KABHAIBHAI SHANABHAI Vs. ABHABHAI SHANKARBHAI SODHA

JUDGEMENT

(1.) THIS appeal is at the instance of the original plaintiff who had succeeded before the trial Court. It is his case before the trial court that he has the right of way to pass through a path way called Navera of 10 ft. in width between his house and the house of the defendant. Such right was obstructed by the defendant and, therefore, necessity for filing the suit for declaration and permanent injunction had arisen. Learned trial Judge considered and appreciated the oral as also the documentary evidence available on record. On the basis of such appreciation of the evidence, learned trial Judge found that there was way available to the plaintiff as claimed by the plaintiff between the two properties and thus allowed the suit of the plaintiff and declared that the defendant has no right or authority to cause obstruction to the plaintiff in using such way in Navera which is between the houses of the plaintiff and the defendant.

(2.) THE defendant challenged the said judgment and decree passed by the learned trial Judge by filing Regular Civil Appeal No. 88 of 2003 in the Court of the learned 7th Ad-hoc Additional District Judge Kheda at Nadiad. As could be seen from the judgment of the learned appellate Judge, the judgment is of total 10 paragraphs. Out of 10 paragraphs, the learned appellate Judge has recorded submissions of the learned advocates upto 9th paragraph and following is the consideration, appreciation and application of mind of the learned appellate Judge in paragraph 10:

(3.) CONSIDERING the facts of the case especially the manner and method in which the learned appellate Judge dealt with the appeal, this appeal is required to be finally heard by this Court and, therefore, this appeal is admitted on the following substantial question of law: