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SA/167/2009 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 167 of 2009
With
CIVIL
APPLICATION No. 6435 of 2009
In
SECOND APPEAL No. 167 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
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 ?
=========================================================
CHAMAR
PUNJABHAI GALABHAI & 1 - Appellant(s)
Versus
HARIJAN
DHUDABHAI RUPABHAI & 1 - Defendant(s)
=========================================================
Appearance
:
MS
SUBHADRA G PATEL for
Appellant(s) : 1 - 2.
ABATED for Defendant(s) : 1,
MR DP VORA
for Defendant(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 23/02/2011
ORAL
JUDGMENT
The
appellants have preferred this appeal under Section 100 of the Code
of Civil Procedure on the following substantial questions of law
formulated in the memorandum of appeal:
(1) Whether
in the facts and circumstances of the case, the Suit is not barred by
limitation?
(2) Whether
in the facts and circumstances of the case, the Suit is maintainable
in view of Order 2 Rule2?
(3) Whether
in the facts and circumstances of the case, have the appellants
encroached upon the land?
The
parties in the proceedings are referred to as they are in the
original proceedings in the suit.
The
respondents-original plaintiffs filed Regular Civil Suit No. 31 of
1990 in the Court of learned Civil Judge (Junior Division), Palitana,
for a direction to the defendants to remove the encroachment made on
the suit property. It was the case of the plaintiffs that they had
taken land admeasuring about 61.3 x 61.3 sq. ft. situated in
Ratanpar village from the State and by order dated 13.7.1944 passed
by the authority, they had become owner of the said land. The
predecessors of the plaintiffs made construction of residential house
on the said land. There is open land admeasuring 61 ft. on the
East-West side and North-South side of the said property. The
defendants are neighbours residing on the North-West side of their
property and have made encroachment on the open land belonging to the
plaintiffs before about 15 to 20 days without any right. The
defendants made encroachment on the Southern side of their house.
Therefore, suit was filed for removal of encroachment.
The
defendants appeared in the suit and denied the allegations made in
the plaint. It was contended that they did not make any encroachment
as alleged by the plaintiffs and that they have constructed their
houses in the year 1968. Since then there is no change in the
situation. Therefore, the suit is required to be dismissed.
Learned
trial Judge framed issues and parties adduced evidence. After
considering the evidence on record and the oral submissions, learned
trial Judge by his judgement dated 30.7.2001 allowed the suit and
directed the defendants to remove the encroachment within 60 days.
Therefore, the defendants preferred Regular Appeal in the Court of
learned Additional District Judge, Bhavnagar. It was registered as
Regular Civil Appeal No. 77 of 2001. The first appellate Court after
hearing learned advocate for the parties, by judgement dated 4.3.2009
dismissed the appeal.
Being
aggrieved by the said decision, the appellants-original defendants
have preferred the Second Appeal on the substantial questions of law
formulated in the memorandum of appeal which have been reproduced
hereinabove.
I
have heard learned advocate Ms. Subhadra G. Patel for the appellants
and Mr. D.P. Vora for the respondents at length and in great detail.
I have also perused the impugned judgement.
It
appears that respondent No. 1 has died during the pendency of the
Second Appeal. However, his heirs and legal representatives were not
brought on record of the case. Therefore, by order dated 14.9.2010
the appeal has abated qua respondent No. 1.
It
appears that the plaintiffs were the owners of the land admeasuring
about 61.3 x 61.3 sq. ft. and the defendants were their neighbours.
It also appears that there was open land between their properties.
Documentary evidence produced before the trial Court indicates that
the defendants encroached upon the suit land. The trial Court also
considered the documents produced on record as well as the map and
the report submitted by the Commissioner appointed by the Court. It
appears that the Court has also considered the oral evidence with
regard to encroachment made by the defendants. Findings of fact
recorded by the trial Court have been affirmed by the first appellate
Court. It also appears that the defendants did not raise any plea
with regard to limitation or bar under Order 2 Rule 2 before the
Court below. Therefore, no substantial questions of law could be
formulated in the Second Appeal. There is no pleading in that regard.
Therefore, in my view no substantial questions of law as formulated
by the appellants arise for determination of this Court. Hence Second
Appeal cannot be entertained.
In
the result, Second Appeal fails and stands dismissed.
In
view of dismissal of the Second Appeal, the Civil Application does
not survive. It stands dismissed accordingly.
(BANKIM N. MEHTA, J)
(pkn)
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