IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SECOND APPEAL NO. 35 of 2003 ==========================================================

JAYRAMBHAI JASRAJBHAI PATEL Versus RANCHHODBHAI SHIVABHAI PATEL ==========================================================

Appearance:

MR P P MAJMUDAR(5284) for the Appellant(s) No. 1 MS KRISHNA SHAH FOR MR SP MAJMUDAR(3456) for the Appellant(s) No.

1 MS AMRITA AJMERA(5204) for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 26/11/2025

ORAL ORDER

1. By order dated 11.07.2003, Co-ordinate Bench framed following substantial question of law and admitted Second Appeal.

“(1) Whether the appellate Court has erred in interpreting the sale deed at Exh.127?”

2. The appellant is original defendant, respondent is original plaintiff. Hence, for sake of brevity and convenience, they are referred to their status before the learned Trial Court.

3. Factual aspect of the case :-

3.1. Plaintiff has filed Regular Civil Suit for permanent injunction seeking relief that defendant be restrained from passing through land bearing survey no.760 and 750/1-2 from Marghariya Marg to his agricultural field of land bearing survey no.761/2, 763/1-2 and further be restrained from carrying any cart, tractor or other farming tool etc. by issuing appropriate injunction. The plaintiff’s case is based on the pleading that plaintiff is owner of land bearing Survey No.759/1, 759/2 and 760 ad-measuring Acre 13 – 05 Guntas. Quadrilateral and other particulars of the land is stated in para 1 and 2 of the plaint. It is averred in the plaint that agricultural land viz. Survey No.761/2, 763/1 and 763/2 are owned by defendant situated on the eastern side of plaintiff's agricultural field. Amogst different agricultural land, defendant has purchased land of survey no.763/1 and 763/2 just on the upper side of land of survey no.760 from Bhikabhai Maganbhai by way of registered sale deed prior to seven to eight months of filing of the suit. It is further averred by the plaintiff that defendant is owner of land of survey no.763/1 and 763/2 since long. It is further averred that defendant uses Danawada Marg which is situated on the eastern side of land bearing survey no.764 to ingress and egress to his agricultural field. Predecessor in title of the plaintiff – Mohan Ratna was using said land for ingress and egress as it was convenient for the defendant to reach his filed. Plaintiff filed suit on the apprehension that since defendant raised one bump between land of survey no.760 and 761/2, he will use Danawada Marg and will go through agricultural field of the plaintiff to reach agricultural field of survey no.761/2.

3.2. Stating aforesaid as cause of action, plaintiff filed suit claiming permanent injunction restraining defendant from using land of survey no.760 and 750/1-2 for ingress and egress to his land of survey no.761/2 and 763/1-2.

4. Defendant filed written statement at Exh.12, later on amended written statement. Defendant claims that he has right of way to pass through Marghariya Marg and to pass through land of survey no.759 and 760 and to reach his agricultural filed of survey no.761/2. Entire surrounding of right of way has been pleaded in para 3 and 4 of the written statement. In short, defendant claims that defendant is using eastern side for passing through land of plaintiff. Said eastern part of land was acquired by grant as registered sale deed which states ingress and egress to land bearing survey no.761/1-2 is passing through Marghariya Marg which is east side of land of survey no.930/1, 934 and 935 then to take right turn passing through land of

759 on eastern side and pass through land of survey no.760 to reach land of survey no.761/2.

5. Both the parties were permitted to lead evidence after framing issues, subsequently issue no.1(A) was added. Relying upon dictum of this Court in the case of Mer Nagajam Aala v/s. Punja Kana and Ors. [AIR 1981 Guj 141], l