1.00. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellants herein - original defendants to quash and set aside the impugned judgement and decree dtd.30/10/1993 passed by the learned Civil Judge (J.D.), Una in Regular Civil Suit No. 101 of 1981 by which the learned trial court has decreed the suit directing the appellants - original defendants to hand over the possession of the suit land (32 Gunthas of land) to the plaintiffs granting permanent injunction restraining the defendants from making any construction over the suit land and/or from transferring the suit land as well as the impugned Judgement and Order dtd. 22/12/2011 passed by the learned appellate court - learned 4th Additional District Judge, Veraval Camp at Una in Regular Civil Appeal No. 197 of 1999, by which the learned appellate court has dismissed the said appeal preferred by the appellants herein confirming the judgement and decree passed by the learned trial court decreeing the suit.
2.00. That the respondents original plaintiffs instituted Regular Civil Suit No.101 of 1981 against the appellants - original defendants in the court of learned Civil Judge (J.D.), Una for declaration and permanent injunction and for recovery of the possession of the suit land (32 Gunthas of land) contending inter-alia that out of the land bearing S.No.547 Paiki admeasuring 10 Acres and 21 Gunthas of land and Kharaba Land admeasuring 1 Guntha situated at Una, 3 Acres and 8 Gunthas of land was sold to one Memon Abdul-Gani Nurmamad and 4 Acres of land was sold to the defendants. It was further the case on behalf of the plaintiffs that out of 4 Acres of land purchased by the defendants, 3 Acres and 2 Gunthas of land had gone under the Acquisition for the S.T. Corporation and the defendants remained owner of remaining Acre 0-38 Gunthas of land only. It was the case on behalf of the plaintiffs that the plaintiffs continued to be the owner of remaining 2 Acres of land which was sold to one Jamanadas Ramjibhai, however, the said land was returned to the plaintiffs and therefore, the plaintiffs were entitled to retain possession of 3 Acres and 13 Gunthas of land and 1 Gunthas of Kharaba Land, as owners. However, on measurement it was found that the defendants have encroached upon 32 Gunthas of land and they are in occupation and possession of more than 38 Gunthas of land and therefore, the plaintiffs instituted suit for declaration and permanent injunction.
2.01. The suit was resisted by the defendants by filing Written Statement at Ex.22. It was specifically denied by the defendants that they have encroached upon 32 Gunthas of land, as alleged. It was the case on behalf of the defendants that when 4 Acres of land was sold to them in April, 1958, the land was measured and immediately thereafter the plaintiffs No.1 constructed a wall from the North to South dividing 2 portions, and one portion remained with the plaintiffs and second portion remained with the defendants and therefore, it was not possible to make any encroachment without pulling down the wall. Therefore, it was the case on behalf of the plaintiffs that periodically the plaintiffs encroached upon the 32 Gunthas of land, is not possible and therefore, it was requested to dismiss the suit.
2.02. The learned trial court framed the issues at Ex.47-A. That both the sides led evidence, documentary as well as oral and on appreciation of evidence, the learned trial court decreed the suit by holding that the defendants have encroached upon 32 Gunthas of land gradually year after year, as alleged by the plaintiffs and that the plaintiffs are entitled to possession of 32 Gunthas of land which has been encroached upon by the defendants and ultimately by judgement and decree dtd.30/10/1993 directed the defendants to hand over the possession of suit land admeasuring 32 Gunthas of land to the plaintiffs and also granted permanent injunction, as prayed for. That the learned trial court also directed the defendants to pay Rs.100 per month as mesne profit from the date of the institution of the suit till recovery of the possession of the suit i.e. till the possession of the suit land is handed over to the plaintiffs.
2.03. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned Civil Judge (J.D.), Una in Regular Civil Suit No. 101 of 1981 dtd.30/10/1993, appellants herein - original defendants preferred Regular Civil Appeal No. 197 of 1999 before the District Court, Junagadh and the learned appellate court - learned 4th Additional District Judge, Veraval Camp at Una by the impugned Judgement and Order dtd.22/12/2011 has dismissed said appeal confirming the judgement and decree passed by the learned trial court. Being aggrieved by and dissatisfied with the impugned Judgement and Order passed by both the courts below, appellants herein - original defendants have preferred the present Second Appeal under section 100 of the Code of Civil Procedure.
3.00. Mr.Mehul Shah, learned advocate appearing on behalf of the appellants - original defendants has vehemently submitted that both the courts below have materially erred in holding that the defendants have encroached upon 32 Gunthas of land gradually. It is further submitted that at the time when the defendants purchased 4 Acres of land in the year 1958, plaintiff No.1 himself constructed compound wall and the remaining portion of the land continued to be in possession of the plaintiffs and therefore, without removing the wall it was not possible for the defendants to encroach upon the land and dividing the wall which is in existence since 1958. Therefore, both the courts below have materially erred in holding that the defendants have encroached upon 32 Gunthas of land gradually. It is submitted that as such the plaintiffs have filed the suit after 23 years from the date of the sale of the land in question in favour of the defendants and the construction of the dividing wall by the plaintiffs themselves between the lands of the parties in the year 1958 itself and therefore, as such both the courts below have materially erred in decreeing the suit and directing the defendants to hand over the possession of 32 Gunthas of land which is alleged to have been encroached upon by the defendants and therefore, as such both the courts below have materially erred in decreeing the suit and directing the plaintiffs to hand over the possession of 32 Gunthas of land to the defendants which is alleged to have been encroached upon by the defendants.
3.01. Mr.Shah, learned advocate appearing on behalf of the appellants - original defendants has further submitted that the lower court ought to have allowed the plea of the defendants of clear adverse possession against the plaintiffs in the alternative.
3.02. No other submissions have been made.
3.03. By making above submissions, Mr.Shah, learned advocate appearing on behalf of the appellants - original defendants has requested to admit / allow the present Second Appeal.
4.00. Present appeal is opposed by Mr.Jinesh Kapadia learned advocate appearing for Mr.Ashish Shah, learned advocate appearing on behalf of the plaintiffs. It is submitted that there are concurrent findings of facts given by both the courts below that the defendants have encroached upon 32 Gunthas of land and the said finding is on appreciation of evidence and therefore, the same is not required to be interfered with by this Court in exercise of powers under section 100 of the Code of Civil Procedure.
4.01. Mr.Kapadia learned advocate appearing on behalf of the plaintiffs has further submitted that even otherwise on merits also both the courts below have not committed an error in decreeing the suit and directing the defendants to hand over possession of 32 Gunthas of land which has been encroached upon by the original defendants. It is submitted that admittedly the defendants have purchased 4 Acres of the land only out of which 3 Acres and 2 Gunthas of land was acquired by S.T. Corporation for construction of Bus Stand and thus, 38 Gunthas of land remained with the defendants and it has been found that the defendants are in occupation and possession of 32 Gunthas of more land also over and above his 38 Gunthas of land and therefore, it is clear that the defendants have encroached upon 32 Gunthas of land. Therefore, it is submitted that considering the facts and circumstances of the case, no illegality has been committed by the learned trial court in decreeing the suit and no error is committed by the learned appellate court in confirming the judgement and decree passed by the learned trial court.
By making above submissions, it is requested to dismiss the present Second Appeal as well as Civil Application.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length and considered the Judgement and Order passed by both the courts below and the Paper Book produced by the learned advocates appearing on behalf of the respective parties.
6.01. At the outset, it is required to be noted that admittedly the defendants have purchased only 4 Acres of land from the plaintiffs. It is also not in dispute that out of 4 Acres of land, 3 Acres and 2 Gunthas of land was acquired by the ST Corporation for the construction of Bus Stand, and for acquisition of 3 Acres and 2 Gunthas of land which was acquired by the ST Corporation compensation has also been paid to the defendants and therefore only 38 Gunthas of land remained with the defendants and therefore, the defendants are entitled to retain and continued to be owner of the remaining 38 Gunthas of land only. However it has been found that the defendants are in possession of 32 Gunthas of more land over and above his 38 Gunthas of land. Thus, in any case, the defendants are not entitled to retain any land more than 38 Gunthas of land and any land retained by the defendants more than 38 Gunthas of land can be said to be encroached by the defendants. Under the circumstances, no illegality has been committed by both the courts below in holding that the defendants have encroached upon 32 Gunthas of land (which is in occupation and possession of the defendants over and above his 38 Gunthas of land). The learned advocate appearing on behalf of the appellants is not in a position to dispute the above. Under the circumstances, no illegality has been committed by the learned trial court in directing the appellants - defendants to hand over the peaceful and vacant possession of 32 Gunthas of land to the plaintiffs.
6.02. Now, the contention on behalf of the appellants that at the relevant time there was a dividing wall construed by the plaintiff No.1 at the time of selling 4 Acres of land to the defendants and therefore, it was not possible for the defendants to encroach upon the land gradually, as alleged by the plaintiffs, is concerned, it is required to be noted and as stated above, admittedly the defendants have purchased 4 Acres of land only, out of which 3 Acres and 2 Gunthas of land have gone under acquisition for S.T. Corporation for the construction of Bus Stand and therefore, the defendants are entitled to retain remaining 38 Gunthas of land only and therefore, any land in possession of the defendants more than his 38 Gunthas of land can be said to have been encroached by the defendants. Considering the facts and circumstances of the case when the defendants are found to be in possession of 32 Gunthas of more land over and above his 38 Gunthas of land, no illegality has been committed by the learned trial court in directing the defendants to hand over the possession of 32 of of land which is excess and over and above 38 Gunthas of land of the defendants and in directing the defendants to hand over the peaceful and vacant possession of 32 Gunthas of land and the same is rightly confirmed by the learned appellate court. As such no substantial question of law arise in the present Second Appeal.
6.03. In view of the above and there is no substance in the present Second Appeal which deserves to be dismissed and is accordingly dismissed. In view of dismissal of the Second Appeal, no order in the Civil Application No.5748 of 2012 and the same is also consequently dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R.
SHAH, J.] rafik Top