Gujarat High Court

Saileshkumar Mavjibhai Jamod vs Akhilesh Gunvantray Vaidya on 12 September, 2022

Bench: Hemant M. Prachchhak

     C/SA/308/2022                                 ORDER DATED: 12/09/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/SECOND APPEAL NO. 308 of 2022
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
                  In R/SECOND APPEAL NO. 308 of 2022
==========================================================
                     SAILESHKUMAR MAVJIBHAI JAMOD
                                 Versus
                      AKHILESH GUNVANTRAY VAIDYA
==========================================================
Appearance:
TATVDEEP J JANI(7227) for the Appellant(s) No. 1
for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                            Date : 12/09/2022

                             ORAL ORDER

1. Being aggrieved and dissatisfied with the judgment and

order dated 7.4.2022 passed by the Principal District Judge,

Bhavnagar in Regular Civil Appeal No.95 of 2013 confirming

the judgment and order dated 25.9.2013 passed by the 4 th

learned Additional Senior Civil Judge, at Bhavnagar in R.C.S.

No.494 of 1999, the appellant has filed the present second

appeal.

2. The short facts giving rise to present Second Appeal are as

under:-

2.1 The plaintiff resides in the plot no. 1228 - A alongwith his

C/SA/308/2022 ORDER DATED: 12/09/2022

family and that the defendant possesses a plot besides the

property of the plaintiff and in between the same there is a

wire fencing since many years. It is the further case that, the

deceased father of the plaintiff had purchased an open plot

no, 1227-A admeasuring 714.33 Sq. Mirs. from one

Chandrakant Narayandas Jani in the year 1938 and the same

is registered in the City Survey no. 6, sheet no. 246, survey

no. 2732 and since the time of its purchase the said property

had a wire fencing around it with a Gate which was made by

the original owner namely Chandrakant Narayandas Jani in

the year 1937. It is the further case that after the property

was purchased by the deceased father of the plaintiff he had

placed the plan for approval which came to be approved vide

Rajja Chitthi no. 360 dated 20.03.1939 and subsequently the

house came to be built and thereafter the said property came

to be transferred in the revenue records in the name of the

deceased father of the plaintiff. It is the further case that the

deceased father of the plaintiff had purchased the property

alongwith the fencing on it. Thus, the property is being used

with the wire fencing by the plaintiff in an uninterrupted

manner since about 60 years. If is the further case that the

father of the plaintiff expired on 22.12.1997 and hence, the

C/SA/308/2022 ORDER DATED: 12/09/2022

plaintiff became the owner of the said property. Thus, it has

been stated that the defendant has no right whatsoever to

enter or alter the fenced property of the plaintiff. It is the

further case that, there is a difference of 1 Foot on the

western side of the property of the plaintiff in the records of

the City Survey as well as Bhavnagar Mahanagarpalika,

however, since about 60 years the western portion of land

inside the wire fencing is in the independent, peaceful and

interrupted possession of the plaintiff. It is the further a case

that in agreement to the possession of the plaintiff the

defendant has undertook construction of a wall in the western

side of the plot no. 1226 owned and possessed by the

defendant which is touching the wire fencing. It is the further

case that the defendant is trying to encroach over the

property of the plaintiff by trying to tamper with the wire

fencing and create false measurements with respect to the

property of the plaintiff to which the defendant is not entitled.

If is the further case that the defendant on 25.09.1999 tried to

remove the wire fencing and construct a compound wall on

the land of the plaintiff, and hence, the plaintiff has been

compelled to file the suit.

C/SA/308/2022 ORDER DATED: 12/09/2022

2.2 Thereafter, the plaintiff instituted Regular Civil Suit

No.494 of 1999 before the Court of learned Principal Senior

Civil Judge, Bhavnagar for declaration and permanent

injunction against the defendant.

2.3 The Learned 4th Additional Senior Civil Judge, Bhavnagar

by the Judgment and order/decree dated 25.09.2013 allowed

the suit of the Plaintiff. The defendant being aggrieved and

dissatisfied by the above judgment and order/decree dated

25.09.2013 passed by the Learned 4 th Additional Senior Civil

Judge, Bhavnagar in Regular Civil Suit no: 494 of 1999,

preferred Regular Civil Appeal No.95 of 2013 in the Court of

Learned Principal District Judge, Bhavnagar.

2.4 The Learned Principal District Judge, Bhavnagar by his

Judgment and order dated 07.04.2022 dismissed the appeal

and confirmed the Judgment and order dated 25.09.2013

passed by the Learned 4 th Additional Senior Civil Judge,

Bhavnagar in Regular Civil Suit no: 494 of 1999.

2.5 Being aggrieved and dissatisfied with the aforesaid

judgment and order the appellant has preferred present

appeal.

C/SA/308/2022 ORDER DATED: 12/09/2022

3. Heard Mr. T.J. Jani, learned Counsel appearing for the

appellant.

4. At the outset, it is appropriate to have a glance to the

issues framed by the learned Appellate Court:

1. whether the judgment and decree passed by the

learned Trial Court is contrary to the oral as well as

documentary evidence on record?

2. Whether any interference is required at the hands of

this Court against the judgment and decree passed by

the trial Court?

3. What order?

5. The issues framed by the learned Appellate Court

referred to above came to be answered as under:-

1.Negative

2. Negative

3. As per final order.

6. In the decisions of this Court in case of Legal Heirs

and Representatives of late Chandrakantbhai

Maganbhai Patel Vs. Jitendrabhai Talshibhai Rai,

reported in 2018 LawSuit (Guj) 641 and Maganbhai

C/SA/308/2022 ORDER DATED: 12/09/2022

Babulal vs. Lilavatiben Naginbhai D/o Babulal

Bhanabhai reported in 2018 LawSuit(Guj) 798, the Court

dismissed the Second Appeal filed by the appellants on the

ground of concurred findings recorded by the two courts

below, as there is no substantial questions of law involved in

the Second Appeal.

7. It appears from the record that upon concurrent findings

of two Courts below, the appellant is before this Court with

this Second Appeal under Section 100 of the C.P.C.

8. The following questions have been formulated as the

substantial questions of law in the memorandum of the

Second Appeal:-

(a) Whether the first appellate court has materially erred

in not framing points of determination, more

particularly, in accordance with the provisions of Order

41, Rule 31 of the Code of Civil Procedure, 1908?

(b) Whether both the courts below have committed an

error of facts and law in not properly considering the

Panchnama drawn at Exh.312?

(c) Whether both the courts below erred in non-suiting

C/SA/308/2022 ORDER DATED: 12/09/2022

the appellant-defendant in not giving an opportunity to

adjudicate the application seeking remand of the case on

the ground of application pending for seeking

permission to complete the construction of compound

wall so that the appellant-defendant established that no

construction is carried out in and/or within the

demarcated portion of the property / plot of the

respondent-plaintiff?

(d) Whether both the courts below have failed in not

properly appreciating the material evidence available on

record?

(e) Whether both the courts below have failed in not

appreciating the facts and circumstance of the case and

erroneously held the appellant-defendant liable for

breach/disobedience of the order passed below Exh:5?

9. I have gone through the material available on record and

also considered the orders passed by both the Courts below. I

am of the view that none of the questions formulated in the

memorandum of the Second appeal could be termed as

substantial questions of law. The findings recorded by the two

C/SA/308/2022 ORDER DATED: 12/09/2022

Court below are very clear and the same are concurred

findings of both the Courts below.

10. In view of the categorical findings recorded by the lower

Appellate Court, I see no good reason to admit the Second

Appeal.

11. In the overall view of the matter, I have reached to the