1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant herein – original defendant to quash and set aside the impugned judgement and decree dated 31/12/1996 passed by learned Civil Judge (J.D.), Mahuva in Regular Civil Suit No.99 of 1993, by which, learned Trial Court has decreed the said suit preferred by the respondent herein – original plaintiff and directed the appellant herein – original defendant to remove encroachment and to hand over peaceful and vacant possession of 16 gunthas of the land, which had gone to his share as well as to quash and set aside the impugned judgement and order dated 15/07/2011 passed by learned Appellate Court i.e. learned 3rd Additional District Judge, Bhavnagar, Camp at Mahuva in Regular Civil Appeal No.11 of 1997, by which, learned Appellate Court has dismissed the said appeal confirming the judgement and decree passed by learned Trial Court.
2. That the respondent herein – original plaintiff instituted Regular Civil Suit No.99 of 1993 in the Court of learned Civil Judge (J.D.), Mahuva for recovery of possession of 16 Gunthas of the land, which has been encroached upon by the original defendant and to direct the original defendant to remove encroachment of 16 Gunthas of land. It was the case on behalf of the plaintiff that the land bearing Survey No.61 paikee land admeasuring 8 Acres and 19 Gunthas, assessed to Rs.47-37 situated in the sim of Mahuva was of the joint ownership of the plaintiff and defendant. That the houses were constructed on the north-east side of the field and has been distributed among them. That the land having constructed house, Well, etc., the defendant being elder brother, on the way to eastern side going towards field having land admeasuring 3 Acres and 24 Gunthas and the old road going towards western side admeasuring 4 Acres and 35 Gunthas has been agreed to be divided in two parts and the said distribution has been done in the year 1970 and such oral distribution has been registered by the Talati by entry No.2036 on 03.06.1970, after due verification and after testimony, both the parties are possessing the land of their possession as owners. That the parties have decided to make marks on their field and due to some delay in making marks for measurement, during the intervening period, the Government has started the measurement to regularise the names of the concerned owner of the land but the defendant has not taken care in such proceeding and in such process, 16 Gunthas excess land came with the defendant. That the defendant is using 16 Gunthas land illegally and, therefore, with a view to avoid any dispute in this regard, the plaintiff has given notice on 28.11.1980 to the defendant but the defendant had not replied properly. Therefore, the plaintiff instituted the suit for the aforesaid relief.
3. The suit was resisted by the appellant herein – original defendant by filing written statement at Exh.20 by denying the averments and allegations made in the Suit. It was submitted that as such at the relevant time when the partition took place, the land was divided by metes and bounds and thereafter the possession was handed over to the respective parties with respect to their respective shares. Therefore, it was specifically denied that there was any encroachment of land much less 16 Gunthas as alleged by the plaintiff. Therefore, it was requested to dismiss the suit.
Learned Trial Court framed the issues at Exh.12. That both the parties led evidence oral as well as documentary and on appreciation of evidence, learned Trial Court held that the plaintiff has proved that 16 Gunthas more land have gone to defendant's share because at the time of partition done actual measurement was not done and consequently held that the plaintiff is entitled to get 16 Gunthas of land, which had gone to the share of the plaintiff and, therefore, learned Trial Court decreed the suit.
4. Being aggrieved by and dissatisfied with the judgement and decree dated 31/12/1996 passed by learned Civil Judge (J.D.), Mahuva in Regular Civil Suit No.99 of 1993, the appellant herein – original defendant preferred the Regular Civil Appeal No.11 of 1997 before learned District Court, Bhavnagar and learned 3rd Additional District Judge, Bhavnagar, Camp at Mahuva by impugned judgement and order dated 15/07/2011 dismissed the said appeal confirming the judgement and decree passed by learned Trial Court. Hence, being aggrieved by the impugned judgement and order passed by the learned Trial Court in decreeing the suit and confirmed by the learned Appellate Court, the appellant herein – original defendant has preferred the present Second Appeal u/s.100 of the Code of Civil Procedure.
5. Mr.Tanvish Bhatt, learned advocate appearing on behalf of the appellant herein has vehemently submitted that both the Courts below have materially erred in holding that 16 Gunthas more land has gone to the share of the appellant herein – original defendant. It is submitted that as such when the partition took place on 17/12/1985, the land in question was divided by metes and bounds as per partition deed dated 17/12/1985 and under the said partition deed, respective parties were put in possession of the land, which had gone to their respective shares. It is submitted that both the Courts below have materially erred in not properly appreciating the application given by the appellant herein and Kabulat dated 14/06/1970 before Talati. It is submitted that the application, which was given at the relevant time was to brought the khatas divided pursuant to the partition deed dated 09/03/1970 and it was not with respect to measurement and, therefore, it is submitted that both the Courts below have misinterpreted and the same is wrongly considered as an application for measurement. It is submitted that as such at the time of partition deed dated 09/03/1970, in presence of the witnesses land was divided by metes and bounds and the respective parties were given the actual possession, which had gone to their respective shares. Therefore, it is submitted that both the Courts below have wrongly held that at the relevant time when the partition deed dated 09/03/1970 was executed, there was no actual measurement done and the same was required to be done subsequently. Therefore, it is requested to allow the present Second Appeal.
6. The present second appeal is opposed by Mr.Joshi, learned advocate appearing on behalf of the respondent herein – original plaintiff. It is submitted that there are concurrent findings of facts given by both the Courts below holding that 16 Gunthas more land had gone to the share of the defendant and/or the defendant is in possession of 16 Gunthas more land, which had gone to his share as at the time of partition there was no actual measurement done. The said findings are on appreciation of evidence, which are not required to be interfered with by this Court in exercise of powers u/s.100 of the Code of Civil Procedure. It is submitted that as no substantial question of law arises to be considered by this Court, it is requested to dismiss the present appeal.
7. Having heard learned advocates appearing on behalf of the respective parties and considering the impugned orders passed by both the Courts below as well as record and proceedings of the case, which had been received from the learned Trial Court, it appears from the pleadings and material/evidence on record that land bearing Survey Nos.61 admeasuring 8 Acres and 19 Gunthas of the land was of joint ownership of the plaintiff and the defendant. That the partition took place between parties on 09/03/1970, which was reduced in writing and as per the same, 3 Acres and 22 Gunthas had gone to the share of the defendant. It appears that looking to the position of the land and land being constructed house, well, etc. and the defendant being elder brother, 3 Acres and 22 Gunthas of the land gone in the share of the defendant, which was on the way of eastern side going towards their field and remaining land admeasuring 4 Acres and 35 Gunthas of the land on the old road going towards western side gone to the share of the plaintiff. The aforesaid division of 3 Acres and 22 Gunthas gone to the share of the defendant and 4 Acres and 35 Gunthas gone to the share of the plaintiff as per the partition deed dated 09/03/1970 is not disputed by the parties more particularly the appellant therein – original defendant. On appreciation of evidence, it has been found from the map prepared by DILR that the defendant is in possession of 16 Gunthas more land than 3 Acres and 22 Gunthas, which had gone to his share. Thus, on appreciation of evidence, both the Courts below have held that the defendant is in possession of 16 Gunthas more land than which had gone to his share and, consequently, learned Trial Court has decreed the suit, which has been confirmed by the learned Appellate Court.
8. The only contention on behalf of the appellant herein – original defendant is that at the relevant time when the partition took place on 09/03/1970, partition deed was executed in presence of the panchas and the land was divided by metes and bounds and respective parties were handed over the possession of the land, which had gone to their respective shares. However, from the evidence on record, it appears that actual measurement was not done at the relevant time. The appellant herein has failed to prove that at the time of partition dated 09/03/1970 actual measurement was done. In any case, under the partition deed dated 09/03/1970, the appellant herein – original defendant is entitled to 3 Acres and 22 Gunthas of the land only and not more than that. It has been subsequently found by both the Courts below on appreciation of evidence inclusive of the map prepared by DILR and measurement done that the appellant herein is in possession of 16 Gunthas more land than 3 Acres and 22 Gunthas, which had gone to his share. Under the circumstances and considering the aforesaid facts and circumstances of the case, no illegality has been committed by learned Trial Court in decreeing the suit and which has been rightly confirmed by the learned Appellate Court.
9. In view of the above and for the reasons stated hereinabove, there is no substance in the present second appeal and the same deserves to be dismissed and is accordingly dismissed.
10. In view of the dismissal of the main second appeal, no order in Civil Application No.3452/2012 and the same is also deserves to be dismissed and is accordingly dismissed.
[M.R.SHAH,J] *dipti