ORDER : 1. By way of present petition, the petitioner herein has challenged the order dated 31.12.2009 passed by the Additional District Judge and Presiding Officer, Fast Track Court No.3, Bhavnagar at Mahuva rejecting the Regular Civil Appeal No.128 of 2000 whereby, the order dated 26.09.2000 passed by the trial Court in Regular Execution Petition No.1 of 1999 has been confirmed. Being aggrieved by the same, the petitioner approached this Court seeking following reliefs: “(A) This Hon’ble Court may be please to issue writ of certiorari or any other writ or direction to set aside the order passed by both the learned court at Annexure – A & B. And restore/remand the execution application No.1 of 1999 to execute the decree passed in Civil Suit No.98 of 1996, dtd.30.11.1998. (B) The pending admission, hearing and final disposal of the present petition, this Hon’ble Court may be pleased to stay the operation, implementation and execution of the impugned order at Annexure- A & B passed by the learned court. (C) This Hon’ble Court may be pleased to grant any other and further appropriate and just relief as may be deemed fit and proper in light of facts and circumstances of the present petition.” 2. The brief facts leading to the filing of the present petition read thus: 2.1 It is the case of the petitioner that the petitioner is the owner of the land of survey No.44 of Moje Ambala, Taluka- Talaja, District – Bhavnagar and defendant is also owner of the adjoining land of survey No.43. It is the case of the petitioner that there is way available in the land of survey No.43 to approach the land of survey No.44. The defendant put up hurdle on the right of way of the petitioner which resulted in filing of the Regular Civil Suit No.98 of 1996 against the respondent herein seeking available ancestral rights of way to pass/repass without agricultural vehicle in the land of defendant. After leading of evidence by respective parties, the trial Court decreed the said suit being Regular Civil Suit No.98 of 1996 in favour of the petitioner by order dated 30.11.1998. After leading of evidence by respective parties, the trial Court decreed the said suit being Regular Civil Suit No.98 of 1996 in favour of the petitioner by order dated 30.11.1998. The operative part of the said order dated 30.11.1998 reads thus: (true translation) “(9) Issue No.(1): The plaintiff Vanrajsinh Punabhai has stated in his oral evidence of Exhibit-12 that upon purchase of the land in question admeasuring Acre-3, Gunthas-7 of Survey No.44 from Jivabhai Laxmanbhai by Registered Sale Deed No.479 dated 02/12/1996, he became lawful owner and occupier of the said land and in support of his oral evidence, the plaintiff has produced copy of the said Sale Deed vide Exhibit-71 and a copy of Index-II vide Exhibit-64. Moreover, copy of records of rights of No.6 has been produced vide Exhibit-65 and copies of village form no.8A and 7/12 have been produced vide Exhibit-66 and 67. Moreover, the predecessor owner of the plaintiff has also submitted corroborative evidence to the documentary evidences and plaint of Exhibit-1 of the plaintiff vide Exhibit-70. Thus, upon perusing the said evidences, this court is of the opinion that the defendant has not counter-proved the same by oral or documentary evidence which can draw inference against the said evidence nor there is such evidence of the defendants. Moreover, the document of Exhibit-71 has not been challenged by the defendant except of inquiry. Altogether, the Ld. Advocate for the defendant has not pressed his argument for the said issue. In this circumstance, this court is of the opinion that the plaintiff has proved the issue no.1 and therefore, the answer is in affirmative. Issue No.2: The plaintiff has stated in the oral evidence of Exhibit-62 supporting the plaint of Exhibit-1 that it can be moved to and from his land i.e. the land in question through the disputed route which comes out from the outskirt of the village of Amla, passing through the forest land, from the land of Rupaben Savjibhai, from the land of Vallabh Kalu, through the southern edge of the defendant's land. The plaintiff has no other alternative route except of the same. The said route can be used on foot, for carrying goods and cattle, for carrying agricultural equipment and with vehicles, etc. and the said route has been referred by the predecessor owner of the plaintiff in the sale deed of Exhibit-71. The plaintiff has no other alternative route except of the same. The said route can be used on foot, for carrying goods and cattle, for carrying agricultural equipment and with vehicles, etc. and the said route has been referred by the predecessor owner of the plaintiff in the sale deed of Exhibit-71. Moreover, forefathers of the Jiva Laxman, predecessor of the plaintiff were also using the said disputed route for movement. Moreover, the forefathers of Jivabhai and forefathers of plaintiff are from the same family and therefore, the said route has been utilized for fifty or sixty years. Thus, on perusing entry no.212, 529, 569 of village form no.6 - records of the rights of Exhibit-62 produced by the plaintiff alongwith the evidences, this court believes that the evidence of Exhibit-62 produced by the plaintiff is proved to be true as it is mentioned in records of the rights of Exhibit-65 that earlier, the land of Survey No.44 was belonging to Rajput Mugal Karshan, Arjan Karshan and Lakhman Dehabhai jointly. Thereafter, mutual partition took place on 28/08/1962 between the said persons and accordingly, the said land came in shares of Arjan Karshan and Lakhman Deha jointly. Thereafter, upon mutual partition again, the predecessor owner of the plaintiff and his son i.e. Lakhman Deha got the said land and thereafter, as the plaintiff purchased the said land from him, the said land was entered in the name of Jivabhai Lakhmanbhai. Thus, upon perusal of records of the rights of Exhibit-65, this court is of the opinion that when the said land was belonging to the predecessor of the plaintiff and his forefathers, it can be assumed that they had been using the said disputed route for many years as stated in the oral evidence of Exhibit-62 and as mentioned in Para-2 of the plaint of Exhibit-1 of the plaintiff. Simultaneously, it appears that Jiva Lakhman, the predecessor owner of the plaintiff had also mentioned in the sale deed of Exhibit-71 produced by the plaintiff that he had been using the disputed route for movement to and from the land of his survey number and by way of transfer of easement rights, he has transferred rights to use the said disputed route and other right appurtenant thereto to the plaintiff. Moreover, when the predecessor owner of the plaintiff has declared the facts corroborative to the oral evidence of Exhibit-62 of the plaintiff and counter statement of the plaintiff by his oral evidence of Exhibit-70, upon perusing both the documentary evidences and the produced documentary evidences by the plaintiff, reading the cross examination conducted by the defendants, the defendant has not been able to counter-prove through cross-examination of the oral evidence of the plaintiff that plaintiff or the previous owner of the land namely Jiva Lakhman or his elders Mugal Karsan, Arjan Karsan, Lakhkan Deha did not use the passage to visit their land at survey no. (44) along with the carts, upon reaching to the public road from the outskirt of Amla village, then through the land of the forest, the land of Rupaben Savjibhai and thereafter, the land of Vallabh Kalu and then, through the southern end of the land of the defendant and no such passage right was given to the previous owner of the land of the plaintiff or his elders. Further, upon reading the panchnama of the Court Commissioner vide Exh-(68), in corroboration to the aforesaid fact, it is clearly mentioned that the aforesaid passage, as stated by the plaintiff is situated there. Accordingly, upon reading the map vide Exh-(69), it is clearly established that the passage from east to west, as stated by the plaintiff, is situated there. Thus, upon examining all the aforesaid evidences, this Court believes that the plaintiff has proved the details of the passage as mentioned at para-2 of his plaint vide Exh-(1) and his oral evidence vide Exh-(62). It is clearly proved that the described passage is situated at survey no.-(44). Moreover, the arguments of the Ld. Advocate along with the reply of the defendant vide Exh-(28), oral evidence of the defendant Hira Chithar vide Exh- (83) and oral evidence of the witnesses Vallabh Kalu and Naran Bhavan vide Exh-(84) and Exh-(87) respectively, are not tenable because as per the reply of the defendant, the plaintiff has the passage towards north to enter into his survey number. Advocate along with the reply of the defendant vide Exh-(28), oral evidence of the defendant Hira Chithar vide Exh- (83) and oral evidence of the witnesses Vallabh Kalu and Naran Bhavan vide Exh-(84) and Exh-(87) respectively, are not tenable because as per the reply of the defendant, the plaintiff has the passage towards north to enter into his survey number. In that regard, through the cross-examination of the oral evidence of the plaintiff vide Exh-(62), the previous owner of the land, Jiva Lakhman vide Exh-(70) and witness Savji Bhavan vide Exh-(71), the defendant has not proved that in fact, passage is situated towards north for the plaintiff to enter into his survey no.44 along with carts, tractors etc. because upon examining the reply or the oral evidence of the defendant vide the aforementioned Exhibit, in context to the panchnama vide Exh-(68), another reason for not considering the reply vide Exh-(28) and oral evidence of the defendant, is that in the aforesaid reply, the defendant has stated that the passage is situated towards north of the land of Kalubhai Raybhai and Punabhai. If there was such passage as mentioned by the defendant, then the defendant would have certainly examined the aforesaid persons as witnesses but the defendant has failed to do so. Moreover, as per the argument of the Ld. Advocate of the defendant, it is mentioned that the passage is situated towards north as per the panchnama vide Exh-(68). However, the defendant has not examined the panch witnesses of the panchnama vide Exh-(68), namely Savjibhai Velabhai or Jiva Kalu as his witness, in order to prove the details of his reply and to counter prove the passage towards north. The details mentioned by the Ld. Advocate about the passage towards north, in context to the panchnama vide Exh-(68) can not be considered as tenable because upon reading the map of the Commissioner vide Exh-(69), irrigation canal is situated after the land of Dhirubhai. Moreover, it is mentioned that fences and trees are situated towards north and south of the land of the plaintiff. Thus, upon considering the aforesaid evidences and reasons, it is not accepted that the plaintiff has passage towards north, near the land of Dhirubhai, along with evidence and argument of the defendant. Moreover, it is mentioned that fences and trees are situated towards north and south of the land of the plaintiff. Thus, upon considering the aforesaid evidences and reasons, it is not accepted that the plaintiff has passage towards north, near the land of Dhirubhai, along with evidence and argument of the defendant. Moreover, with regard to passage, easement by prescription and easement by necessity- both the types of reliefs ie-inconsistent pleas have been prayed for, in the case of the plaintiff. However, upon considering the oral and documentary evidences of the plaintiff vide Exh-(62)(70),(71-72), along with the entries in village form no.(6)- record of rights, it is accepted that the right of passage to his survey number, is easement by necessity because the plaintiff had purchased the land in question in the year-1996 and upon reading Exh-(65), the previous owner of the land of the plaintiff had obtained the aforesaid land in the year-1993 (Ninety Three). Upon reading section-(13) of the Easement Act, the land in question vide survey no.(44) was received by the previous owner Jiva Lakhman and his predecessor through partition. Therefore, in such circumstances, it is believed that easement by necessity under section-(13) of the Easement Act is to be implemented because upon examining all the evidences related to this case, it is not counter proved that the plaintiff has any other optional passage to visit his land vide survey no.(44). Therefore, it is believed that the plaintiff has the right of easement by necessity for the passage to his land. Thus, as per the aforesaid reasons regarding this issue and as discussed above, this Court clearly believes that as per Para-(2) of Exhibit-(1) in Issue No.(2), the plaintiff has proved that there is way to enter his land bearing Survey No.44. Thus, reply of Issue No.2 is affirmative. Issue No.(3):- Upon studying and minutely examining Panchnama of Exhibit-68 regarding this issue, Application for the plaintiff at Exhibit-39 objecting panchnama of the Defendant at Exhibit-18, reply of the application at Exhibit-43 and application at Exhibit-43 for violation of the Court order and its reply at Exhibit-54-55 and significant oral evidence of Jayvantsinh Mangalsinh at Exhibit-74 and Panchkam carried out by Mantri at Exhibit-75 by corelating them with one another, evidence of the plaintiff with regard to this issue and facts of the statement of the party prove quite contrary to one another. Thus, this Court believes that evidence of the plaintiff with regard to this issue is not admissible because it appears that the plaintiff wants to bring the Defendant under pressure by abusing the process of law and procedure with malice intention. Perusing the fact of the application of the plaintiff at Exhibit-39, Defendant made heap of pearl millet on the land in question and the plaintiff has sought police protection to remove the same and such application is similar to the application at Exhibit-46. However, as per order passed by the Court on the said application, after hearing both the parties with regard to the application at Exhibit-39, the Court has dismissed the said application and the plaintiff has not preferred any further action against the said order. Thus, looking to the application of Exhibit-46 in this regard, the plaintiff has not clearly shown date-wise at any place in his plaint at Exhibit-1 that the Defendant has made heap of pearl millet on the road in question as per his knowledge. Thus, Special Court also believes that the plaintiff should seek relief or make representation in his plaint at Exhibit-1 to remove the said heap of pearl millet. However, it clearly proves that the plaintiff has not sought any such relief or made representation in this regard and he wants to fulfil such lacuna below Order at Exhibit-5 through his application of Exhibit-46. Moreover, upon examining oral evidence of the plaintiff with regard to this issue, the plaintiff has not proved at any place that at the time of purchasing the disputed land, there were neither any obstructions nor heap of pearl millet thereon. On the contrary, upon minutely studying examination of oral evidence of the plaintiff and witnesses with regard to this issue, the Court has substantiated such that after purchasing the disputed land by the plaintiff, he has not enoyed real and legal possession thereof, which means he did not want to do so. As per statement of the plaintiff, if there were heap of pearl millet obstructing the road, the plaintiff would have got amended his plaint in this regard seeking directions, relief or injunction through the Court in the matter. However, the plaintiff has failed to do so. Hence, this Court believes that the plaintiff has failed to prove Issue No.3. As per statement of the plaintiff, if there were heap of pearl millet obstructing the road, the plaintiff would have got amended his plaint in this regard seeking directions, relief or injunction through the Court in the matter. However, the plaintiff has failed to do so. Hence, this Court believes that the plaintiff has failed to prove Issue No.3. Further, evidence of Mantri at Exhibit-74 and Panch Rojkam at Exhibit-75 with regard to this issue has also been rejected with a reason that it clearly proves that the plaintiff has raised this evidence to prove his lacuna at Exhibit-1 and this fact clearly proves from the evidence of Mantri at Exhibit-74. Though this witness has carried out Panchkam at disputed place by self without receipt of any application from the parties, the fact is denied that this witness has clear information with regard to this road. Thus, it can be believed that the plaintiff has raised the evidence of Exhibit-74-75 by influencing the Mantri. Thus, Issue No.(3) is replied in negative. All such evidences mentioned by the plaintiff cannot be admissible in the matter. (10) Perusing statements of the Plaintiff and Defendant, arguments of both Learned Advocates alongwith oral and documentary evidences and judgments in view of Section-13 of the Evidence Act, this Court believes that the plaintiff has proved his case against the Defendants in every aspect of law under Section-13 of the Evidence Act. Thus, after admitting plea of the plaintiff regarding easement and necessity for the right of way, the suit is admissible and hence following final order is passed. ORDER : The suit of the plaintiff is hereby allowed and it is held that passage to make movement upto agricultural land bearing Survey No.(44) located in the outskirts of Amla is from South side for the plaintiff and thus, permanent injunction is passed directing the Defendant to not stop the plaintiff in any way while making movement on this road in question on foot or with cattles and with other agricultural vehicles. No order as to costs regarding suit of the parties. No order as to costs regarding suit of the parties. Deceee is drawn accordingly.” 2.2 The respondents herein being aggrieved by the said decree, preferred an appeal being Regular Civil Appeal Appeal No.101 of 1998, which came to be dismissed by order dated 06.01.2010 and the order passed by the trial Court in Regular Civil Suit No.98 of 1996 dated 30.11.1998 came to be confirmed. The said order passed in Regular Civil Appeal No.101 of 1998 reads thus: (true translation) “Issue No.1:- (9) The facts of the original suit vide R.C.S. No.98/1996 filed by appellant / plaintiff Devuba Punabhai Parmar in brief are that, the plaintiff bought the land in suit admeasuring 03 acre 07 guntha of Revenue Survey No.44 in the outskirts of Amla village from Parmar Jivabhai Lakhmanbhai through a registered saledeed No.479 on 02/11/1996 and thereby, became owner and occupant of the said land. The way to access this land passes through a southern boundary of the land of the account holders of Survey No.43 – Savji Bhavan, Vallabh Kalu and defendant Dhapa Heerabhai Chitharbhai after a public road and forest land after exiting Amla village and the way is situated up to southern boundary of the land of the plaintiff. The plaintiff has been using this way for a movement and as a cart track from the beginning – since the time of its earlier owner and ancestors. The same has been recorded in the sale-deed also. As they have been using this way for more than 30 years, they have a right by easement of prescription and as there is no alternative way, they have a right by easement of necessity. (10) As stated by him, the respondent wanted to obtain the land by paying small amount. But, as he could not own the land, he created an obstruction on the easement on 03/11/1996 for obstructing the plaintiff, pursuant to which the plaintiff has preferred the present suit. (11) The respondent has submitted in his deposition at Exhibit- 28 that there was no such an easement. However, the land at Survey No.43 is registered in name of Rupaben Savjibhai. Savji Bhavan does not have any land. As Savji Bhavan is a relative of the plaintiff, a false evidence has been produced with his help and collusion. Such a deed is not binding on them. However, the land at Survey No.43 is registered in name of Rupaben Savjibhai. Savji Bhavan does not have any land. As Savji Bhavan is a relative of the plaintiff, a false evidence has been produced with his help and collusion. Such a deed is not binding on them. It has been submitted that, as an easement is available to the plaintiff from the government land, the suit should be dismissed. (12) In the present case, the Learned Civil Judge, Junior Division has framed the issues vide Exhibit-57, wherein the plaintiff has proved that the disputed property is owned, possessed and occupied by him. Moreover, the plaintiff has also proved the disputed easement. Such two issues have been identified for factual aspects which have been answered affirmatively. (13) If the evidence produced in this regard is taken into consideration again, the plaintiff Vanrajsinh Punabhai has stated in his oral evidence at Exhibit-62 that, the disputed property in question, i.e. the land measuring Acre-3 and Guntha-7 at Survey No.44, had been purchased by him from one Jivabhai Lakshmanbhai vide a registered Sale Deed no.479 dated 02/11/1996, a copy of which is produced at Exhibit-71. As per the four directions of land as mentioned at page no.4 of the Sale Deed, a cart-track for accessing the land connects the road which passes through the forest land, through the adjoining of the Southern boundaries of the lands located to the East of the disputed property, i.e. the Southern boundaries of the lands of Rupaben Savjibhai, the Khatedar of Survey no.43, Vallabhbhai Kalubhai and the respondent Hirabhai Chitharbhai, and the passage leads to the Southern boundary of the disputed land. As per the Panchnama drawn by the Court Commissioner in the present case, the disputed land can be accessed from the outskirt of Amla village via the forest land. Going forward on the forest land to the direction of the plaintiff’s land, to the South of Survey no.43, a cart-track is located as shown in the map. Thus, as claimed, the passage can be said to be in existence. As per the Revenue Records produced at Exhibit-64 to 67, the predecessor owners of the disputed property were also using the easement. Moreover, witness Jivabhai Lakshmanbhai has also corroborated the facts of the easement in his deposition at Exhibit-70. Apart from the respondent, the easement also passes adjoining to the lands of other persons. As per the Revenue Records produced at Exhibit-64 to 67, the predecessor owners of the disputed property were also using the easement. Moreover, witness Jivabhai Lakshmanbhai has also corroborated the facts of the easement in his deposition at Exhibit-70. Apart from the respondent, the easement also passes adjoining to the lands of other persons. But, except the respondent, no one has raised any objection. Jayvantsinh Mangalsinh, the Talati-cum- Mantri has also corroborated the claim of plaintiff in his deposition at Exhibit-74 and has produced the rojkam at Exhibit- 75 and testified existence of the easement closed due to the obstruction. In the same manner, Rukhathbhal Hadabhai, an independent witness has, in his deposition at Exhibit-76, corroborated the case of the plaintiff and has stated about having witnessed existence of the disputed easement. His land is located to the North. He has stated that the plaintiff does not have any other easement except the disputed one. The respondent has deposed at Exhibit-83 and has stated the only fact that the disputed easement is not in existence. Further, Vallabhbhai Kalubhai, a witness for the respondent, has stated in his deposition at Exhibit-84 that an easement is located to the North. Naranbhai Bhvanbhai, in his deposition at Exhibit-87, also states about existence of an easement in the North, but not any documentary evidence is produced in this regard. On the basis of the witnesses and documentary evidence produced by the plaintiff, the subordinate court has accepted that the predecessor owners of the disputed property had been using the stated track from the time of their forefathers and the land at Survey No.44 has been partitioned as per the last mutation entry nos. 212, 529, 569, produced at Exhibit-64 to 67. Further, considering the overview of the disputed land, except the disputed easement, there is no easement to this land. When the predecessors of the plaintiff had been accessing the land through the disputed track and there is no other easement, if the Trial Court has accepted, from the oral and documentary evidence, the facts of ‘easement of prescription and easement of necessity’, they are justified. Accordingly, during the pendency of present appeal in this court, adducing the registered Deed bearing Sr.no.229 dated 01/04/2004, produced at Mark-13/1, Rupaben Savjibhai has conveyed this immovable property to Hiruben Marhutbhai on sell basis, wherein the deed mentions the disputed easement. Accordingly, during the pendency of present appeal in this court, adducing the registered Deed bearing Sr.no.229 dated 01/04/2004, produced at Mark-13/1, Rupaben Savjibhai has conveyed this immovable property to Hiruben Marhutbhai on sell basis, wherein the deed mentions the disputed easement. But, the facts of sell transaction pertain to the period post preferring the present appeal. And it does not appear to this court that the order passed by the Trial Court is erroneous, contradictory to the established principles of law, arbitrary, partial or against the principle of natural justice. Not any other land-owners, except the respondent, is having any objection against the easement. On the contrary, they have acknowledged the plaintiff’s right. Moreover, the subordinate court has accepted, on the basis of ‘easement of prescription and easement of necessity’, the existence of easement. Considering the location of the disputed land, considering the fact that the disputed land is located in the last, considering the fact that Survey no.44 has been partitioned, it cannot be stated in the present case, as contended by the respondent, that the plaintiff was trying to create a new right. As the plaintiff has proved his right to easement, the decree in the permanent injunction of the subordinate court can be admitted as justified. In these circumstances, as it does not appear that the order passed by the Trial Court is erroneous, contradictory to the established principles of law, arbitrary, partial or against the principle of natural justice, Issue No.1 is decided in ‘Negative’. With regard to Issue No.2, this court does not find it congruent to interfere in the judgment and decree of the Learned Civil Judge, Junior Division. Therefore, Issue No.2 is also decided in ‘Negative’. With regard to Issue No.3, the following final order, rejecting the appeal of the plaintiff, is being issued. ORDER : The present appeal is dismissed. The order and decree dated 30/11/1998 of the Learned Civil Judge, Junior Division, Talaja in Regular Civil Suit no.98/1996 is, hereby, restored. Therefore, Issue No.2 is also decided in ‘Negative’. With regard to Issue No.3, the following final order, rejecting the appeal of the plaintiff, is being issued. ORDER : The present appeal is dismissed. The order and decree dated 30/11/1998 of the Learned Civil Judge, Junior Division, Talaja in Regular Civil Suit no.98/1996 is, hereby, restored. The records of subordinate court be sent back.” 2.3 The petitioner herein filed Regular Execution Petition No.1 of 1999, which came to be rejected by the trial Court below Exh.29 on the ground that Vallabhbhai Kalubhai was not a party to the suit proceedings and there is no decree against Vallabhbhai Kalubhai and under such circumstances, the decree is not executable against the defendant - respondent herein in view of the fact that Vallabhbhai Kalubhai has deposed below Exh.25 before the trial Court in the suit proceedings that the land of survey No.43 belongs to him and he was never agreeable to permit the plaintiff – petitioner herein to pass through survey No.43. On the aforesaid ground, the Court below held that the decree was not executed and rejected the Regular Execution Petition No.1 of 1999. 2.4 Being aggrieved by the same, the petitioner herein preferred an appeal being Regular Civil Appeal No.128 of 2000 challenging the order dated 26.09.2000 passed in Regular Execution Petition No.1 of 1999. The Appellate Court by order dated 31.12.2009 rejected the appeal and confirmed the order dated 26.09.2000 passed in Regular Execution Petition No.1 of 1999. The said order dated 31.12.2009 reads thus: (true translation) “(1) The present appeal is filed on 26/9/2000 against the order of setting aside the Execution No.1/99 filed for service of execution of the decree passed in Regular Civil Suit No.98/’96 in the Court of Ld. Civil Joint Civil Judge (J.D.). (2) The appellant has obtained such a Decree against the Respondent in Regular Civil Suit No.98/’96 that plaintiff’s agricultural land is situated on the S.No.44 in Amla village. A cart road for approaching the agricultural land is located on agricultural land of S.No.43, Southern boundary of defendant therefore, an permanent injunction is passed against the defendant that he shall not create any hindrance on this passage of plaintiff. (3) The appellant has filed Execution Petition No.1/’99 for compliance of aforesaid decree. The Ld. A cart road for approaching the agricultural land is located on agricultural land of S.No.43, Southern boundary of defendant therefore, an permanent injunction is passed against the defendant that he shall not create any hindrance on this passage of plaintiff. (3) The appellant has filed Execution Petition No.1/’99 for compliance of aforesaid decree. The Ld. Joint Civil Judge (J.D.), Talaja heard both the parties and passed order that the plaintiff’s decree does not deserve to be executed. Therefore the execution was set aside. (4) The order passed under Exh.-29 in the aforesaid Civil Execution No.1/’99 which is challenged on having read the same and considering submissions of both the Ld. Advocates of both parties, I do not find it appropriate to interfere in the said decree because the plaintiff has not obtained decree against one person Vallabhbhai Kalubhai who holds land in the middle. If the plaintiff wants to walk through the disputed passage, he has compulsorily to pass through the land of Vallabhbhai Kalubhai. The said vallabhbhai Kalubhai has stated in deposition, Exh.-25 that he never wants the plaintiff to walk through his land bearing S.No.43. Under the circumstances, it is held that the decree is not executable when the order is obtained without joining Vallabhbhai Kalubhai as party. Further, upon having read the order passed under Exh.-29, it does not transpire that the Ld. Joint Civil Judge (J.D.) has, therein, committed any significant error of law and fact. Under the circumstances, as the appeal of the appellant does not deserve to be allowed, the following order is passed. ORDER The appeal of the plaintiff is rejected. The order passed in Execution Petition No.1/’99 for service of order and decree in the matter of Regular Civil Case No.98/’96 of the Ld. Joint Civil Judge (J.D.) is hereby confirmed. Decree to be drawn as per order. The parties shall bear their own cost. A copy of the judgment shall be kept with the record of the trial court.” 2.5 Being aggrieved by the aforesaid orders passed by the Courts below, the petitioner herein approached this Court by way of present petition. 3. Heard Mr. Dharmesh V. Shah, learned advocate appearing for the petitioner and Mr. Vishwas S. Dave, learned advocate appearing for the respondent Nos.1.1 to 1.7. 4. Mr. 3. Heard Mr. Dharmesh V. Shah, learned advocate appearing for the petitioner and Mr. Vishwas S. Dave, learned advocate appearing for the respondent Nos.1.1 to 1.7. 4. Mr. Dharmesh V. Shah, learned advocate appearing for the petitioner, submitted that the orders passed by both the Courts below are required to be quashed and set aside solely on the ground that the Executing Court could not go beyond decree and therefore, the said impugned orders are erroneous and required to be quashed and set aside. 4.1 Mr. Shah, learned advocate, submitted that the trial Court decreed the suit in favour of the petitioner and the appellate Court also rejected the appeal filed by the respondent herein in view thereof the decree is required to be executed as it is and therefore, the impugned orders are required to be interfered with. 4.2 Mr. Shah, learned advocate submitted that there is no other right of way for the petitioner to approach his land but by passing though the adjoining land of survey No.43. Mr. Shah, learned advocate further submitted that it is not the case of the petitioner that there is interference on the right of way by Vallabhbhai Kalubhai and therefore, no relief was sought for against the third party and Vallabhbhai Kalubhai was not joined as defendant in the suit proceedings. It was not open for the Courts below to deny the execution of decree on the ground that Vallabhbhai Kalubhai, who has deposed below Exh.25 that Vallabhbhai Kalubhai was not never agreeable for permitting the petitioner to pass through land of survey No.43. 4.3 Placing reliance on the aforesaid submissions, Mr. Shah, learned advocate submitted that the impugned orders passed by the Court below denying execution of the decree dated 30.11.1998 passed by the trial Court and confirmed by the appellate Court is required to be executed. 5. Per contra, Mr. Vishwas S. Dave, learned advocate appearing for the respondent Nos.1.1 to 1.7, submitted that the decree could not have been executed in view of the fact that the third party i.e. Vallabhbhai Kalubhai, deposed below Exh.25, was not joined as party in the suit proceedings and that, the decree could be not be executed in absence of Vallabhbhai Kalubhai as defendant in the suit. Vallabhbhai Kalubhai has deposed in favour of the respondent herein and submitted that Vallabhbhai Kalubhai was never agreeable that the petitioner be permitted to pass through the land of survey No.43 to the land owned by the petitioner. 6. Considering the submissions advanced by the learned advocates appearing for the respective parties, in view of this Court, the Regular Civil Suit No.98 of 1996 is decreed in favour of the petitioner by order dated 30.11.1998 passed by the trial Court. The said order came to be confirmed by the appellate Court in Regular Civil Appeal No. 101 of 1998 below Exh.14 by order dated 06.01.2010. The aforesaid decree can be said to be confirmed and has attained finality. 7. At this stage, it is apposite to refer to the 1971 (12)GLR 55 , Vasudevbhai Dhanjibhai Modi Vs. Rajabhai Abdul Raheman & Ors. Paragraph 6, 7 and 8 of the said read thus: “6. A Court executing a decree cannot go behind the decree : between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. 7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record : where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. In Jnanendra Mohan Bhaduri & Anr. In Jnanendra Mohan Bhaduri & Anr. v. Rabindra Nath Chakravarti, L.R. 60 I.A. 71 the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under (1) [1962] 3 S.C.R. 98, the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction. 8. In the present case the question whether the Court of Small Causes had jurisdiction to entertain the suit against Munshi depended upon the intepretation of the terms of the agreement of lease, and the user to which the land was put at the date of the grant of the lease. These questions cannot be permitted to be raised in an execution proceeding so as to displace the jurisdiction of the Court which passed the decree. If the decree is on the face of the record without jurisdiction and the question does not relate to the territorial jurisdiction or under s. 11 of the Suits Valuation Act, objection to the jurisdiction of the Court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether the Court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceeding.” 8. In the facts of the present case and ratio as laid down in 1971 (12)GLR 55 , Vasudevbhai Dhanjibhai Modi Vs. Rajabhai Abdul Raheman & Ors., both the Courts, i.e. the executing Court rejecting the Execution Application being No.1 of 1999 by order dated 26.09.2000 and the appellate Court confirming the order dated 30.11.1998, have exceeded their jurisdiction on the ground that the petitioner (judgment creditor) failed to procure the decree against Vallabhbhai Kalubhai. Rajabhai Abdul Raheman & Ors., both the Courts, i.e. the executing Court rejecting the Execution Application being No.1 of 1999 by order dated 26.09.2000 and the appellate Court confirming the order dated 30.11.1998, have exceeded their jurisdiction on the ground that the petitioner (judgment creditor) failed to procure the decree against Vallabhbhai Kalubhai. In view of this Court, no prayers were prayed for against Vallabhbhai Kalubhai, who is owner of the survey No.43 and the respondent’s witness and therefore, the aforesaid findings by the executing Court and appellate Court confirming the order passed by the executing Court travel beyond the scope of decree passed in R.C.S. No.98 of 1996 and R.C.A. No.101 of 1998 and therefore, the said orders are required to be quashed and set aside. In view of this Court, the decree passed in Regular Civil Suit No.98 of 1998 dated 30.11.1998 is to be executed as it is. 9. Considering the aforesaid aspect, this is a fit case to exercise supervisory jurisdiction under Article 227 of the Constitution of India. In the aforesaid circumstances, the order dated 26.09.2000 passed in Regular Execution Petition No.1 of 1999 by the Court below is quashed and set aside. 9.1 The Executing Court shall hear the Regular Execution Application No.1 of 1999 afresh and decide the same within a period of four weeks from the date of receipt of this order. 9.2 Considering the fact that the decree passed by the trial Court in Regular Civil Suit No.98 of 1996 dated 30.11.1998 which came to be confirmed by the appellate Court in Regular Civil Appeal No.101 of 1998 by order dated 06.01.2010, the said application being Execution Application no.1 of 1999 be heard as expeditiously as possible preferably within a period of four weeks from the date of receipt of this order. 10. The present petition allowed to the aforesaid extent.