CRA/1087/1998 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 1087 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MORABIA KANTILAL SOMCHAND - Applicant(s) Versus HIRUBEN MOHANLAL MORABIA - Opponent(s) ========================================================= Appearance : MR BY MANKAD for Applicant(s) : 1, None for Opponent(s) : 1, MR NV ANJARIA for Opponent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6, 1.2.7,1.2.8 ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 17/04/2008 ORAL JUDGMENT 1. By way of this application, the applicant, original defendant, has prayed to CRA/1087/1998 2/5 JUDGMENT quash and set aside the order dated 27.03.1998 passed by the learned Civil Judge (J.D.), Rapar – Kutch in Execution Application No. 17 of 1990 whereby, the said application was partly allowed and the construction in question was ordered to be demolished. 2. Before proceeding further, it would be relevant to record that on 14.09.2005 this Court had adjourned the matter, as there was a possibility of an amicable settlement of the dispute between the parties outside the Court. Thereafter, the matter was adjourned time and again. However, no settlement has been arrived at between the parties till today. In the said circumstance, this Court has no other alternative but, to proceeded with the matter on merits. 3.0 The facts in brief leading rise to the filing of the present application are as under; 2.1 The respondent, original plaintiff, had filed a suit being Regular Civil Suit No. 30 of 1984 before the Court of learned Civil Judge (J.D.), Rapar – Kutch against the applicant, original defendant, for a permanent injunction that the applicant shall not make de novo construction on the way being used by the respondent for ingress and egress in the premises CRA/1087/1998 3/5 JUDGMENT which is of the ownership and occupation of the respondent and also to remove the construction made by the applicant therein. 2.2 In the said suit, the applicant filed his reply at Exhibit – 13. The trial Court framed the issues. After hearing the parties and after considering the evidence on record, the trial Court partly allowed the suit by holding that the respondent, original plaintiff, has got the right of way for ingress and egress in the suit premises and consequently, directed that the applicant, original defendant, should keep three feet way open for the ingress and egress of the applicant and his family members. Permanent injunction was also granted to the effect that the applicant or his servants / agents should not make any kind of construction on the said three feet way. 2.3 Being aggrieved by the said judgment and decree, the applicant preferred an appeal being Regular Civil Appeal No. 57 of 1989 before the District Court, Bhuj – Kutch. However, the said appeal was dismissed by the District Court, Bhuj – Kutch. 2.4 Therefore, the respondent filed an application for execution being Execution CRA/1087/1998 4/5 JUDGMENT Application No. 17 of 1990 in Civil Suit No. 30 of 1984. The said application came to be allowed by the executing Court vide impugned judgment and order dated 27.03.1998. Against the said judgment and order, the applicant has preferred this revision application. 3. Heard learned counsel for the respective parties and perused the documents on record. After appreciating the evidence on record in Civil Suit No. 30 of 1984, the trial Court partly decreed the suit in favour of the respondent, original plaintiff, by holding that the respondent has got the right of way for ingress and egress in the suit premises. Permanent injunction was also granted to the effect that the applicant or his servants / agents should not make any kind of construction on the three feet way in question. 4. Thus, by passing the said decree, the trial Court had clearly directed that no construction in any manner whatsoever should be made over the way in question. However, it appears that the applicant has made some construction on the top portion of the way in question, which is, evidently, against the order passed by the trial Court in Civil Suit No. 30 of 1984. CRA/1087/1998 5/5 JUDGMENT 5. The executing Court, while appreciating the evidence on record, has rightly come to the conclusion that the construction made over the way in question was illegal and therefore, the same is required to be demolished. Though the respondents have the legitimate right to enjoy the way in question, they have been deprived of the same since last several years. Considering the facts of the case, I am of the opinion that the executing Court was completely justified in passing the impugned judgment. I am in complete agreement with the reasonings given by and the findings arrived at by the Court below and hence, find no reasons to interfere in this Appeal. 6. For the foregoing reasons, the Appeal stands dismissed. No order as to costs. Interim relief stands vacated. [K. S. JHAVERI, J.] Pravin/*