Rajendrakumar Babulal Parmar and 3 vs Babubhai Manilal Patel

Honourable Ms. Justice Harsha Devani

By this application, the applicants - original Defendants seek stay of the implementation of the judgment and decree dated 31st March, 2011 passed by the learned District Judge, Gandhinagar in Regular Civil Appeal No. 25/2006 during the pendency of Second Appeal No. 131/2011.

By an order dated 29th June, 2011, the second appeal came to be admitted on the following substantial questions of law:

i. Whether in the facts and circumstances of the present case, the appellate court was justified in exhibiting the documents which were not exhibited during the trial in the absence of any application or submission made by the parties and whether the court could have relied upon the same?

ii. Whetherafter coming to the conclusion that the Plaintiff had failed to prove that his father or predecessor were the owners of Block No. 94, that is, the suit field in the year 1974, that is 20 years prior to the filing of the suit, the appellate court was justified in holding that the Plaintiff was entitled to use the suit way?

iii. Whether when the Plaintiff had himself admitted in the cross-examination that there was an alternate way to go to his filed, the appellate court was justified in allowing the Plaintiff the right to use the suit way?

By an order of even date, by way of ad-interim relief, the operation of the impugned judgment and decree had been stayed.

Mr. V.S. Shah, learned advocate for the applicants submitted that the trial court had framed three issues viz. (i) whether the Plaintiff proves that he has any right or authority to pass through the suit way alongwith his agricultural implements for the purpose of going to his land bearing block No. 94; (ii) whether the Plaintiff is entitled to grant of permanent injunction as prayed for by him; and (iii) whether the Defendant proves that the suit way is not the way for the Plaintiff to go to his land bearing block No. 94 and that another way has been provided which is in existence and after appreciation of the evidence on record had answered all the three issues in favour of the Appellants - original Defendants. It was submitted that it was the case of the Plaintiff that there was a way passing through survey No. 91 however, except for his oral evidence, no other evidence was adduced to show that there is a way as claimed by him. According to the learned advocate, the Plaintiff could have examined his father or the owners of the neighbouring fields for the purpose of proving his case. He, however, had failed to discharge the burden cast upon him and had failed to establish his case before the trial court. It was further submitted that the Plaintiff had admitted in his cross-examination that there is another way and that there is ample evidence on record to show the existence of an alternative way. However, the lower appellate court has proceeded on the basis that the Defendants have not proved that they are the owners of the land through which the suit way passes. It was submitted that the ownership of the Defendants over the land through which the suit way passes was never in issue before the trial court. In the circumstances, in the absence of any such issue having been framed, the lower appellate court could not have gone into the said issue. Reliance was placed upon the decision of the Supreme Court in the case of Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale (Dead) and Ors. (2007) 6 SCC 637, for the proposition that in a suit for recovery of possession on the strength of title, the burden is on the Plaintiff to establish that title. No doubt in appreciating the case of title set up by the Plaintiff, the court is also entitled to consider the rival title set up by the Defendants. But the weakness of the defence or the failure of the Defendants to establish the title set up by them, would not enable the Plaintiff to a decree. It was submitted that both the courts below have found that the Plaintiff has not established that he had any easementary right over the suit way as he had failed to show that the said way was being used by him for more than 20 years. It was submitted that it has also been found that there was an alternative way in existence, in the circumstances, the Plaintiff not having proved his case, was not entitled to any relief claimed in the suit.

4.1 Next, it was submitted that the suit was dismissed in the year 2006 and there was no interim order operating in favour of the Plaintiff since then. It is not the case of the Plaintiff that he is not able to reach his land and cultivate the same, hence, it is apparent that there is an alternative way. It was further submitted that the applicants had led evidence to the effect that their elder Babubhai Trikambhai had been granted land in the sim of Dashela bearing survey No. 752, block No. 550 admeasuring acres 2 - 38 gunthas through which a road was passing, and hence, their elder had asked for some other land instead of the said land, and accordingly the present land on the southern side of survey No. 91 admeasuring hectare 1-20 Are was allotted to him by an order of the Collector dated 1st June, 1982 which fact is also borne out from the contents of the said order. It was submitted that it is evident that when the applicants'' elder had requested for grant of another plot of land as the land which was initially granted to him had a way passing through it, he would not have accepted another plot of land through which a way was passing. It was urged that it is the specific case of the applicants that if the Plaintiff is granted permission to use the suit way, the applicants are likely to suffer irreparable injury which cannot be compensated in terms of money.

4.2 The learned advocate further submitted that the panchnamas produced on record are contradictory and that the same had not been exhibited by the trial court and as such, the lower appellate court could not have exhibited the same and placed reliance upon them and that the findings recorded by the lower appellate court being based upon the said panchnamas, stand vitiated. It was further submitted that it is settled legal position that if the appellate court reverses the findings recorded by the trial court, it is required to record cogent and convincing reasons for not accepting the findings of the trial court. According to the learned advocate, in the present case, the lower appellate court has not given any cogent and convincing reasons for reversing the findings recorded by the trial court. In support of his submissions, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Chinthamani Ammal Vs. Nandagopal Gounder and Another, , for the proposition that the first appellate court cannot reverse the finding of the trial court without assigning sufficient and cogent reasons therefor. It was accordingly urged that the applicants - original Appellants have a prima facie case, the balance of convenience weighs in favour of the applicants and that in case the interim relief as prayed is not granted, the applicants would suffer irreparable injury which cannot be compensated in terms of money and as such, the ad-interim relief granted earlier is required to be confirmed.

Vehemently opposing the application, Ms. Contractor, learned advocate with Ms. Gayatri B. Jadeja, learned advocate for the Respondent - original Plaintiff submitted that the lower appellate court has upon reappreciation of the evidence on record found that the Defendants have failed to establish that they are the owners of the land from which the suit way passes. It was submitted that the lower appellate court has found that there is no evidence on record to indicate the existence of an alternate way, inasmuch as there is nothing to show that there is any passage from blocks No. 95 and 96 to the Plaintiff''s block No. 94 and in fact, the lower appellate court has found that there is a hedge between block No. 95 and 96 and shedha between block No. 95 and 94 which fact has been admitted by the Defendants in their cross-examination. As regards the contention that the lower appellate court could not have placed reliance upon the un-exhibited panchnamas, it was submitted that the lower appellate court has rightly placed reliance upon the provisions of Section 58 of the Evidence Act for holding that when the documentary evidence is admitted, the same ought to have been admitted in evidence and exhibited, and has accordingly exhibited the panchnama made at the instance of the Plaintiff as well as the panchnama made at the instance of the Defendants. It was submitted that it is legally permissible for the appellate court to require any document to be produced or any evidence to be examined, though in the present case, the documents namely the panchnamas were already on record and had been admitted by the parties. In the circumstances, the lower appellate court had merely rectified the error committed by the trial court in not exhibiting the admitted evidence and exhibited the same. It was submitted that the panchnamas having been admitted by both the parties, the lower appellate court was justified in admitting the panchnamas to evidence and referring to and relying upon the same.

5.1 It was further submitted that the case of the Plaintiff in the suit is that there is a way passing through survey No. 91 adjoining the land of the Defendants and that the Defendants are restricting the Plaintiff from the use of such land and has accordingly prayed to restrain the Defendants from preventing the Plaintiff from using the way. Inviting attention to the judgment and decree of the trial court, it was submitted that the Defendants have admitted that the land of survey No. 91 was gauchar land and that earlier people used to use the suit way. It was urged that the trial court had ignored the panchnama on the ground that the same had not been exhibited despite the fact that it was an admitted document. It was submitted that the panchnamas clearly bear out that there is a way in existence in survey No. 91 as claimed by the Plaintiff and that there is no alternate way as canvassed by the Defendants. It was submitted that the lower appellate court upon reappreciation of the evidence on record has found that there is no alternate way. It was submitted that assuming that there is an alternate way, even then such alternate way should be within the reach and should not be cumbersome. It was submitted that the lower appellate court upon appreciation of the evidence on record having found that the said way does not pass through the land of the Defendants and also having found that there is no alternate way in existence, it cannot be said that there is any prima facie case in favour of the applicants - original Defendants. It was submitted that it was never the case of the Plaintiff that the suit way was passing through the land of the Defendants and as such, there was no question of framing an issue as regards the ownership of the Defendants over the land on which the suit way passes. It was urged that the balance of convenience is in favour of the Respondent -plaintiff inasmuch as if the Plaintiff is restrained from using the suit way, he would suffer irreparable injury and would have to face undue hardship and as such, the interim relief as prayed for does not deserve to be granted and that the application deserves to be rejected.

This Court has considered the rival submissions advanced by the learned advocates for the respective parties. As is apparent on a bare reading of the averments made in the plaint, the case of the Plaintiff is that he is the owner of land bearing block No. 94 of village Dashela taluka & disrict Gandhinagar and that access to his field for carts, tractors, animals etc. begins from Chiloda -Sadara State Highway and enters through block No. 91 at the southern boundary of block No. 87 and that for the purpose of Chiloda -Sadara Highway, the Plaintiff has to pass through a way situated in block No. 91 which was used by him peacefully without any interruption for over a period of thirty years from times immemorial. The case of the Plaintiff is that the Defendants had been granted land admeasuring Hectare 1-20 Are from block No. 91 after leaving the suit way. According to the Plaintiff, the Defendants were restraining him from passing through the suit lands and hence, he was constrained to institute the suit in question. The trial court, upon appreciation of the evidence on record, has answered all the issues framed by it as referred to hereinabove in favour of the Defendants. A perusal of the judgment and decree passed by the trial court indicates that before the trial court, the Plaintiff had admitted that the map produced alongwith the affidavit did not indicate that there was any way for the purpose of going to block No. 94. The trial court has recorded that it was the case of the Plaintiff that the Government had granted a plot of land to the elder of the Defendants after leaving the suit way. However, the Plaintiff has not produced any documentary evidence in this regard. The trial court has, thereafter, referred to the order passed by the Collector (Exh.98) whereby the land was allotted to the Defendants and has recorded that the same does not refer to any way passing through the same and that there was no mention as regards any easementary rights in respect of any way passing through the land allotted to the Defendants. Taking into consideration the fact that the elder of the Defendants had requested for allotment of another land as there was a way passing through the land allotted to him earlier, the trial court was of the view that it cannot be believed that the suit way passes through the land of the Defendants. The trial court has further recorded that the Defendants had examined a witness, viz., Jivabhai, who had stated that there is no way passing through the land allotted to the Defendants. The trial court has further found that the Plaintiff has not been able to prove that he was using the suit way since twenty years and as such, he was not entitled to the benefit of Section 15 of the Indian Easements Act namely, easement by prescription. The trial court has further recorded that the Plaintiff has not challenged the order passed by the Collector and has not raised any grievance before the revenue authorities that the suit way is passing through the lands allotted to the Defendants and has further recorded that the Defendant had admitted in his deposition that survey No. 91 was a gauchar land and that there was a way passing through the said land. The trial court had further noted the fact that the Defendants had, in their cross-examination, accepted the contents of the panchnama. The trial court, however, held that the Plaintiff had not proved the panchnama; hence, it cannot be believed merely on the basis of the panchnama that there was a road since twenty years. After recording that the Plaintiff in his cross-examination has admitted that when the land was Government waste land, people used to pass through the same, the trial court has, however, observed that it is for the Plaintiff to prove easement by prescription, namely that he was utilising the road for more than twenty years without any obstruction. The trial court has accordingly dismissed the suit mainly on the ground that the Plaintiff has not proved easement by prescription.

The lower appellate court upon appreciation of the evidence on record has observed that the Plaintiff had applied for appointment of Commissioner to draw a panchnama and map of the site vide application (Exh.7) pursuant to which the Commissioner was appointed and he had prepared a panchnama and drawn the map of the site on 3rd August, 1994 in the presence of the parties which are produced at Mark 14/2 and Mark 14/3. The lower appellate court took note of the fact that the documents had not been exhibited but observed that the Defendants had admitted the contents of the panchnama and the map in clear terms in their cross-examination. The lower appellate court was of the view that the trial court was, therefore, not justified in not exhibiting the panchnama as not being proved by the Plaintiff in view of Section 58 of the Evidence Act which says that admitted facts need not be proved. The lower appellate court, accordingly, admitted the panchnamas to evidence and exhibited them. Similarly, it was observed that the Defendants had, vide Exh.15, made an application to appoint a Court Commissioner to establish their case that the Plaintiff had another way for having access to his field. The Court Commissioner was appointed and he had prepared panchnama and map in presence of the parties which was produced at Mark 22/1 and 22/2 which also were not exhibited. The lower appellate court was of the view that the said document was also required to be exhibited and exhibited the same. Upon perusal of the evidence on record namely, the deposition of the witnesses and the above referred panchnamas alongwith maps, the lower appellate court found that the Plaintiff had not proved that he was using the suit way for more than twenty years. However, from the evidence on record the lower appellate court found that there was no indication either in the map Exh.22/1 or panchnama Exh.22/2 that access to block No. 44 started from Chhala village road and passes through the southern boundary of block No. 96, 95 and then entered block No. 94. On the appreciation of the evidence on record, the lower appellate court found that at the time of filing the suit, the way was in existence in block No. 91 as mentioned in panchnama Exh.14/2 and map Exh.14/3 which fact was also admitted by the Defendants in their cross-examination. The court further observed that the Defendants were present at the time of drawing the panchnama and had admitted that it was true that the Commissioner had prepared a panchnama as per existing position of the land and that he had signed the same. The Defendants had further admitted that they had not filed any objection against the panchnama and also admitted that at the time of panchnama there were marks of wheels on the way as shown in the panchnama. The lower appellate court also found that in their cross-examination, the Defendants had admitted that there was a hedge between Block No. 95 and 96 and shedha (patch of land left uncultivated around field or farm in which grass grows) between Block No. 95 and 94. In the light of the evidence on record, the lower appellate court found that there was no clear indication either in the map Exh.22/1 or panchnama Exh.22/2 that access to Block No. 94 starts from Chhala village road and passes through southern boundary of block No. 96, 95 and then enters block No. 94. The lower appellate court further noted that the order of the Collector granting land to the elder of the Defendants did not reveal the exact portion out of survey No. 91 which was allotted to the elder of the Defendants and as such, there was nothing on record to indicate that the suit land was, in fact, passing through the land allotted to the elder of the Defendants. The court further noted that the map Exh.22/1 which was prepared at the instance of the Defendants showed that possession of the land situated adjoining Giyod village road was handed over to the father of the Defendants and that the map produced at Exh.14/3 also showed that the Defendants were not in possession of the land shown as way in block No. 91. Thus, the lower appellate court found that though the Plaintiff had failed to establish his easementary rights, he had established that he was using the suit way whereas, the Defendants had failed to prove that the suit way was passing through the land allotted to their elder and as such, the Plaintiff was entitled to claim a permanent injunction in his favour.

It is in the background of the aforesaid facts and findings recorded by the courts below that the question as to whether the applicants are entitled to the grant of interim relief as prayed for is required to be considered. One of the main contentions raised by the learned advocate for the applicants is that the question of title of the land over which the suit way was claimed was never in issue; hence the lower appellate court could not have gone into the said issue. In this regard, from the averments made in the plaint it is apparent that it is not the case of the Plaintiff that the suit way is passing through the land of the Defendants. On the contrary it is the case of the Defendants that the way claimed by the Plaintiff is over the land of the Defendants. In the circumstances, prima facie it was for the Defendants to establish that the way claimed by the Plaintiff is over their land. As regards the contention that the Plaintiff had not led any evidence except his own oral evidence unsupported by the evidence of any other witnesses or any documentary evidence, the lower appellate court has placed reliance upon two panchnamas along with the maps which were admitted documents and yet not exhibited by the trial court. In the circumstances, the learned advocate for the Plaintiff appears to be right in placing reliance upon Section 58 of the Evidence Act which lays down that facts admitted need not be proved. Prima facie, it therefore, cannot be said that there was no other evidence except the oral evidence of the Plaintiff. As regards the contention that there was an alternate way for going to the land of the Plaintiff, in the light of the finding that the suit way was not passing through the land of the Defendants, the question as regards existence of an alternative way fades into insignificance. Moreover, on the findings recorded by the lower appellate court, it cannot be said that the lower appellate court has not given any cogent and sufficient reason for reversing the findings recorded by the trial court. Also, in the light of the findings recorded by the lower appellate court, it cannot be said that the applicants have a prima facie case nor can it be said that balance of convenience is in favour of the applicants. The lower appellate court having found that the suit way does not pass through the land allotted to the elder of the Defendants, the question of the Defendants suffering irreparable injury would also not arise. True it is that the court has admitted the appeal and formulated substantial questions of law. However, the order of admission was passed after hearing the learned advocate for the applicants alone. The court at the relevant time did not have the benefit of the arguments of the learned advocate for the Respondent-original Plaintiff. Hence, merely because the appeal has been admitted does not mean that the applicants are entitled to the interim relief as prayed for. For the purpose of grant of interim relief the court is required to examine as to (i) whether or not there is a prima facie case in favour of the applicants; (ii) in whose favour the balance of convenience lies; and (iii) as to whether non grant of interim relief would result into irreparable injury to the applicants.

In view of the above discussion, the court is of view that the applicants - Appellants are not entitled to the grant of any interim relief. The application is accordingly rejected. The ad-interim relief granted earlier is hereby vacated. Rule is discharged with no order as to costs.

It is, however, clarified that the court has expressed only a prima facie view for the purpose of grant of interim relief and the same shall in no manner prejudice the case of either of the parties at the time of deciding the second appeal.

At this stage, Mr. V.S. Shah, learned advocate for the applicants seeks stay of this judgment for a period of four weeks from today. However, considering the facts and circumstances of the case, the request is declined.