IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SECOND APPEAL NO. 508 of 2025 With CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2025 In R/SECOND APPEAL NO. 508 of 2025 ==========================================================

HEIRS AND LRS OF DECD. SEDHAJI KALAJI & ORS.

Versus HEIRS AND LRS OF DECD. KOLI KALAJI VIRBHALJI & ORS.

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Appearance:

MR ABHIJIT RATHOD(12976) for the Appellants MR N R DESAI(6504) for the Respondent(s) No. 1,1.2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 20/11/2025

ORAL ORDER

1. By way of this second appeal filed u/s 100 of the Code of Civil Procedure, 1908, the appellant has prayed to quash and set aside judgment and decree dated 6.10.2025 passed by the learned 5^th Addl. District Judge, Diyodar in Regular Civil Appeal No.84 of 2015 and the judgment and decree dated 10.5.2012 passed by the learned Addl. Senior Civil Judge, Deesa in Regular Civil Suit No.104 of 2002.

2. The Plaintiffs instituted Regular Civil Suit No. 104 of 2002 in the Court of the Civil Judge (J.D.), Deesa, seeking a permanent injunction and declaration regarding a right to use the way. As the owner of land bearing Survey Nos. 4 and 5 in Village Deka, Tal: Deesa, the Plaintiffs assert the existence of a North-East road (neliyu) running between his property and the Defendants’ adjacent land (Survey No. 37) on the west, historically used for transit between villages. Claiming usage of this tree boundary lined passage since time immemorial for accessing his field and transporting agricultural equipment and other farming tools, the Plaintiffs allege that the Defendants attempted to obstruct this access and merge the passage into Survey No. 37. Consequently, the Plaintiffs sought a declaration of his right to use the North-side road (neliyu) and an injunction restraining the Defendants from interfering with this established public way.

3. Contesting the suit, the Defendants denied the existence of any road between Survey Nos. 4 and 37, contending that the actual passage lies between his land (Survey No. 37) and the adjacent Survey Nos. 36 and 38. The Defendants argued that the Plaintiffs have an alternative, established route for egress and ingress via Survey No. 3 passed through the Gauchar land between Survey Nos. 1 and 2, thus, the defendants alleged that the suit was filed falsely to grab land owing prior to disputes. However, the Trial Court rejected all these contentions, decreed the suit, and granted the declaration and permanent injunction in favour of the Plaintiffs. The Defendants challenged this decree in Regular Civil Appeal No. 84/2015, which the learned Additional District Judge, Banaskantha camp at Diodar dismissed, confirming the lower court's decision.

4. Aggrieved by these concurrent findings, the Defendants have preferred this Second Appeal under Section 100 of the Code of Civil Procedure, raising following questions of law as substantial questions of law:-

“(i) Whether the Ld. Trial Court was legally right in allowing Regular Civil Suit No. 104 of 2002?

(ii) Whether the Ld. Appellate Court was legally right in rejecting the RCA No. 84 of 2015 without assigning any independent reasons for the same and by merely reproducing the reasons assigned by the Ld. Trial Court?

(iii) Whether the Ld. Courts below were legally right in shifting the burden of proof on the appellants herein to prove that, there were alternative roads for the original plaintiff to access their land instead of the burden of proof being in the original plaintiff to show that, the purported road in question was the sole way to access their land?

(iv) Whether the Ld. Courts below were legally right in adjudicating the suit as if the same was instituted for easementary rights of the plaintiff on S. No. 37, whereas, according to the plaint of the plaintiff, the suit is for a public road (Neliya)?

(v) Whether the Ld. Courts below were legally right in not c