JUDGMENT :

C. L. Soni, J.

This appeal under section 100 of the Code of Civil Procedure is at the instance of original defendant NO.1 against whom as well as against respondent No.2 herein, respondent No.1-original plaintiff had filed Regular Civil Suit No. 101 of 1987 to declare that the defendant No.1, his servants and agents have no right or authority to prevent the plaintiff to pass through and utilise the way provided in the estate of defendant No.1 which is adjacent to and on west side of the lands bearing Survey No.49 belonging to the plaintiff. The plaintiff had also prayed for permanent injunction of the like nature.

2. It is the case of the plaintiff that the land bearing survey No.49 of the ownership of the plaintiff was an agricultural land ad-measuring 20 acres 14 gunthas, that the District Development Officer, Himatnagar had by order dated 27.4.1983, permitted use of the land for non agriculture purpose and on the basis of the same, the land was divided into 75 plots, that the land bearing survey No.49 was originally comprising of three survey numbers 51,52 and 53, that adjoining to the land of plaintiff, there exists estate of defendant No.1 on west side, that estate of defendant No.1 was originally belonging to the plaintiff and the same was made after acquiring land of the plaintiff, that acquisition proceedings in respect of the same had taken place in the year 1964, that from non agricultural land bearing survey No.49 of the plaintiff, to go towards the western side National Highway, the plaintiff has to pass through the estate of the defendant No.1 and except this, the plaintiff has got no other way to enter and go out from land bearing survey No.49 belonging to him, that when the land was acquired for the purpose of making estate for defendant No.1, an agreement dated 6.3.1964 was made between the plaintiff, defendant No.1 and the State, where-under special condition was provided approving permanent way of the plaintiff through the estate of defendant No.1, that the way through the estate of defendant No.1 touches the existing way of survey No.49 on north south direction, that the plaintiff has become entitled to use of such way through estate of defendant No.1 without any obstruction from defendant No.1, its servants and agents, that the plaintiff has been in continuous use of such way through the estate of defendant no. 1 till defendant No.1 issued notice dated 29.6.1987 asking the plaintiff to stop using the way through the estate of defendant no.1, that such notice issued by defendant No.1 was arbitrary, illegal and unauthorized and, therefore, the plaintiff was constrained to file the suit. Along with the suit, the plaintiff also filed application under section 80 of the Code of Civil Procedure for the purpose of dispensing with and waiving prior issuance of such notice.

3. The suit of the plaintiff was resisted by the defendant No.1 by filing written statement at Exh. 37 stating therein that the suit was barred because of non service of statutory notice under section 80 of the Code of Civil Procedure, that no agreement was entered into with the plaintiff for the purpose of granting of way as alleged, that as per the rules of defendant No.1, any person who uses right through estate of defendant No.1 has to pay charges, that the plaintiff has no right to use the way to pass through estate of defendant no.1, that the notice issued by the defendant dated 29.6.1987 was legal and valid.

4. On the basis of the pleadings of the parties, the learned trial Judge framed following issues and answered each of them as under :

(1) Whether the plaintiff prove that for approaching the national highway abutting on the western direction of survey No.49, they requires to pass from the estate of defendant No.1 and they have no other way to approach the suit survey No.49 situated in the sim of village Motipura Taluka Himatnagar?

(2) Whether the plaintiff prove that by agreement dated 6.3.1964 with the defendant No.1, also they ar