SA/8820/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 88 of 2007 With CIVIL APPLICATION No. 6729 of 2007 In SECOND APPEAL No. 88 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 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 ? ========================================================= BHAMBHI AMARABHAI LEBABHAI - Appellant(s) Versus CHENVA MANABHAI KALABHAI & 3 - Defendant(s) ========================================================= Appearance : MR NN PRAJAPATI for Appellant(s) : 1,MS CHETNABEN JOSHI for Appellant(s) : 1, None for Defendant(s) : 1 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 03/12/2008 ORAL JUDGMENT 1. The appellant – ori. plaintiff has filed SA/8820/2007 2/8 JUDGMENT this Second Appeal under Section 100 of the Civil Procedure Code, challenging the judgment and decree dated 17.7.2006 passed in Regular Civil Appeal No.94 of 2005 by the learned Additional District Judge, Sabarkantha at Himmatnagar, confirming the judgment and decree passed by the learned 3rd Additional Civil Judge, Himmatnagar in Regular Civil Suit No.248 of 1999 on 11.11.1995, whereby suit filed by the plaintiff was decided against the plaintiff and in favour of the defendant. 2. Heard Mr.N.N.Prajapati, learned advocate appearing for the appellant and perused the orders passed by the Courts below. It is the case of the appellant – ori. plaintiff that the appellant is resident of Village – Vadol, Taluka – Idar. He is having ownership right and possession over the suit vada land, which is situated besides appellant's residence. It is also the case of the appellant that the SA/8820/2007 3/8 JUDGMENT opponents were trying to snatch the possession of the appellant's land and they were putting illegal construction on the suit vada. The appellant has, therefore, moved an application for temporary injunction before the Idar Taluka Panchayat. The Taluka Panchayat has granted ad-interim injunction in favour of the appellant, but the opponents have not stopped the construction, therefore the appellant has filed the Criminal Complaint in the Police Station. The appellant has also filed objection before the Dy.Collector. Despite the order of the Dy. Collector the opponents have not stopped construction. Therefore, the plaintiff has filed suit for declaration and permanent injunction. The opponents have filed written statement Ex.20 and opposed the suit filed against them. The Court has framed the issues on the basis of pleadings and after considering the documentary evidence and hearing the parties, the suit was dismissed SA/8820/2007 4/8 JUDGMENT by the Appellate Court. An appeal preferred against the order of dismissal was also dismissed and hence this Second Appeal is filed before this Court. 3. Mr.Prajapati, learned advocate appearing for the appellant has submitted that both the Courts below have committed error in appreciating the evidence produced before them. He has further submitted that the Courts below ought to have framed the issue under Section 37(2) of the Bombay Land Revenue Code and, thereafter, it ought to have decided the said issue. He has further submitted that both the Courts below have committed error of law as well as on facts and hence appeal requires admission and following substantial questions of law arise from the order of the Appellate Court. “(1) Whether in the facts and circumstances of the case, the Courts below have committed an error of law dismissing the suit filed by the SA/8820/2007 5/8 JUDGMENT plaintiff ? (2) Whether in facts and circumstances of the case Courts below have committed error of law in holding that the order not granting the permanent injunction in favour of the appellant without considering the documentary evidence of the plaintiff was legal and valid. (3) Whether in the facts and circumstances of the case the Courts below have committed an error of law in holding that the plaintiff has no right to get the permanent injunction and relief which is prayed for in the plaint of the suit ? (4) Whether in the facts and circumstances of the case, the Court below have committed an error of law in framing the issues properly ?” 4. Having heard Mr.Prajapati and having perused the orders passed by both the Courts below, this Court is of the view that both the Courts below have taken absolutely correct view in the facts and circumstances of the case and after proper appreciation of fact and evidence on record, just and proper SA/8820/2007 6/8 JUDGMENT decision was taken. The Courts below have observed in their orders that the plaintiff has not examined any witness to prove his suit. The defendant has filed an affidavit Ex.54 wherein it is clearly stated that the plaintiff is not having the possession over the suit land. The plaintiff has no ownership right over the suit land. The T.D.O. has vacated the injunction against the construction of the defendants. The Mamlatdar and T.D.O. have examined the record and also visited the site and they dismissed the plaintiff's application. The plaintiff's Appeal before the Dy. Collector was also dismissed on 12.7.1999. The Collector has also dismissed the plaintiff's Revision Application No.54 of 1999 on 3.1.2000. No document has been produced before the Court showing the ownership right over the suit land. Merely because there is recital of the plaintiff's name in the Sanad, he cannot be said to be owner of somebody's land. The SA/8820/2007 7/8 JUDGMENT Talati has also admitted that there was some mistake in the Sanad of Mr.Shamalabhai. The defendants have obtained legal permission from the Chadasana Group Gram Panchayat for the said construction. All these aspects were taken into consideration by the Revenue Authorities and after considering all the documents, the Courts have come to the conclusion that the plaintiff has no legal right over the suit property and the plaintiff is not in possession of the suit land. 5. Since this being the concurrent finding of fact by both the Courts below, this Court is not inclined to entertain this Second Appeal as this Court has very limited jurisdiction to interfere in the Second Appeal. The Court is of the view that no question of law, much less any substantial question of law, arises out of the order of the Courts below. The Second Appeal is, therefore, summarily dismissed. SA/8820/2007 8/8 JUDGMENT 6. Since the Second Appeal is dismissed, the Civil Application does not survive and it is accordingly rejected. (K. A. PUJ, J.) kks