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SA/73/2010 4/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 73 of 2010
With
CIVIL
APPLICATION No. 3768 of 2010
In
SECOND
APPEAL No. 73 of 2010
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
VANAND
MULJI NATHABHAI & 1 - Defendant(s)
=========================================================
Appearance
:
MS
VS PATHAK, ASSTT GOVERNMENT PLEADER
for
Appellant(s) : 1,
MR RC KAKKAD for Defendant(s) : 1,
None for
Defendant(s) : 2,2.2.7
MR NISHANT LALAKIYA for Defendant(s) :
2.2.1, 2.2.2, 2.2.3, 2.2.4, 2.2.5,2.2.6
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 16/07/2010
ORAL ORDER
This is an appeal preferred under Section 100 of Code of Civil
Procedure, 1908 by the appellant-original defendant no.1 challenging
the judgment and order passed by the learned Additional District
Judge [Fast Track Court No.5], Rajkot in Regular Civil Appeal No. 60
of 2002 confirming the judgment and decree passed by the 2nd
Jt. Civil Judge [S.D.], Rajkot in Regular Civil Suit No. 668 of 1992.
2. Short
facts of the case are that, the respondent no.1 -original plaintiff
filed Regular Civil Suit No. 668 of 1992 praying that the name of the
plaintiff be entered in the record of rights after doing new survey
as per his actual possession, and for declaration that the plaintiff
is owner of the land-field admeasuring about 2 Acres and 16 Gunthas.
The suit of the plaintiff was decreed with costs by judgment and
decree dated 29.1.1998 passed by the learned 2nd Joint
Civil Judge [S.D.], Rajkot. Being aggrieved and dissatisfied with the
said judgment and decree, original defendant no.1-appellant herein,
preferred Regular Civil Appeal No. 60 of 2002 in the District Court,
Rajkot, which was rejected by the learned Additional District Judge
[Fast Track Court No.5], Rajkot and the judgment and decree passed by
the lower court was confirmed.
3.
Ms VS Pathak, learned Asstt. Government Pleader appearing for the
appellant-State of Gujarat, submitted that both the courts below have
committed an error in not properly appreciating the evidence on the
record of the case. The courts below have also not considered that
respondent no.1 -original plaintiff encroached upon the govt. waste
land and, therefore, the suit ought not to have been decreed by the
trial court and confirmed in appeal by the appellate court. Both the
courts below have not interpreted the document Exh.67 and, therefore,
the order passed by the courts below deserve to be quashed and set
aside.
4.
Mr R.C. Kakkad, learned advocate appearing for main contesting
respondent no.1-original plaintiff, submitted that the trial court
has taken into consideration the evidence adduced before it in the
right perspective and after considering the same, the trial court
has decreed the suit of the plaintiff which was confirmed in appeal
by the appellate court and as no infirmity is committed in the
finding of the courts below, no interference under Sec.100 of CPC is
called for and the appeal deserves to be dismissed as no substantial
question of law is involved in the appeal.
5.
Heard Ms VS Pathak, learned AGP for the appellant and Mr RC Kakkad
as well as Mr Nishant Lalakiya, learned advocates for respondent no.1
and respondent nos. 2.2.1 to 2.2.6 respectively at length and in
great detail. I have considered the reasoning given by the courts
below. I have also perused the record and proceedings of the case as
well as documentary evidence which is adduced in the present case.
The deposition adduced by Surveyor R.V. Shukla as well as
measurements made by him and produced at Exh.41 are considered by
me. Considering the aforesaid aspect, the trial court has held that
perusing the said documents, the disputed property was in the name of
Natha Bhaga. It is further held that Talati had also led evidence
indicating that the disputed property was in possession of Natha
Bhaga. Initially, Mamlatdar had not allowed the suit of the plaintiff
and, therefore, the Revenue Department had remanded the case back and
on remand, the Deputy Collector had made an inquiry under Section
37[2] of the Bombay Land Revenue Code. Both the Collector and Deputy
Collector held that two fields with way of Chopat and Vada are
situated adjoining to each other and considering the occupancy
certificate, the trial court has held that the plaintiff has proved
his case by adducing cogent evidence in the matter and decreed the
suit which was confirmed in the appeal by the appellate court by
assigning reasons. Considering the concurrent findings of fact given
by the courts below on the basis of the detailed evidence, and since
the appeal does not involve any substantial questions of law, I am
of the view that no interference is called for in the present appeal
and it deserves to be dismissed.
6.
For the foregoing reasons, there is no merit in the appeal and the
same is dismissed. Notice is discharged.
7.
As the main appeal is dismissed, Civil Application No. 3768 of 2010
for stay is also rejected.
[H.B.
ANTANI, J.]
pirzada/-
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