1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant-
original plaintiff to quash and set aside the impugned judgment and decree passed by the learned trial Court-learned 4th Additional Senior Civil Judge, Gandhingar dated 12/05/2006 in Regular Civil Suit No. 93/2003 as well as the impugned judgment and order passed by the learned appellate Court- learned Additional District Judge, Gandhinagar dated 13/05/2011 in Regular Civil Appeal No. 66/2006 by which the learned appellate Court has dismissed the appeal preferred by the appellant-original plaintiff confirming the judgment and decree passed by the learned trial Court dismissing the suit.
2. The appellant-original plaintiff instituted Regular Civil Suit No. 93/2003 in the Court of the learned Civil Court, Gandhinagar for getting possession of the suit premises, being Tenement No. C/27, New Plaza Co-operative Housing Society Ltd. at Gandhinagar, from the respondents, who are the daughter-in-law and grandson of the appellant. On appreciation of evidence, the learned trial Court dismissed the suit by holding that the original defendants were residing in the suit premises from the beginning since 1987-88 and the case on behalf of the original plaintiff that the original defendants have entered the suit premises illegally by breaking open the lock has not been proved by the original plaintiff and consequently, the learned trial Court dismissed the suit. The judgment and decree passed by the learned trial Court has been confirmed by the impugned judgment and order passed by the learned Additional District Judge, Gandhinagar dated 13/05/2011 in Regular Civil Appeal No. 66/2006.
3. Shri Vasant Shah, learned advocate appearing on behalf of the appellant-original plaintiff has submitted that as such the original plaintiff became the owner of the suit premises in the year 1997 and, therefore, the finding given by both the Courts below that the original defendants were in possession since 1987-1988 is not believable at all. Making the above submissions, it is requested to admit/allow the present Second Appeal. No other submissions have been made.
4. Having heard Shri Shah, learned advocate appearing on behalf of the appellant-original plaintiff and considering the copy of the plaint, which is on record and even it was the specific case on behalf of the original plaintiff, so pleaded in the plaint, that she was in possession of the suit premises since 1987 and even her husband died in the very suit premises in the year 1988 and, therefore, the contention on behalf of the appellant-original plaintiff that as she became the owner in 1997 only the possession of the original defendants could not be believed in the year 1987-1988 has no substance. There are concurrent finding of facts given by both the Courts below on appreciation of evidence holding the original defendants- daughter in law and grandson to be in possession of the suit premises, which are not required to be interfered with by this Court in exercise of powers under Section 100 of the Code of Civil Procedure. It is required to be noted at this stage that there are number of disputes pending between the parties with respect to maintenance etc. and even the original plaintiff has failed to prove the allegation that the original defendants have entered into the suit premises by breaking open the lock.
5. It is also required to be noted that this is a Second Appeal under Section 100 of the Code of Civil Procedure and unless any substantial question of law arises, the present Second Appeal is not required to be entertained. No substantial question of law arises in the present Second Appeal. Hence, on that ground also, the present Second Appeal is not required to be entertained.
6. In view of the above and for the reasons stated hereinabove, the present Second Appeal fails and the same deserves to be dismissed and is accordingly dismissed.
(M.R. SHAH, J.) siji