Research › Search › Judgment

Gujarat High Court · body

2011 DIGILAW 391 (GUJ)

Sureshchandra Nagindas Gandhi v. State of Gujarat

2011-05-04

BELA TRIVEDI

body2011
Judgment Ms. Bela Trivedi, J.—The present Second Appeal under Section 100 of the Civil Procedure Code is directed against the judgment and order dated 10.03.2008 passed by the learned Presiding Officer, Fast Track Court No. 2, Sabarkantha at Himmatnagar in Civil Appeal No. 50 of 2007 (hereinafter referred to as “the Lower Appellate Court”). 2. The short facts giving rise to the present appeal are that the present appellants (original plaintiffs) had filed the suit being Regular Civil Suit No. 94 of 1997 against the present respondents (original defendants) in the Court of 2nd Additional Senior Civil Judge, Sabarkantha at Himmatnagar (hereinafter referred to as “the Trial Court”) seeking declaration that the plaintiffs had their right of way through the Government land bearing City Survey No. 5258, situated on the Northern side of the City Survey No. 5769, on which the shops of the plaintiffs were situated and seeking permanent injunction restraining the defendants from constructing compound wall surrounding the land bearing City Survey No. 5258 belonging to the defendants. It was alleged in the plaint inter alia that the plaintiffs had purchased the plots bearing Nos.245 and 246 of City Survey No. 5769 popularly known as “Bagicha Na Bungalow”, from the original owner Maharajkumar Shri Rajendrakumarsinhji by way of registered sale-deed dated 03.08.1972; that the defendants were the owners of the land bearing City Survey No. 5258, situated on the Northern side of the said City Survey No. 5769; that the plaintiffs had constructed shops with shutters opening on the Northern side on the plots purchased by them which were part of City Survey No. 5769 and were using the open land bearing City Survey No. 5258 for egress and ingress. It was also stated in the plaint that the plaintiffs were using the right of way by prescription through the said land belonging to the defendants and that the plaintiffs also did not have any alternative way to approach the State Highway, situated on the Nothern side after leaving the open land belonging to the defendants. Since the defendants had started putting up the construction of compound wall surrounding the said land bearing City Survey No. 5258, the plaintiffs had filed the said suit seeking declaration and permanent injunction as prayed for. Since the defendants had started putting up the construction of compound wall surrounding the said land bearing City Survey No. 5258, the plaintiffs had filed the said suit seeking declaration and permanent injunction as prayed for. The defendants had resisted the said suit by filing the written statement at Exs.24 and 59 denying the allegations and averments made in the plaint and further stating inter alia that the plaintiffs had put up illegal construction of shops with shutters on the Northern side and had also encroached upon the lands belonging to the defendants. It was also contended that the plaintiffs had neither legal right nor easementory right over the land belonging to the defendants. 3. The trial Court, after hearing the learned advocates for the parties and appreciating the evidence on record dismissed the said suit of the plaintiffs vide judgment and order dated 09.05.2007. Being aggrieved and dissatisfied by the same, the plaintiffs preferred the Civil Appeal being Civil Appeal No. 50 of 2007 before the Lower Appellate Court. The Lower Appellate Court also vide judgment and order dated 10.03.2008 dismissed the said appeal. Being aggrieved by the said judgment and order passed by the Lower Appellate Court, the appellants (original plaintiffs) have preferred the present Second Appeal under Section 100 of the Civil Procedure Code. 4. It has been contended by Mr. N.D. Buch, learned Advocate for the appellants that both the Courts below had committed error in misappreciating the evidence on record and in not holding that the plaintiffs had an easementory right of way by prescription as well as by necessity. According to Mr. Buch, the land bearing City Survey No. 5258 belonging to the respondents – defendants was an open land since the time immemorial and the same was being used by the plaintiffs by way of road for approaching State Highway, and that the respondents – defendants were trying to cause obstruction in the said enjoyment of the plaintiffs’ right of way by constructing the compound wall, which had necessitated the plaintiffs to file the suit. According to Mr. Buch, there are substantial questions of law involved in the case, which deserve to be considered, in this Second Appeal. 5. However, Ms. According to Mr. Buch, there are substantial questions of law involved in the case, which deserve to be considered, in this Second Appeal. 5. However, Ms. V.S. Pathak, learned AGP for the respondent – State has submitted that both the Courts below having concurrently held that the appellants – plaintiffs had neither legal right nor easementory right over the defendants’ land, the Second Appeal deserves to be dismissed more particularly when no substantial questions of law are involved in the case. 6. Having regard to the submissions made by the learned advocates for the parties and the evidence on record, as also to the judgments and orders passed by both the Courts below, it appears that the appellants (plaintiffs) had filed the suit against the respondents (defendants) without serving the statutory notice under Section 80 of the Civil Procedure Code and that no permission of the trial Court was also sought by the plaintiffs for filing such suit. Under the circumstances, the Courts below have rightly held that the suit itself was not maintainable as having been filed without service of the statutory notice under Section 80 of the Civil Procedure Code. Further, it also appears that though the plaintiffs had relied upon the documents more particularly the sale-deed at Ex.75 to establish their right of way from the suit land of the defendants situated on the Northern side of the plaintiffs’ shop, in the oral evidence, of the plaintiffs, they had admitted that there was no mention in the said sale-deed about their right of way through the land belonging to the defendants situated on the Northern side of the plaintiffs’ shops. It is also pertinent to note that the plaintiffs had also failed to produce any documentary evidence to show that the shops constructed by them with the shutters opening on the Northern side were constructed after obtaining necessary permission from the concerned authorities. The Courts below, therefore, have rightly appreciated the evidence on record and held that the plaintiffs had failed to establish their legal right or easementory right of way over the defendants’ land, and that the shops of the plaintiffs with the shutters opening on the Northern side did not appear to have been constructed after obtaining necessary permission from the concerned authorities. The said findings being concurrent findings of facts, this Court is not inclined to interfere with the said findings in the Second Appeal filed under Section 100 of the Civil Procedure Code, more particularly when the Court does not find any questions of law much less substantial questions of law having been involved in the appeal. 6. In that view of the matter, the Second Appeal deserves to be dismissed and is accordingly dismissed with no order as to costs. 7. At this juncture, Mr. Buch, learned Advocate requests the Court to extend the ad-interim relief granted by the Court on 25.03.2008 for a further period of 8 weeks to enable the appellants to approach the Higher forum. It appears that on 25.03.2008, the Court while issuing the notice to the respondents had directed both the parties to maintain status-quo till the returnable date. Thereafter, it appears that the Court on 12.05.2008 passed the order, in Civil Application No. 3521 of 2008, considering the submissions of the learned AGP to the effect that the construction of wall had already started on 10.03.2008 and completed on 11.03.2008. Therefore, it appears that the constructed compound wall was already there as on 25.03.2008, when the Court passed the said order. Of course, it further appears that the learned AGP had volunteered to state that the said wall would be removed as and when the columns and beams were constructed and the pits were filled in and the ground was levelled. However, thereafter, nothing is on record to suggest that the said compound wall in question was removed or not. In any case since the appellants have not succeeded in obtaining any relief in their favour in the Court belows, and since this Court has also not found any substance in the Second Appeal, no order for maintaining status-quo could further be granted as requested by Mr. Buch, learned Advocate for the appellants. P P P P P