[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellants herein – original plaintiffs to quash and set aside the judgment and decree dated 21.12.1995 passed by the learned Civil Judge (Junior Division), Kheda, at Nadiad in Regular Civil Suit No.24 of 1985 as well as the impugned judgment and order dated 15.02.2011 passed by the learned Additional District Judge, Kheda, at Nadiad in Regular Civil Appeal No.17 of 1996 by which the learned Appellate Court has dismissed the said appeal preferred by the appellants herein – original plaintiffs and confirmed the judgment and decree passed by the learned trial Court dismissing the suit filed by the appellants herein. [2.0] That the original plaintiff Somji alias Mansingh Darbar filed Regular Civil Suit No.24 of 1985 against the respondents – original defendants in the Court of learned Civil Judge (Junior Division), Kheda, at Nadiad for recovery of the possession of the suit property contending interalia that he was in possession of the suit property as a tenant. That the learned trial Court dismissed the suit by judgment and decree dated 21.12.1995 holding that the plaintiff has failed to prove that he was the tenant of the disputed property in question and the learned trial Court also held that at the time when the defendant No.2 purchased the suit land in question, the plaintiff was not in possession of the disputed property in question. Consequently, the learned trial Court dismissed the suit.
[2.1] Feeling aggrieved and dissatisfied with the judgment and decree dated 21.12.1995 passed by the learned Civil Judge (Junior Division), Kheda, at Nadiad in Regular Civil Suit No.24 of 1985 in dismissing the suit, the appellants herein being heirs and legal representatives of original plaintiff preferred Regular Civil Appeal No.17 of 1996 before the learned District Court, Kheda, at Nadiad and the learned Additional District Judge, Kheda, at Nadiad by impugned judgment and order dated 15.02.2011 has dismissed the said appeal confirming the judgment and decree dated 21.12.1995 dismissing the suit.
[2.2] Feeling aggrieved and dissatisfied by the judgment and order passed by both the Courts below in dismissing the suit, the appellants herein – the heirs and legal representatives of original plaintiff have preferred the Second Appeal under Section 100 of the CPC.
[3.0] Heard Shri S.K. Bukhari, learned advocate appearing on behalf of the appellants and gone through the impugned judgment and order passed by both the Courts below. At the outset it is required to be noted that there are concurrent findings of fact given by both the Courts below holding that the original plaintiff has failed to prove that he was in possession of the suit property in question. There are also concurrent findings of fact given by both the Courts below that at the time when original defendant No.2 purchased the said property in question, plaintiff was not in possession of the suit property in question. The findings of fact given by both the Courts below are on appreciation of evidence. Learned advocate appearing on behalf of the appellants has failed to point out that findings of fact given by both the Courts below are either perverse or contrary to the evidence on record. Learned advocate appearing on behalf of the appellants is also not in a position to point out any substantial question of law arising in the present Second Appeal.
[3.1] This Court has also considered the reasoning given by both the Courts below and considering the same, this Court is of the opinion that both the Courts below have not committed any error and/or illegality in dismissing the suit by holding that the original plaintiff has failed to prove that he was in possession of the suit property in question as a tenant.
[4.0] In view of the above, the present Second Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs.
(M.R. Shah, J.) menon