PATEL NATVARBHAI MITHBHAI Vs. PATEL CHHAGANBHAI T

JUDGEMENT

(1.) This is a second appeal under Section 100 of the Code of Civil Procedure by original defendant in Regular Civil Suit No.141 of 1979 in the Court of Civil Judge (J.D.), at Sankheda, over which an appeal was preferred in the District Court at Baroda vide Civil Appeal No.330 of 1980.

(2.) The appellant was the defendant in Civil Suit No.141 of 1979 preferred by present respondent. The suit was preferred for declaration and injunction against the present appellant. The case of the plaintiff was that survey No.399 admeasuring 7 Vighas and 19 Vasa of village Parvata, taluka Sankheda was originally owned by Patel Mathurbhai Garbadbhai and Mithabhai Kalidas of village Krushnapara. Out of the said survey number, 7 Vighas of land of the northern side was purchased by the forefathers of the plaintiff and one Motibhai Ranchhodbhai Patel, Mathurbhai Dajibhai, Tribhovan Dajibhai, Abhurbhai Hajibhai, Manor Chhitabhai, Parshottam Varadhabhai, Babubhai Becharbhai, Bhikha Parshottam and Bhagvanbhai Desaibhai on May 16, 1919 and since then, the land is in possession of the purchasers and their heirs. Over the said survey No.399 purchased by the forefathers of the plaintiff and others, as stated above, a village named Krushnapara was established. Each of the partners left open certain land for providing passage/way to the occupants while making construction in their respective shares in the property. One road from village Krushnapara leads to village Kalediya. There is another road leads to village Sandhiya from village Krushnapara and there is a third road which leads to the river bank. These three roads of village Krushnapara were being used by the people of the village since the establishment of that village without any obstruction. According to the plaintiff, road No.1 which leads to village Kalediya passes through the land of the defendant as also the lands of one Harilal Harji and Kantilal Zaverbhai, and the land of the width of 25' was kept open. Village Krushnapara and village Parvata are suburbs of Kalediya village Panchayat. Kalediya has a railway station and a market too. Residents of Parvata and Krushnapara are required to go to village Kalediya for their domestic requirements and, therefore, this road No.1 is lifeline of village Krushnapara and, therefore, Taluka Panchayat has constructed a Pucca road from Krushnapara to Kalediya. Around November 1978, the defendant erected a hut in his land through which the road passes and which was kept open till then. The measurement of the hut is 17' x 12'. The said construction was made without permission from the Panchayat. As a result of this construction of hut, the road to village Kalediya for the residents of Krushnapara is obstructed and the plaintiff and other village people are not able to go through that road by bullock carts and are put to great harassment. According to the plaintiff, the hut is constructed on public road without permission from the Panchayat and, therefore, a notice was served by the Panchayat. The defendant paid no heed to the notice and had continued to obstruct the right of way of the residents of the village as well as the plaintiff and the suit was, therefore, required to be brought. The plaintiff sought permission under Order 1, Rule 8 of the Code of Civil Procedure by a separate application which was granted by the Trial Court. According to the plaintiff, the cause of action arose in November 1978 and the suit was brought on the 6th August, 1979, seeking declaration that the defendant has no right to erect the hut on the public road between Krushnapara and Kalediya and he may be mandatorily directed to remove the construction made by him and not to make any construction in future.

(3.) The suit was opposed by the defendant by filing written statement at Ex.14. In the written statement, the defendant denied the case of the plaintiff and came with a contention that the land admeasuring 1.82.00 hectare forming part of survey No.399/1 of village Parvata, taluka Sankheda, stands in the name of Ramanbhai Tribhovandas, a family member of the defendant and the defendant and his family members are in occupation thereof since the time of their forefathers, i.e. since 1919. The defendant did not admit the factum of land having been purchased by the forefathers of the plaintiff along with other persons. It was admitted that village Krushnapara was established on the 7 Vighas of land. It is the case of the defendant that while making construction, each sharer/owner had left some portion of his land open for his own use and passage and neither the plaintiff nor anybody else has any right over the land of the defendant. The defendant denied that the piece of land over which the hut is constructed was used by the residents of the village as road for more than 60 years. According to the defendant, the land over which the hut is constructed does not obstruct the Krushnapara Kalediya road in any manner. There is altogether a different road leading to village Kalediya, Sandhiya and Parvata. According to him, there is one road on the west and one on the east of the disputed land, which lead to village Kalediya. According to the defendant, no right of the plaintiff is affected in any manner and the suit is, therefore, false and may be dismissed.