- (1.) Mr. Pinakin Patel with Mr. M.R. Bhatt, learned counsel for the appellants. None for the respondent though served.
(2.) The appellants-defendants have filed the present Second Appeal which has been admitted for hearing on the following substantial question of law. [1] Whether the appellate court has erred in law and on facts in proceeding on the basis that in the appeals, the opinion of the trial Judge about the credibility of witnesses should not be ordinarily disturbed and the appellate court should not re-appreciate the oral evidence and arrive at the opinion contrary to that of trial Judge [2] When original plaintiff was using the field of revenue survey no.220 for going to revenue survey no. 218 on admitted facts, whether the courts below were justified in conferring upon the original plaintiff right of way in the form of easement right from the field of survey no. 218 of the defendant and restraining the defendant from obstructing the plaintiff to pass through the field of the defendant -
(3.) One Gosai Ganpatgar Mohangar had filed the suit in the court of learned Civil Judge [Junior Division], Patan claiming right of way over the defendant's land. The defendant appeared before the court and submitted that the plaintiff had no right of way and under the circumstances, the suit was liable to be dismissed. It is to be noted that the plaintiff is the owner of survey no. 218 while the defendants own survey no. 219. The plaintiff had filed an application before the Mamlatdar, seeking right of way, but the said application was rejected. Thereafter, the appeal also suffered the same fate, therefore, the suit came to be filed. The defendants appeared before the court and submitted that the plaintiff had no right of way. However, the learned trial court, after recording the evidence and hearing the parties came to the conclusion that the plaintiff was successful in proving his case, it accordingly decreed the suit and restrained the defendants from obstructing the plaintiff from passing over the western side of field bearing survey no. 219. Being aggrieved by the said judgment and decree, the appellants preferred Regular Civil Appeal, which came to be dismissed on 31.8.95.;