Gujarat High Court
Jayrambhai Jasrajbhai Patel vs Ranchhodbhai Shivabhai Patel on 26 November, 2025
NEUTRAL CITATION
C/SA/35/2003 ORDER DATED: 26/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 35 of 2003
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JAYRAMBHAI JASRAJBHAI PATEL
Versus
RANCHHODBHAI SHIVABHAI PATEL
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Appearance:
MR P P MAJMUDAR(5284) for the Appellant(s) No. 1
MS KRISHNA SHAH FOR MR SP MAJMUDAR(3456) for the Appellant(s) No.
1
MS AMRITA AJMERA(5204) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 26/11/2025
ORAL ORDER
1. By order dated 11.07.2003, Co-ordinate Bench framed following substantial question of law and admitted Second Appeal.
"(1) Whether the appellate Court has erred in interpreting the sale deed at Exh.127?"
2. The appellant is original defendant, respondent is original plaintiff. Hence, for sake of brevity and convenience, they are referred to their status before the learned Trial Court.
3. Factual aspect of the case :-
3.1. Plaintiff has filed Regular Civil Suit for permanent injunction seeking relief that defendant be restrained from Page 1 of 15 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Dec 05 2025 Downloaded on : Fri Dec 12 22:24:17 IST 2025 NEUTRAL CITATION C/SA/35/2003 ORDER DATED: 26/11/2025 undefined passing through land bearing survey no.760 and 750/1-2 from Marghariya Marg to his agricultural field of land bearing survey no.761/2, 763/1-2 and further be restrained from carrying any cart, tractor or other farming tool etc. by issuing appropriate injunction. The plaintiff's case is based on the pleading that plaintiff is owner of land bearing Survey No.759/1, 759/2 and 760 ad-measuring Acre 13 - 05 Guntas. Quadrilateral and other particulars of the land is stated in para 1 and 2 of the plaint. It is averred in the plaint that agricultural land viz. Survey No.761/2, 763/1 and 763/2 are owned by defendant situated on the eastern side of plaintiff's agricultural field. Amogst different agricultural land, defendant has purchased land of survey no.763/1 and 763/2 just on the upper side of land of survey no.760 from Bhikabhai Maganbhai by way of registered sale deed prior to seven to eight months of filing of the suit. It is further averred by the plaintiff that defendant is owner of land of survey no.763/1 and 763/2 since long. It is further averred that defendant uses Danawada Marg which is situated on the eastern side of land bearing survey no.764 to ingress and egress to his agricultural field. Predecessor in title of the plaintiff -
Mohan Ratna was using said land for ingress and egress as it was convenient for the defendant to reach his filed. Plaintiff filed Page 2 of 15 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Dec 05 2025 Downloaded on : Fri Dec 12 22:24:17 IST 2025 NEUTRAL CITATION C/SA/35/2003 ORDER DATED: 26/11/2025 undefined suit on the apprehension that since defendant raised one bump between land of survey no.760 and 761/2, he will use Danawada Marg and will go through agricultural field of the plaintiff to reach agricultural field of survey no.761/2. 3.2. Stating aforesaid as cause of action, plaintiff filed suit claiming permanent injunction restraining defendant from using land of survey no.760 and 750/1-2 for ingress and egress to his land of survey no.761/2 and 763/1-2.
4. Defendant filed written statement at Exh.12, later on amended written statement. Defendant claims that he has right of way to pass through Marghariya Marg and to pass through land of survey no.759 and 760 and to reach his agricultural filed of survey no.761/2. Entire surrounding of right of way has been pleaded in para 3 and 4 of the written statement. In short, defendant claims that defendant is using eastern side for passing through land of plaintiff. Said eastern part of land was acquired by grant as registered sale deed which states ingress and egress to land bearing survey no.761/1-2 is passing through Marghariya Marg which is east side of land of survey no.930/1, 934 and 935 then to take right turn passing through land of Page 3 of 15 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Dec 05 2025 Downloaded on : Fri Dec 12 22:24:17 IST 2025 NEUTRAL CITATION C/SA/35/2003 ORDER DATED: 26/11/2025 undefined 759 on eastern side and pass through land of survey no.760 to reach land of survey no.761/2.
5. Both the parties were permitted to lead evidence after framing issues, subsequently issue no.1(A) was added. Relying upon dictum of this Court in the case of Mer Nagajam Aala v/s. Punja Kana and Ors. [AIR 1981 Guj 141], learned Trial Court noted inconsistency in recital of sale deeds in regard to use of Marghariya Marg and Danawada Marg by different agriculturist and considering deposition on record, was pleased to decree suit in favour of the plaintiff. Being aggrieved by the said judgment and decree passed by learned Trial Court in Civil Suit, defendant preferred Regular Civil Appeal No.49 of 1995 before the learned Appellate Court under section 96 of Code of Civil Procedure. Learned Appellate Court by judgment and decree dated 15.05.2002 dismissed the appeal and confirmed the judgment passed by learned Trial Court in Regular Civil Suit No.160 of 1992. Being aggrieved by the said judgment passed by learned Appellate Court, the appellant herein preferred Second Appeal No.54 of 2002 before this Court. By order dated 05.07.2002 Co- ordinate Bench of this Court has quashed and set aside the judgment passed by learned Appellate Court and remanded Page 4 of 15 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Dec 05 2025 Downloaded on : Fri Dec 12 22:24:17 IST 2025 NEUTRAL CITATION C/SA/35/2003 ORDER DATED: 26/11/2025 undefined matter to learned First Appellate Court to decide First Appeal afresh. Pursuant to which, learned First Appellate Court decided the First Appeal again and dismissed the appeal believing that there is not reason to interfere with judgment and decree arrived by learned Trial Court.
6. As stated herein-above, Second Appeal is admitted on aforesaid limited question of law. In view of question of law framed by Co-ordinate Bench, let straight way go to Exh.127 sale deed executed in favour of predecessor in title of the plaintiff as to find out that whether Courts below have committed error in interpreting said document. This Exh.127 is registered sale deed executed qua land of survey no.760 admeasuring Acre 2 and 19 Guntas. Said sale deed is executed between purchaser - Chaganbhai Patel and Sudarbhai Motibhai - seller. In this sale deed, recital is made about how to reach land of survey no.760 which are pressed into service.
7. Heard learned advocate Ms.Krishna Shah for the appellant and learned advocate Ms. Amrita Ajmera for respondent.
8. Learned advocate Ms.Shah for the appellant referred to Page 5 of 15 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Dec 05 2025 Downloaded on : Fri Dec 12 22:24:17 IST 2025 NEUTRAL CITATION C/SA/35/2003 ORDER DATED: 26/11/2025 undefined quadrilateral stated in Exh.127 and submitted that as per quadrilateral, on the north of survey no.760, agricultural way is shown. Thus, for land of survey no.760, there is access from west side i.e. from Survey No.761/2 and it is right of way claimed by defndant. However, learned Trial Court has committed serious error in discarding recital stated in Exh.127. I am not impressed by the submission inter-alia on the ground that what is not recited in the registered sale deed cannot be read. It is does not indicate that passage / way situated on north side of land of survey no.760 is way going towards land of survey no.761 or owner of survey no.761/2 has right to pass through land of survey no.760. In absence of specific recital in regard to permitting owner of survey no.761/2 to pass through survey no.761, right of way cannot be claimed upon Exh.127. 8.1. Learned advocate Ms.Shah for the appellant has taken this Court through judgment and decreed passed by learned Trial Court as well as learned Appellate Court and submitted that various documents indicates different agricultural field situated near subject land including right of way used from Margariya Marg since long. She argued that plaintiff claims right of way on the principle of easment by grant as predecessor of title of Page 6 of 15 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Dec 05 2025 Downloaded on : Fri Dec 12 22:24:17 IST 2025 NEUTRAL CITATION C/SA/35/2003 ORDER DATED: 26/11/2025 undefined defendant specifically recited in sale deed at Exh.64 that defendant has right to pass through Margariya Marg and then from north of survey no.936, 759 and 760. In view of it, it is submitted that plaintiff cannot stop defendant from using that part of way saying that defendant has right of way passing through Danavada Marg on east side of land of survey no.764 and taking right turn from survey no.764 and further passing through upper side of Survey No.763/1 to reach survey no.761/1-2. It is submitted that on one hand learned Trial Court has believed that defendant establishes right of way to pass through field of plaintiff, yet on other hand referred to principle of easment by prescription defined in section 15 and believed that defendant has failed to establish right of way by prescription.
8.2. It is also submitted that entire evidence on record led before the learned Trial Court demonstrate that defendant has discharged burden to prove easement right of way acquired by grant. It is submitted that learned Trial Court has framed issue no.2(a) and casted burden upon defendant to prove easment by grant in regards to right of way claimed. Though it is proved by defendant by leading cogent evidence, learned Trial Court Page 7 of 15 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Dec 05 2025 Downloaded on : Fri Dec 12 22:24:17 IST 2025 NEUTRAL CITATION C/SA/35/2003 ORDER DATED: 26/11/2025 undefined without adverting to factual aspects in background of law, erroneously held that since defendant's field are on edge of Danawada Marg, he can use that way / passage to reach his field through Survey No.763/1 which has ingress and egress from Danavada marg, the defendant can come to land of survey no.761/2 passing through said road. It is submitted that land of survey no.761/2 and 763/2 though belongs to the defendants but both deserve and hold different identities. It is submitted that though both are adjoining field, they may have different way to access and therefore, showing access of land no.763/1, the plaintiff cannot delete defendant's right to use Margariya Marg. It is submitted that issue has been totally overlooked by the learned Trial Court.
8.3. In aforesaid arguments, it is submitted to allow the Second Appeal.
9. As noted in earlier part of judgment, Second Appeal was admitted only on one issue that whether learned Appellate Court has erred in interpreting sale deed at Exh.127. Thus, scope of Second Appeal was confined to interpretation of Exh.127, which this Court has already made in earlier part of judgment.
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10. Learned Trial Court framed following issues (it is in Gujarat, for better understanding, it is translated in English) :-
"4) On the basis of the statement of the parties, the following issues arise for determination in this case:
1. Whether the Plaintiff proves that the Defendants were and are using the pathway of Danavada for ingress and egress to their fields bearing Survey Nos. 761/1, 763/1, and 762/2?
2. Whether the Plaintiff proves that the Defendant does not have any legal right to pass through the pathway of Mardhariya through a portion of the Plaintiff's fields bearing Survey Nos. 760 and 759/1-2 for ingress and egress to his three fields?
2-A. Whether the Defendant proves that they have a right of easement?
3. What order? What decree?
5) The findings on the above issues are as follows:
1. Partly in the Affirmative.
2. Partly in the Affirmative.
2-A. In the Negative.
3. As per the Final Order. "
11. Later on issue no.2(a) was added by learned Trial Court with consent of both the sides. After permitting to lead evidence and after following evidence on record, learned Trial Court answered issue no.1 and 2 in partly affirmative and issue no.2(a) in negative and granted permanent injunction in favour of the plaintiff.
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NEUTRAL CITATION C/SA/35/2003 ORDER DATED: 26/11/2025 undefined
12. To be noted that plaintiff has filed suit for permanent injunction to restrain defendant from using particular way which is alleged to have been passing through his agricultural field. Defendant has raised defence that he has acquired right of way by grant to pass through Margariya Marg to reach land of survey no.761/2. The defendant has not filed any counter claim seeking establishment of his easmentary right. Setting up defence is one thing and asking of relief is different thing. It is not case where plaintiff claims easmentary right and defendant raised defence. It is case where the plaintiff has filed suit for injunction simplicitor. Defendant in written statement raised defence that he has right to pass through road on which plaintiff claims relief of permanent injunction against defendant. Having noted all these basic defects, if we further go through said aspects, in para 9 to 14, learned Trial Court has comprehensively discussed each and every evidence led by both the parties including Exh.127 and Exh.101. Two important documents which denies claim of defendant are seminal to the decision in matter. Apt to note that Exh.127 sale deed executed in favour of predecessor in title of the plaintiff is discussed herein above.
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13. So far as Exh.101 is concerned, it is statement of Shivabhai Gogjihai. It is recorded before police. Shivabhai has filed criminal case against Devjibhai, Haribhaiand and Becharbhai as they tried to encroach upon Shiva's agricultural field and caused nuisance. According to this statement recorded before the police, Shivabhai admitted that Popatbhai and Maganbhai and their family members have right to pass through his agricultural field, it was from Margariya Marg given to the family of Popatbhai Motibhai which could be envisioned from recital. Learned Trial Court and learned Appellate Court discarded this evidence on the ground of interpolation. This statement was recorded in the year 1986 and on that day Maganbhai Ratnabhai was using land of survey no.761/2, yet name of defendant - Jayram Jasraj appeared in the said document, this documents appears to be interpolated as appellant and original defendant become owner of survey no.761/2 in the year 1992 which is just 7 to 8 months prior to filing of suit. According to this Court, learned Trial Court has rightly discarded evidentiary value of Exh.101. It is undisputable that Shivabhai has not been examined by either of the parties. Exh.101 is total silent on the aspect that which Page 11 of 15 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Dec 05 2025 Downloaded on : Fri Dec 12 22:24:17 IST 2025 NEUTRAL CITATION C/SA/35/2003 ORDER DATED: 26/11/2025 undefined agricultural field belongs to Shivabhai and from which agricultural field Shivabhai has permitted Popatbhai Motibhai and Maganbhai Ratnabhai to pass through to reach their agricultural field.
14. Learned Trial Court did believe that various documentary evidence on record belongs to owner of different agricultural field and stating that they used to reach particular agricultural field from Margariya Marg or Danawada Marg. However, in reality they are using another way, which is not recited in their sale deed. Noting of this inconsistency in recital of sale deed and actual use of way is glaring and set a note the theory proposed by defendant. Further, it is admitted position from deposition of party that they never used Margariya Marg to reach their agricultural filed. Predecessor in title of the plaintiff has been examined as plaintiff's witness at Exh.85. In his chief examination, he has deposed that to reach his field of survey no.761/2, he used Danavada Marg since ancestors. In cross examination, he has denied that Margariya Marg can be used to reach field of survey no.761/2.
15. In juxtaposition of aforesaid aspects, if we refer judgment Page 12 of 15 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Dec 05 2025 Downloaded on : Fri Dec 12 22:24:17 IST 2025 NEUTRAL CITATION C/SA/35/2003 ORDER DATED: 26/11/2025 undefined and decree drawn by learned Appellate Court, learned Appellate Court has again re-appreciated all the evidence. Learned Appellate Court referred to evidence of defendant at Exh.85, whereby, defendant admitted that to reach land of survey no.763. 764 and 761, he is using Danavada Marg. It is also noted by learned Court below that defendant in order to discharge burden did not lead evidence of owner of land of survey no.761/1, as land of survey no.761/1 and 761/2 is divided in separate tenement from survey no.761. It is further observed by both the Courts below that defendant did not clarify how owner of land of survey no.761/1 reaches to his field and what is way of ingress and egress to reach survey no.761/1. It is pertinent to note that other agriculturalist who are using Margariya Marg to reach their field i.e. owner of land Survey No.931, 934 and 935 did not support case of the defendant that defendant using said way to reach survey no.761/2.
16. In view of above cursory recital made in registered document (Exh.127), it cannot be said that defendant acquired easment by grant to reach his field by passing through land of plaintiff. It is admitted position that recital in sale deed is in favour of the plaintiff and against defendant's claim. Merely, two Page 13 of 15 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Dec 05 2025 Downloaded on : Fri Dec 12 22:24:17 IST 2025 NEUTRAL CITATION C/SA/35/2003 ORDER DATED: 26/11/2025 undefined documents state that defendant is entitled to pass through land of Margariya Marg and then to land of plaintiff to reach land of survey no.761/1 would not create any easment right in favour of defendant. Further defendant has not produced on record when land of survey no.761 was divided in two parts i.e. Survey No. 761/1 and Survey No.761/2 and how it was divided and how mutation entry in this regard was recorded in revenue entry and what was position of way to reach Survey No.761/1 and Survey No.761/2.
17. Section 12 of Indian Easement Act defines who may acquire easements. Section 15 of Indian Easement Act defines Acquisition by prescription. Section 13 of the said Act defines Easements of necessity and quasi easements. Easement of necessity arises where a partition is made of the joint property of several persons, if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement.
18. In the aforesaid facts though there is voluminous evidence led during trial, seminal issue which may decide dispute between the parties is failed to be established by leading Page 14 of 15 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Dec 05 2025 Downloaded on : Fri Dec 12 22:24:17 IST 2025 NEUTRAL CITATION C/SA/35/2003 ORDER DATED: 26/11/2025 undefined necessary evidence.
19. According to this Court, both the Courts below have not committed any error of law including in interpretation of Exh.127. Thus, substantial question of law framed by Co- ordinate Bench does not found in favour of the appellant - original defendants.
20. For the foregoing reasons, the Second Appeal stands dismissed. Record and Proceedings, if any, be send back to learned Court concerned. Interim relief, if any to discontinue forthwith.
(J. C. DOSHI,J) SATISH Page 15 of 15 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Dec 05 2025 Downloaded on : Fri Dec 12 22:24:17 IST 2025