MAGANBHAI AMBABHAI BHALANI Vs. HARSUKHBHAI GORDHANBHAI

JUDGEMENT

(1.) DRAFT amendment allowed.

(2.) THE present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant- original defendant to quash and set aside the impugned judgment and decree passed by the learned 2 nd Joint Civil Judge (Junior Division), Junagadh dated 22/02/2000 in Regular Civil Suit No. 407/1995 confirmed by the learned appellate Court by impugned judgment and order dated 24/02/2011 passed in Regular Civil Appeal No. 74/2000.

(3.) SHRI Ramnandan Singh, learned advocate appearing on behalf of the appellant-original defendant has vehemently submitted that both the Courts below have materially erred in decreeing the suit and granting declaration and permanent injunction in favour of the respondent-original plaintiff. It is submitted that as such the suit in question was not titled as suit for easementary right and, therefore, both the Courts below have materially erred in granting declaration and permanent injunction considering the easementary right. He has further submitted that even on merits also both the Courts below have materially erred in holding and giving the finding that there was a way of 13.6 feet between the house of the appellant-original defendant and the house of the respondent- original plaintiff. It is further submitted that both the Courts below have materially erred in not properly appreciating the evidence. It is further submitted that the learned trial Court was not justified in entertaining the suit as the property is not located by survey number or village map. Making the above submission, it is requested to admit/allow the present Second Appeal.