1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants- original defendants to quash and set aside the impugned judgment and order/decree dated 24/05/2011 passed by the learned Additional District Judge, Porbandar in Regular Civil Appeal No. 23/2007 by which the learned appellate Court has allowed the said appeal preferred by the respondents-original plaintiffs and has quashed and set aside the judgment and decree passed by the learned Principal Civil Judge, Kutiyana dated 22/08/2007 in Regular Civil Suit No. 144/2003 dismissing the said suit and consequently decreeing the suit.
2. The respondents-original plaintiffs instituted Regular Civil Suit No. 144/2003 in the Court of learned Principal Civil Judge, Kutiyana for declaration, permanent injunction and for recovery of the disputed suit land, which was alleged to have been encroached upon by the appellants-original defendants. It was the case on behalf of the respondents-original plaintiffs that their father, deceased Lakhmanbhai, was holding the agricultural land bearing Survey No. 55, admeasuring 30 Acres and 33 Gunthas situated at Kutiyana and the said land was partitioned amongst the heirs and according to the respondents-original plaintiffs, 3 Acres and 2 Gunthas came to the share of Madhabhai Lakhmanbhai and it was the case on behalf of the respondents-original plaintiffs that the appellants- original defendants encroached upon some portion of the aforesaid land, which had gone to the share of Madhabhai Lakhmanbhai and, therefore, after serving the notice, the respondents-original plaintiffs instituted the suit for the aforesaid reliefs. At the time of hearing of the suit it was not disputed by the appellants-original defendants that more land was in possession of the appellants-original defendants and the Madhabhai Lakhmanbhai has lesser land. However, it was disputed that the said encroachment is not from the southern portion/side of the land belonging to the appellants-original defendants. On appreciation of evidence, the learned trial Court vide judgment and decree dated 22/08/2007 dismissed the suit by holding that the respondents-original plaintiffs have failed to prove by leading evidence that the appellants-original defendants have encroached upon some portion of the land belonging to Madhabhai Lakhmanbhai from the southern side of the land occupied by the appellants-original defendants. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dismissing the suit the respondents-original plaintiffs preferred Regular Civil Appeal No. 23/2007 before the learned District Court, Porbandar and the learned Principal District Judge, Porbandar by impugned judgment and order has allowed the said appeal quashing and setting aside the judgment and decree passed by the learned trial Court in dismissing the suit and consequently decreeing the suit as prayed for. Being aggrieved and dissatisfied with the impugned judgment and order/decree passed by the learned appellate Court dismissing the suit, the appellants- original defendants have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3. Shri Dholakia, learned advocate appearing on behalf of the appellants-original defendants has vehemently submitted that the learned appellate Court has materially erred in allowing the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court and consequently decreeing the suit. It is submitted that the finding of fact given by the learned trial Court that the respondents-original plaintiffs have failed to prove by leading the evidence that there was encroachment on the southern side of the plot/land was not required to be interfered with by the learned appellate Court. By making the above submissions, it is requested to allow the present Second Appeal.
4. The present Second Appeal is opposed by Shri Nirav Thakkar, learned advocate appearing on behalf of the respondents-original plaintiffs. It is submitted that as such the encroachment has been admitted by appellants-original defendants. It is submitted that even the appellants-original defendants are also not disputing that the appellants-original defendants are having more land than their share and Madhabhai Lakhmanbhai has less land than his share. It is submitted that in view of the aforesaid facts and circumstances of the case when the learned trial Court has admitted the encroachment, it cannot be said the learned appellate Court has committed any error and/or illegality. It is submitted that the present is a Second Appeal and unless there are substantial question of law arising in the Second Appeal, the Second Appeal is not required to be entertained. It is submitted that the learned advocate appearing on behalf of the appellants- original defendants has failed to point out any substantial question of law arising in the present Second Appeal and, therefore, it is requested to dismiss the present Second Appeal.
5. Heard the learned advocates appearing on behalf of the respective parties at length and considered and gone through the impugned orders passed by both the Courts below. At the outset, it is required to be noted that the encroachment by the appellants-original defendants has been admitted by the appellants-original defendants. The appellants-original defendants are not disputing that they are having more land than their share. They are also not disputing that the Madhabhai Lakhmanbahi-original plaintiff has less land than his share. In view of the aforesaid undisputed and admitted facts when the learned appellate Court has allowed the Appeal and decreed the suit and granted the relief as prayed for directing the appellants-original defendants to hand over the peaceful and vacant possession of the portion of the land, which has been encroached upon by the appellants-original defendants i.e. the land, which is found to be in excess in their share, which belonged to Madhabhai Lakhmanbhai, it cannot be said that the learned appellate Court has committed any error and/or illegality in decreeing the suit. At the outset, it is required to be noted that the learned advocate appearing on behalf of the appellants-original defendants as such is not in a position to point out that the finding given by the learned appellate Court is contrary to the evidence on record and/or perverse. The learned advocate appearing on behalf of the appellants-original defendants has also failed to point out any substantial question of law arising in the present Second Appeal. In view of the aforesaid facts and circumstances, it cannot be said that the judgment and order passed by the learned appellate Court deserves to be interfered with.
6. In view of the above and for the reasons stated hereinabove, the present Second Appeal fails and the same deserves to be dismissed and is accordingly dismissed.
CIVIL APPLICATION No. 9499/2011 In view of dismissal of Second Appeal, no order in the Civil Application.
(M.R. SHAH, J.)
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