Kantilal Sakarchand Malani vs Dhirajlal Harjivan Desai and Another

H.B. Antani, J.—This Civil Revision Application is preferred u/s 115 of Code of Civil Procedure, 1908 challenging the judgment and order dated 3.8.2000 passed by the learned Joint District Judge, Rajkot in Regular Civil Appeal No. 54 of 1990.

The opponents-original plaintiffs filed Regular Civil Suit No. 2323/84 against the applicant-original defendant for declaration that the defendant has no right to keep his two wheelers in the open land and the passage and for further declaration that the defendant has no right to take water from the water connection which is owned by the plaintiffs. The plaintiffs also sought injunction restraining the defendant from keeping his vehicles in the passage and from taking water from water connection owned by the plaintiffs. The said suit was partly allowed by the learned Additional Small Cause Judge, Rajkot vide judgment and decree dated 28.2.1990. Being aggrieved and dissatisfied with the said judgment and decree, the plaintiffs preferred Regular Civil Appeal No. 54 of 1990 in the court of Joint District Judge at Rajkot. The said appeal was partly allowed by the learned Joint District Judge, Rajkot vide judgment and decree dated 3rd August 2000.

Being aggrieved and dissatisfied with the judgment and decree dated 3rd August 2000 passed by the learned Joint District Judge, Rajkot in Regular Civil Appeal No. 54 of 1990, the appellant-original defendant has preferred the present revision application.

Mr Sandeep N. Bhatt, learned advocate for the applicant submitted that the impugned judgment and decree passed by the appellate court is erroneous and contrary to the facts and evidence on the record of the case. Learned Judge has committed material irregularity which has caused injustice to the applicant. The appellate court has also erred in interfering with the judgment and decree passed by the learned trial court. Appellate court has not followed settled principles of law and, therefore, the order passed by the learned appellate court deserves to be quashed and set aside. Learned advocate also placed reliance on the reasoning given by the learned appellate Judge and submitted that the appellate Judge has committed an error in partly allowing the appeal. The learned appellate court ought to have confirmed the judgment and decree passed by the trial court. Thus, considering the reasoning given by the trial court and the evidence on the record of the case, the Revision Application deserves to be allowed and the judgment and decree passed by the learned appellate Judge in Regular Civil Appeal No. 54 of 1990 deserves to be quashed and set aside.

Though served, none appears for the opponent.

I have heard Mr Sandeep N. Bhatt, learned advocate appearing for the applicant at length and in great detail. I have also perused the averments made in the Revision Application as well as the reasoning given by the learned appellate court while partly allowing the appeal against the present applicant. The learned appellate Judge has discussed in detail the documentary evidence on the record of the case and formulated points for determination. The learned appellate Judge observed that plaintiff No. 1 Dhirajlal Harjivan Desai who has been examined vide exh.44 has deposed in his testimony that in the suit premises, there are two water connections; one is in the name of the plaintiff and other is in the name of the defendant and each party is entitled to take water from his own connection. Defendant Kantilal Sakarchand[present applicant-original defendant] who has been examined vide exh.50 has deposed that he is tenant in the suit property since 1952 and he was let out a room, osari adjacent to it, kitchen, store room, osari adjacent to the store room, osari, bath room, lavatory, water connection, chokdi, water tank and fali including deli. He has further deposed that initially, there was only one water tap and subsequently, a hand pump was constructed and he was taking water from the hand pump since its construction and the plaintiff has never taken any objection against it. He has further deposed that there is a water tank in the fali and in the said water tank, he used to store water, but the plaintiff started obstruction in it and, therefore, before about 11 years back, he had taken new water connection and from the said water connection, he is taking water since 11 years and if water is not sufficient, then, he is taking water from the hand pump. Learned appellate Judge, after appreciating the evidence on the record of the case held that it appears that with regard to water connection, the trial court has held that the plaintiffs as well as the defendant are having independent water connections and therefore, there is no reason for the defendant to take water from the water connection owned by the plaintiff. However, at the fag end of the order, it is observed by the Trial Court that the defendant should not be restrained from taking water from the hand pump of the plaintiff. With regard to parking of vehicles, the trial court has held that though defendant has right to park his two wheelers in the passage of the suit property, they are required to be parked in such a way that it shall not obstruct the plaintiffs'' right of way. This finding given by the trial court was upheld by the appellate court, but the finding which was given in favour of the defendant and against the plaintiffs not to restrain the defendant from taking water from the hand pump was quashed and set aside. The learned appellate Judge, after taking into consideration the oral depositions and documentary evidence, has rightly come to the conclusion and partly allowed the appeal, because, the defendant was also having water connection and, therefore, there was no need for him to take water from the hand pump of the plaintiffs and the finding in respect of the same was quashed and set aside. On perusal of the record and proceedings of the case, oral depositions as well as documentary evidence and the reasoning given by the courts below, I do not find any substance in the contentions raised by the applicant and it becomes clear from the perusal of the case papers that the defendant was also having separate water connection and therefore, there was no need for him to take water from the hand pump of the plaintiffs. There is no infirmity in the reasoning given by the learned appellate Judge, which in my view, calls for interference by this Court while exercising powers u/s 115 of the CPC.

For the foregoing reasons, the Revision Application is devoid of merits and it is hereby dismissed. Rule is discharged with no order as to costs. Interim relief, if any, stands vacated.