RAMSINGHBHAI HATHIBHAI SODHA PARMAR Vs. FATABHAI MANGALBHAI PARMAR

JUDGEMENT

(1.) The plaintiff preferred Regular Civil Suit No. 376/99 for declaration and permanent injunction. The plaintiff also filed an application Exh. 5 for interim injunction for restraining the defendants from using the land of the petitioners as a way. The defendants also filed an application Exh. 23 for interim injunction that the plaintiffs be restrained from using the way existing on the land bearing Block No. 134. The Trial Court allowed the application Exh. 5 and dismissed the application Exh. 23 by common order.

(2.) Being aggrieved by the order passed by the Trial Court preferred Civil Misc. Appeals No. 162 and 163 of 2000. The lower Appellate Court set aside the order passed by the Trial Court and allowed both the appeals and dismissed the application Exh. 5 and allowed the application Exh. 23 by common judgment and order. Against that common order of the lower Appellate Court, the present revision applications have been filed before this Court.

(3.) Learned counsel for the petitioner contended that on the basis of the findings recorded by the lower Appellate Court "No doubt in the present case some alternative arrangement is made by filling up the canal and putting pipe over it to go to the fields of the defendants. So the easement of necessity would not survive." On these findings, the learned counsel for the petitioner submitted that easement of necessity does not survive as soon as the alternative arrangement has been made by the parties concerned. So far as the easement by prescription is concerned, that has to be proved by the evidence to be led by the parties and in that connection he has relied on the decision of this Court in the case of Rameshchandra Bhikhabhai Patel vs. Sakriben wd/o Maneklal Maganlal Patel and Another reported in 1978 (19) GLR 329, wherein it has been held as under: