Kalubeg Sadrubeg Mirza vs Nasirbhai Mahmadbhai Qureshi
2023 Latest Caselaw 6756 Guj

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     C/SA/234/2007                                   ORDER DATED: 13/09/2023

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/SECOND APPEAL NO. 234 of 2007

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                KALUBEG SADRUBEG MIRZA & 1 other(s)
                              Versus
              NASIRBHAI MAHMADBHAI QURESHI & 2 other(s)
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Appearance:
MR MA BUKHARI(211) for the Appellant(s) No. 1,2
MR RASHESH A RINDANI(5380) for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                              Date : 13/09/2023

                               ORAL ORDER

1. This Second Appeal under Section 100 of C.P.C. is at the instance of the original plaintiffs and is directed against the judgment and decree dated 08.03.2007 passed by the Additional District Judge, Kheda at Nadiad in Regular Appeal No.118 of 2002 arising from the judgment and decree dated 30.10.2002 passed in RCS No.26 of 1993 passed by the learned Civil Judge, Kapadwanj, by which the suit for declaration and permanent injunction, in relation to the open land was dismissed with cost.

2. The appellants had filed the aforesaid suit for the declaration that the open land, described in the suit is of their ownership and since long, it is in their possession and occupation and defendants be permanently restrained from interfering with the use and occupation of the said land.

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     C/SA/234/2007                                  ORDER DATED: 13/09/2023

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3. The learned Civil Court framed the issue at Exh.25. After considering the oral as well as documentary evidence, came to conclusion that, the plaintiffs failed to establish the ownership of the open land, as a result, the Civil Court had dismissed the suit for permanent injunction and declaration. In appeal against the judgment and order of the Civil Court, the Appellate Court, upheld the findings of the Civil Court and dismissed the appeal on merits.

4. Being aggrieved and dissatisfied with the judgment and decree of the First Appellate Court, the appellants-original plaintiffs are here before this Court with the present second appeal.

5. The second appeal has been admitted on the following substantial questions of law:

"Whether (i) Ex. 82 assessment register of Nagar Panchayat, Kathlal in respect of property no. 1556 and 1556/A,(ii) Ex. 83 assessment register of House No. 1554 of respondents, (iii) Ex. 84 House No. 1555 of respondents, (iv) Ex. 85 map of city survey office Kathlal for city survey no. 88 and 89 of appellants' properties, (v) Ex. 86 Map C.S No. 90, 91 of the respondents' properties and (vi) Ex. 102 Map of S.No. 89, 90, 91 have been misinterpreted and wrongly appreciated by the courts below."

6. Mr. M.A. Bukhari, learned counsel appearing for the appellants has submitted that, the judgment and decree of the Appellate Court as well as the trial Court are contrary to law and evidence on record. That, both the Courts below failed to consider the revenue records which clearly indicates that the open land belongs to the appellants-plaintiffs and they are the owners and since long, it is in their possession. That, the

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respondent-defendant taking advantage of the construction commenced on the land by the appellants, created obstructions in the open land so that, the further construction can be stopped and therefore, the Courts below have overlooked the documentary evidence while recording the findings about the ownership of the disputed open land.

7. Mr. Rashesh Rindani, learned counsel appearing for the respondents supported the findings recorded by the trial Court and has contended that, no any substantial questions of law involved in the present appeal and appeal may not be entertained.

8. Having heard learned counsel for the respective parties and having gone through the material on record, the only question that falls for my consideration is whether the second appeal involves any substantial question of law?

9. The appellants-plaintiffs herein claims the ownership of the open land situated between two properties as referred in the suit. The trial Court as well as Appellate Court, after considering the documentary evidence like evidence of City Survey Office and site map etc., came to conclusion that, the plaintiffs failed to establish their right, title and interest over the disputed open land. In such circumstances, it appears that, the Courts below have properly interpreted the facts of documentary evidence and no any error has been committed in appreciating the evidence.

10. Thus, therefore, this Court is of considered view that, the

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findings of facts arrived at by both the Courts is based on the evidence and therefore, the concurrent findings of facts cannot be interfered with in the second appeal. Accordingly, this second appeal does not involve any substantial question of law. In the result, this second appeal fails and is hereby dismissed.

(ILESH J. VORA,J) TAUSIF SAIYED