Whether Reporters Of Local Papers ... vs Patel Shankerbhai Somabhai

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== LEGAL HEIRS OF DECEASED PATEL AMBALAL DAJIBHAI &

1....Appellant(s) Versus PATEL SHANKERBHAI SOMABHAI....Respondent(s) ========================================================== Appearance:

MR PRAVIN PANCHAL with MR PRAKASH K JANI, ADVOCATE for the Appellant(s) No. 1 - 1.4 , 2 MS KJ BRAHMBHATT, ADVOCATE for the Respondent(s) No. 1 MS VARSHA BRAHMBHATT, ADVOCATE for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date :03/05/2016 CAV JUDGMENT Heard learned advocate Mr. Pravin Panchal for the appellants and learned advocate Ms. Varsha J Brahmbhatt for Ms. KJ Brahmbhatt for Page 1 of 15 HC-NIC Page 1 of 15 Created On Wed May 04 05:29:50 IST 2016 C/SA/69/1995 CAV JUDGMENT the respondent. Perused the record and proceedings.

2 While admitting the appeal on 26/6/1995, the Coordinate Bench of this High Court has framed following substantial questions of law stating that they are raised in this appeal.

[1] In a case involving prescriptive easement, what could be the relevance of the oral evidence as to the recent user and the change in topography in relation to the documentary evidence.

[2] Could prescriptive easement be decided only on the basis of the oral evidence?

3 The appellants herein are original defendants, whereas the respondent is original plaintiff. They are hereinafter referred to in their same capacity as before the trial Court.

4 The plaintiff has filed Regular Civil Suit No. 79/1982 before the Court of the Civil Judge [J.D.] Kalol [for short 'the trial Court'] on 6/6/1982 seeking a declaration that he has got a right of way to reach upto his house no. 413 situated in village Palsana of Taluka Kalol through north-south 10 ft., wide road from eastern side of his house and to enjoy easement of light and air from such side, with an Page 2 of 15 HC-NIC Page 2 of 15 Created On Wed May 04 05:29:50 IST 2016 C/SA/69/1995 CAV JUDGMENT ancillary relief that in view of such right of way, defendants should be restrained from making any kind of construction on such road and to restrain the defendants from refraining the plaintiff from using such road. It seems that pending the suit, the defendants have encroached some portion of the road in question and, therefore, plaintiff has amended the suit to restrain the defendants from making further construction which was restraining the plaintiff from using such road and easement of light and air.

5 An application for interim relief so as to enjoy the suit way was preferred at exh. 5, wherein though an order of status-quo was granted on 6/6/1982, such application was ultimately disposed of by an order dated 13/1/1984, but with some modification, whereby the trial Court has directed the defendants to keep only 4 ft., road and permitted them to continue their construction, but with a direction to maintain status-quo as per panchnama prepared by the Court Commissioner. Thereby, such order below exh. 5 was practically creating some uncertainty inasmuch as where construction is allowed in some portion of the land, there is necessity to ascertain that it may not be extended so as to restrain the entire road of the plaintiff, when Court has believed that at least 4 ft., area is Page 3 of 15 HC-NIC Page 3 of 15 Created On Wed May 04 05:29:50 IST 2016 C/SA/69/1995 CAV JUDGMENT to be kept open.

6 The suit was thereafter dismissed by the trial Court by its judgment and order dated 28/4/1994. Thus, dismissal of the suit would result into permission to the defendants to carry out construction at disputed place, which may result into obstruction for the plaintiff as pleaded by them in the plaint and, therefore, the plaintiff has preferred Regular Civil Appeal No. 74/1994 before the District Court at Mehsana challenging the judgment and decree dated 28/4/1994 passed in such Regular Civil Suit No. 79/1982 by the trial Court.

7 The Joint District Judge, District Court, Mehsana, [for short 'the appellate Court'] has by impugned judgment and order dated 4/4/1995 allowed the Appeal and thereby the judgment and decree passed by the trial Court was set aside. Thereby the original suit of the plaintiff stands allowed and, therefore, by impugned judgment, the appellate Court has declared that the original suit of the plaintiff is allowed with further declaration that the plaintiff has got easementary right for passing and repassing and of light and air in suit way ad-measuring 10 ft., in front of the house of the defendants, on which side there is approach entry to the house of the Page 4 of 15 HC-NIC Page 4 of 15 Created On Wed May 04 05:29:50 IST 2016 C/SA/69/1995 CAV JUDGMENT plaintiff also. Thereby, the defendants, their men, agents and servants are permanently restrained from making construction in the suit road of 10 ft., with further order to the defendants to remove construction from such piece of land which was made by them with further direction to remove stands of tethering cattle in the said 10 ft wide road. Thereby, declaration and permanent injunction are granted as prayed for. The appellate Court also awarded the costs of the appeal to the plaintiff.

8 It is such judgment and order which is under challenge in this second appeal by the original defendants. The sum and substance of the appeal, is to the effect that there is misinterpretation of documents at exhs. 85, 99, 92 and 103. It is also contended that the trial Court has failed to appreciate the oral evidence of Manilal at exh. 129 and Kantilal at exh. 142. Thereby, it is contended that the plaintiff has no right of easement by prescription over the land of the defendants.

9 The defendants have raised following questions as substantial questions of law in the memo of appeal :

[A] Whether the Appellate Court was justified in holding that, in view of the Page 5 of 15 HC-NIC Page 5 of 15 Created On Wed May 04 05:29:50 IST 2016 C/SA/69/1995 CAV JUDGMENT documents at exh. 88 and 92, the respondent has got the prescriptive right of easement or not?

[B] Whether the Appellate Court was right in holding that, even if the appellants - defendants are the owners of the land in question, the respondent - plaintiff has got a right of easement by way of prescription?

[C] Whether the Appellate Court was right in holding that in the facts and circumstances of the present case, the plaintiffs were entitled to get prescriptive right of easement?

scrutinized at this stage is only to verify that whether documents referred by the appellants/ defendants are confirming any easement right and if so, then in whose favour. To that extent, with due respect, the substantial questions of law framed by this Court are to some extent irrelevant, inasmuch as there is some documentary evidence to confirm the easement right and, therefore, oral evidence needs to be scrutinized with such documentary evidence.

HC-NIC Page 6 of 15 Created On Wed May 04 05:29:50 IST 2016 C/SA/69/1995 CAV JUDGMENT 11 If the oral and documentary evidence is scrutinized, the sum and substance of the available evidence on record can be summarized as under :

11.1 The plaintiff has examined himself at exh. 87, wherein he has deposed about his right of way and also about construction made by the defendants, wherein it is clarified that there is some construction on the suit road by the defendants. Therefore, what is to be scrutinized is to see that whether such land is to be kept open or that it is owned by the defendants independently and without any restriction so as to construct any portion, which results into restriction of right of way, light and air to the plaintiff. For the purpose, sale transaction of one of the suit properties is material which is by way of sale-deed produced at exh. 88 and seems to be executed in the year 1931. Therefore, there is no reason to discard or disbelieve the contents of such document being later than 20 years at the relevant time. The perusal of such sale deed makes it clear that on eastern side of the plaintiff's house, there is some portion of private land of the house, but thereafter, there is a way. Such appreciation of evidence is properly made by the appellate Court. Immediately after such document, there is a sketch prepared Page 7 of 15 HC-NIC Page 7 of 15 Created On Wed May 04 05:29:50 IST 2016 C/SA/69/1995 CAV JUDGMENT by hand at the relevant time and it is more convincing to realize the correct situation from such sketch at exh. 89. The perusal of such sketch at exh. 89 makes it very clear that there is 10 ft., wide road in front of the house of the plaintiff and defendants since houses of both the sides are adjoining each other. It is also evident from such sketch that there is some construction in such open land which is identified on the road in the map. The sketch/map also confirms that such road is meeting to east- west road on northern side where it ends and merged with east-west road; whereas on southern side at-least in the map, it is continued but in between, one road is touching to the disputed road from western side and such road is coming from Patel Vas. Thereby there is T junction at the end of Patel Vas and there is another T junction at the northern end of the road which is touching the road leading to Harijan Vas. Therefore, one thing is certain that 10 ft., road is there throughout the length of the road because it is opening in such another road so also one road from Patel Vas is opening in such road from western side.

11.2 Whereas at exh. 92, there is one another sale-deed wherein also there is specific mention about the suit road that there is a road towards Page 8 of 15 HC-NIC Page 8 of 15 Created On Wed May 04 05:29:50 IST 2016 C/SA/69/1995 CAV JUDGMENT Harijan Vas, so also there is road on southern side of such property. Therefore, such document is also confirming the existence of road.

12 If we peruse the report of the local inspection i.e. Panchnama prepared by the Court Commissioner on 6/6/1982 i.e. day on which the suit was filed, it becomes very much clear that the Court Commissioner has in presence of both the parties, so also independent Panchas, categorically recorded that the width of the plaintiff's house from east to west is 15 ft., and immediately at the edge of such house, defendants started construction touching the house of the plaintiff, for which land has been dug for foundation work. It is also recorded in such Panchnama that just adjoining to the house of the plaintiff and in nearby area, the construction material including bricks, etc., are lying in such a manner that it certainly restricts right of way of the plaintiff and if such construction is permitted to be carried out, then the plaintiff's right of way to his house would be closed and there may be only 2 ½ ft., place between the house of the plaintiff and such proposed construction.

13 Since the defendants have raised issue regarding interpretation of exhs. 82, 85, 88, 92, Page 9 of 15 HC-NIC Page 9 of 15 Created On Wed May 04 05:29:50 IST 2016 C/SA/69/1995 CAV JUDGMENT 93 and 103, it would be appropriate to first scrutinize such documents.

13.1 Exh. 88 is the sale-deed wherein there is a reference of suit road, as discussed hereinabove. So no further discussion is required. Whereas exh. 82 is list of documents and, therefore, reference of such document/exhibit in para. 4 [A] in the memo of appeal is irrelevant. So also exh. 85 is also an application for adjournment only and, therefore, there is no substance in the ground [G] of the appeal. Exh. 88 is again sale-deed wherein there is a reference of road as discussed hereinabove, which is in fact in favour of the plaintiff and, therefore, there is no illegality or irregularity in interpretation of such document by the first appellate Court. On the contrary, the trial Court has failed to appreciate such document properly. Exh. 192 is also sale-deed having disclosure about the suit land. Whereas exh. 103 is only record of the houses of the parties and, therefore, it does not confirm the right of way.

14 In fact exh. 116 is crucial document being resolution under the revenue Act by the Collector in form of Schedule H under section 133 of the Land Revenue Code, wherein also there is specific disclosure about road and when Page 10 of 15 HC-NIC Page 10 of 15 Created On Wed May 04 05:29:50 IST 2016 C/SA/69/1995 CAV JUDGMENT construction permission was granted in favour of the plaintiff's predecessor in title. Therefore, the documentary evidence relied upon by the defendants is in fact in favour of the plaintiff.

15 In continuity of above discussion, if we peruse the judgment by the trial Court, it seems that the trial Court has considered that the permission of construction as per exh. 116 is not properly adhered by the plaintiff and, therefore, he has no right to claim. However, there is no evidence to prove that the plaintiff has made any illegal or unauthorized construction or any additional construction. Even it is not the case of the appellants - defendants and, therefore, when the plaintiff has produced such permission to prove that he has a right to have construction of house and that there is a road on eastern side of his house and when such permission was granted, the trial Court has considered such document differently to dismiss the suit. It cannot be ignored that pending the suit, an application was filed for transferring the suit at exh. 155 disclosing that the plaintiff has filed transfer application before the District Court and, therefore, Court should not deliver judgment. However, such application was dismissed on 28/4/1994 and on the same day, suit was also dismissed. Though such fact cannot be clubbed Page 11 of 15 HC-NIC Page 11 of 15 Created On Wed May 04 05:29:50 IST 2016 C/SA/69/1995 CAV JUDGMENT with the merits of the case, it cannot be ignored also.

16 In the background of above discussion, if we peruse the impugned judgment, it transpires that the appellate Court has discussed all relevant evidence, more particularly sale-deeds at exhs. 88 and 92 and, therefore, it cannot be said that the appellate Court has decreed the suit on the basis of oral evidence only and to that extent, with due respect, the substantial questions of law raised or framed at the time of admitting appeal is not much material. The appellate Court has in the impugned judgment described the contents of both sale-deeds at exhs. 88 and 92 in detail in as many as more than four pages and it makes it clear that the impugned judgment is not based upon the oral evidence only. No-doubt in First Appeal the appellate Court has to discuss the oral evidence, but it does not mean that the decision is based solely upon the oral evidence. The perusal of the impugned judgment makes it clear that the appellate Court has relied upon exhs. 88 and 92 being sale-deeds of both the properties and when sale-deeds are confirming the existence of suit road, I do not see any irregularity or illegality in the impugned judgment in holding that the defendants are not entitled to construct on suit Page 12 of 15 HC-NIC Page 12 of 15 Created On Wed May 04 05:29:50 IST 2016 C/SA/69/1995 CAV JUDGMENT land being road and thereby allowing the suit, as prayed for. So far as documents relied upon by the defendants/ appellants before the appellate Court are concerned, the appellate Court has categorically observed that the defendants have not examined any witness to prove such documentary evidence and, therefore, what is proved on record is only existence of documents and not the contents of the documents and, therefore, when few witnesses are seem to be interested or connected with the defendants, the appellate Court has not given weightage to the oral evidence of the defendants' witnesses. However, in paragraph 12 of the judgment, when the appellate Court has categorically recorded that the Court has relied upon exhs. 88 and 92 and Court has also to rely upon recital of exhs. 88 and 92, wherein the suit way of the plaintiff is mentioned and thereby when it is held that the plaintiff has been able to prove that judgment and decree passed by the trial court are erroneous and contrary to the facts and law, I do not see any substance in the Second Appeal by the defeated defendants, who have failed to prove that there is no way at the disputed suit land or that there is no evidence on record to prove such way, more particularly when there are at least two documentary evidence to prove such way being exhs. 88 and 92 and more particularly when such Page 13 of 15 HC-NIC Page 13 of 15 Created On Wed May 04 05:29:50 IST 2016 C/SA/69/1995 CAV JUDGMENT documents are more than 20 years old.

17 Then remains the alternative submission by the appellants herein. When they are submitting that considering the decision dated 7/8/2012 in Second Appeal No. 146/2007 and decision dated 26/12/2012 in Second Appeal No. 265/2012 rendered by this High Court, the matter may be remanded to the appellate Court to decide it in accordance with the observations made in two judgments. I have gone through the above referred judgments, but I do not see any reason or substance to remand the matter to the appellate Court or even to the trial Court for the simple reason that both the judgments rendered by the trial Court as well as appellate Court are reasoned judgments and more particularly judgment rendered by the appellate Court is confirming the appreciation of evidence on legal perspective and, therefore, I do not see any reason to remand the matter to the appellate Court after long period of more than two decades.

18 In view of the above facts and circumstances, there is no substance in the

appeal and hence it is hereby dismissed as there is no substantial question of law involved at all.

HC-NIC Page 14 of 15 Created On Wed May 04 05:29:50 IST 2016 C/SA/69/1995 CAV JUDGMENT (S.G.SHAH, J.) * Pansala Page 15 of 15 HC-NIC Page 15 of 15 Created On Wed May 04 05:29:50 IST 2016