IMPORTANT POINT
The central legal point established in the judgment is the interpretation of the evidence and the application of the legal principles, including the provisions of the Easement Act, 1882, to determine the existence of the right of way and the necessity of an alternate road. The judgment also emphasized the distinction between easements acquired by grant and easements of necessity.

JUDGMENT :

SANDEEP N. BHATT, J.

1. This second appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (‘CPC’ for short) being aggrieved and dissatisfied with the judgment and decree dated 1.3.2024 passed in Regular Civil Appeal No. 25 of 2011 by the 7th Additional District and Sessions Judge, Ahmedabad (Rural) Ahmedabad confirming the order dated 18.6.2011 passed in Regular Civil Suit No. 26 of 2008 by the learned Principal Civil Judge, Sanand, suggesting the following substantial questions of law:

“(1) Whether the ld. Appellate Court’s judgment is perverse as it fails to determine points for consideration and is contrary to the provisions of Order XLI Rule 31 of the Civil Procedure Code, 1908?

(2) Whether the Ld. Court’s interpretation for Issue No. 3 is perverse and contrary to the evidence produced on record?

(3) Whether the Ld. Courts erred in the interpretation of Clause 5 of the registered sale deed between the litigants which specifies a right of way?

(4) Whether the impugned judgment is perverse in interpreting Clause 5 of the registered sale deed dated 31.03.2006 that it inherently establishes that a necessity subsisted at the time of sale for the Appellant to claim a right of way?

(5) Whether the impugned judgment is perverse in construing discontinuous easement as having been extinguished?

(6) Whether the Ld. Courts failed to consider that the Defendants’ contravention of the injunction order amounted to restricting the easement, making it less convenient for the Plaintiff to enjoy its immovable property?

(7) Whether the Ld. Courts’ interpretation of an alternate road is in consonance with the pleadings of the Plaintiff so as to disentitle the Plaintiff from claiming a right of way?

(8) On such other questions of law as may be framed at the time of hearing of this Appeal.”

2. The appellant is the original plaintiff before the learned trial court and the respondents are the original defendants. The parties are addressed with their original status for the sake of convenience.

3. Heard learned advocates for the parties. Learned advocate Ms. Jani for the appellant-plaintiff has submitted that the plaintiff filed the suit seeking a declaration that the plaintiff has a right of way which passes through the defendant’s property at Survey No. 199, situated at Village Nidharad, Taluka Sanand, District Ahmedabad connecting the plaintiff’s property at Survey No. 185/1 P with the Sanandkadi main road (subject road) by specifically describing the passage as a twenty feet road which connects to the Sanand- Kadi main road which runs from North to South; that the primary contention of the appellant is that the subject road is the only available passage for thoroughfare and no alternate road exists; that the plaintiff has established that the subject road has been in use since 1995 that the layout plan provides for internal roads; the consolidated layout plan was sanctioned for various survey numbers of the plaintiff and defendants.

3.1 Learned advocate Ms. Jani further submitted that the director of the plaintiff has stated in his deposition that the land bearing survey nos. 185/1 and 196/2 was purchased in and around July, 1994 and the factory was put up pursuant to the NA permission and layout plan and all along the road in question which passes through the land of the defendant bearing survey no. 199 was used to access the factory and except the said passage, there is no other alternate road available, even in the cross-examination, he has clarified that the said road was constructed in 1999 and used as a thoroughfare, which is not disproved by the defendants. In the cross-examination it is stated by plaintiff’s other witness who was the former director that there is a neliya adjoining the suit property which is approximately three to four feet, except this there is nothing stated to the contrary.

3.2 Learned advocate Ms. Jani has submitted that as against this, the defendants have failed to show that there is an alternate way