IMPORTANT POINT
The main legal point established in the judgment is that the demeanor of the appellant lacked bona fide, and the trial Court rightly balanced the equity by granting permanent injunction for easementary rights.

JUDGMENT :

1. This second appeal, under Section 100 of the Code of Civil Procedure, 1908, filed by the appellant – original plaintiff No.1, arises from the impugned judgment and decree dated 07.07.2021 passed by the learned Principal District Judge, Sabarkantha at Himmatnagar in Regular Civil Appeal No.62 of 2012, confirming the judgment and decree dated 01.08.2011 passed by the learned Additional Civil Judge, Himmatnagar in Regular Civil Suit No.260 of 1997 dismissing the suit.

2. The brief facts of the present case are as under :

2.1 The original plaintiffs, being the representatives of village Hamirgarh, have filed a suit being Regular Civil Suit No.260 of 1997 for declaration and permanent injunction before the learned trial Court. The said suit was instituted under Section 91 of the Code of Civil Procedure, 1908 (for short, ‘the CPC’), with the permission of the Court. The prayers, sought for in the suit, in paragraph 9, are as under (as recorded by the learned appellate Court at internal page 12 of the judgment) :

“9(a) To declare that the villagers of Hamirgadh do have easement rights over the suit land and villagers of Hamirgadh are enjoying various easementary rights as mentioned in paragraph 5 (as mentioned above) of the plaint since establishment of village.

(b) To declare that the defendants do not have any right or interest in the suit land as suit land is Government waste forest land, therefore, trees of berries and other forest products in the land are situated. Defendants do not give to another persons by contract or in any other way whether has give it to Rabari or Bharwad or someone else for grazing of sheep and goats and other livestock except the people of Hamirgadh. Further, the defendants do not have right to make construction work or to enter the suit land for any other purpose.

(c) To permanently restrain the defendant that the defendant themselves or their man or agents and servants do not interfere in nay manner in enjoyment of easement rights people of Hamirgadh as mentioned in paragraph 5 nos.1 to 12 of the plaint as well as trees of berries and other forest products in the land, defendants do not give to another person as contract or by any other way as well as give it to Rabari – Bharwad or someone else for grazing to sheep and goats and other livestocks.”

2.2 The learned trial Court has, after considering the various evidence – documentary as well as oral, framed the issues at Exh.30 and decided it accordingly and thereby partly allowed the suit to the extent granting permanent injunction, restraining the respondents not to obstruct the public of Hamirgarh from grazing their cattle and from collecting the dry wood for fuel, and the other prayers of the plaintiffs have been rejected.

2.3 Being aggrieved, only plaintiff No.1 has preferred an appeal being Regular Civil Appeal No.62 of 2012 before the learned appellate Court, qua the prayers which were not granted by the learned trial Court. The learned appellate Court below has framed the points for its determination and decided it accordingly. After considering the rival submissions of the parties and also after evaluating the evidence on record, the learned appellate Court below has dismissed the appeal, on merit and confirmed the judgment and decree passed by the learned trial Court.

2.4 It is these judgments and decrees passed by both the Courts below, which are challenged in this second appeal by the appellants – original plaintiffs before this Court.

3.1 Learned advocate Mr.Japee for the appellant has submitted that the learned Courts below have not granted various easementary rights as enumerated in the plaint, which subsists over the land in question. He has submitted that there is a way to go to other villages, crematorium, lake, temples, ukerdas, vanddas and several public amenities on the land in question. He has submitted that the learned Courts below have permitted the defendants to deprive the village people of the said public amenitie