge (Junior Division), Junagadh dated 22/02/2000 in Regular Civil Suit No. 407/1995 confirmed by the learned appellate Court by impugned judgment and order dated 24/02/2011 passed in Regular Civil Appeal No. 74/2000.
3. The respondent-original plaintiff instituted Regular Civil Suit No. 407/1995 in the Court of learned Civil Judge (Junior Division) Junagadh for declaration and permanent injunction based upon the easementary right on the basis of the disputed portion of the land in question. On appreciation of evidence, the learned trial Court decreed the suit, which has been confirmed by the learned appellate Court. Being aggrieved and dissatisfied with the impugned judgment and order passed by both the Courts below in decreeing the suit against the appellant-original defendant and in favour of the respondent- original plaintiff, the appellant-original defendant has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
4. Shri Ramnandan Singh, learned advocate appearing on behalf of the appellant-original defendant has vehemently submitted that both the Courts below have materially erred in decreeing the suit and granting declaration and permanent injunction in favour of the respondent-original plaintiff. It is submitted that as such the suit in question was not titled as suit for easementary right and, therefore, both the Courts below have materially erred in granting declaration and permanent injunction considering the easementary right. He has further submitted that even on merits also both the Courts below have materially erred in holding and giving the finding that there was a way of 13.6 feet between the house of the appellant-original defendant and the house of the respondent- original plaintiff. It is further submitted that both the Courts below have materially erred in not properly appreciating the evidence. It is further submitted that the learned trial Court was not justified in entertaining the suit as the property is not located by survey number or village map. Making the above submission, it is requested to admit/allow the present Second Appeal.
5. Shri Jhalak Pipaliya, learned advocate appearing for Shri Anshin Desai, learned advocate appearing on behalf of the respondent-original plaintiff has submitted that as such there are concurrent finding of facts given by both the Courts below, which are on appreciation of evidence, which are not required to be interfered with by this Court. It is submitted that no substantial question of law arise in the present Second Appeal and, therefore, it is requested to dismiss the present Second Appeal. It is submitted that there are specific pleadings and averments made in the suit by the respondents-original plaintiff claiming easementary right and consequently it is prayed for declaration and injunction. It is submitted that merely because the suit was not titled as suit for easementary right, it cannot be said that the respondent-original plaintiff could not have asked for declaration and injunction, which was based on the easementary rights, which was specifically pleaded and prayed in the suit and, therefore, it is requested to dismiss the present Second Appeal.
6. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and order passed by both the Courts below. At the outset, it is required to be noted that as such there are concurrent findings of fact given by both the Courts below and the findings that the respondent-original plaintiff has easementary right of way of 13.6 feet between the house of the appellant-original defendant and the house of the respondent-original plaintiff. It is required to be noted that the finding given by both the Courts below are on appreciation of evidence. Considering the same, it appears that the finding given by both the Courts below are neither perverse nor contrary to the evidence. No substantial question of law arise in the present Second Appeal. It cannot be disputed that unless substantial question of law arise, the Second Appeal is not required to be entertained.
7. Now so far as the contention on behalf of the appellant- original defendant that as the suit was not titled for suit for easementary right, the learned trial Court could not have granted the relief for declaration and injunction is concerned, the same has no substance. It is required to be noted that there are specific pleadings and averments in the suit claiming the relief for declaration and permanent injunction on the basis of the easementary right, which has been successfully proved by the respondent-original plaintiff by leading evidence. Merely because the suit is not titled for suit for easementary right, it cannot be said that the learned trial Court could not have granted the relief granting declaration and permanent injunction on the basis of easementary right, which has been pleaded and proved.
8. In view of the above and for the reasons stated hereinabove, the present Second Appeal deserves to be dismissed and is accordingly dismissed.
CIVIL APPLICATION No. 8386/2011
In view of dismissal of the Second Appeal, no order in the Civil Application.
(M.R. SHAH, J.) siji