MOHLA ABRAHAMBHAI VAJIRBHAI Vs. RAVAL MADHABHAI LALLUBHAI

JUDGEMENT

(1.) THE present second appeal has been filed by the appellant ? original defendants posing the substantial questions of law as follow:

(2.) THE facts of the case briefly stated are that the Regular Civil Suit No. 101 of 1985 was filed by the plaintiffs ? respondents herein for claiming the right of way towards the western side through the land of the defendant no.2. THE Court Commissioner was appointed and interim injunction was granted. In spite of that, the wall was constructed. However, on the basis of appreciation of evidence, ultimately, the suit was dismissed. However, for breach of injunction by defendant no.1, the defendant no.1 was sent to civil imprisonment. Against the said judgment and order dated 30.09.1988 of the Civil Judge (J.D.), Mehsana dismissing the suit, Regular Civil Appeal No. 139 of 1988 with Civil Misc. Appeal No. 153 of 1988 was preferred by the original plaintiffs ? respondents herein which was allowed and the judgment and order passed by the trial Court in Regular Civil Suit No. 101 of 1985 was set aside. It was also declared that the plaintiffs had by prescription right of easement over the disputed land which is at the west of survey No.204/1 as stated in detail in the impugned order of the lower Appellate Court. It is against this judgment the present second appeal has been preferred raising the aforesaid substantial questions of law.

(3.) IN rejoinder, learned Advocate Mr. Belsare has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2005) 1 SCC 471 and submitted that acquisition of right of way by prescription has to be established. He submitted that easement of necessity is required to be established, which is not the case and therefore the present second appeal may be allowed.