PRABHATBHAI SHANKERBHAI PARMAR RAMNAGAR Vs. MAHIJBHAI NANABHAI PARMAR

JUDGEMENT

(1.) This is plaintiff' s Second Appeal. Brief facts giving rise to this appeal are as under : The suit was filed by the plaintiff-appellant for removal of alleged encroachment over the disputed land by the defendants No. 1 and 2 and for declaration that the defendant No. 2 has no right over the disputed mango tree and for permanent injunction restraining defendant No. 2 from collecting fruits of the mango tree and also permanent injuction restraining the defedants No. 1 and 2 from causing obstruction to the plaintiff's passage to his field through the disputed land and passage.

(2.) The defedant No. 5 who was subsequently deleted and the plaintiff are the real brothers. The dispute relates to survey No. 201/1 measuring 3 acres 17 gunthas. It was purchased by them under registered sale deed in the year 1943. The agricultural survey No. 201/2 belongs to the defendant No. 1 and survey No. 201/3 belongs to the defendant No. 2. These two plots are situated to the south of the plaintiff's land and are adjoining to the plaintiffs land. There is passage between survey No. 201/2 and 201/3 for going through the land of the plaintiff and this land has been used as passage by the plaintiff since beginning. The defendants No. 1 and 2 started causing obstruction to the passage by digging pits over it hence the suit was filed.

(3.) The defendants No. 3 and 4 are brothers of the defendants No 1 and 2. They have admitted the case of the plaintiff. The defendant No. 5 was brother of the plaintiff. He could not join in the suit as plaintiff and subsequently he was deleted.