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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VAIBHAVI D. NANAVATI, J.
Parmar Devbaben Punabhai – Petitioner
Versus
Dhapa Hirabhai Chitherbhai – Respondent
R/Special Civil Application No. 4034 Of 2014
Decided On : 09-03-2023
Execution of Decree - Right of Way - Easement by Necessity - [RIGHT OF WAY] - [LAND DISPUTE] - [Easement Act, Section 13] - The Court allowed the execution of the decree for the right of way to the petitioner's land, holding that the petitioner had proved the existence of a way to access his land and had the right of easement by necessity. The Court quashed and set aside the orders passed by the lower courts, directing the Executing Court to hear the Execution Application afresh and decide it within four weeks.
Fact of the Case:
The petitioner filed a suit seeking ancestral rights of way to pass/repass without agricultural vehicle in the land of the respondent. The trial Court decreed the suit in favor of the petitioner, which was confirmed by the appellate Court. The petitioner filed an Execution Petition, which was rejected by the trial Court on the ground that a third party was not a party to the suit proceedings. The petitioner then filed an appeal, which was also rejected by the appellate Court.
Finding of the Court:
The Court held that the decree passed in favor of the petitioner is to be executed as it is, and the lower courts exceeded their jurisdiction by rejecting the Execution Application on the ground of a third party not being joined as a defendant.
Issues: The main issue was the execution of the decree for the right of way to the petitioner's land, and whether a third party not being joined as a defendant affected the execution of the decree.
Ratio Decidendi: The Court held that the decree passed in favor of the petitioner is to be executed as it is, and the lower courts exceeded their jurisdiction by rejecting the Execution Application on the ground of a third party not being joined as a defendant.
Final Decision: The Court quashed and set aside the orders passed by the lower courts, directing the Executing Court to hear the Execution Application afresh and decide it within four weeks.
ORDER :
1. By way of present petition, the petitioner herein has challenged the order dated 31.12.2009 passed by the Additional District Judge and Presiding Officer, Fast Track Court No.3, Bhavnagar at Mahuva rejecting the Regular Civil Appeal No.128 of 2000 whereby, the order dated 26.09.2000 passed by the trial Court in Regular Execution Petition No.1 of 1999 has been confirmed. Being aggrieved by the same, the petitioner approached this Court seeking following reliefs:
(B) The pending admission, hearing and final disposal of the present petition, this Hon’ble Court may be pleased to stay the operation, implementation and execution of the impugned order at Annexure- A & B passed by the learned court.
(C) This Hon’ble Court may be pleased to grant any other and further appropriate and just relief as may be deemed fit and proper in light of facts and circumstances of the present petition.”
2. The brief facts leading to the filing of the present petition read thus:
2.1 It is the case of the petitioner that the petitioner is the owner of the land of survey No.44 of Moje Ambala, Taluka- Talaja, District – Bhavnagar and defendant is also owner of the adjoining land of survey No.43. It is the case of the petitioner that there is way available in the land of survey No.43 to approach the land of survey No.44. The defendant put up hurdle on the right of way of the petitioner which resulted in filing of the Regular Civil Suit No.98 of 1996 against the respondent herein seeking available ancestral rights of way to pass/repass without agricultural vehicle in the land of defendant. After leading of evidence by respective parties, the trial Court decreed the said suit being Regular Civil Suit No.98 of 1996 in favour of the petitioner by order dated 30.11.1998. The operative part of the said order dated 30.11.1998 reads thus: (true translation)
The plaintiff Vanrajsinh Punabhai has stated in his oral evidence of Exhibit-12 that upon purchase of the land in question admeasuring Acre-3, Gunthas-7 of Survey No.44 from Jivabhai Laxmanbhai by Registered Sale Deed No.479 dated 02/12/1996, he became lawful owner and occupier of the said land and in support of his oral evidence, the plaintiff has produced copy of the said Sale Deed vide Exhibit-71 and a copy of Index-II vide Exhibit-64. Moreover, copy of records of rights of No.6 has been produced vide Exhibit-65 and copies of village form no.8A and 7/12 have been produced vide Exhibit-66 and 67. Moreover, the predecessor owner of the plaintiff has also submitted corroborative evidence to the documentary evidences and plaint of Exhibit-1 of the plaintiff vide Exhibit-70. Thus, upon perusing the said evidences, this court is of the opinion that the defendant has not counter-proved the same by oral or documentary evidence which can draw inference against the said evidence nor there is such evidence of the defendants. Moreover, the document of Exhibit-71 has not been challenged by the defendant except of inquiry. Altogether, the Ld. Advocate for the defendant has not pressed his argument for the said issue. In this circumstance, this court is of the opinion that the plaintiff has proved the issue no.1 and therefore, the answer is in affirmative.
Issue No.2:
The plaintiff has stated in the oral evidence of Exhibit-62 supporting the plaint of Exhibit-1 that it can be moved to and from his land i.e. the land in question through the disputed route which comes out from the outskirt of the village of Amla, passing through the forest land, from the land of Rupaben Savjibhai, from the land of Vallabh Kalu, through the southern edge of the defendant's land. The plaintiff has no other alterna
The executing court has jurisdiction to enforce decrees, including injunctions, and can act against violations by judgment debtors.
The executing court is bound by the decree's terms and cannot entertain objections that do not pertain to jurisdiction, even if the decree is allegedly erroneous.
The main legal point established in the judgment is the nature of easement of grant, the rights created by transfer, and the principles governing the grant of injunctions in cases involving easements....
Easementary rights must be clearly established through evidence of grant or necessity, and a plaintiff must seek a declaration of such rights to challenge property alienation.
A party cannot seek relief in a new suit while suppressing material facts from previous related litigations, as this undermines the integrity of the judicial process.
The Appellate Court's failure to consider evidence of independent title and the lack of a mandatory injunction for removal of structures rendered the decree in-executable.
The court reinforced that obstruction claims in execution proceedings must be heard to uphold rights, ensuring adherence to natural justice principles.
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