Gujarat High Court
Hardas Deva Rajput vs Kadwiben W/O Gigabhai Gareja on 21 October, 2021
Bench: Vaibhavi D. Nanavati
C/SA/223/2021 ORDER DATED: 21/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 223 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/SECOND APPEAL NO. 223 of 2021
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HARDAS DEVA RAJPUT
Versus
KADWIBEN W/O GIGABHAI GAREJA
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Appearance:
ARUN M PAUL(8277) for the Appellant(s) No. 1,2
MR KARAN K PAUL(11611) for the Appellant(s) No. 1,2
SHAILENDRA M MEHTA(8422) for the Appellant(s) No. 1,2
for the Respondent(s) No. 1,2,2.1,2.2,2.3,2.4,2.5,3,4,5,6,7
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 21/10/2021
ORAL ORDER
Second Appeal :-
Heard Mr. Arun M. Paul, the learned counsel appearing
for the appellants herein (original defendants).
The appellants have proposed the following questions of
laws :-
(1) That the Learned Appellate Court has misinterpreted
regarding encroachment the suit land.
(2) That, the admitted facts on record and land is cultivate
by the original plaintiff is not prove and Trial Court has
observed that the no encroachment of the land by the original
C/SA/223/2021 ORDER DATED: 21/10/2021
defendant Acre-00-07 gunthas well and Exhibit-63 cross
objection and Affidavit of the Defendant is consider by the
Trial Court.
(3) That the Electric connection is running in the name of
the defendant and admitted evidence on record is consider by
the Trial Court and Learned appellant Court has without
applying his mind the judgment and decree passed by the Trial
Court and suit is dismissed and same is set aside without
considering admitted facts on record.
(4) That the issue framed by the Trial Court in the suit is
affirmative and issue No.1 regarding Revenue Survey No. 133
the no encroachment of 07 gunthas by the defendant is
consider. The issue No.4 regarding question of the stopple is
also affirmative by the Trial Court and admitted facts and
evidence recorded by the Trial Court is not considered by the
Learned Appellate Court and Trial Court Judgment and Decree
passed in Regular Civil Suit No. 16/2005 is quash set aside
without considering the observation and issue frame by the
Learned Trial Court.
(5) That the Learned Appellate Court has not considering the
C/SA/223/2021 ORDER DATED: 21/10/2021
deposition and recorded evidence produced before the Trial
Court and without considering the legal position of the law.
(6) That the judgment and decree passed by the Learned
Trial Court in Regular Civil Suit No.16/2005 after consider the
evidence on record and deposition of the both the parties and
same is not considered the Learned Appellate Court and quash
and set aside the Judgment and decree passed by the Trial
Court in Regular Civil Suit No. 16/ 2005.
(7) That the judgment and order passed by the learned
Appellate Court in Regular Civil Appeal No.24/2011 and
Appeal is allowed without considering the legal position of the
law and said judgment and order is totally illegal without
applying his mind, and also erroneous and damage the legal
rights of the plaintiff and without considering legal position of
the law and evidence on record therefore, the judgment and
order passed by the learned appellate court is required to be
quash and set aside in the interest of justice.
The appeal requires admission on the following question
of law :-
C/SA/223/2021 ORDER DATED: 21/10/2021
"Whether the lower Appellate Court erred in law by
reversing the judgment and decree passed dated 18.9.2010
passed in the Regular Civil Suit No.16 of 2005 without
framing issue for determination as mandated under Order
41 Rule 31 of the Civil Procedure Code, 1908 ?"
The appeal is admitted.
Registry is directed to call for the record and proceedings
so as to reach this Court on or before 22.11.2021.
Civil Application :-
Heard Mr. Arun M. Paul, the learned counsel appearing
for the applicants.
The opponents (original plaintiffs) filed Regular Civil Suit
No.16 of 2005 against the present appellants before the Court
of learned Principal Civil Judge, Kutiyana for declaration and
for getting vacant and open possession of agricultural land and
well admeasuring 7.00 Gunthas of Survey No.133-Paiki situated
towards the southern side of the land of appellants at Village :
Bhadula, Taluka : Kutiyana which according to the opponents
(original plaintiffs) is of their ownership. The land being
C/SA/223/2021 ORDER DATED: 21/10/2021
agricultural land, the same was purchased by the original
plaintiffs alongwith his four brothers. The suit came to be
dismissed by the learned trial Court by order dated 18.9.2010.
Being aggrieved by the same the respondents (original
defendants) herein approached the Appellate Court by filing
the Regular Civil Appeal No.24 of 2011. The Appellate Court
allowed the Regular Civil Appeal No.24 of 2011 filed by the
original plaintiffs by judgment dated 3.7.2021.
The applicants (original defendants) being aggrieved by
the judgment dated 3.7.2021 passed in the Regular Civil
Appeal No.24 of 2011 are before this Court by way of present
Second Appeal.
It is submitted by Mr. Paul, the learned counsel
appearing for the applicants that the applicants are in
possession of the suit property. It is further submitted that the
applicants herein are having electric connection for functioning
of the well. The applicants were not prevented/restrained from
continuing with the electric connection and they are using the
same for the last 12 years. It is admitted by the original
plaintiffs in their deposition.
C/SA/223/2021 ORDER DATED: 21/10/2021
Notice returnable on 25.11.2021.
In view of the above submissions made by the learned
counsel for the applicants, status-quo be maintained by both
the sides with regard to the nature, character and structure of
the suit property as on today, till the next date of hearing.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
