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SA/201/2009 1/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 201 of 2009
===============================================
SUMITRABEN
WD/O DALPATSINH KODARBHAI - Appellant(s)
Versus
CHATURMAL
CHOITHARAM KAMNANI - Defendant(s)
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Appearance
:
MR SK BUKHARI for Appellant(s)
: 1, 1.2.1, 1.2.2, 1.2.3,1.2.4
MR YM THAKKAR for Defendant(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 27/09/2010
ORAL
ORDER
1.
The appellant has preferred this Second Appeal under Section 100 of
Code of Civil Procedure, 1908, raising substantial questions of law
at Annexure I to the memorandum of appeal.
2. According
to the appellant original plaintiff, agricultural lands bearing
Survey Nos.49, 44/1 and 58/2 belonged to Ankleshwar Mandir Trust and
his father was cultivating the said lands as tenant. On 30.10.1975
it was ordered that on payment of Rs.37.37ps/- such lands be
transferred to his father under the tenancy right, and accordingly
the lands were mutated in the name of father of plaintiff as tenant
of the said lands. It was also the case that plaintiff is in actual
possession of the said lands but the defendant has purchased part of
the aforesaid lands from Punabhai Madabhai, brother of his father,
who was jointly cultivating the said lands by registered sale deed.
According to him, the defendant was trying to dispossess him and
therefore a suit was filed for declaration that the registered sale
deed is void and for permanent injunction restraining him from
entering into the said lands.
3. The
defendant contested the suit by filing written statement contenting
that he had purchased the suit lands by a registered sale deed and
plaintiff was an attesting witness to the sale deed and, therefore,
he has no right to in respect of the suit lands and the suit is
required to be dismissed.
4.
The trial court framed issues at Exh.57. The parties adduced
evidence, and at the end of trial, the suit was dismissed. The
plaintiff preferred Regular Civil Appeal No.5 of 1996 under Section
96 of CPC before learned District Judge, Panchmahals at Godhra. The
lower appellate court, after hearing the parties, dismissed the
appeal. Being aggrieved by the said decision, the appellant
original plaintiff has preferred this Second Appeal.
5. I
have heard learned advocate Mr.S.K.Bukhari for the appellant and
learned advocate Mr.Y.M.Thakkar for the respondent at length and in
great detail.
6. It
is not in dispute that the lands in question belonged to the father
of the plaintiff who was a joint tenant in respect of the suit lands
with his brother. Therefore, except the tenancy right, predecessor
of the plaintiff had no other right in respect of the suit lands.
It is also not in dispute that part of the said lands was sold by
executing a registered sale deed to respondent original
defendant. In view of the fact that the father of the plaintiff was
only a tenant, he cannot claim any right in respect of the suit
lands. The trial court as well as lower appellate court, after
appreciating the evidence produced on the record, came to conclusion
that the plaintiff is neither owner or occupier of the suit lands
and the sale deed is not illegal or void. The lower appellate court
has also concurred with the finding recorded by the trial court. It
appears from the substantial questions of law formulated by the
appellant plaintiff, the questions are questions of fact.
Therefore, in my view, the substantial questions of law as formulated
by the appellant in the memo of appeal do not arise for determination
by this Court.
6. In
the result, the Second Appeal fails and stands dismissed. Interim
relief, if any, stands vacated.
(
BANKIM N. MEHTA, J. )
syed/
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