The main legal point established in the judgment is the requirement for a proper examination of evidence and claims in cases involving right of way, and the need for the court to consider all relevant factors before reaching a decision.

ORDER :

1. The present appeal filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) emanates from the judgement and decree dated 31.01.2002 dismissing Civil Suit No.5253 of 1988 instituted by the appellants-original plaintiffs seeking right of way and permanent injunction against the defendants from their plot.

2. After examining the oral and documentary evidence, the trial Court has dismissed the suit by observing that the plaintiffs have failed to prove the right of way of easement of necessity as the property being Final Plot No.227-1 is owned by the defendants. It is also held that an alternative way is available for the plaintiffs for ingress and egress and hence, the plaintiffs cannot claim the right of easement of necessity.

3. Learned advocate Mr. Trivedi, appearing for the appellants-original plaintiffs, has submitted that in fact the Court below has framed incorrect issues below Exh.70. It is submitted that the plaintiffs have claimed the right of way in the concerned property on the basis of the easement of necessity and the averments made in the sale deed, by which the defendants purchased the property below Exh.96. It it submitted that in fact the Court below should have framed the issues accordingly as to whether the plaintiffs are entitled to easement of right of the property of the defendants by way of – (i) easement of necessity; and (ii) on the express grant as mentioned in the sale deed below Exh.96.

3.1 Learned advocate Mr. Trivedi, at the outset, has referred to the document at Exh.96 i.e. sale deed dated 30.10.1982 executed between the executors of one Ujjamben and the respondent-Society and has submitted that the same specifically narrates that the adjoining road in the said plot, which leads to 6 ft. wide road, is left open for the plaintiffs to use the same for all purposes however, it is submitted that the trial Court has misread the aforesaid recitals of the sale deed and has only proceeded on the basis of the original gift deed below Exh.126 dated 31.03.1964 executed by Ujjamben to Shravankumar Parmanandbhai Patel and Minor Siddharthkumar Parmanandbhai Patel. It is submitted that the evidence of sale deed below Exh.96 is only discarded on the basis that one Ambica Associates did not have any right, title or interest on the plot No.227-1 and such associates could not have given the possession of Final Plot No.227-1 for the purpose of using the way by the plaintiffs. He has submitted that two maps i.e. Exh.90 and Exh.91 are totally ignored and no evidence is discussed on such map, wherein it is shown that there is 6 ft., wide road only available to the plaintiffs for ingress and egress.

3.2 Learned advocate Mr. Trivedi has submitted that even if assuming that cousin of the plaintiffs has deposed that he is allowed by the defendants to have passage from his property that does not mean that the case of the plaintiffs for usage of 6 ft. wide road can be denied. It is submitted that the vital evidence, which has surfaced on record, is absolutely ignored and hence, the matter may be remanded to the trial Court, as the position as on today remains the same.

4. Per contra, learned advocate Mr. Shah appearing for the defendants, while vehemently opposing the appeal, has submitted that the impugned order may not be disturbed since the plaintiffs have instituted the suit on the basis of the easement of necessity and hence, the trial Court has proceed and framed the issues accordingly. It is submitted that initially there was one plot, which belonged to one Ujjamben, sole owner of the property, bearing Survey No.197-B and 415-B, admeasuring 17,091 sq.yards, which was thereafter, finalized as Final Plot No.227 vide Town Planning Scheme No.14, finalized on 01.08.1971. Vide Exh.126, Ujjamben gifted 8,701.5 sq.yards by the gift deed dated 31.03.1964 out of Survey Nos.197-B and 415-B to Shravankumar Parmanandbhai Patel and Siddharthkumar Parmanandbhai Patel. He has submitted that by Exh.101 i.e. sale deed dated