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SA/43/1980 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 43 of 1980
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
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 ?
=========================================================
VIPINBHAI
@ GOVINDBHAI CHHOTABHAI PATEL - Appellant(s)
Versus
PARSHOTAMBHAI
AMBALAL CHAUHAN & 3 - Defendant(s)
=========================================================
Appearance
:
MR
JITENDRA M PATEL for
Appellant(s) : 1,
MR MEHTA for NANAVATI ASSOCIATES for
Defendant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 15/07/2010
ORAL
JUDGMENT
Present
appeal has been preferred
by the appellant under Section 100 of the Code of civil Procedure,
1908 challenging the judgment and decree dated 15h September 1979
passed by the learned Assistant Judge, Vadodara, in Civil Appeal No.
50 of 1978 by which the learned Appellate Judge allowed the appeal
with costs and quashed and set aside the judgment and decree dated
21st
November, 1977, passed by 3rd
Joint Civil Judge [Junior Division], Vadodara, in Regular Civil Suit
No. 1418 of 1972.
2.
Appellant is the original plaintiff, while respondents are the
original defendant nos.1 to 4. Plaintiff filed Regular Civil Suit No.
1418 of 1972 for permanent injunction against the defendants
restraining them from obstructing his right of way from eastern side
of Survey No. 522 for going to his Survey No. 518 which is of his
ownership and possession. The said suit was decided by 3rd
Joint Civil Judge [Junior Division], Vadodara, who, after recording
oral depositions and considering documentary evidence decreed the
suit and restrained the defendants from disturbing possession of the
plaintiff and from causing any hindrance from using the way from the
eastern Shedha of Survey No. 522 for going to his Survey No. 518.
Being aggrieved by the said judgment and decree, the respondent
no.1-defendant no.1 preferred Civil Appeal No. 50 of 1978 before the
Assistant Judge, Vadodara, who, vide judgment and order dated 15th
September 1979 allowed the appeal and set aside the judgment and
decree passed by the trial court.
3.
Mr Jitendra M Patel, learned advocate appearing for the appellant
submitted that the judgment and order passed by the lower appellate
court is contrary to law and against the evidence on record of the
case. Learned lower appellate court held that the plaintiff has duly
proved that he is in possession of Survey No. 518 and has right of
way through Survey No. 522, but committed egregious error in allowing
the appeal of defendant no.1. Thus, there was total non-application
of mind by the learned appellate Judge while allowing the appeal by
writing cryptic judgment without assigning adequate reasons. The
learned appellate Judge, while allowing the appeal, has not
considered the evidence on record which was produced by the appellant
and thus, the order passed by the learned appellate Judge suffers
from infirmity and therefore, it deserves to be quashed and set
aside. Learned advocate further placed reliance on the documentary
evidence such as Hakka Patrak at Exh.30, auction proceedings at
Exh.33, Khata of plaintiff at Exh.31 and land revenue receipts at
Exhs. 36 to 48 in support of the contention that the plaintiff had
right of way as claimed in the plaint. The appellate Judge has, thus,
committed an error in appreciating the evidence on the record of the
case and as he has not assigned reasons while allowing the appeal,
the appeal deserves consideration and the judgment and order passed
by the appellate Judge requires to be quashed and set aside and the
judgment and decree dated 21.11.1977 passed by the learned 3rd
Joint Civil Judge [Junior Division], Vadodara in Civil Suit No. 1418
of 1972 requires to be restored.
4.
Mr Mehta for Nanavati Associates, learned advocate for the
respondents submitted that considering the reasons assigned by the
learned appellate Judge, no interference is called for in the appeal.
Learned appellate Judge has appreciated the evidence on record of the
case in its true perspective and as no substantial question of law is
involved in the appeal, the appeal deserves to be dismissed. Learned
advocate also placed reliance on the reasoning given by the learned
trial Judge and submitted that as the trial court has committed gross
error in allowing the suit and passing consequential order of decree
without appreciating the evidence on the record of the case, the same
was set aside in appeal by the learned appellate Judge by assigning
adequate reasons and, therefore, no interference is called for in the
appeal and it deserves to be dismissed.
5.
I have heard the learned advocate Mr J.M. Patel, for the appellant
and Mr Mehta, learned advocate for the respondents at length and in
great detail. Record and proceedings which are produced in the
present case are carefully taken into consideration by me. I have
also perused the reasons assigned by the appellate court in Civil
Appeal No. 50 of 1978 as well as the reasons given by the trial court
while deciding Regular Civil Suit No. 1418 of 1972. Documentary
evidence which has been placed on the record of the case is taken
into consideration by me. I have also perused Hakka Patrak at
Exh.30, auction proceedings at Exh.33, Khata of plaintiff at Exh.31,
Fasal Patrak at Exh.32 and land revenue receipts at Exhs. 36 to 48 as
well as oral depositions adduced by both the parties in the suit.
Even the defendant has admitted in his cross-examination that
plaintiff had right of way as claimed by him in the suit plaint.
Considering the aforesaid fact and overwhelming documentary evidence
which is produced in the present case, the learned appellate court,
in my view, has committed an error in allowing the Appeal and in
setting aside the judgment and decree of he trial court. The learned
appellate court has not only committed an error in appreciating the
evidence on the record of the case, but has also committed an error
in framing points which are as under:-
[1] Whether
the plaintiff has duly proved that he was in possession of S.No. 518
and that he had a right of way through S.No. 522?
[2] Whether
the omission of issue with regard to the adverse possession has
caused any injuries and if so whether the matter should be sent back
to the trial court for deciding such an issue?
[3] What
order?
Then the
learned appellate court has recorded findings to the said points
which are as under:-
[1] In
the affirmative.
[2] First
part in the negative and second part not necessary.
[3] As
per order below.
After
considering the rival submissions, it has been observed in para-12 of
the judgment as under:-
In
light of the findings it is not necessary to send back the matter to
the trial court for deciding the adverse possession of the
defendants. In the result I find no merit in this appeal and the same
requires to be allowed with costs.
Thereafter,
the appeal was allowed with cost. Thus, the learned appellate court,
on one hand, while framing point no.1 with regard to possession of
the plaintiff and his right of way through Survey No. 522 held in
the affirmative and thereafter in final para, he has observed that
there is no merit in the appeal, and therefore, instead of dismissing
the appeal, he allowed the appeal with cost. This observation by the
learned appellate court, as stated herein above, speaks volumes about
the perfunctory and casual manner in which the appeal is heard and
decided by him. Be that as it may. In view of the overwhelming
documentary evidence and oral depositions adduced by the respective
parties, the appeal, in my view, requires to be allowed.
6. For
the foregoing reasons, the Second Appeal is allowed. Judgment and
order dated 15th
September 1979 passed by the learned Assistant Judge, Vadodara, in
Civil Appeal No. 50 of 1978 is hereby quashed and set aside and the
judgment and decree dated 21st
November, 1977, passed by 3rd
Joint Civil Judge [Junior Division], Vadodara, in Regular Civil Suit
No. 1418 of 1972 by which the trial court, after going through the
entire evidence in its true perspective has allowed the suit of the
original plaintiff and decreed the same against the defendant,
is confirmed and the said
order restraining the defendants from disturbing the plaintiff from
using his way on the eastern side of Shedha of Survey No. 522 for
going to his Survey No. 518, is restored.
[H.B.
ANTANI, J.]
pirzada/-
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