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2026 Supreme(Guj) 204

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Maulik J. Shelat, J.
Patel Manharbhai Nathabhai Chababhai & Anr. – Appellants
Versus
Taluka Panchayat, Himmatnagar & Ors. – Respondents
R/Second Appeal No. 351 of 2023 With Civil Application (For Stay) No. 1 of 2023 In R/Second Appeal No. 351 of 2023 With Civil Application (For Production of Additional Evidences) No. 1 of 2026
Decided On : 09-06-2026

Advocates Appeared:
For the Appellant : Mr. V.K. Joshi
For the Respondent: Mr. Hiren M Modi

The jurisdiction of an appellate court is limited; it cannot reappreciate factual findings unless they are demonstrably perverse or contrary to law. The burden of proof to establish a claimed easementary right lies squarely with the person asserting it.

Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Order XLI Rule 27 - Second Appeal - Scope and ambit - High Court is prohibited from reappreciating findings of fact unless the decision is perverse, illegal, or contrary to evidence on record - Mere marking of a document as an exhibit does not constitute proof of its contents; the burden of proof lies upon the party asserting the claim. (Paras 7, 8, 12, 13)

(B) Easementary Rights - Proof of existence - Burden of proof rests on the plaintiff to establish the existence of a right of way through concrete documentary evidence - Failure to examine witnesses to a document or provide official records regarding a road's existence necessitates dismissal of the plea. (Paras 9, 10, 22)

Facts of the case:
The litigation involved a claim for declaratory relief and permanent injunction regarding a purported right of way through private land. The trial court and the first appellate court concurrently rejected the claim, citing a total lack of documentary evidence and failure to prove an alleged consent agreement. The plaintiffs sought to introduce additional evidence, which was denied.

Findings of Court:
The court determined that both lower forums had correctly evaluated the evidence. The findings regarding the non-existence of the claimed road were based on record and consistent with current evidence. No grounds existed for interfering with the concurrent findings.

Issues: The primary questions were whether the appellate court could interfere with concurrent findings of fact in a second appeal and whether the plaintiffs had adequately discharged the burden of proof to establish an easementary right.

Ratio Decidendi: Appellate courts in second appeals are constrained by factual findings of lower courts unless perversity is demonstrated. The party seeking relief must prove their case with admissible evidence, failing which, the claim must be dismissed.

Result: Appeals dismissed.

Table of Content
1. overview of judicial history and factual background regarding the disputed right of way. (Para 1 , 2 , 3 , 4)
2. parties' contentions concerning documentary evidence and existence of an easementary right. (Para 5 , 6)
3. appraisal of evidence confirming lack of proof for the claimed right of way and non-perversity of findings. (Para 7 , 8 , 9 , 10 , 11)
4. scope of interference under section 100 cpc regarding concurrent findings of fact. (Para 12 , 13 , 14)
5. final order disposing of the appeal and rejecting production of additional evidence. (Para 15 , 16)

JUDGMENT :

Maulik J. Shelat, J.

1. This second appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) against the judgment and decree dated 24.02.2023 passed by the Principal District Judge, Sabarkantha at Himmatnagar in Regular Civil Appeal No.14 of 2019, whereby it confirmed the judgment and decree dated 04.05.2019 passed by the Trial Court in Regular Civil Suit No. 132/2009.

2. The appellants herein are the original plaintiffs and the respondents herein are the original defendants. The parties will be referred to as per their original positions in the suit.

3. The short case of the plaintiffs in the suit can be summarized as under:

3.1 The suit for declaration and permanent injunction came to be filed, contending, inter alia, that agricultural lands bearing Survey Nos.340/1 and 340/2 situated at Nikoda village, Taluka Himmatnagar, were converted to non-agricultural lands for residential purpose and plots were approved and a road for movement to the said non-agricultural plots was shown through Parvana No.334 belonging to the defendant Nos.3 and 4. That the father of the defendant Nos.3 and 4 gave permission to use the road facing East-West 123 feet and North-South 14 feet passing through Parvana No.334 (hereinafter referred to as “the disputed suit road”) for going to the plots. That the defendant Nos.3 and 4 do not have any right to create encroachment in the disputed suit road passing through Survey No.334 and as the defendants were making encroachments on the said roads. Thus, the plaintiffs had filed the suit for declaration and permanent injunction to restrain the defendants from making any hindrance or obstacle while the plaintiffs were constructing a protection wall on the 5 ft. open land to the southern side of the residential houses of the plaintiffs on Parvana Nos.15 and 16 which is situated on the northern side of the disputed suit property.

4. Upon appreciation of evidence made available on record, the Trial Court reached to the conclusion that the plaintiffs had failed to prove that there was a right of way available to the predecessors of the plaintiff/plaintiffs and accordingly dismissed the suit. Feeling aggrieved and dissatisfied with the dismissal of their suit, the plaintiffs had approached the Appellate Court by way of the impugned appeal, which also met with the same fate. Accordingly, there is a concurrent finding of fact recorded by the Courts below against the appellants herein - plaintiffs.

SUBMISSIONS OF THE APPELLANTS/PLAINTIFFS :

5. Mr.Joshi, learned advocate for the plaintiffs, would submit that the Courts below have committed a gross error in not entertaining the suit as well as the appeal and thus committed injustice to the plaintiffs. It is submitted that as per the documentary evidence placed on record, the plaintiffs have successfully proved before the Trial Court that there was a right of way as stated in the plaint is available to the plaintiffs.

5.1 It is further submitted that neither the Trial Court nor the Appellate Court have properly appreciated the Consent Agreement entered into between the father of the plaintiff and father of the defendant Nos.3 and 4, in its true perspective, which was submitted at Exhibit-83. It is also submitted that as per the said agreement, the predecessor of the defendant Nos. 3 and 4 have agreed that there is a right of way available to the prede

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2026 Supreme(Guj) 204

The jurisdiction of an appellate court is limited; it cannot reappreciate factual findings unless they are demonstrably perverse or contrary to law. The burden of proof to establish a claimed easementary right lies squarely with the person asserting it.

Cases Referred (1)