1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants- original plaintiffs to quash and set aside the impugned judgment and decree passed by the learned trial Court-learned Principal Civil Judge, Danta dated 27/09/2010 in Regular Civil Suit No. 349/1994 as well as the impugned judgment and order passed by the learned appellate Court-learned Additional District and Sessions Judge and Presiding Officer, First Fast Track Court, Palanpur dated 31/03/2011 in Regular Civil Appeal No. 43/2010 by which the learned appellate Court has dismissed the said appeal preferred by the appellants-original plaintiffs confirming the judgment and decree passed by the learned trial Court dismissing the suit.
2. The appellants-original plaintiffs instituted Regular Civil Suit No. 349/1994 against the respondent-original defendant no. 1 in the Court of learned Principal Civil Judge, Danta for permanent injunction restraining the respondent-original defendant no. 1 and other original defendants from removing the appellants-original plaintiffs and disturbing their possession and/or obstructing the appellants-original plaintiffs from carrying on their business in the cabins placed on the disputed land in question. It was the case on behalf of the appellants- original plaintiffs that they were carrying on the business by putting their cabins on the 'ota', which was outside 'Gabbar Dharamshala' at Ambaji and they were the original tenants of the 'Gabbar Dharmshala'. The entire 'Gabbar Dharamshala' was demolished by the authority under the provisions of the Town Planning Act as the same had gone for construction of the overbridge at Ambaji. It was the case on behalf of the appellants-original plaintiffs that the said Trust/'Gabbar Dharamshala', which came to be demolished for construction of the overbridge was given another land in place of the original Dharmshala, which came to be demolished for construction of the overbridge and, therefore, it was submitted that the appellants-original plaintiffs were also entitled to the alternative place and, therefore, they have put up cabins on the suit land in question and as they were apprehending that they will be removed by the original defendants they instituted the aforesaid suit for permanent injunction.
2.1. The suit was resisted by the original defendants by filing the written statement by submitting that as such the appellants-original plaintiffs were not the tenants of the original defendant-Temple Trust, but they can be said to be the tenants of 'Gabbar Dharamshala'. However, the entire 'Gabbar Dharamshala' came to be demolished for construction of the overbridge under the Town Planning Scheme and it was allotted some another land. It was submitted that so far as the appellants-original plaintiffs are concerned they cannot pray for any relief against the original defendants and, therefore, it was requested to dismiss the suit. The learned trial Court framed the issues and on appreciation of evidence, the learned trial Court dismissed the suit by judgment and decree dated 27/09/2010 by observing that the appellants- original plaintiffs cannot pray for any relief of permanent injunction against the original defendants. The learned trial court also observed that the appellants-original plaintiffs cannot be permitted to put up any cabins below the overbridge as they have no such right, more particularly, when the same would be on the road. Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court-learned Principal Civil Judge, Danta dated 27/09/2010 in Regular Civil Suit No. 349/1994 in dismissing the same the appellants-original plaintiffs preferred Regular Civil Appeal No. 43/2010 before the learned District Court, Palanpur and the learned appellate Court-learned Additional District and Sessions Judge and Presiding Officer, Fast Track Court, Palanpur by impugned judgment and order dated 31/03/2011 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit. Being aggrieved and dissatisfied with the impugned judgment and order/decree passed by both the Courts below in dismissing the suit/appeal in not granting permanent injunction in favour of the appellants-original plaintiffs, the appellants-original plaintiffs has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3. Shri Ankit Bachani, learned advocate appearing on behalf of the appellants-original plaintiffs has vehemently submitted that both the Courts below have materially erred in not granting permanent injunction as prayed for. It is submitted that both the Courts below have not properly appreciated and considered the documentary evidences on record by which it is established that the appellants-original plaintiffs were the tenants of 'Gabbar Dharamshala' and, therefore, when the appellants-original plaintiffs were the tenants of 'Gabbar Dharamshala' and they were paying the rent to 'Gabbar Dharamshala' and when the entire 'Gabbar Dharamshala' came to be demolished for construction of the overbridge and they were allotted another land, the original defendants ought to have allotted some space to the appellants-original plaintiffs also. It is submitted therefore there are carrying on business by carrying the cabins below the overbridge, which was not in any way hindrance to the traffic etc. . It is submitted that both the Courts below ought to have granted permanent injunction against the original defendants as prayed for. Making the above submissions, it is requested to admit/allow the present Second Appeal.
4. The present Second Appeal is opposed by Ms. Archana Acharya, learned advocate appearing on behalf of the respondent-original defendant no. 1. It is submitted that as such there are concurrent findings of fact given by both the Courts below holding that the appellants-original plaintiffs have no right to put the cabins below the overbridge. It is submitted that as such the appellants-original plaintiffs could not have claimed any relief against the original defendants as admittedly the appellants-original plaintiffs were claiming the tenancy rights against 'Gabbar Dharamshala' and not against original defendant Temple Trust and, therefore, it is submitted that both the Courts below have rightly refused to grant permanent injunction in favour of the appellants-original plaintiffs.
5. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and orders passed by both the Courts below. At the outset, it is required to be noted that as such even according to the appellants-original plaintiffs they were carrying on the business on the ota, which was just outside 'Gabbar Dharamshala'. Thus, they were claiming the tenancy rights against 'Gabbar Dharamshala'. It is an admitted position that the entire construction of 'Gabbar Dharamshala' has been demolished for the construction of the overbridge and, therefore, when the appellants-original plaintiffs were claiming the tenancy rights against the 'Gabbar Dharamshala' and it was not the case on behalf of the appellants-original plaintiffs that they were the tenants of the original defendants-Temple Trust, it is not appreciable how they can pray any injunction against the original defendant-Temple Trust. It might be that 'Gabbar Dharamshala' whose entire construction was demolished for construction of overbridge might have been allotted some another land under the Town Planning Scheme, however, if the appellants-original plaintiffs are claiming that they were the tenants of the 'Gabbar Dharamshala', if permissible under the law, they could have prayed against the 'Garbar Dharamshala'. However, no relief could have been asked against the original defendant-Temple Trust. It cannot be disputed that as such the appellants-original plaintiffs have no right to put up the cabins on the disputed land in question, which was originally occupied by them on which the overbridge is already constructed. Under the circumstances, when they cannot, as a matter of right, place the cabins below the overbridge they are not entitled to permanent injunction as prayed for. Under the circumstances, no illegality has been committed by the learned trial Court in dismissing the suit and refusing to grant permanent injunction as prayed for and the same is rightly confirmed by the learned appellate Court.
5.1. It is also required to be noted that the present is a Second Appeal under Section 100 of the Code of Civil Procedure and unless any substantial question of law arises the same is not required to be entertained. The proposed substantial question of law cannot be said to be substantial question of law as they are question of facts on appreciation of evidence. Under the circumstances, as no substantial question of law arise in the present Second Appeal, the present Second Appeal is not required to be entertained.
6. In view of the above and for the reasons stated above, the present Second Appeal deserves to be dismissed and is accordingly dismissed.
CIVIL APPLICATION No. 3641/2012 In view of dismissal of Second Appeal, the Civil Application also deserves to be dismissed and is accordingly dismissed.
(M.R. SHAH, J.)
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