Point in Issue :
Whether in the facts and circumstances of the case plaintiff suit rightly dismissed.

Ms. Bela Trivedi, J.—The present Second Appeal under Section 100 of the Civil Procedure Code is directed against the judgment and order dated 10.03.2008 passed by the learned Presiding Officer, Fast Track Court No. 2, Sabarkantha at Himmatnagar in Civil Appeal No. 50 of 2007 (hereinafter referred to as “the Lower Appellate Court”).

2. The short facts giving rise to the present appeal are that the present appellants (original plaintiffs) had filed the suit being Regular Civil Suit No. 94 of 1997 against the present respondents (original defendants) in the Court of 2nd Additional Senior Civil Judge, Sabarkantha at Himmatnagar (hereinafter referred to as “the Trial Court”) seeking declaration that the plaintiffs had their right of way through the Government land bearing City Survey No. 5258, situated on the Northern side of the City Survey No. 5769, on which the shops of the plaintiffs were situated and seeking permanent injunction restraining the defendants from constructing compound wall surrounding the land bearing City Survey No. 5258 belonging to the defendants. It was alleged in the plaint inter alia that the plaintiffs had purchased the plots bearing Nos.245 and 246 of City Survey No. 5769 popularly known as “Bagicha Na Bungalow”, from the original owner Maharajkumar Shri Rajendrakumarsinhji by way of registered sale-deed dated 03.08.1972; that the defendants were the owners of the land bearing City Survey No. 5258, situated on the Northern side of the said City Survey No. 5769; that the plaintiffs had constructed shops with shutters opening on the Northern side on the plots purchased by them which were part of City Survey No. 5769 and were using the open land bearing City Survey No. 5258 for egress and ingress. It was also stated in the plaint that the plaintiffs were using the right of way by prescription through the said land belonging to the defendants and that the plaintiffs also did not have any alternative way to approach the State Highway, situated on the Nothern side after leaving the open land belonging to the defendants. Since the defendants had started putting up the construction of compound wall surrounding the said land bearing City Survey No. 5258, the plaintiffs had filed the said suit seeking declaration and permanent injunction as prayed for. The defendants had resisted the said suit by filing the written statement at Exs.24 and 59 denying the allegations and averments made in the plaint and further stating inter alia that the plaintiffs had put up illegal construction of shops with shutters on the Northern side and had also encroached upon the lands belonging to the defendants. It was also contended that the plaintiffs had neither legal right nor easementory right over the land belonging to the defendants.

3. The trial Court, after hearing the learned advocates for the parties and appreciating the evidence on record dismissed the said suit of the plaintiffs vide judgment and order dated 09.05.2007. Being aggrieved and dissatisfied by the same, the plaintiffs preferred the Civil Appeal being Civil Appeal No. 50 of 2007 before the Lower Appellate Court. The Lower Appellate Court also vide judgment and order dated 10.03.2008 dismissed the said appeal. Being aggrieved by the said judgment and order passed by the Lower Appellate Court, the appellants (original plaintiffs) have preferred the present Second Appeal under Section 100 of the Civil Procedure Code.

4. It has been contended by Mr. N.D. Buch, learned Advocate for the appellants that both the Courts below had committed error in misappreciating the evidence on record and in not holding that the plaintiffs had an easementory right of way by prescription as well as by necessity. According to Mr. Buch, the land bearing City Survey No. 5258 belonging to the respondents – defendants was an open land since the time immemorial and the same was being used by the plaintiffs by way of road for approaching State Highway, and that the respondents – defendant