Gujarat High Court
Decd. Vashrambhai Jassabhai Thro' ... vs Koli Dholiben Bhagwanbhai on 12 December, 2023
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/SA/158/2002 CAV JUDGMENT DATED: 12/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 158 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DECD. VASHRAMBHAI JASSABHAI THRO' HEIRS
Versus
KOLI DHOLIBEN BHAGWANBHAI & 2 other(s)
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Appearance:
MR BJ TRIVEDI(921) for the Appellant(s) No. 1,1.1,1.2
MR JT TRIVEDI(931) for the Appellant(s) No. 1,1.1,1.2
MS JIGNASA B TRIVEDI(3090) for the Appellant(s) No. 1,1.1,1.2
MR TH SOMPURA(862) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3.1,3.2,3.3,3.4,3.5,3.6
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 12/12/2023
CAV JUDGMENT
1. This second appeal under Section 100 of the Civil Procedure Code has been filed against the judgment Page 1 of 14 Downloaded on : Tue Dec 12 20:46:49 IST 2023 NEUTRAL CITATION C/SA/158/2002 CAV JUDGMENT DATED: 12/12/2023 undefined and decree dated 19.08.2002 passed by the Additional District Judge, Mahuva, District: Bhavnagar in Regular Appeal No.142 of 2000 arising out of the judgment and decree dated 30.11.2000 passed by the Civil Judge, Talaja in Regular Civil Suit No.50 of 1998, whereby the suit for declaration and injunction came to be dismissed and confirmed by the First Appellate Court.
2. The appellants are the original plaintiffs. They lost their case from both the Courts.
3. A suit for injunction and declaration to protect easementary right acquired by prescription in relation to using the pathway in question to reach the agricultural field bearing Survey No.54 was filed before the Civil Court at Talaja. The appellants are the owners of agricultural land bearing Survey No.54, whereas, the defendants are owner of land bearing Survey No.55 situated at Village: Kathva, Tal: Talaja, Dist: Bhavnagar. In the suit, it was averred that, the plaintiffs were using the said pathway for more than twenty years and this is the only way to reach to their farm and for the beneficial and enjoyment of the property, the said pathway was enjoyed and used. However, the defendant no.1 without any justification causing hindrance in using the said pathway situated Page 2 of 14 Downloaded on : Tue Dec 12 20:46:49 IST 2023 NEUTRAL CITATION C/SA/158/2002 CAV JUDGMENT DATED: 12/12/2023 undefined at the western side of land bearing Survey No.55 and therefore, to restrain the defendants from making any interference in the use of pathway, the cause arisen for filing the suit and accordingly, permanent injunction and declaration being sought in relation to said easementry rights to reach their land in question.
4. The said suit was contested by the defendant no.1 by filing written statement. In the written statement, it was pleaded that the suit is filed in connivance with the defendants no.2 and 3 so as to create a right of way from the land bearing Survey No.55. By specific averments, the alleged easementry right and existence of the alleged pathway have been denied. It is specifically averred that there is an alternate way available from the canal side and having access from the land of Jadavji and the direction of the pathway is north to south.
5. The defendant no.2, though served, did not have filed written statement before the trial Court and against him trial was proceeded ex-parte. The defendant no.3, vide pursis Exh.18, admitted the facts of the suit as well as the right of easement as claimed by the plaintiffs.
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6. The learned trial Court vide Exh.65 framed the issue.
Learned trial Court after considering the oral as well as documentary evidence, the trial Court held that the alleged right as claimed does not exist and further considered it to non-existence and held that, the appellants-plaintiffs having alternate pathway to reach their agricultural field. Accordingly, the said suit came to be dismissed.
7. The judgment and decree of dismissal was challenged by preferring the first appeal before the Appellate Court at Bhavnagar. The First Appellate Court vide its judgment and decree dated 19.08.2002, after considering the factual aspects as well as provisions of Easement Act, also came to conclusion that the so called easementary right does not exist and accordingly, the appeal came to be dismissed. The Appellate Court has dealt with the issue of admission. The defendant no.3 by filing pursis, admitted the alleged right of easement from the land bearing Survey No.55. The defendant no.3 at the relevant time was joined as a party defendant because on record he had been shown as a co-owner of land bearing Survey No.55. The learned First Appellate Court did not believe the said admission made on the part of defendant no.3 to establish the right to access from the land bearing Survey No.55 and by assigning Page 4 of 14 Downloaded on : Tue Dec 12 20:46:49 IST 2023 NEUTRAL CITATION C/SA/158/2002 CAV JUDGMENT DATED: 12/12/2023 undefined sufficient reasons observed that, the defendant no.1 is the exclusive owner of the land bearing Survey No.55 and the share of defendant no.3 by way of understanding would release in favour of the defendant no.3 and the entire land is occupied and in possession of defendant no.1 and therefore, when the plaintiffs failed to establish their easementry right acquired by prescription under Section-15 of the Easement Act, the oral admission on the issue which is not in existence, cannot be believed and taken into consideration to establish the right claimed by the appellants-plaintiffs. The First Appellate Court after considering the report of Court Commissioner along with the map, came to conclusion that, no any such right is in existence and in view of the alternate pathway to approach to the land of the plaintiffs, the relief claimed cannot be granted.
8. The appellants have filed this Second Appeal under Section 100 of the Civil Procedure Code challenging the concurrent findings of the trial Court as well as the First Appellate Court and the same has been admitted on the following questions of law:
"1. When the defendant No. 3 (since deceased) had admitted the suit of the appellants and when he was one of the co-owners of the land in Page 5 of 14 Downloaded on : Tue Dec 12 20:46:49 IST 2023 NEUTRAL CITATION C/SA/158/2002 CAV JUDGMENT DATED: 12/12/2023 undefined question i.e. the servient heritage, the suit and appeal could have been legally dismissed?
2. When the respondent No. 2 had not appeared at all and when she was one of the co-owners of the land in question i.e. the servient heritage, the suit and appeal could have been legally dismissed?
3. When the respondent No. 1 had not entered into the witness box and when her witness had admitted the existence of the path for going to and fro the field of the appellants, though not as claimed by the appellants, and when she was one of the co-owners of the land in question i.e. the servient heritage, the suit and appeal could have been dismissed?
4. Whether in view of the admissions, omissions and absence of denial of the right of way, the judgements and decrees of the courts below cannot be said to be an exercise in perversity and flying in the face of the settled position of law?
5. Whether rejection of the admissions, omissions and evidence by the courts below on Page 6 of 14 Downloaded on : Tue Dec 12 20:46:49 IST 2023 NEUTRAL CITATION C/SA/158/2002 CAV JUDGMENT DATED: 12/12/2023 undefined the flimsiest of the grounds have jettisoned justice ?
6. Whether ignoring of the admissions, omissions and failure to consider concessions constitute a substantial question of law to be decided by this court for doing complete justice in the lis?
9. Learned counsel Mr. B.J. Trivedi appearing for the appellants submitted that, the trial Court has erred in law as well as on facts in dismissing the civil suit and the First Appellate Court has erred in affirming the judgment and decree passed by the trial Court. That, the contesting defendant has not stepped into witness box before the trial Court and the easementary rights having been admitted by the co-owners of the land i.e. defendant no.3 and therefore, the learned First Appellate Court while confirming the findings recorded by the trial Court, committed an error of law, as both the Courts below have misread the evidence and failed to appreciate the documentary evidence, which clearly demonstrate and establish the alleged easementry rights from the eastern side of land bearing Survey No.55 and therefore, when the findings are based on misreading of evidence, it can Page 7 of 14 Downloaded on : Tue Dec 12 20:46:49 IST 2023 NEUTRAL CITATION C/SA/158/2002 CAV JUDGMENT DATED: 12/12/2023 undefined be termed as perverse and in the second appeal, the High Court can re-appreciate the evidence.
10. In view of the aforesaid contention, learned counsel Mr. Trivedi has submitted that, the findings recorded with respect to non-existence of the said easementry right are perverse as it has been recorded against the oral as well as documentary evidence adduced by the parties. Referring the records, particularly the Sanad, Mr. Trivedi, learned counsel submitted that, there was a reference in the documentary evidence in relation to the said pathway situated at the eastern side of Survey No.55. and since immemorial, the parties were using the said pathway for the beneficial and enjoyment of the land. Mr. Trivedi has further submitted that, the contesting defendant has not stepped into witness box and the son of defendant Lakhabhai Bhagwanbhai Exh.99 admitted that, the said pathway is situated at the western side of the land bearing Survey No.55 which shows that there is an existence of the pathway which established that the findings recorded by the trial Court as well as the First Appellate Court are contrary to the oral as well as documentary evidence. Lastly, Mr. Trivedi submitted that this is the only way for enjoyment of the land and same does not properly appreciated by the Courts below and therefore, this is a fit case to interfere with Page 8 of 14 Downloaded on : Tue Dec 12 20:46:49 IST 2023 NEUTRAL CITATION C/SA/158/2002 CAV JUDGMENT DATED: 12/12/2023 undefined the concurrent findings recorded by the Courts below and the suit for permanent injunction and declaration may be decreed as prayed.
11. On the other hand, Mr. T.H. Sompura, learned counsel appearing for and on behalf of the respondents has submitted that, both the Courts below, after considering the oral as well as documentary evidence recorded that the plaintiffs failed to establish the existence of said easementry right and therefore, the findings which are based on the evidence on record, cannot be termed as perverse and same does not require any interference. He further submitted that, the Court cannot assume or infer a case of easementry right by referring the inadmissible evidence and therefore, the concurrent findings based on the proper appreciation of evidence adduced cannot be termed as perverse and thus, no substantial question of law established in the present appeal.
12. Having heard the learned counsel for the respective parties and on perusal of the case records, it appears that, the appellants-plaintiffs claiming right of easement by prescription under Section-15 of the Easement Act, 1882 in relation to the right to access from the eastern side of land bearing Survey No.55 which belongs to the respondents herein and Page 9 of 14 Downloaded on : Tue Dec 12 20:46:49 IST 2023 NEUTRAL CITATION C/SA/158/2002 CAV JUDGMENT DATED: 12/12/2023 undefined according to their case, they are using the said right of way since last hundred years for beneficial and use of their agricultural land bearing Survey No.54. It is not in dispute that, the original plaintiffs have not stepped into witness box and the deposition of their power of attorney recorded at Exh.79. It is emphasized that the defendant no.3 being a co-owner of the land has admitted the claim which has not been taken into consideration by the Courts below and the second issue is that, the contesting defendant, though filed written statement, has not proved his pleadings by recording his oral evidence.
13. To appreciate the contention, it is necessary to refer the relevant provision of the Easement Act, 1881. The term 'easement' define in Section 4 says that, an easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do or continue to do something or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own. The land for which for the beneficial enjoyment of which the right exists is called a dominant heritage and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the serviant heritage and the owner or occupier thereupon the serviant owner.
Page 10 of 14 Downloaded on : Tue Dec 12 20:46:49 IST 2023NEUTRAL CITATION C/SA/158/2002 CAV JUDGMENT DATED: 12/12/2023 undefined The easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created. The kinds of easement may be classified in three categories, mainly, (i) easement of necessity, (ii) easement of grant, and (iii) the easement by prescription.
14. In the fact of the present case, it is the case of the appellant that the access and use of pathway situated at the eastern side of the land survey no. 55 have been peaceable enjoyed without interruption and for 20 years. In case of claim of easement by prescription, the party who claimed the right over the another's land, has to show that incumbent has been using the pathway as of right peacefully and openly without any interruption for last 20 years and in order to establish the right of prescription to the detriment of the other party, one has to offer specific pleadings and categorical evidence. In order to establish the said right, the power of attorney holder of the plaintiffs Mr. Hipabhai Walabhai examined at Exh. 79 and in support of the oral evidence, the panchnama along with the map preferred by the Court Commissioner as well as the rough sketch prepared by the advocate having been relied. The witness Aajabhai Bhanabhai Exh. 95 has deposed in support of the claim. The contesting defendant examined his son Lakha Page 11 of 14 Downloaded on : Tue Dec 12 20:46:49 IST 2023 NEUTRAL CITATION C/SA/158/2002 CAV JUDGMENT DATED: 12/12/2023 undefined Bhagwanbhai at Exh. 99 and the supporting witness Kanubhai Vashrambhai at Exh. 100. The learned trial Court before whom the deposition was recorded, does not believe the alleged right of easement by holding that, the easement does not exist. In other words, the court below considered it to non-existence. The learned trial Court also believed that, the plaintiffs have alternate way to approach their agricultural field. On the same line, the first Appellate Court, after considering the evidence and settled position of law, did not consider the alleged right of easement. The learned first Appellate Court, which is final court of fact has dealt with the issues and by assigning sufficient reasons affirmed the findings of the trial Court. The first Appellate Court, while dismissing the appeal, observed that the admission on the part of the defendant no. 3 cannot be relied, as the suit is filed in connivance with the parties. The first Appellate Court has further observed that the alleged right of way is not in existence, then, by admission of the parties, it cannot be believed. The learned trial Court as well as first Appellate Court, while recording the findings, taken into consideration the proceedings undertaken by the Court Commissioner. The map prepared by the advocate at the time of filing the suit has not been considered by the court below and same has not been rightly considered by the courts below as it has no Page 12 of 14 Downloaded on : Tue Dec 12 20:46:49 IST 2023 NEUTRAL CITATION C/SA/158/2002 CAV JUDGMENT DATED: 12/12/2023 undefined evidentiary value. The courts below have categorically held that, merely non-examination of the contesting defendant would not raise adverse inference, as the burden is on the plaintiffs to establish the existence of alleged easement by leading legal and acceptable evidence, which in the present case is not established and proved.
15. For the aforementioned reasons, this Court is of considered view it is the plaintiffs have to establish and prove the existence of facts in relation to the alleged easement and the initial burden is on them to prove the existence of said alleged right and same has not been discharged by them so as to claim the alleged easement. Therefore, the defendant no. 3, who was not in actual possession of the disputed property, as by family understanding the share of the defendant no. 3 was released in favour of defendant no.1 and therefore, on the date of filing the suit, the admission in relation to the alleged easement cannot be believed to establish the existence of alleged pathway. It is no doubt true that the defendant no.1 has not stepped into witness box and instead of him, deposition of his son was recorded and there is no admission on his part that, the passage as claimed, is in existence at the eastern side of the land survey no.
55. It is to be noted that, the plaintiffs have also not Page 13 of 14 Downloaded on : Tue Dec 12 20:46:49 IST 2023 NEUTRAL CITATION C/SA/158/2002 CAV JUDGMENT DATED: 12/12/2023 undefined stepped into witness box and the witness Hapabhai, Exh. 79, is the power of attorney of the plaintiffs.
16. In the result, this Court comes to the conclusion that the courts below have rendered a concurrent findings based on the proper appreciation of the evidence adduced by the respective parties and by no stretch of imagination, it can be said that the findings recorded are perverse and therefore, this Court does not find any merits in this Appeal as no substantial question of law involved in the present appeal. Thus, the Second Appeal stands dismissed with no order as to costs.
(ILESH J. VORA,J) P.S. JOSHI Page 14 of 14 Downloaded on : Tue Dec 12 20:46:49 IST 2023