PATEL CHANDUBHAI ISHVARBHAI Vs. PATEL MOTIBHAI LALLUBHAI

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 17-4-1978 passed by the learned Jt. District Judge, Ahmedabad (Rural) at Narol in Regular Civil Appeal No. 47 of 1977 dismissing the appeal preferred by the appellant herein and confirming the judgment and decree dated 31-3-1977 passed by the learned Civil Judge (J.D.), Dholka in Regular Civil Suit No. 101 of 1972 whereby the suit filed by the plaintiff was dismissed with costs.

(2.) The brief facts of the present appeal are that the appellant (Original plaintiff) has filed Regular Civil Suit No. 101 of 1972 in the Court of the learned Civil Judge (J.D.), Dholka for perpetual prohibitory injunction restraining the present respondent from obstructing the appellant-plaintiff in passing on the suit way with or without cattle, agricultural implements, bullock, bullock-cart etc. and for declaration that the land in dispute be declared as public road. That the houses of the plaintiff and defendant are situated in a Khadki known as Nadiadrani Khadki located in the locality known as Derasar of village Chaloda. The appellant-plaintiff used his house for tethering cattle and original defendant No. 1 who is not the respondent and against whom the suit was not pressed and who has also expired had got her house to the south of and adjacent to the house of the appellantplaintiff. The present respondent-defendant has got his house to the south and adjacent to the house of original defendant No. 1 Bai Diwali. There is osari in front of the house of the present respondent and said Bai Diwali. There is open piece of land in front of and to the east of the house of the appellant-plaintiff. There are two houses to the north of this open piece of land. One house belongs to one Shri Himabhai Somabhai and the other house belongs to one Nagarbhai Waghjibhai. According to the appellant-plaintiff, this open piece of land which is in front of and to the east of his house and which is also to the south and at the back of bonbas of said Himabhai and Nagarbhai is nothing but a public road. According to the plaintiff-appellant, respondent obstructed his right of way by tethering cattle on this portion of land. It is the further case of the appellant-plaintiff that the respondent-defendant had started tethering the cattle since April, 1970, but on objection by the appellant, he stopped tethering cattle. Appellant-plaintiff made an application to the Gram Panchayat pointing out that the land in dispute was a public road. Again respondent made obstruction by tethering cattle in June, 1970. According to the appellant-plaintiff, notice was issued by the Panchayat to the respondent. Respondent replied to that notice but thereafter no action was taken against the respondent. In the alternative, the appellant pleaded that he has got a right of easement of way to pass through this portion of the land as he and his predecessors in title have been passing on this road since the time immemorial to the knowledge of the respondent and his predecessor in title and as of right and without any obstruction. As no action was taken against the respondent-defendant, the appellant-plaintiff filed suit being Reg. Civil Suit No. 101 of 1972 in the Court of the learned Civil Judge (J. D.), Dholka for declaration and permanent perpetual prohibitory injunction as stated above. Said suit came to be dismissed by the learned Magistrate by his judgment and decree dated 31-3-1977. Appeal filed by the appellant against the said judgment and decree dated 31-3-1977 being Reg. Civil Appeal No. 47 of 1977 in the Court of the learned Jt. District Judge, Narol also came to be dismissed by the learned Jt. District Judge by his judgment and order dated 17-4-1978.

(3.) The substantial question of law involved in this appeal as raised by the learned Counsel for the appellant is "whether in absence of any evidence to show that the original document was lost or was not available, certified copy thereof Exhibit 94 could have been admitted in evidence ?"