Gujarat High Court
Heirs And Lrs Of Decd. Sedhaji Kalaji vs Heirs And Lrs Of Decd. Koli Kalaji ... on 20 November, 2025
NEUTRAL CITATION
C/SA/508/2025 ORDER DATED: 20/11/2025
undefined
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.
==========================================================
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 5th 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
NEUTRAL CITATION
C/SA/508/2025 ORDER DATED: 20/11/2025
undefined
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
NEUTRAL CITATION
C/SA/508/2025 ORDER DATED: 20/11/2025
undefined
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 considering that, even as per the case of the
original plaintiffs, at least since 2002, the purported
road in question was obstructed by the appellants
herein and despite that, the original plaintiffs are
accessing their land in question since last atleast 23
years?
(vi) Whether the suit of the plaintiff was maintainable
as the reliefs were for injunction and declaration were
sought without seeking any relief of removal of
obstruction on the purported road in question?
(vii) Whether the Ld. Courts were legally right in
decreeing in the suit in favour of the plaintiff not on
the basis of the original plaintiff-opponent herein
establishing his case, however, on the basis of
NEUTRAL CITATION
C/SA/508/2025 ORDER DATED: 20/11/2025
undefined
purported weakness in the case of original
defendants-appellants herein?
(viii) Whether the deposition of the son of the original
plaintiff in Sessions Case No. 133 of 2004 (Exh. 119)
would have evidentiary value in the civil proceedings?
(ix) Whether the Ld. Appellate Court acted in
contravention in the provisions of Order-41 of the
Code of Civil Procedure, 1908 by merely reproducing
the reasons assigned by the Ld. Trial Court?
(x) Whether the Ld. Appellate Court acted in
contravention to the provisions of Order 41 Rule 31 of
Code of Civil Procedure, 1908 as the appeal was
decided without framing proper issues?
(xi) Whether the Ld. Courts misconstructed,
misapplied and misappreciated the documents
produced at Exh.-126 and Exh.-105?
(xii) Whether the Ld. Courts below were legally right
in decreeing the suit predominantly on the basis of
certificate of the Talati cum Mantri produced at Ex.
105, without the certificate and it's contents being
proved by the Talati cum monetary entering the
witness box?
(xiii) Whether the Ld. Courts below were legally right
in decreeing the suit in question predominantly on the
basis of Panchnama at Ex. 126, without discussing the
complete evidence and the contents of the panchnama
in view of the said evidence and the settled legal
position?
(xiv) Whether the suit suffered from nonjoinder of
necessary parties?
(xv) Whether the suit was decreed on the basis of
evidence, which taken as a whole, is not reasonably
capable of supporting the decreeing of the suit?
(xvi) Whether the Ld. Courts below were legally right
NEUTRAL CITATION
C/SA/508/2025 ORDER DATED: 20/11/2025
undefined
in ignoring the evidence led by the appellant?
(xvii) Whether the Ld. Courts below were legally right
in dealing with the binding precedents relied upon by
the appellants herein merely by stating that, the facts
of the said case are distinguishable without assigning
any reasons whatsoever?"
5. Heard learned advocate for the appellants as well as
learned advocate for the caveator.
6. For brevity of convenience, parties are referred to as per
their original status before the lower Court.
7. Learned advocate Mr. Abhijit Rathod, seeking admission
of this appeal, submitted that the learned courts below
committed a serious error by decreeing the plaintiffs'
easementary right of way without specifying whether the
easement right is claimed by prescription under Section 15 or
by necessity under Section 13 of the Easements Act. He
would further submit that easement by necessity generally
arose when large chunk of land is partitioned among person
and therefore, the person, who got share in servient heritage
or servient tenement required passage or road to reach his
part of immovable property, whereas easement by
prescription arise through continuous and uninterrupted use
of other's property for specific period typically 20 years. The
case must be "as of right". He contended that the plaint
suffers from a lack of necessary pleadings regarding the
dimensions of the road and failed to satisfy the statutory
ingredients; specifically, the plaintiffs did not aver continuous
enjoyment for twenty years to establish prescription, nor did
NEUTRAL CITATION
C/SA/508/2025 ORDER DATED: 20/11/2025
undefined
he plead that the easement was an absolute necessity due to
the absence of any other access to his agricultural field.
8. Learned Mr. Rathod further argued that the courts
below erroneously relied on the testimony of interested
witnesses while ignoring the defendants' evidence regarding
the existence of an alternative route, thereby wrongly shifting
the burden of proof onto the defendants to disprove the
plaintiffs' right. Additionally, he raised a procedural
challenge, asserting that the learned First Appellate Court
breached the mandatory provisions of Order 41 Rule 31 of the
CPC by failing to frame specific points for determination and
not reappreciating the evidence as the final court of fact.
9. Another submission was canvassed by learned advocate,
Mr. Rathod to the effect that the learned courts below have
relied upon the evidence led by plaintiffs ignoring evidence of
defence, both the learned courts below referred to the oral
evidence of the persons, who are either relatives or friends of
the plaintiffs to believe that a passage or road exists between
land of survey Nos. 4 and 37 ignoring plethora of evidence
raised by the defendants. He would further submit that the
defendants have been wrongly burdened to prove existence of
the alternative way have categorically proved that the
alternative way or road is existed to reach to the field of the
plaintiffs, however, the learned courts below have committed
serious error in not noticing such evidence on record.
10. In support of this submission, learned advocate Mr.
Rathod relied upon judgment of the Hon'ble Apex Court in
NEUTRAL CITATION
C/SA/508/2025 ORDER DATED: 20/11/2025
undefined
case of Bachhaj Nahar Vs. Nilima Mandal and another, (2008)
17 SCC 491.
11. Upon above submission, learned advocate Mr. Rathod
prays to admit the second appeal on aforestated questions of
law.
12. Per contra, learned advocate Mr. N.R. Desai for the
caveator supported the concurrent findings of the learned
courts below, submitting that the suit was essentially for a
permanent injunction rather than a specific easementary
claim requiring strict pleadings under the Act, and argued
that the second appeal should be dismissed as it cannot serve
as a third trial to disturb concurrent findings of fact.
13. Based on the rival pleadings of the parties, the learned
trial Court framed the issues at Exh. 54. It is to be observed
that both parties led evidence in extenso both oral and
documentary to substantiate their respective claims; however,
the learned trial Court evaluated the available record and
examined the evidence to adjudicate and answer the issue
Nos.2,3,4 and 10 in affirmative and rest of the issues in
negative, which ultimately lead to decreeing the suit of the
plaint.
14. Vide Exh. 105, the plaintiffs placed the tracing extracted
by the Talati-cum-Mantri in regards to the land of survey No.
5, which indicates that except the road or passage the plaintiff
pleaded in the plant, no other way or road exist to reach at
the land of survey No.5. It is certified by the Talati-cum-
NEUTRAL CITATION
C/SA/508/2025 ORDER DATED: 20/11/2025
undefined
Mantri that the defendants have removed the road or passage
existed between the land of Survey No. 4 and 37 and thereby,
obstructed the passage or road used by the plaintiffs. The
panchama carried out by the Court Commissioner at Exh. 126
supports the case of the plaintiffs and it discern 10 feet wide
road existed between land of survey Nos.4, 5 and 37 and it is
also substantiated that this 10 feet road has been obstructed
by the defendant, as also attempted to merge with land of
survey No.37.. The punchama carried out by the Court
Commissioner produced at Exh. 126, which remains
unobjected. All these documentary evidence without any
hesitation proves the case of the plaintiffs irrespective of
defence of the defendants.
15. It is to be noticed that the plaintiffs have produced
photograph of the road passage from Exhs. 72 to 84. The
deposition of photographer is recorded at Exh. 146 and the
original invoice issued by the photographer is produced at
Exh. 112. All these photographs, if considered, also support
the case of the plaintiffs that road was existed between the
land of survey No. 4, 5 and 37. What is important to notice
that the defendants did not object to exhibiting these
photographs. Hence, these documentary evidence menifestly
established that the plaintiffs' case has merit. The road/
passage between two parcels of land i.e. land of survey
Nos.4,5 and 37 exist. The other documents placed on record
at Exh. 86, Exh. 159 and Exh. 178 which are the tracing of
public map and it also stated that the passage or road
between this agricultural field belongs to the plaintiffs and
defendants. commencing from Deka village and going towards
NEUTRAL CITATION
C/SA/508/2025 ORDER DATED: 20/11/2025
undefined
Dhunsol village. The plaintiffs have also led evidence of the
multiple witnesses, peculiarity of them are that they own
agricultural field surrounding the road or passage. Their oral
evidence are produced at Exh. 138, 139, and 141. These oral
evidence support the case of the plaintiffs that the road or
passage exists between the land of survey Nos. 4, 5, and 37.
Other evidence on record discussed by the learned trial Court
in para 9 of the judgment nullified the theory of the
defendants that two different roads are existed to reach to the
field of the defendants. It is also noticeable that two different
roads/passage pleaded by the defendants in the plaint does
not exist or found visiable in Exh. 86, 159 or 178. (tracing of
public map).
16. In the premises of the aforesaid factual aspect, the
learned Courts below believed that no other road or passage
exist except the road or passage claimed by the plaintiffs to
egress and ingress to his agricultural field of survey No.4 and
17. It is noticeable that according to the plaintiffs, the road
is neliyu means open land, not belonging either to the
plaintiffs or the defendants, but an open land enjoyed by the
public at large to egress or ingress to their agricultural field.
The defendants argued that the case of the plaintiffs without
averring the parameters of easement by prescription or
easement by necessity, cannot claim declaration of easement
right, however, none of them is required to be pleaded in the
case on hand, as the plaintiffs are not claiming any road
passing through the agricultural field of the defendants. The
NEUTRAL CITATION
C/SA/508/2025 ORDER DATED: 20/11/2025
undefined
plaintiffs in his consistent pleading as well as in evidence,
claim that on the east of the land of agricultural field of survey
No.37, the passage or road exist, it is naliyu, it is surrounded
by tree fencing. It is the consistent case of the plaintiffs that
the defendants are obstructing them from passing through the
neliyu existed on the east side of the agricultural land of
survey No. 37.
18. Under these circumstances, since there is no right /
claim of easement upon the land of survey No.37, pleadings in
regards to sections 13 or 15 of the Easement Act is not
necessary. There is no issue of easement heritage upon
servient heritage arose in the matter. It is the case simple
alleged to have been impressed by dominance that the open
land exists between land of survey Nos. 37, 4 and 5, which the
defendants intended to merge with his agricultural filed of
survey No. 37 and thereby obstructing egress and ingress.
Therefore, the submission of learned advocate Mr. Rathod
that the suit lacks essential requirement of pleading does not
sustain.
19. The judgment, upon which the learned advocate Mr.
Rathod relied on also since on his own fact does not render
any assistant.
20. It is also argued by learned advocate Mr. Rathod that
the learned first appellate Court has breached the mandatory
provision of Order 41 Rule 31 of the Code by not framing
independent point of determination considering the rival
submissions. The issue is no more res integra in view of
NEUTRAL CITATION
C/SA/508/2025 ORDER DATED: 20/11/2025
undefined
judgment of the Hon'ble Apex Court in case of Mrugendra
Indravadan Mehta And Others Versus Ahmedabad
Municipal Corporation reported in 2024 (0) INSC 401
addressed this issue. The relevant para is 14 and 27, which
reads as under:-
"14. Perusal of the impugned judgment reflects that the
High Court noted the contentions of both parties and
then extracted the issues framed by the Trial Court in
extenso. The High Court, however, did not frame the
points that arose for determination in the appeal, in
terms of Order 41 Rule 31 CPC. The High Court then
referred to the arguments advanced on behalf of the
parties and started the discussion on merits from para
5.1 of the judgment. The High Court observed that
compensation had been paid for the shortfall of 974 sq.
mts. @ Rs. 25/- per sq. mt. and noted that it was not in
dispute that the said compensation amount had been
accepted without protest. The High Court also noted that
the plaintiffs had not challenged the second varied Town
Planning Scheme No. 6, Paldi, under which they were
allotted Final Plot No. 187, admeasuring 2278 sq. mts.,
in lieu of the originally allotted Final Plot No. 463,
admeasuring 3890 sq. yds. The High Court also took
note of the fact that the plaintiffs supported the second
varied scheme before the Division Bench of the High
Court in Special Civil Application No. 3980 of 1992 and
concluded that they could not make out a grievance with
regard to the non- delivery of the remaining 974 sq. mts.
of land.
27. This being the legal position vis-a-vis the Act of 1976,
it was contended before us by the plaintiffs that the
impugned judgment of the High Court is liable to be set
aside on the short ground that no points for
determination were framed therein, as required by
Order 41 Rule 31 CPC. Reliance was placed on Malluru
Mallappa (Dead) through Lrs. vs. Kuruvathappa and
others, (2020) 4 SCC 313 wherein this Court observed
that the first appellate Court is required to set out the
points for determination, record the decision thereon
NEUTRAL CITATION
C/SA/508/2025 ORDER DATED: 20/11/2025
undefined
and give its own reasoning. It was further observed that,
even when the said Court affirms the judgment of the
Trial Court, it has to comply with the requirements of
Order 41 Rule 31 CPC as non-observance thereof would
lead to an infirmity in its judgment. However, it may be
noted that no absolute proposition was laid down therein
to the effect that failure to frame points for
determination, in itself, would render the first appellate
Courts judgment invalid on that ground."
21. Perusing the judgment rendered by the learned
appellate Court, it appears that the learned appellate Court
has addressed rival contentions and decided the issue arose
before him and has also referred to the issued framed by the
learned trial Court and also reevaluated the evidence
independently. In view of above the contention raised by
learned advocate Mr. Rathod for non-compliance of O 41 R 31
of the Code does not survive.
22. Section 100 of the Code as under:-
"(1) Save as otherwise expressly provided in the body
of this Code or by any other law for the time being in
force, an appeal shall lie to the High Court from every
decree passed in appeal by any Court subordinate to
the High Court, if the High Court is satisfied that the
case involves a substantial question of law.
(2) An appeal may lie under this section from an
appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum
of appeal shall precisely state the substantial
question of law involved in the appeal.
(4) Where the High Court is satisfied that a
substantial question of law is involved in any case, it
shall formulate that question.
(5) The appeal shall be heard on the question so
formulated and the respondent shall, at the hearing
NEUTRAL CITATION
C/SA/508/2025 ORDER DATED: 20/11/2025
undefined
of the appeal, be allowed to argue that the case does
not involve such question:
Provided that nothing in this sub-section shall be
deemed to take away or abridge the power of the
Court to hear, for reasons to be recorded, the appeal
on any other substantial question of law, not
formulated by it, if it is satisfied that the case involves
such question.]"
23. The High Court in order to admit second appeal is
required to be satisfied that substantial questions of law is
involved in the case and having so satisfied has to formulate
that question. Existence of a substantial question of law is
sine-qua-non for the exercise of jurisdiction under the
provisions of section 100 of the Code. The second appeal does
not lie on the ground of erroneous findings of facts based on
appreciation of the relevant evidence. [See: Union of India v.
Ibrahim Uddin, (2012) 8 SCC 148].
24. In Govindaraja v. Mariamman, AIR 2005 SC 1008,
the Hon'ble Apex Court held that the scope of exercise of the
jurisdiction by the High Court in second appeal under section
100 is limited to the substantial question of law. To be a
substantial question of law it must be debatable, not
previously settled by law of the land or a binding precedent
and answer to the same will have a material bearing of the
party before the Court.
25. Recently, the Hon'ble Apex Court in case of Gurbachan
Singh (Dead) Through Lrs Versus Gurcharan Singh
(Dead) Through Lrs And Others, 2023 (20) SCC 104, in
NEUTRAL CITATION
C/SA/508/2025 ORDER DATED: 20/11/2025
undefined
para 7, 14 and 15 held as under:-
"7. The parameters of an appeal under Section 100,
CPC passing muster are well established. The section
itself dictates that such an appeal shall only be
maintainable when the case involves a substantial
question of law or that the appellate decree has been
passed ex parte. the latter, obviously is not the case.
This court has, in a multitude of decisions, expounded
on what may be termed as a substantial question of
law to satisfy the requirements of section 100.
14. The principles of law cited herein may be
undoubtedly good law, but, however, in the
considered view of this court, they do not hold in the
case put forward by the Appellant. A perusal of the
witness statements of DW-3 as duly recorded by the
High Court, (the court also relies on the cross
examination portions of DW-4 although the same do
not form part of the record before this court.) shows
that father of the Appellant had indeed partitioned
the property during his lifetime. In such situation
selling a part of his share in an undivided property, is
a question that does not arise. Reliance on Shyam
Sunder (supra) does not support the case of the
Appellant as there is nothing on record to reflect any
effort having been made by him to substitute himself
in place of the Respondents in buying the 4 marlas of
land from Faqir Singh in order to keep a stranger,
namely Gurcharan Singh from entering into family-
owned property. Had the Appellant made any such
effort and the same would be reflected from record,
then it could have been argued that he has a right to
exclude the Respondents.
15. As already noted above, another ground of
objection taken by the Appellant is the fact of the
impugned judgement entering into a reappreciation
of evidence. While it is true that ordinarily, in second
appeal, the court must not disturb facts established
by the lower court or the first appellate court.
However, it is also equally well recognised that this
NEUTRAL CITATION
C/SA/508/2025 ORDER DATED: 20/11/2025
undefined
rule is not an absolute one or in other words, it is not
a rule set in stone."
26. Applying the aforesaid ratio to the facts of the present
case, no case is made out for admission of the second appeal.
27. Accordingly, second appeal fails and stands dismissed at
admission stage.
28. Consequently, CA does not survive and stands disposed
of accordingly.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
