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SA/160/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 160 of 2010
With
CIVIL
APPLICATION No. 7551 of 2010
In
SECOND APPEAL No. 160 of 2010
=========================================================
LALITABEN
D/O GANDABHAI MATHURBHAI VAGHRI - Appellant(s)
Versus
FADCHA
OFFICER SHRI - Defendant(s)
=========================================================
Appearance
:
MR
NK MAJMUDAR for
Appellant(s) : 1,
None for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 29/09/2010
ORAL
ORDER
The
appellant has preferred this appeal under Section 100 of the Code of
Civil Procedure challenging the judgement and decree passed by the
trial Court and confirmed by the first appellate Court on the
substantial questions of law indicated at page H of the memo of
appeal.
2. The
appellant filed a suit contending that suit property belonged to her
father Gandabhai Mathurbhai Vaghri and after his death she has become
the owner of the said property. It was also contended that name of
her mother Diwaliben was also mutated in the revenue record and the
suit property was sold to defendant by power of attorney holder of
her mother but she is in actual possession of the suit property and
the defendant was never in possession of the same. It was also
contended that as the defendant gave threats to handover possession,
the Suit was filed for permanent injunction.
3. It
appears that the original defendant did not appear in the Suit and
file written statement and the appellant original plaintiff gave
application Exh. 26 to join the heirs of the President of the Society
on the record of the Suit and thereafter the heirs were brought on
record of the case but no written statement was filed. Thereafter,
the heirs were deleted and liquidator of the Society was joined as
party defendant as the Society went into liquidation. The trial Court
after recording evidence, dismissed the Suit. Therefore, original
plaintiff preferred Regular Civil Appeal No. 47 of 2007 before
learned Additional District Judge and Presiding Officer, Fast Track
Court at Anand. The appeal came to be dismissed by judgement dated
18.2.2010. Being aggrieved by the said decision, the
appellant-original plaintiff has preferred this Second Appeal on the
substantial questions of law as indicated in the memo of appeal.
4. I
have heard learned advocate Mr. Majmudar for the appellant.
5. It
also appears that the suit property was sold to the original
defendant in the year 1970 and registered document in that regard was
produced at Exh. 83. Therefore, the original defendant had become the
owner and occupier of the suit property and the appellant-original
plaintiff had no right, title or interest in the suit property but
she committed trespass over the suit property. The documentary
evidence produced in the trial Court also indicates that with express
consent of the original plaintiff entry in the record of right was
made and name of the Society was mutated. Therefore, plaintiff was a
trespasser and was not entitled for the reliefs claimed in the Suit
and the Courts below were justified in passing the impugned
judgements.
6. In
view of the above, both the Courts below were justified in passing
the impugned judgement. Substantial questions of law as formulated do
not arise for consideration by this Court and hence the Second Appeal
is required to be dismissed and accordingly it is dismissed with no
order as to costs.
As
Second Appeal is dismissed, the Civil Application stands disposed of
accordingly.
(BANKIM N. MEHTA, J)
(pkn)
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