ORDER : 1. The present appeal filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) emanates from the judgement and decree dated 31.01.2002 dismissing Civil Suit No.5253 of 1988 instituted by the appellants-original plaintiffs seeking right of way and permanent injunction against the defendants from their plot. 2. After examining the oral and documentary evidence, the trial Court has dismissed the suit by observing that the plaintiffs have failed to prove the right of way of easement of necessity as the property being Final Plot No.227-1 is owned by the defendants. It is also held that an alternative way is available for the plaintiffs for ingress and egress and hence, the plaintiffs cannot claim the right of easement of necessity. 3. Learned advocate Mr. Trivedi, appearing for the appellants-original plaintiffs, has submitted that in fact the Court below has framed incorrect issues below Exh.70. It is submitted that the plaintiffs have claimed the right of way in the concerned property on the basis of the easement of necessity and the averments made in the sale deed, by which the defendants purchased the property below Exh.96. It it submitted that in fact the Court below should have framed the issues accordingly as to whether the plaintiffs are entitled to easement of right of the property of the defendants by way of – (i) easement of necessity; and (ii) on the express grant as mentioned in the sale deed below Exh.96. 3.1 Learned advocate Mr. Trivedi, at the outset, has referred to the document at Exh.96 i.e. sale deed dated 30.10.1982 executed between the executors of one Ujjamben and the respondent-Society and has submitted that the same specifically narrates that the adjoining road in the said plot, which leads to 6 ft. wide road, is left open for the plaintiffs to use the same for all purposes however, it is submitted that the trial Court has misread the aforesaid recitals of the sale deed and has only proceeded on the basis of the original gift deed below Exh.126 dated 31.03.1964 executed by Ujjamben to Shravankumar Parmanandbhai Patel and Minor Siddharthkumar Parmanandbhai Patel. wide road, is left open for the plaintiffs to use the same for all purposes however, it is submitted that the trial Court has misread the aforesaid recitals of the sale deed and has only proceeded on the basis of the original gift deed below Exh.126 dated 31.03.1964 executed by Ujjamben to Shravankumar Parmanandbhai Patel and Minor Siddharthkumar Parmanandbhai Patel. It is submitted that the evidence of sale deed below Exh.96 is only discarded on the basis that one Ambica Associates did not have any right, title or interest on the plot No.227-1 and such associates could not have given the possession of Final Plot No.227-1 for the purpose of using the way by the plaintiffs. He has submitted that two maps i.e. Exh.90 and Exh.91 are totally ignored and no evidence is discussed on such map, wherein it is shown that there is 6 ft., wide road only available to the plaintiffs for ingress and egress. 3.2 Learned advocate Mr. Trivedi has submitted that even if assuming that cousin of the plaintiffs has deposed that he is allowed by the defendants to have passage from his property that does not mean that the case of the plaintiffs for usage of 6 ft. wide road can be denied. It is submitted that the vital evidence, which has surfaced on record, is absolutely ignored and hence, the matter may be remanded to the trial Court, as the position as on today remains the same. 4. Per contra, learned advocate Mr. Shah appearing for the defendants, while vehemently opposing the appeal, has submitted that the impugned order may not be disturbed since the plaintiffs have instituted the suit on the basis of the easement of necessity and hence, the trial Court has proceed and framed the issues accordingly. It is submitted that initially there was one plot, which belonged to one Ujjamben, sole owner of the property, bearing Survey No.197-B and 415-B, admeasuring 17,091 sq.yards, which was thereafter, finalized as Final Plot No.227 vide Town Planning Scheme No.14, finalized on 01.08.1971. Vide Exh.126, Ujjamben gifted 8,701.5 sq.yards by the gift deed dated 31.03.1964 out of Survey Nos.197-B and 415-B to Shravankumar Parmanandbhai Patel and Siddharthkumar Parmanandbhai Patel. He has submitted that by Exh.101 i.e. sale deed dated 03.11.1972, Sharavankumar and Siddharthkumar sold the land admeasuring 2,587.5 of Plot No.227-2 to one Jagjivandas Parsottamdas Patel and others. Vide Exh.126, Ujjamben gifted 8,701.5 sq.yards by the gift deed dated 31.03.1964 out of Survey Nos.197-B and 415-B to Shravankumar Parmanandbhai Patel and Siddharthkumar Parmanandbhai Patel. He has submitted that by Exh.101 i.e. sale deed dated 03.11.1972, Sharavankumar and Siddharthkumar sold the land admeasuring 2,587.5 of Plot No.227-2 to one Jagjivandas Parsottamdas Patel and others. It is submitted that vide sale deed dated 11.09.1897 (Exh.94), Jagjivandas Parsottamdas Patel sold the land to the present appellants i.e. original plaintiffs. 4.1 Learned advocate Mr. Shah has submitted that all the sale deeds, as mentioned hereinabove, do not reflect or show any passage, as claimed by the plaintiffs. By pointing out the deposition of the plaintiff - Ambalal Somabhai Patel, recorded below Exh.89, he has submitted that in fact the the plaintiffs have admitted that there is some internal way to go from the East of his bungalow to the main road. He has submitted that in fact the defence witness is his cousin - Baldevbhai Ishvarlal Patel, who has deposed below Exh.102 and has admitted that such internal way is available. He has placed reliance on the map below Exh.91 and has submitted that in fact the entire flats, which have been constructed for the weaker section on Final Plot No.227-1 have three roads, two of which are internal road, which are access to the 6 ft. wide T.P. Road and last road, which is a part of the land bearing Survey No.227-1 and this 6 ft. wide road is also of the Society and hence, the present appellants cannot use the said road for their ingress and egress. He has also placed reliance on the map at Exh.90 and has submitted that in fact the property of Final Plot No.227-2 belongs to the plaintiffs and their relatives and they can also use the way of such property. Thus, it is submitted that the plaintiffs cannot be allowed to use 6 ft. wide road, which goes from their land bearing Survey No.227-1 and hence, the present appeal may not be entertained. 4.2 Learned advocate Mr.Shah has placed reliance in support of his submission on the decisions in the cases of Patel Bababhai Tribhovandas vs. Kantilal Bhaichand and Ors., 1985 (5) G.L.H. 591 and in the case of Rameshchandra Bhikhabhai Patel vs. Sakriben Wd/o. Maneklal Maganlal Patel and Anr., 1978 (19) G.L.R. 329. CONCLUSION: 5. 4.2 Learned advocate Mr.Shah has placed reliance in support of his submission on the decisions in the cases of Patel Bababhai Tribhovandas vs. Kantilal Bhaichand and Ors., 1985 (5) G.L.H. 591 and in the case of Rameshchandra Bhikhabhai Patel vs. Sakriben Wd/o. Maneklal Maganlal Patel and Anr., 1978 (19) G.L.R. 329. CONCLUSION: 5. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them. 6. As narrated hereinabove, the plaintiffs had instituted a suit seeking the right of passage from the joint Plot No.227-1, which is owned by the defendants. The trial Court framed the issues at Exh.70, which are as under : “1. Whether the suit is bad for want of Notice section 167 of Gujarat Co-operative Societies Act? No. 2. Whether the plaintiffs proves that he has a right of way over the land of the defendant ? No. 3. Whether the suit is barred by limitation ? No.” 7. The relevant issue for deciding the present appeal would be issue No.2, which says that whether the plaintiffs have right over the land, which has been answered in “NEGATIVE”. In paragraph No.9, the trial Court has recorded that a specific query was raised to the learned advocate appearing for the plaintiffs that “On what basis, the plaintiffs have claimed right of way over the defendant’s property, without mentioning any specific base, mode or method for the said right.” In reply to such query, the learned advocate appearing for the plaintiffs has declared before the trial Court that “the plaintiffs have claimed right of way on the basis of easement of necessity and averments made in Sale-deed, by which the defendants purchased the property, Exh.96.” 8. Thus, the plaintiffs have claimed right of passage on two factors i.e. (i) on the basis of easement of necessity; and (ii) on the basis of the sale deed at Exh.96, by which the defendants have purchased the concerned property being Final Plot No.227-1. 9. The trial Court thereafter, proceeded and examined the dispute. I have minutely perused the observations made by the trial Court. 9. The trial Court thereafter, proceeded and examined the dispute. I have minutely perused the observations made by the trial Court. The entire findings of the trial Court are premised on the basis of one gift deed at Exh.126 dated 31.03.1964, Exh.101, being sale deed dated 03.11.1972 executed by Shravankumar and Siddharthkumar in favour of Jagjivandas Parsottamdas Patel and others, sale deed dated 11.09.1897 below Exh.94 executed between Jagjivandas Parsottamdas Patel in favour of the appellants and Exh.96, being sale deed dated 30.10.1982 by Ujjamben in favour of the defendant-Society. The trial Court, after examining the recitals of such sale deeds, has concluded that from the beginning, there was no passage in either Plots being Nos.227-1 and 227-2 and 6 ft. wide road is not mentioned in any of three sale deeds i.e. Exh.126, Exh.101 and Exh.94. So far as the evidence of the sale deed at Exh.96, which has been executed by the executors of deceased Ujjamben in favour of the respondents-defendants, it is opined that right of passage, as mentioned in the said sale deed is given by one Ambica Associates, which has no right to make such recital. It is further submitted that whatever promise is given by Ambica Associates, as recorded in the said sale deed at Exh.96 dated 30.10.1982, cannot create any right in favour of the plaintiffs for using the passage or 6 ft. wide road and such recitals, as mentioned in the sale deed, is not binding to the owners of Final Plot No.227 or their predecessors. 10. In the considered opinion of this Court, the said observations are incorrect and uncalled for as the trial Court could not have examined validity and recitals made in the sale deed dated 30.10.1982 at Exh.96 without leading or examining the evidence in this regard. Neither anyone from Ambica Associates is examined nor the defendants are called upon to explain the aforesaid recitals made in the sale deed below Exh.96. Once the plaintiffs have asserted their right of passage, on the basis of the sale deed below Exh.96, the trial Court was required to frame an issue in this regard and existence of such passage can be proved on the basis of the recitals made in the sale deed by one Ambica Associates. 11. Once the plaintiffs have asserted their right of passage, on the basis of the sale deed below Exh.96, the trial Court was required to frame an issue in this regard and existence of such passage can be proved on the basis of the recitals made in the sale deed by one Ambica Associates. 11. This Court has also perused the recitals of the sale deed below Exh.96, which clearly suggest that the right of passage of 6 ft. wide road has been reserved. However, this Court would not like to confirm its opinion without the same being proved by leading appropriate evidence. 12. There is another aspect, which requires to be considered is that the trial Court has also placed reliance on the report of the Commissioner dated 05.10.1988, wherein it is stated that there are two gift deeds of the property between the plaintiffs and the defendants however, the said report of the Commissioner has not been exhibited and hence, such report could not have been placed reliance by the trial Court. There are two maps produced on record i.e. Exh.90 and Exh.91. The trial Court has opined that the plaintiffs have the access to the road from the property of Final Plot No.227-2 purchased by his family members. The right to usage of passage to the plaintiffs cannot be denied only because, the adjoining property belongs to his family members. The plaintiffs cannot be compelled to use the property of their family members merely because they have the access to the alternate Dafnala road. The case of the plaintiffs is premised on the recitals of the sale deed Exh.96. When the plaintiffs are asserting their right of passage which has direct access to the main road on the basis of the sale deed Exh.96, appropriate issue was required to be framed in this regard. The Trial Court has also recorded that the plaintiffs have admitted that they have an alternative way to go on main road from their property. A bare perusal of the oral evidence of the plaintiff no.1 recorded below Exh.89 reveals that he has deposed that there is no other approach passage available to their property, except the one which they are using. In the cross-examination, it is elicited that both the plaintiffs are residing separately in their bungalows. A bare perusal of the oral evidence of the plaintiff no.1 recorded below Exh.89 reveals that he has deposed that there is no other approach passage available to their property, except the one which they are using. In the cross-examination, it is elicited that both the plaintiffs are residing separately in their bungalows. It is further recorded that the persons residing on the Eastern side are using an internal passage to go to the main road. He has also deposed that on the Western side there is a plot which does not belong to them and a passage through the said plot goes to his house. Thus, in fact the oral evidence does not remotely suggest that the plaintiffs are having the right of passage from their own property in order to access the main road. There is no admission on the part of the plaintiffs that they have a legal right of passage to access the main road. 13. The entire proceedings of the trial Court, as recorded hereinabove, are premised on the sale deeds at Exh.126, Exh.101 and Exh.94 and it is opined that since the aforesaid gift deed and sale deeds do not in any manner indicate about the passage i.e. 6 ft. wide road, the suit has been rejected. Another aspect, which is required to be noted is that the maps at Exh.90 and Exh.91, as mentioned hereinabove, clearly show the position of the entire plot being Final Plot Nos.227-1 and 227-2 as well as the joint road. The same are not appropriately appreciated by the trial Court. In these circumstances, the trial Court should have appreciated the maps, which were exhibited and should have accordingly arrived at a finding with regard to the existence of such road or passage. There cannot be cavil on the proposition of law as enunciated in the judgments on which a reliance is placed by Mr. Shah, however, the same will not apply in the present case, in wake of the erroneous proceedings undertaken by trial Court. 14. Under the circumstances, in light of the aforesaid facts, and on perusing the impugned judgment and order passed by the trial Court, the matter requires to be remanded. The impugned judgement and order dated 31.01.2002 dismissing Civil Suit No.5253 of 1988 is hereby quashed and set aside. The matter is remanded to the concerned Court. 14. Under the circumstances, in light of the aforesaid facts, and on perusing the impugned judgment and order passed by the trial Court, the matter requires to be remanded. The impugned judgement and order dated 31.01.2002 dismissing Civil Suit No.5253 of 1988 is hereby quashed and set aside. The matter is remanded to the concerned Court. Civil Suit No.5253 of 1998 is ordered to be restored to its original file. 15. After the said suit is restored, it will be open for the plaintiffs and defendants to raise all the available contentions in support of their case. It will also be open for either of the parties to lead further evidence to the suit, if they so desire. Civil Suit No.5253 of 1998 shall be decided within a period of six months. It is clarified that this Court has not opined anything on the right of usage of the passage/road in question by the plaintiffs. The Trial Court shall decide the same, after examining the evidence and submissions made by either of the parties. The parties are directed to fully cooperate with the proceedings and any lethargy on their part shall not be tolerated. It will also be open for the Trial Court to pass adverse order, in case the parties do not cooperate. 16. With these observations, the present appeal is allowed. Record and proceedings be sent back. There shall be no order as to costs.