KESHAVLAL SOMNATH JOSHI Vs. MANUBHAI SOMNATH JOSHI

JUDGEMENT

(1.) By way of this petition under Article 227 of the Constitution of India, the petitioner, - original plaintiff has prayed for an appropriate order to quash and set aside the order dated 30-10-07 passed by the learned Presiding officer, Fast Track Court No.1, Mehsana passed in Civil Misc. Appeal No.157/07, by which the learned Appellate Court has allowed the said appeal by quashing and setting aside the order passed by the learned Civil Judge (SD), Mehsana below Exh-5 and 15 dated 9-10-07.

(2.) It is the case of the petitioner that the petitioner is the real brother of the respondent No.1 and the respondent Nos.2 and 3 are the nephew of the petitioner. That the forefathers of the petitioner were owning the land situated at Survey No.727 at village Mevu, Tal & Dist: Mehsana admeasuring 1 hector, 56 are and 82 sq mtr. That because of the family arrangement, the said land was devided between the petitioner and the respondent No.1 and out of which, the land situated at southern side was given to the petitioner and he is in possession of the said land and the land on the northern side is in possession of the respondent No.1. That respondent Nos.2 and 3 being the son of the respondent No.1 are also cultivating the said land which was gone in the share of the respondent No.1. One understanding by way of agreement was arrived at between the petitioner and the respondent No.1 on 19-9-2004, whereby it was specifically mentioned that there is a road of the width of 10 ft, which shall be used by the petitioner. It is the case of the petitioner that on 28-9-07, when the petitioner went to his suit property, the respondents asked the petitioner that petitioner shall give the land to them and when the petitioner declined to sell the land, the respondents got annoyed and they told the petitioner not to pass through the way and they decided to put obstructions on the way. It is the case of the petitioner that the said way is the only way available to the petitioner to get assess to the field of the petitioner and as the petitioner was restrained from using the said way, the petitioner immediately filed suit on 29-9-07 being civil suit No.225/07 in the Court of learned Civil Judge (SD), Mehsana. In the said suit, the petitioner also filed application below Exh-5 restraining the petitioner from using the said way and the learned trial Court issued the notice below Exh-5 making it returnable on 3-10-07. However, in the meantime, the defendants constructed the wall on the road and therefore, the petitioner submitted another application below Exh-15 for mandatory relief of removing the wall constructed on the road. The learned trial Court also appointed the Court Commissioner to prepare the panchnama and the Court Commissioner after visiting the place prepared the panchnama on 30-9-07. The learned trial Court after giving an opportunity to the plaintiff as well as the defendants and after considering the fact that there was already an agreement between the parties dated 19-9-2004 and the wall has been constructed recently and there is no other way available to the petitioner to go to his field, the learned trial Court by order dated 9-10-2007 passed below Exh-5 and 15, allowed both the applications directing the defendants to keep open the road which was as per the agreement mark 4/3 and colour photograph, mark 11/2 and further directed the defendants to remove the wall constructed on the road till the final disposal of the suit. Being aggrieved by the aforesaid order passed below Exh-5 and 15 dated 9-10-07, the respondents herein, - original defendants preferred Civil Misc. Appeal No.157/07 and the learned Presiding Officer and Addl. District Judge, 1st Fast Track Court, Mehsana by his judgment and order dated 30-10-07 allowed the said appeal and quashed and set aside the order passed by the learned trial Court below Exh-5 dated 9-10-2007. Being aggrieved by the aforesaid judgment and order, the petitioner, - original plaintiff has preferred the present petition under Article 227 of the Constitution of India.

(3.) With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing as per the order dated 13-11-2007.