ZALA KEDARSINH FATESINH Vs. ZALA MANISINH MADHUSINH

JUDGEMENT

(1.) This Second Appeal is filed under Sec. 100 of the Code of Civil Procedure, 1908 ('CPC' for short) being aggrieved by the judgment and order passed by the learned Additional District Judge, Sabarkantha at Himmatnagar dtd. 16/10/2023 in Regular Civil Appeal No.15 of 2014, by which the learned District Court has allowed the appeal filed by the respondent nos.1 and 2 and has quashed and set aside the judgment and order dtd. 5/5/2014 passed by the learned Principal Senior Civil Judge, Himmatnagar in Regular Civil Suit No.76 of 2011.

(2.) The brief facts leading to filing of this appeal, as stated in the memo of the appeal, are such that the appellant filed the Regular Civil Suit No.76 of 2011 for declaration and permanent injunction before the learned Principal Senior Civil Judge, Himmatnagar stating that the appellant is occupying and cultivating an agricultural land bearing survey no.363 situated at village Deharota jointly with other family members; that the respondent nos.1 and 2 who are original defendant nos.2 and 3 are holding the agricultural lands bearing survey numbers 360 and 364 in the same village; that the said respondents had never passed through the northern boundary of survey no.363 belonging to the appellant to reach their agricultural lands; that though there was no way existing on the northern boundary of survey no.363, the concerned respondents had filed Mamlatdar Court Case No.13 of 2007 before the Mamlatdar, Himmatnagar interalia alleging that they were using the way passing through the northern boundary of survey no.363 for reaching to their agricultural lands since the days of their forefathers; that the respondents filed suit before the Mamlatdar stating that in July 2007, the appellant had closed the said way by raising wire fencing and prayed to open up the said way; the same was resisted by the appellant stating that the respondents had never passed through the northern boundary of the land of the appellant and they were using one public way known as Kundala Naliya to reach their agricultural lands; that the Mamlatdar allowed the said suit of the respondents by holding that the respondents were having 3' path way on the northern boundary of survey no.363 belonging to the appellant and directed the appellant to open up the said way; that being aggrieved by the said order, the appellant as well as the respondents preferred revision applications before the Deputy Collector; that the Deputy Collector dismissed the revision application filed by the appellant and allowed the revision application filed by the respondents and had confirmed the order of the Mamlatdar Court directing the appellant to open sufficient way so as to enable the respondents to carry the agricultural implements.

(3.) It is further stated that the appellant, therefore, filed the Regular Civil Suit, which was partly allowed by holding that the respondents had no right of way on the northern boundary of survey no.363 of the appellant and restrained the respondents from passing through the northern boundary of the survey no.363 belonging to the appellant; that against the said judgment and order, the respondents filed Regular Civil Appeal No.15 of 2014 before the learned Additional District Judge, Sabarkantha at Himmatnagar, which was allowed. It is against this, the appellant-original plaintiff has filed this Second Appeal raising substantial questions of law as stated in the memo of the appeal.