DIPESHKUMAR BABUBHAI SAVANI Vs. KANUDAN SHIVDAN LANGAVADARA

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India filed challenging the order passed below Exh.5 in Regular Civil Suit No.51 of 2017 by learned Principal Civil Judge, Gadhada dtd. 15/6/2019 rejecting injunction application Exh.5 against which petitioners-plaintiffs have preferred Civil Misc. Appeal No.13 of 2019 which also came to be dismissed vide an order dtd. 19/8/2021 passed by learned Principal District Judge, Botad confirming the order passed by the learned trial Judge.

(2.) Mr.Mrudul Barot, learned advocate for the petitioners submitted that the respondents-defendants have no right of way towards the boundary on the eastern side of the field of the plaintiffs and they are interfering with the possession of the plaintiffs in enjoyment of the property and therefore, injunction, as prayed for, is required to be granted. He has further submitted that he has sought for an injunction to the effect that on the eastern boundary of his field, the defendants use that land for the purpose of access to their field for which they are not entitled and creating annoyance to the plaintiffs and therefore, they are required to be injuncted from using the same and therefore, he requested that petition be admitted and allowed.

(3.) Having heard Mr.Mrudul Barot, learned advocate for the petitioners and going through the order passed below Exh.5 by the trial Court as also passed by the appellate Court confirming the order of trial Court on the ground that the defendants possessed as owners, the property adjoining to the field of the plaintiffs as recorded in the sale-deed whereby they purchased the same. It recognizes the right of way including taking of cart for the purpose of agriculture from that way since about 35 years even by the erstwhile owners and therefore, no such injunction, as prayed for, could be granted restraining the defendants. After examining the documentary evidence produced by the plaintiffs as also the defendants, over and above the panchnama drawn by the Court Commissioner, it is concluded that defendants when purchased the property using the said disputed way for access to their land and erstwhile owner was also using the said way, which is purchased by the present defendants, even the trial Court has referred the sale-deed produced by the plaintiffs to conclude that the plaintiffs have no prima-facie case. On examination of the material before it, the Court concluded that even balance of convenience is also not in favour of the plaintiffs and injunction, as prayed for, which came to be rejected by the trial Court and confirmed by the appellate Court while exercising the supervisory jurisdiction under Article 227 of the Constitution of India, I see no reason to interfere with the same. Hence, this petition is rejected.