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Dhirajlal Madhavlal Bharati vs Chandubhai Mangalbhai Chavda

High Court Of Gujarat|21 June, 2012
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 92 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as 4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================= DHIRAJLAL MADHAVLAL BHARATI - Appellant(s) Versus CHANDUBHAI MANGALBHAI CHAVDA - Respondent(s) ========================================= Appearance :
PARTY-IN-PERSON for Appellant(s) : 1, None for Respondent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 21/06/2012 ORAL JUDGMENT
1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant- original plaintiff-party-in-person to quash and set aside the impugned judgment and decree dated 30/03/2009 passed by the learned Additional Civil Judge, Anand in Civil Suit No. 32/2001 by which the learned trial Court has dismissed the said suit preferred by the appellant-original plaintiff as well as the impugned judgment and order passed by the learned appellate Court-learned 2nd (Ad-hoc) Additional District Judge, Anand dated 30/01/2012 passed in Regular Civil Appeal No. 34/2009 by which the learned appellate Court has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit.
2. It appears that the appellant-original plaintiff instituted Regular Civil Suit No. 32/2001 against the respondent herein- original defendant in the Court of learned Additional Civil Judge, Anand for permanent injunction restraining the respondent- original defendant from putting up any construction/wall on the disputed land in question alleging interalia that the said land belongs to him, which was required to be used for passage. The said suit was resisted by the respondent-original defendant by submitting written statement at Exh. 9. It was submitted that the suit was required to be dismissed on the ground that the same is barred by res judicata. It was the case on behalf of the respondent-original defendant that he has become the owner by virtue of the sale deed executed in the year 1954. It was also denied that the respondent-original defendant is trying to harras the appellant-original plaintiff by making construction on the land of the appellant-original plaintiff. It was also submitted that the appellant-original plaintiff is not the owner of the suit portion of the suit land, being 7' x 4” as alleged. The learned trial Court framed the issues at Exh. 74 and on appreciation of evidence dismissed the suit by holding that the appellant-original plaintiff has failed to prove that he has legal right in the suit property and/or he is the owner of the suit property. It appears that there was allegation that the respondent-original defendant has committed the contempt of Court and has put up construction/wall. However, on appreciation of evidence, the learned trial Court held that the appellant-original plaintiff has failed to prove that the respondent-original defendant has committed contempt of Court. It appears that being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court dated 30/05/2009 in Civil Suit No. 32/2001 in dismissing the same the appellant-original plaintiff preferred Regular Civil Appeal No. 34/2009, which has been dismissed by the learned appellate Court by impugned judgment and order dated 30/01/2012 confirming the judgment and decree passed by the learned trial court dismissing the same. Being aggrieved and dissatisfied with the impugned judgment and orders passed by both the Courts below the appellant-original plaintiff-party in person, who is a practicing lawyer, has preferred the present Second Appeal under Section 100 of he Code of Civil Procedure.
3. Having heard the appellant-original plaintiff-party-in- person and considering the impugned judgment and orders passed by both the Courts below, it appears that there are concurrent finding of fact given by both the Courts below holding that the appellant-original plaintiff is not the owner of the suit land and/or has no title and, therefore, he has no right to pray for injunction against the respondent-original defendant. The finding of fact given by both the Courts below are on appreciation of evidence, which are not required to be interfered with in exercise of powers under Section 100 of the Code of Civil Procedure. Even otherwise, it is required to be noted that in the earlier suit, being Regular Civil Suit No. 315/1959 and the subsequent suit, being Regular Civil Suit No.
103/1966, in which also the appellant-original plaintiff raised the dispute about the right of way the appellant-original plaintiff has lost. It is required to be noted that though the very appellant-original plaintiff had filed the aforesaid suits, the same was not disclosed by him in the plaint in the present proceedings and it was the respondent-original defendant who pointed out the above by submitting that the suit is required to be dismissed on the ground of res judicata. This Court has also gone through the impugned judgment and orders passed by both the Courts below and it also appears to the Court that both the Courts below have not committed any error and/or illegality in dismissing the suit and not granting the permanent injunction as prayed for, which is rightly confirmed by the learned appellate Court.
4. 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 specific question of law arises the same is not required to be entertained. The appellant-original plaintiff is not in a position to point out any substantial question of law, which arises in the present Second Appeal
5. Under the circumstances also, the present Second Appeal deserves to be dismissed. In view of the above and for the reasons stated hereinabove, there is no substance in the present Second Appeal, which deserves to be dismissed and is accordingly dismissed.
(M.R. SHAH, J.) siji
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Title

Dhirajlal Madhavlal Bharati vs Chandubhai Mangalbhai Chavda

Court

High Court Of Gujarat

JudgementDate
21 June, 2012
Judges
  • M R Shah
Advocates
  • Party In