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SA/248/2009 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 248 of 2009
With
CIVIL
APPLICATION No. 10106 of 2009
In
SECOND APPEAL No. 248 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
=========================================================
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 ?
=========================================================
INDUBHAI
LALJIBHAI PATEL - Appellant(s)
Versus
MOHANBHAI
CHHOTABHAI THAKORE & 1 - Defendant(s)
=========================================================
Appearance :
MR
MRUGEN K PUROHIT for
Appellant(s) : 1,
MR JA ADESHRA for Defendant(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 06/12/2010
ORAL
JUDGMENT
1. Present
second appeal has been filed by the appellant – original
defendant posing the substantial questions of law as follow on the
grounds set out in the memo of appeal:
(1) Whether
there is proper appreciation of evidence by the lower Court?
(2) It
is the duty of either party to aid the Court in ascertaining the
true boundaries?
(3) Whether
the boundaries would prevail over the revenue records and/or survey
number?
(4) Whether
the possession of the property can be decided on the basis of the
boundaries or on the basis of Survey Number?
(5) Whether
the plaintiff is entitled to a decree of protection of possession in
absence of showing the description and/or mentioning of the
boundaries?
(6) Whether
it is mandatory under Order VII Rule 3 of the Code of Civil Procedure
for the plaintiff to narrate the boundaries in the plaint under the
rules of pleadings, and in absence of it, can the decree for
protection of possession be passed?
(7) Whether
the Court below erred in passing the decree for protection of
possession of the plaintiff, when he himself has admitted the
possession of the defendant, which is shown in the Written Statement?
(8) Whether
under Section 34 of the Specific Relief Act, can the decree for
protection of possession be passed when the plaintiff is not in
possession of the suit property?
(9) Whether
the title of the property is decided on the basis of the revenue
record, more particularly when the revenue record is not a document
of title?
(10) Whether
the decree for protection of possession is passed where the trail
Court has not properly framed the issues?
(11) Whether
the judgment and decree passed by the trial Court is legal and
proper?
2. The
facts of the case briefly stated are that the respondent –
original plaintiff filed a Civil Suit No. 175 of 1998 before the
Court of Joint Civil Judge (J.D.), Nadiad, which came to be decreed
by holding that the land bearing survey No. 891/4 belongs to the
plaintiff and he is the owner and in possession of the said land and
defendant has no right title or interest in the said land. The said
order was challenged by way of Regular Civil Appeal No. 34 of 2004
which also came to be dismissed by the Additional District Judge,
Nadiad. Therefore, the present Second Appeal has been preferred.
3. Heard
the learned counsel Mr. Mrugen Purohit for the appellant and learned
counsel Mr. Adeshra for the respondents. As it transpires from the
facts and the contentions raised, the substantial questions of law,
which have been posed, cannot be said to be any questions of law much
less any substantial questions of law. It is not in dispute that the
appellant is the owner of land bearing survey No. 891/2 and the
respondents original plaintiffs are the owners of land bearing survey
No.891/4. From the evidence including the Panchnama made before the
Civil Court and the testimonies of both the plaintiffs and the
defendant are not disputed on this aspect. However, the dispute which
has been raised, as submitted by learned counsel Mr. Mrugen Purohit,
is with regard to identification of the land bearing survey No. 891/2
and 891/4. In view of the evidence brought on record which is also
discussed by the lower Appellate Court on the basis of the material
and evidence, this aspect about the boundary of the particular land
cannot be said to be a question of law much less any substantial
question of law. In the name of the boundaries or the identification
of the particular plot the issue cannot be re-agitated in the second
appeal when the facts are in narrow compass based on the factual
evidence. Therefore, as there is no substantial question of law which
could be said to have been involved the concurrent findings given by
the two courts below do not call for any interference.
4. Having
regard to the aforesaid facts and circumstances, the present second
appeal cannot be entertained in light of the settled legal position
that scope of second appeal under Section 100 of Code of Civil
Procedure is very limited and unless any substantial question of law
involves, the Court need not entertain such second appeal as observed
by the Hon’ble Apex Court in the judgment reported in (2007) 1
SCC 546
in the case of Gurdev Kaur & Ors. v. Kaki &
Ors. The
same view has been reiterated in the judgment reported in (2008)
8 SCC 92 in
the case of State Bank of India & Ors. v.
S.N. Goyal
and also in the judgment reported in (2009) 5 SCC
264 in
the case of Narayanan Rajendran & Anr. v.
Lakshmy Sarojini & Ors. Therefore,
present second appeal deserves to be dismissed and accordingly stands
dismissed. Notice discharged.
5. In
view of the order passed in main matter, Civil Application does not
survive and accordingly stands disposed of.
(RAJESH
H. SHUKLA, J.)
jani
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