1. The present appeal is filed challenging the order of learned Chamber Judge, Court No.15, City Civil and Sessions Court, Ahmedabad passed below Notice of Motion Exh.6/7 dated 5.12.2011 passed in Civil Suit No.2618 of 2011, whereby the notice of motion of the plaintiff-present appellant was dismissed. (For the sake of convenience, the present appellant will be referred to as the plaintiff and the present respondent will be referred to as the defendant in the present appeal).
2. The brief facts leading to filing of this appeal are such that the plaintiff filed Civil Suit No.2618 of 2011 stating that the land admeasuring 9727 square yards of survey no.306 paiki of mouje Isanpur belongs to plaintiff while adjoining land admeasuring 4188 square yards of survey no.306 paiki belongs to the defendant. Further, the plaintiff submits that compound wall on north to south and from west to east between both the lands are common wall. That at earlier point of time, the defendant demolished the north to south wall and for that the plaintiff filed Civil Suit No.1493 of 2011 before the City Civil Court, Ahmedabad and the proceedings are pending. Further, the compound wall from west to east is a common compound wall and the defendant is trying to remove that wall and in spite of repeated requests by the plaintiff, the defendant is trying to damage the said common wall. That the defendant has not taken any permission from AMC for the reconstruction of the wall and without permission, the defendant is enhancing the height of existing common compound wall and thereby encroaching the plaintiff's easement and civil rights, thus, the plaintiff has asked for declaration by filing the suit and he also filed application for notice of motion below Exh.6/7. The defendant filed affidavit to the said notice of motion and stated that the plaintiff has suppressed the material facts and that neither north to south wall nor east to west wall is a common wall. That, both the walls are within the boundary of the defendant's land and, therefore, it is a defendant's wall and not the common wall. He further submits that in previous suit i.e. Civil Suit No.1493 of 2011, as per the order of the Court, the District Survey Officer has carried out the survey on the land of the plaintiff and defendant and has demarcated both the lands and it is categorically held in the said commission that both walls are within the boundary of defendant's land and that the plaintiff has suppressed all these material facts. Further, it is submitted by the plaintiff that the same relief is asked by the plaintiff in the earlier suit but as the defendant filed caveat application in that suit, the plaintiff was not able to get ex-parte order from the Court and, therefore, plaintiff has filed the present suit and therefore it is a successive suit.
3. The learned trial Court, after hearing both the parties and after going through the evidence on record, rejected the notice of motion of the plaintiff against which this appeal is filed.
4. Learned advocate Mr.Gandhi for the appellant- original plaintiff and party-in-person- respondent- original defendant have placed on record their written submissions.
5. As per the submission of learned advocate for the plaintiff, the trial Court has committed error in heavily relying upon the DILR report which was carried out in the previous suit and coming to the conclusion that the defendant is owner of the disputed land and that compound wall is in the land of the respondent- defendant. He also submits that though it is specifically mentioned in the suit about the filing of the previous suit and other facts, the trial Court has committed error in holding that material facts are suppressed by the plaintiff and therefore, erred in rejecting the injunction application. That both the suits i.e. Civil Suit No.1493 of 2011 and Civil Suit No.2618 of 2011 are filed for different cause of action and different prayers are made in both the suits and the trial Court has erred in holding that the cause of action and prayers made in both the suits are the same. He submits that the plaintiff has raised objections to the DILR report and no commission was carried out by the DILR on the land and so the trial Court has committed error in rejecting the injunction application relying upon the DILR report. He further submits that the title of the wall cannot be proved till the evidence is led, and till then the defendant has to make the position as standing as on the date.
6. On the other-hand, learned counsel for the defendant submitted that the impugned order passed by learned trial Court is just, legal and proper. He further submitted that there is no illegality or perversity in the impugned order. He further submitted that the subject wall of the suit is not a common compound wall but the said wall stands on the part of the land owned by the defendant which is in existence since more than three decades now and its height has ever since been approximately 13'6” which is evident from the Court Commissioner's report. He submitted that the said wall would be as per Clause 13.4 of the GDCR and not as per Clause 13.5 as contended by the petitioner. It is further submitted that the repair work has no where hampered with or interfered with the rights of the plaintiff. Lastly, it is submitted to dismiss the present appeal.
7. I have heard learned counsel for the parties and also perused the judgment and order passed by learned trial Court as well as the written submissions.
8. Having heard the learned counsel for the parties and having perused the impugned order, it can be seen that the DILR report was submitted on basis of the consent of the plaintiff and in this view of the matter, there does not appear any error or material irregularity in the impugned order passed by learned trial Court and, therefore, the trial Court has rightly rejected the notice of motion relying on the DILR report as it is independent report and as per the said DILR report, the defendant is owner of the land and he is repairing the compound wall which is in his land. From the papers, it transpires that the plaintiff has stated that the walls are owned by the plaintiff. It is also pertinent to note that the District Survey Officer carried out the commission work, from which it is clear that both the walls that is north to south and east to west are within the boundary of the defendant and when the suit walls are within the boundary of the defendant, it cannot be said to be common walls. Further, looking to the photos annexed by the plaintiff as well as the defendant, it appears that both the walls are in deteriorated condition and they require repairing and reconstruction and the defendant is either reconstructing the wall or repairing the wall and not constructing new wall and therefore, even if, there is any right of the plaintiff in existence, the same shall not be jeopardized. Further, huge portion of the land is open to sky and therefore merely raising the height of the wall will not disturb easement right, if any, in existence. Further, the plaintiff has suppressed material facts of execution of commission by District Survey Officer and that he has consented to the appointment of District Survey Officer. Further, it appears that as the plaintiff could not get ex-parte injunction in the earlier suit, he filed the present suit to get the same relief as prayed for in the earlier suit.
9. In view of the above, the trial Court has rightly rejected the notice of motion of the plaintiff. Hence, this appeal deserves to be dismissed and is accordingly dismissed. As the appeal is dismissed, the civil applications are also dismissed.
10. Considering the peculiar facts and circumstances of the case, the City Civil and Sessions Court is directed to dispose of the Civil Suit No.2618 of 2011, as early as possible, preferably within two years from the date of receipt of the order.
( M.D.Shah, J ) srilatha