ORAL JUDGMENT

1. RULE. Learned APP Mr.Dipen Desai waives service of Rule on behalf of respondent No.2.

2. This petition is filed against judgment and order dated 17.07.2020 passed by the 3rd Additional District Judge, Gir Somnath at Veraval in Misc.Civil Appeal No.11 of 2019. By the aforesaid order, the Additional District Judge was pleased to set aside order dated 15.10.2019 passed by the Civil Judge below application Exh.5 in Regular Civil Suit No.64 of 2019. The petitioner herein is the original plaintiff and the respondents are the original defendants. The plaintiff had filed Civil Suit No.64 of 2019 claiming easementary rights over the property of the defendants. The said suit was filed with following prayers:-

“(A) In the disputed land of Revenue Survey no. 93 /

paiki 2 of village – Dabhor, Tal. Veraval – Patan, Dist.-Gir Somnath, at its east side at the distance of about 25 feet, near a wide road of National Highway from Jetpur – Somnath, where a very old disputed road of 25 feet is there at its north-south which is in the land of Revenue Survey no. 94/1 paiki – 2 of village Dabhor. This road is adjacent to the above land (of R.S. no. 93/2) , from where the students who are studying in the school which is run by a Trust are passing, teaching as well an not teaching staff members, Servants, Agents, Trustees and other people are using this road and it is also used for transportations of School bus, heavy and light vehicles, electric wires and poles, telephone wires and gutter pipes for sanitation. Hence it is prayed to kindly pass an order to establish the right of easement (easement rights) regarding it (the road) as we have been using it since beginning in capacity of the owner.

(B) Hence, kindly pass a permanent Stay Order (Injunction) in the benefit of us – the Petitioners and against the Opponents this case, stating that the Opponent themselves as well as their servants, their people, Agents or any person from their behalf might not create or not get to create through others any hurdles or prevent us, or shall not quarrel with us while using the above road as our easement right.”

2.1 The petitioner had also filed application Exh.5 praying as under:-

“(A) Be pleased to grant interim relief against the respondents of this case that respondents of this case may, himself or through his servants, agents or any on their behalf, not obstruct, restrain, using the easement right of passage of commutation of the students studying in school being run by we, trust, guardians, educational and non-educational staff, servants, agents, trustees and other persons and commutation of school bus, heavy and light vehicles, carrying electricity poles, telephone wires, carrying the gutter and water pipes from the suit land mentioned in para-3 of the prayer clause situated at mauje Dabhor, Ta.-Veraval-Patan, Dist.-Gir Somnath bearing Revenue Survey No.93 Paiki 2 of which National Highway Jetpur-Somnath as wide as 25 feet from the East to West long from North to South of the years long suit land, may not destroy the the suit passage or any of its part, may not change its form. Be pleased to grant such interim relief in favor of the we, plaintiff and against the respondents till final disposal of the suit.”

2.2 The 2nd Additional Civil Judge, Veraval was pleased to allow the said application Exh.5 by order dated 15.10.2019, operative part of which reads as under:- “(1) The application is hereby allowed.

(2) Defendants are directed not to obstruct by any means the ingress and egress of the students, their parents, educational – non educational staff, agents, servants, trustees and others from using the suit property as passage till the final disposal of the suit.

(3) The cost of the application is to follow the result of the suit.”

2.3 The defendants-respondents herein filed appeal being Misc.Civil Appeal No.11 of 2019 before the 3rd Additional District Judge, Gir Somnath at Veraval against the aforesaid order, wherein following order was passed:-

“(1)