Allowed

Jivabhai Chhaganlal Patel (Decd.Thro' Heirs) v. Madhavlal B Patel Since Decd through His Heirs

Gujarat HC9 Jun 2014SA/10/1995

Case brief

AI extract

What is this about?

In this second appeal regarding a civil suit for right of way, the High Court held that the appellate court erred by excluding material evidence and relying on an irrelevant prior suit. The appeal was allowed, restoring the title for an easement of necessity and permanent injunction.

What did the court decide?

Appellants (legal heirs) are entitled to right of way for approaching Survey Nos.705/1 and 705/2 from Survey No.706 and respondents are permanently restrained from causing obstruction. Civil Suit allo

Jivabhai Chhaganlal Patel (Decd.Thro' Heirs) Vs Madhavlal… — Property and Title | Gujarat HC (2014)

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C/SA/10/1995 CAV JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SECOND APPEAL NO. 10 of 1995

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============================================================== JIVABHAI CHHAGANLAL PATEL (SINCE DECD.) THRO' HEIRS & ANR. ...Appellants Versus MADHAVLAL B PATEL (SINCE DECD.) THROUGH HIS HEIRS & OTHERS ...Respondents ==============================================================

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Appearance:

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MR VC DESAI, ADVOCATE for the Appellants

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MR KEYUR A VYAS, ADVOCATE for the Respondents

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CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY

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Date : 09/06/2014

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CAV JUDGMENT

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Challenge in this Second Appeal is made to the judgment and decree passed by the Appellate Court below, by the original plaintiff, who had succeeded before the Trial Court, to the extent that, the plaintiff had right of way to his field, through the field of the defendants.

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The relevant facts leading to filing of this Second Appeal, as submitted by the appellant, and which are also born out from the record are as under.

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2.1 The appellant, along with other similarly situated person, filed Regular Civil Suit No. 170 of 1982 in the Court of learned Civil Judge (Junior Division) at Visnagar

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against respondents and claimed relief of declaration that they (plaintiffs) have their right of way, for approaching their fields bearing Survey Nos.705/1 and 705/2 with agricultural implements etc. from Survey No.706 of the Defendants, and that right has been enjoyed since time immemorial, and for further relief of permanent injunction against defendants from causing obstruction to the plaintiffs in enjoyment of the said right.

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2.2 Defendants resisted the said suit, inter-alia raising plea that the plaintiffs had their right of way from Survey No.674 and 675 with agricultural implements and that at no point of time suit way was used by plaintiffs for approaching their field S.No.705/1 and 705/2.

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2.3 The Trial Court on the basis of pleadings framed the following issues, and on the basis of evidence led before it, answered them, as under.

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“(i) Whether the plaintiffs prove that, on the way available at the boundary of Survey No.706 towards western side, for which, entry is to be made from the eastern side, which is situated on the right southern side, and while going from the said boundary, on the eastern side of Survey No.706, the field bearing Survey No.705/1 and 705/2 are situated, the plaintiffs ingress and egress since the time immemorial on the way admeasuring 10 to 12 feet width, with their field equipments ?

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(In negative)

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(ii) Whether the plaintiffs proved that, on 19.11.1982, the defendants have raised obstruction in using the way ?

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(In negative)

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(iii) Whether the plaintiffs are entitled to get relief of order and interim relief as prayed for in para-9? (In negative)

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(iv) Whether the defendants prove that, the suit of plaintiffs is barred by non-joinder of parties ? (In affirmative)

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(v) Whether the defendants prove that, the plaintiffs do not ingress and egress the way, which is mentioned in the plaint and in the prayer, since the time immemorial, but whether they are using the way from Survey Nos.675 and 676, while coming through the iron gate situated at the southern side of Survey No.674 at the canal side ?

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(In affirmative)

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(vi) Whether the defendants prove that, the plaintiffs have tried to make a new way to approach their field ? (In affirmative)”

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2.4 With above answers to the issues, the Trial Court

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dismissed the Suit vide judgement and decree dated 3004-1985.

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2.5 Being aggrieved by the said judgment and decree of the Trial Court, the plaintiffs filed Regular Civil Appeal No.67 of 1985 in the Court of the learned District Judge, Mehsana. By the order of the Appellate Court below dated 08.11.1990 below applications Exh.31 and Exh.33, the plaintiffs were permitted to amend the plaint. Thereafter additional issues came to be framed by the Appellate Court below vide Exh.46 on 31.08.1991. Those issues were as under.

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“(1A) Whether the plaintiffs prove that they have got a right of way, by way of easement of necessity for their fields No.705/1-2 through the field No.706 as averred in para No.5(A) of the plaint?

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(6A) Whether the defendants prove that the suit is liable to be dismissed on account of latches and estoppal as contended in the written statement?”

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2.6 The Appellate Court below, during pendency of appeal, asked the Trial Court to adjudicate above two issues. The Trial Court, on the basis of evidence led before it, recorded judgment dated 28.02.1994 and decided both the above issues in favour of the plaintiffs i.e. that the plaintiffs had right of easement of necessity, and it further negated the objections raised by the defendants about the bar of suit on account of delay and latches.

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2.7 Against the said finding of the Trial Court on above stated additional issues, the defendants filed Cross objections (Exh.52 dated 14.06.1994) in the said pending appeal i.e. Regular Civil Appeal No.67 of 1985.

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2.8 The Appellate Court below framed the following issues for its consideration and recorded its finding as under.

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(i) Whether the plaintiffs prove that they have right of way from the field of defendants with agricultural implements and whether the plaintiffs prove that the said right have been enjoyed by them since time immemorial ?

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(In negative)

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(ii) Whether the plaintiffs prove that S.No.705/1, 705/2 and 706 were of common ownership and subsequently partitioned amongst the brothers, the plaintiffs have right of way from the fields of defendants bearing S.No.706 as easement of necessity ?

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(In negative)

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(iii) Whether the judgment and decree passed by the learned Trial Judge are legal and proper ?

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(As per final order)”

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2.9 With above findings, the Appellate Court below

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dismissed the said appeal i.e. the Civil Appeal No.67 of 1985 which was filed by the original plaintiffs, and also allowed the Cross Objections filed by original defendants, vide its judgment and decree dated 29.11.1994. It is this judgment and decree recorded by the 3^rd Joint District Judge, Mehsana which is under challenge in this Second Appeal.

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This Court had, while admitting this Second Appeal, framed the following questions, as the substantial questions of law, vide order dated 23.02.1995.

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“1. While deciding issue No.1, whether finding of Court below is vitiated on account of nonconsideration of the evidence of P.W. Khodabhai Nenabhai of Exh.89, who has supported the case of the plaintiffs and who happens to be uncle of Bai Devali i.e. owner of Survey No.705?

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In view of the fact that previous Civil Suit No.123 of 1981 was filed against different defendants than the present one and that too in respect of different property, whether Lower Appellate court has erred in law in putting reliance on the same for deciding the present controversy between the parties?”

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Both the learned advocates have taken this Court through the Records and Proceedings of the Courts below, which were called for by this Court. This Court has gone

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through the relevant material and evidence on record at great length, not for the purpose of reappreciation thereof, but only with a view to ascertain as to whether the Courts below, have committed any error of non-reading of material evidence, or mis-reading thereof.

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Learned advocate for the appellant has submitted that, the Courts below have erred, more particularly the Appellate Court below, which has rendered the judgment under challenge unsustainable. It is submitted that, the evidence of Khodabhai Nenabhai Exh.89, which is material evidence, is completely excluded from consideration, which is illegal. It is further contended that, the Appellate Court below completely misread the proceedings of Civil Suit No.123 of 1981, wherein the subject matter was right of way to go to a different field and that too from somebody else’s field. It is further submitted that, not only that factor could not have been taken into consideration but even incomplete facts are taken into consideration in that regard. It is therefore submitted that, the judgment and decree of the Appellate Court below is required to be interfered with, on more than one counts. It is submitted that, this Second Appeal be allowed. It is submitted that at least the judgment of the Trial Court dated 28.02.1994 be restored and consequential decree be passed.

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On the other hand, learned advocate for the respondents has supported the judgment and decree passed by the Appellate Court below, and it is submitted

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that, no interference be made by this Court. It is submitted that, the easementary right is claimed by way of amendment before the Appellate Court below and it was an after thought and further that, non consideration of evidence Exh.89 would in no way change the complexion of the matter. It is submitted that, this Second Appeal be dismissed.

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Having heard learned advocates for the respective parties and having gone through the Records and Proceedings of the Courts below, this Court finds as under. 7.1 The total exclusion of evidence of Khodabhai Nenabhai at Exh.89, from consideration has rendered the finding of the Courts below on material aspect perverse. The Courts below have committed error of non-reading of material evidence. To correct that mistake, matter cannot be remanded back to the Trial Court after about three decades. If the said evidence is taken into consideration, which has to be, then the balance tilts in favour of the original plaintiff- the present appellant. Further, the conjoint reading of evidence at Exh.40, Exh.41, Exh.56 and this one i.e. Exh.89 leads to the conclusion other than the one recorded by the Courts below. Further, the conjoint reading of reasons recorded by the Appellate Court below, at para-15 and para- 22 in its judgment, and the evidence referred therein, also leads to a situation, where the first substantial question of law as quoted above, needs to be answered in affirmative, by holding

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that the Courts below have committed error in that regard. On correction thereof, the plaintiff- the appellant is entitled to relief. In any case, he is entitled to relief at least to the extent of decree pursuant to the judgment of the Trial Court dated 28.02.1994.

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7.2 So far the second substantial question of law pertaining to reference of the previous Civil Suit No.123 of 1981 is concerned, this Court finds that, the Appellate Court below committed serious error on that count as well. Further, it is two fold error. Firstly, no reliance could have been placed on that fact, since it was a foreign element so far the present suit is concerned. In the previous Civil Suit No.123 of 1981 the subject matter was right of way to go to a different field, through different field. Inspite of this, filing of that suit has weighed against the plaintiff before the Appellate Court below, as suppression of material fact. Specific reference can be made to para-18 of the order of the Appellate Court below. In this regard, it needs to be recorded that, firstly, the very reference to it was illegal and further, even that is referred with incomplete facts, which makes the order under challenge more vulnerable. The Appellate Court below, at para-18, has inter-alia recorded that, “....it appears that the said suit has been filed by plaintiff No.1 viz. Jivrambhai Chhaganbhai and I am told that suit came to be dismissed …. ” At this juncture, it needs to be recorded that, it is submitted by learned advocate for the appellant and which is not disputed by other side that, against the said judgment,

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appeal was preferred, being Regular Civil Appeal No.67 of 1985 and the same was allowed, thus even irrelevant fact was erroneously recorded by the Appellate Court below. The Appellate Court below was swayed away by the nondisclosure of the said proceedings of Regular Civil Suit No.123 of 1981 and therefore, the plaintiff is condemned as a litigant with unclean hands, leading to dismissal of his appeal and also allowing cross objections of the other side. Considering the totality, even the second substantial question of law is answered in affirmative by holding that, the Appellate Court below erred in law, in putting reliance on the same for deciding the present controversy between the parties.

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7.3 Thus, both the questions are answered in affirmative and thus in favour of the present appellant and the appeal needs to be allowed. It is also recorded that, all necessary parties are before the Court, they had submitted their case even before the Courts below, which was accepted also on merits, and thus it is not that, affected parties are not before the Court. Therefore it is recorded that, while granting relief to the appellant - now his legal heirs, this Court is conscious of the fact that, necessary parties are before the Court.

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Considering the answers to the substantial questions of law as noted above, and for the reasons recorded above, this Second Appeal is allowed. It is declared that, the appellants – legal heirs of original plaintiff of Regular

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Civil Suit No. 170 of 1982 in the Court of learned Civil Judge (Junior Division) at Visnagar are entitled to the right of way for approaching their fields bearing Survey Nos.705/1 and 705/2 with agricultural implements etc. from Survey No.706 of the original defendants, and further that the respondents – original respondents are permanently restrained from causing any obstruction to the appellants (legal heirs of original plaintiff) in enjoyment of the said right. Civil Suit is allowed in terms of para:9 of the plaint Exh.1. Decree be drawn accordingly. No order as to costs.

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(PARESH UPADHYAY, J.)

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Amit

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Jivabhai Chhaganlal Patel (Decd.Thro' Heirs) v. Madhavlal B Patel Since Decd through His Heirs

Case brief

What is this about?

What did the court decide?

Jivabhai Chhaganlal Patel (Decd.Thro' Heirs) v. Madhavlal B Patel Since Decd through His Heirs

Case brief

What is this about?

What did the court decide?

What the court decided

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