KASHIBEN WD O GIRDHARBHAI BECHABHAI Vs. PATEL GORDHANBHAI PARSHOTTAMDAS

JUDGEMENT

(1.) This second appeal is preferred by original defendants_ Nos. 1 2 and 3 of Regular Civil Suit No. 17 of 1968 filed by Respondent plaintiff No. I in the court of learned Joint civil Judge Junior Division Nadiad. The learned Trial Judge has decreed the suit of Respondent No. 1 plaintiff by issuing a permanent injunction against the concerned defendants to the effect that they should not themselves or through others obstruct the plaintiffs Cart road and disputed way from Chaklasi road to the northern boundary of Survey No. 47/1 Karba and finally through cart road in the boundary of Survey No. 49 adjoining the Kharba whole going with carts bullock and plough. That decree of the Trial Court was confirmed by the learned Extra Assistant Judge of Kaira at Nadiad in Regular Civil Appeal No. 28 of 1974 and that has resulted in the present second appeal at the instance of the aforesaid defendants.

(2.) In order to appreciate the controversy between the parties it is necessary to have a look at the relevant facts leading to this litigation. Respondent No. 1 as plaintiff in the trial court contended that he is the owner of Survey No. 49 situated in the sin of village Salun Taluka Nadiad of Kaira district The original defendant No. 1 who died pending the suit and who is represented by his heirs and legal representatives in to 1 was the owner of Survey No. 46/6 while according to the plaintiff Survey No. 46/5 is of joint ownership of the plaintiff and the slid defendants. On the said joint ownership Kharba land a well of joint ownership is situated. The plaintiffs case is that he is the joint owner with the aforesaid defendants so far as Survey No. 46/5 is concerned. He contended that for approaching his agricultural land Survey No. 49 from village Salun he had to go first to Chaklasiwali Nal and had then to pass from the northern Shedha of Survey No. 47/1 and Survey No. 47/2 which belong to defendant Nos. 4 to 6 on the one hand and defendant No. 7 on the other. The plaintiffs further case is that having reached the nor there boundaries of Survey No. 46/1 and Survey No. 46/2 he used to en are the Kharba land of Survey No. 46/5 which was a joint land between the plaintiff and defendant No. 1 and through that Kharba land he used in approach his land Survey No. 49. The plaintiff claims that he is using this way since times immemorial since the days of his ancestors continuously and without any obstruction. His further case is that horehound the defendants are of the same family and their common ancestor was one Gopaldas Kalidas who was the owner of both the lands Survey Nos. 49 and 46. Thereafter there was a division of properties and the defendant No. 1 came into possession of Survey No. 46/6 which was a subdivision of Survey No. 46. Survey No. 46/5 was kept joint between the parties. Plaintiffs further case is that even though he was utilizing the said way as an easementary right since so many years on 10/04/1967 the said right was obstructed by defendant No. 1 Consequently he had to file the aforesaid suit for getting necessary injunctions against the concerned defendants.

(3.) Defendant No. 2 contested the suit as the main contesting defendant. Defendants Nos. 1 and 3 adopted the written statement of defendant No. 2. On a contention by defendant No. 2 that the suit suffered from nonjoinder of necessary parties the plaintiff amended his plaint and thereafter defendants Nos. 4 to 15 were joined as additional defendants. These other defendants did not seriously enter into the arena to contest the plaintiffs case. The real dispute is between the plaintiff on the one hand and defendants Nos. 1 2 and 3 on the other. Their contention was that the land Survey No. 46/5 is not of common ownership but is of independent ownership of defendants Nos. 1 to 3 and as such the plaintiff has no right title or interest therein. They also contended that the plaintiff had no easementary right as alleged by him and he had no right to pass with cart plough or bullocks through their Survey No. 46/5. Hence he was not entitled to any relief as prayed for by him in the suit.