Gujarat High Court
Manishaben Pankajbhai Gupta & 3 vs Trustee Of Shree Palanpur Hindu Samaj ... on 7 June, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SA/316/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 316 of 2016
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MANISHABEN PANKAJBHAI GUPTA & 3....Appellant(s)
Versus
TRUSTEE OF SHREE PALANPUR HINDU SAMAJ TRUST &
13....Respondent(s)
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Appearance:
MR SHAKTI S JADEJA, ADVOCATE for the Appellant(s) No. 1 4
MR SP MAJMUDAR, ADVOCATE for the Appellant(s) No. 1 4
MR VIPUL S MODI, CAVEATOR for the Respondent(s) No. 1 13
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 07/06/2017
ORAL ORDER
1. The appellantsplaintiffs have filed the present Second Appeal under section 100 of Civil Procedure Code challenging the judgment and decree dated 27.10.2016 passed by the 5th Additional District Judge, Banaskantha at Palanpur (hereinafter referred to as 'the Appellate Court') in Regular Civil Appeal No.13/2016, arising out of the judgment and decree dated 28.06.2016 passed by the Additional Civil Judge, Banaskantha at Palanpur (hereinafter referred to as 'the Trial Court') in Regular Civil Suit No.104/2013.
2. The short facts giving rise to the present Second Appeal are that the appellants plaintiffs had filed suit against respondents defendants seeking right of frontage and easementry right of Page 1 of 5 HC-NIC Page 1 of 5 Created On Mon Aug 14 07:01:12 IST 2017 C/SA/316/2016 ORDER egress and ingress through the land belonging to the respondents defendantstrust, situated on the northern side of the plaintiffs' property. As per the case of the appellants plaintiffs, the plaintiffs had purchased the property situated at City Survey Sheet No.50A, from one Keshavlal Tribhovandas Mevada through the saledeed registered on 19.07.2012. On the northern side of the said property, there is a temple of Pataleshvar Mahadev managed by the respondent trust. It was further case of the appellants plaintiffs before the Trial Court that the said open land on the northern side of the plaintiffs' property was being used for egress and ingress, however, the defendants were trying to put up illegal construction on the said open land closing the frontage and the right of way of the plaintiffs. The said suit was resisted by the defendants by filing the written statement denying the allegations made by the plaintiffs and further contending, inter alia, that there was an alternative way on the eastern side of the plaintiffs' property, which was being used by the plaintiffs and that the plaintiffs did not have any right to pass through the disputed open land belonging to the defendanttrust. The Trail Court after appreciating the evidence on the record dismissed the suit vide judgment and decree dated 28.06.2016. Being aggrieved by the same, the appellants plaintiffs had preferred an Appeal being No.13/2016, which has been dismissed by the Page 2 of 5 HC-NIC Page 2 of 5 Created On Mon Aug 14 07:01:12 IST 2017 C/SA/316/2016 ORDER Appellate Court vide the impugned judgment and decree dated 27.10.2016. Hence, the present Second Appeal has been filed by the appellants plaintiffs.
3. Learned Advocate Mr.S.P.Majmudar for the appellants plaintiffs taking the Court to the judgments and decrees passed by the Courts below as well as the evidence adduced by the parties before the Lower Court, submitted that both the Courts have committed an error in not appreciating the evidence in the right perspective and in not holding that the appellants had the right of frontage, and the right of way through the disputed open land. He submitted that the disputed open land was being used by the appellants and their predecessor for more than 20 years, and that the use of alleged alternative narrow way shown by the respondents on the eastern side of plaintiffs' property was also objected by them before the concerned authority, when the appellants tried to seek permission to renovate their property. According to him, the property of the appellants is surrounded by the lands of the respondent trust and it is difficult for the appellants to let their vehicles pass through the said land.
4. However, learned Advocate Mr.Vipul Modi for the respondents defendants submitted that both the Courts below have concurrently held that the Page 3 of 5 HC-NIC Page 3 of 5 Created On Mon Aug 14 07:01:12 IST 2017 C/SA/316/2016 ORDER plaintiffs have failed to prove their right of frontage or easementry right of way through the disputed open land and therefore, this Court may not interfere with the said findings of facts recorded by both the Courts below. He reiterated that the appellants have an alternative way to pass through the land situated on the eastern side of their property.
5. Having regard to the submissions made by the learned Counsels for the parties and to the documents on record, more particularly the judgments and decrees passed by the Courts below, it appears that the appellants plaintiffs had neither examined their predecessor in title nor had produced the saledeed through which they had purchased their property, to establish their right of frontage or easementry right of way through the disputed open land belonging to the respondenttrust. Further, both the Courts below have elaborately discussed the entire evidence adduced by both the parties, and have come to the conclusion that the appellants had right of way through land situated on the eastern side of the appellants' property and therefore, the appellants could not claim easamentry right of way by necessity through the disputed land of the respondents. There being concurrent findings of facts recorded by both the Courts below, this Court is not inclined to interfere with the same and more particularly, when learned Advocate Page 4 of 5 HC-NIC Page 4 of 5 Created On Mon Aug 14 07:01:12 IST 2017 C/SA/316/2016 ORDER Mr.Majmudar for the appellants has failed to point out any substantial question of law being involved in the present appeal.
6. In that view of the matter, present Second Appeal being devoid of merits, is dismissed.
(BELA M. TRIVEDI, J.) Tuvar Page 5 of 5 HC-NIC Page 5 of 5 Created On Mon Aug 14 07:01:12 IST 2017