PATEL DAHYABHAI MANIBHAI Vs. PATEL GOVINDBHAI SHIVABHAI

JUDGEMENT

(1.) THE appellant plaintiff has preferred this Second Appeal u/s 100 of the Civil Procedure Code, 1908 (for short 'cpc")and challenged the judgment and degree passed by the learned Civil Judge (JD), Kheda on 29-11-1980 in Regular Civil Suit No. 89 of 1975 dismissing the suit and confirmed by the learned 2nd Extra Assistant Judge, Kheda at Nadiad in Civil Appeal No. 14 of 1981 on 1-8-1983.

(2.) THE plaintiff filed the suit for declaration and permanent injunction contending that he is the owner of property bearing Panchayat Nos. 304 and 305 situated in Shyamal Malji's "khadki" at village Kanij and there is an open land on the eastern side of the land bearing Panchayat Nos. 304, 305 and 308 in the "khadki" and open land admeasuring 41 x 14 feet on the eastern side of land bearing Panchayat No. 308 is the suit land. It is further contended that he has right of way to go to his property bearing Panchayat Nos. 305 through the open land bearing Panchayat No. 308 and has been using the passage to go to his land with bullock carts etc. and such right is an easement right. It is further contended that land bearing Panchayat No. 308 belongs to the defendants and they are proposing to make construction on the said open land and if proposed construction is permitted to be made he would not be able to go to his property and therefore suit for permanent injunction restraining the defendants from making any construction and obstructing his right of way was filed.

(3.) THE defendants contested the suit by filing written statement Exh. 21 and contended that the plaintiff and his brother had earlier filed Civil Suit no. 14 of 1965 in respect of the suit property against them claiming right of way as co-owners. But the suit was dismissed and the appeal filed by the plaintiff was also dismissed. Therefore, the plaintiff preferred Second Appeal No. 546 of 1969 which was also dismissed. Therefore, as the plaintiff had earlier filed the suit on the same cause of action he could have pleaded right of easement therein but as he did not claim easement right this suit was barred under Order II Rule 2 of the CPC. It is also contended that the plaintiff has not enjoyed his right of way of easement since more than two years prior to the date of filing of the suit. Therefore, the suit is not maintainable and is barred by the principle of res-judicata and stopple. The defendants have taken other contentions also but in view of the substantial questions of law formulated by this Court, they are not relevant for the purpose of this second appeal and therefore they are not reproduced.