PATEL BABABHAI TRIBHOVANDAS Vs. KANTILAL BHAICHAND

JUDGEMENT

(1.) THE plaintiff -appellant filed Regular Civil Suit No. 177 of 1970 in the Court of the Civil Judge, Junior Division at Vijapur for declaration of his right of way through the fields of the defendants as also for a permanent injunction to restrain the defendants from causing any obstruction to him in the enjoyment of the said right. The plaintiff is admittedly the owner of S. Nos. 1277 and 1278 situate in the Sim of village Gozariya, while defendants Nos. 1 and 2 are the owners of the field bearing S. No. 1268/1, defendant No. 3 is the owner of the field bearing S. No. 1268/2 and defendant No. 4 is the owner of the field bearing S. No. 1269 which are all situated in the said Sim. The situation of the fields of the plaintiffs as well as the defendants are very well depicted in the sketch, Exhibit 66 produced before the trial Court. It shows that S. No. 1277 is to the south of S. No. 1278 both of which are of the ownership of the plaintiffs, S. No. 1269 is to the south of S. No. 1277, while S. No. 1268 is to the south of S. No. 1269. It is the case of theplaintiffs that he has to pass through S. Nos. 1270, 1268 and 1269 for going to his field bearing S. No. 1277 from which he can also go to S. No.1278. The plaintiff came out with a case that he was enjoying the suit way as of right for a period of more than 20 years and hence he was entitled to the said right of way by prescriptive user. He also came out with a say that he had no other way for going to his field and, therefore, he was also entitled to claim the right of way through the fields of the defendants as an easement of necessity.

(2.) THE defendants resisted the suit and denied the claim of the plaintiff. They denied that the plaintiff was passing through their fields or that he had a right of way as an easement of necessity through their fields.

(3.) THE learned trial Judge framed issues at Exhibit 37. He recorded a finding against the plaintiff so far as the claim of the plaintiff as an easement by prescriptive user is concerned. He also negatived the claim of the plaintiff so far as the claim based on easement of necessity is concerned. He also held that the suit was not barred by limitation nor by non -joinder of parties nor on account of any defect in the form. The learned trial Judge, in view of his findings recorded as above, dismissed the suit of the plaintiff with costs. Being dissatisfied with the judgment and decree passed by the trial Court, the plaintiff filed Regular Civil Appeal No. 147 of 1975 in the District Court at Mehsana. The learned Extra Assistant Judge who heard the appeal, after taking into consideration the application, Exhibit 49, submitted by the plaintiff to the Mamlatdar sometime in the month of July, 1970, reached the conclusion that the said application was fatal to the case of the plaintiff. He concurred with the finding recorded by the learned trial Judge that the oral evidence led by the plaintiff was not reliable or convincing to establish the alleged right of way claimed by the plaintiff. He accordingly dismissed the appeal with costs. He also directed that the pleaders' fees for the purpose of the costs in the appeal should be taxed at Rs. 100/ - looking to the facts of the case. Being dissatisfied with the judgment and decree passed by the appellate court, the original plaintiff has come in Second Appeal before this Court.