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SA/160/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 160 of 2009
=========================================================
PATEL
NAVJIBHAI NATHABHAI & 6 - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Defendant(s)
=========================================================
Appearance
:
MR
NV GANDHI for
Appellant(s) : 1 - 7.
MR JV JAPEE for Defendant(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 26/08/2010
ORAL
ORDER
Challenge
in this appeal is against the concurrent finding of facts recorded in
the judgment and decree dated 05.05.2007 passed by the learned
Additional Senior Civil Judge, Sabarkantha in Regular Civil Suit No.
285 of 1999 confirmed by judgment and order dated 31.12.2008 passed
by the Additional District Judge, 1st Fast Track Court,
Himatnagar in Civil Appeal No. 44 of 2007.
I
have heard learned advocate Mr. N.G. Gandhi for the appellant and Mr.
J.V. Japee for the respondents.
The
case of the appellants-original plaintiffs is that they were
cultivating land bearing survey Nos. 231/4, 235/2, 233/1, 234 and
232/5 under the bonafide belief that the lands were their own lands.
Learned
advocate for the appellant fairly conceded that the appellants are
not claiming adverse possession. As regards the ownership of the land
by the appellants, on perusal of the judgments of the lower courts,
it clearly transpires that inspite of granting ample opportunities,
the appellants failed to produce any proof. On the contrary, there
is ample evidence on record that the lands belong to the Panchayat.
This
appeal challenges the concurrent finding of facts both of the learned
Trial Judge as also the first appellate court recorded by the lower
courts. Having gone through the judgment and order passed by the
lower courts, there is no infirmity with the said judgments. That
apart, no substantial question of law is involved in the present
appeal. Having gone through the judgment of the lower courts, it
cannot be said that :
(i). the
Courts below have ignored material evidence or acted on no evidence;
(ii). the
Courts have drawn wrong inferences from proved facts by applying the
law erroneously; or
(iii)
the Courts have wrongly cast the burden of proof or there is a total
dearth of evidence where the evidence, taken as a whole, is not
reasonably capable of supporting the finding. [AIR 2008 SUPREME COURT
1749 “Kashmir Singh v. Harnam Singh]
Moreover,
the tenor of the arguments of the learned advocate for the appellant
is that this Court should re-appreciate the evidence in this second
appeal. The same is not permissible in a Second Appeal.
For
the foregoing reasons, there is no merit in this second appeal, and
the same is dismissed. No order as to costs.
mathew [H.B.
ANTANI, J.]
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