K.A. Puj, J.@mdashThe appellant - original defendant No. 1 has filed this Second Appeal u/s 100 of the CPC challenging the judgment and decree dated 20.12.1983 passed by the learned Extra Assistant Judge, Bhavnagar in Regular Civil Appeal No. 17 of 1982 whereby the judgment and decree passed by the learned Civil Judge (J.D.), Mahuva on 30.11.1982 in Regular Civil Suit No. 224 of 1978 was set aside.
2. It appears from the record that the Court has passed the first order on 10.01.1984 whereby the records and proceedings were called for. However, no order of admission of the Second Appeal is found nor there is any order for framing the substantial questions of law.
3. The appellant has suggested the following substantial questions of law for the determination and consideration of this Court:
Whether in the facts and circumstances of the case as disclosed in the Panchnamas Exh.53, 54, 55, 56 and 60 drawn by the Commissioner appointed by the Trial Court, there is a way to the field of Survey No. 11/2 of the respondent No. 1 - plaintiff passing through the appellant''s field Survey No. 7?
Whether the Panchnamas Exh.53, 54, 55, 56 and 60 and the Sale Deeds Exh.83 & 84 establish any such right of way to the plaintiff''s field Survey No. 11/2 through the appellant''s field Survey No. 7 ?
Whether the plaintiff''s suit is bad for mis-joinder of causes of action?
4. Heard Mr. Utkarsh Sharma, learned advocate appearing for H.L. Patel Advocates for the appellant. The Board shows that the notice is served on the respondents. Despite service of notice, no one has filed his appearance on behalf of the respondents.
5. The brief facts giving rise to the present Second Appeal are that the plaintiff is an agriculturist and the defendants are also agriculturists. The plaintiff is having a land in the sim of village Kinkaria. The plaintiff has got a land bearing Survey No. 6 admeasuring 23 Acres 03 Gunthas. From this land, a water canal is also passing. On the south of the plaintiff''s land, there is a land bearing Survey No. 7 which originally belonged to Kanbi Kanji Jadav. The said land was purchased by Balu Vagha in an auction and from Balu Vagha, the said land was purchased by Mangalshi Dulabhai and from Mangalshi Dulabhai, defendant No. 1 purchased the said land and he is in possession of the same. It is the case of the defendant No. 1 that the land of Survey No. 7 was purchased by defendant No. 2. The way for going to Survey No. 7 is adjacent to Dudhala road and then there is west land of Nerda which is situated in the northern side of Survey No. 7. The defendant is not having any right of way through the plaintiff''s field. Yet the defendant has tried to pass through the plaintiff''s field. Hence, he filed the suit. It is also the case of the plaintiff that he is the owner of the field bearing Survey Nos. 6 & 11/2 and defendant is the owner of portion of land which is part of Survey No. 7 and situated in the same land of village Kinkaria. The plaintiff has contended that there is field of defendants'' father in west of Survey No. 6 and in the south from it, there is a field of defendant. According to plaintiff, the way of defendants for going to Survey No. 7 is first along Kinkaria - Dudhala road and then there is a Narda which is situated on the northern side of Survey No. 7. According to the say of plaintiff, his way for Survey No. 6 is first along the Kinkaria - Dudhala road and then in the western Narda and then in the field of Survey No. 7 which is in possession of Hari Harkha and Arvind Limba. According to plaintiff, he has enjoyed his right to way as an easement and without obstruction. He has contended that he has no other way except as described in the plaint.
6. The defendants have filed their written statement and objected to the relief claimed by the plaintiff in the suit. The Trial Court after considering the rival submissions and documentary evidence on record, has dismissed the plaintiff''s suit for declaration and permanent injunction.
8. The said judgment and decree was challenged in Regular Civil Appeal before the learned Extra Assistant Judge, Bhavnagar who partly allowed the appeal and held that the plaintiff has got right of way to his Survey No. 11/2 admeasuring 5 Acres 13 Gunthas from the eastern shedha of defendants Survey No. 7 as easement and the defendants were permanently restrained from obstructing plaintiff and his persons from using the said way. The defendants were also restrained from obstructing the plaintiff and his persons from taking cattle from the said way. The rest of the prayers of the plaintiffs were, however, rejected by the lower Appellate Court.
9. It is this order of the learned Extra Assistant Judge which is under challenge in the present Second Appeal.
10. I have heard learned advocate appearing for the appellant and perused the orders passed by the Courts below. From the plain reading of the orders passed by both the Courts below, it clearly appears that the dispute between the parties center round the factual data and no substantial question of law arises out of the orders of the Courts below. The learned lower Appellate Court has considered the rival submissions and also discussed at great length the order passed by the Trial Court and then arrived at the aforesaid conclusion. It is nothing but appreciation of facts and evidence on record. The Court is of the view that no infirmity or illegality is committed by the lower Appellate Court. This Second Appeal does not call for any interference by the Court. It is accordingly dismissed. There shall be no order as to costs.
12. In view of the order passed in Second Appeal, Civil Application does not survive and it is accordingly disposed of.
