SAMJI SHIVJI Vs. DEVJI VALJI

JUDGEMENT

(1.) The appellant original defendant has filed this Second Appeal under Section 100 of the Code of Civil Procedure challenging the judgment and order passed by the learned Assistant Judge, Kutch at Bhuj in Regular Civil Appeal No.432 of 1980 on 30.07.1983 setting aside the judgment and decree passed by the learned Joint Civil Judge (J.D.), Bhuj in Regular Civil Suit No.39 of 1976 dated 26.09.1980.

(2.) This Second Appeal was admitted by this Court on 25.01.1984 and following substantial question of law was framed for determination and consideration of this Court :-

(3.) The brief facts giving rise to the present Second Appeal are that the original plaintiff present respondent had filed suit alleging therein that he is the owner of field situated in the sim of village Jambudi. There is a field of the defendant present appellant on the southern side of his land. The way for going to the land of defendant is through a Chella (water course) going towards village Jambudi. There is also an entrance for bullock cart since decades at the southern boundary of the land of defendant. The defendant was going to his land by that way for the last several years. The defendant has no right to pass through the land of plaintiff for the purpose of going to his land. Still, however, the defendant filed the suit before the Mamlatdar under Section 5 of Mamlatdars Courts Act, alleging that he has a right of way through the land of plaintiff. The suit was dismissed by the Mamlatdar.