1. The present Second Appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellant herein – original defendant to quash and set aside the impugned judgement and decree dated 22/10/1996 passed by learned 2nd Joint Civil Judge (S.D.), Bharuch in Regular Civil Suit No.348 of 1987, by which, learned Trial Court has decreed the suit preferred by the original plaintiff and has granted declaration declaring that the appellant herein – original defendant has no any right of way towards northern side of her property through the plaintiff's property and she has no right to enter upon the property of the plaintiff bearing City Survey No.3612 and she has no right to put any doors towards the property of the plaintiff i.e. southern side of the plaintiff's property and by which, learned Trial Court has directed the appellant herein – original defendant to remove the encroachment done by her on the plaintiff's property which is to the tune of 22.16 sq.mtrs. as well as the impugned judgement and order dated 15/06/2011 passed by learned Additional District Judge, Bharuch, by which, learned Appellate Court has dismissed the said appeal preferred by the appellant herein – original defendant and has confirmed the judgement and decree passed by the learned Trial Court.
2. That the respondents herein – original plaintiffs instituted Regular Civil Suit No.348 of 1987 in the court of learned 2nd Joint Civil Judge (S.D.), Bharuch for declaration and permanent injunction declaring that the defendant has no any right of way towards northern side of her property through the plaintiff's property and she has no right to enter upon the property of the plaintiff bearing city survey Nos.3612 and she has no right to put any doors towards the property of the plaintiff i.e. southern side of the plaintiff's property. It is also prayed to direct the defendant to remove the encroachment done by her on the plaintiff's property which is to the extent of 22.16 sq.mtrs.
That the suit was resisted by the original defendant by filing written statement denying averments made in the plaint. That the learned Trial Court framed issues at Exh.33. That on behalf of the plaintiffs, the plaintiffs examined Kashibhai Tribhovanbhai at Exh.82, Jamalsing Ratilal Vasava at Exh-88 and the original defendant – Noorjahanbibi Babukhan examined at Exh-99 and witnesses examined at Exh.111, 115, 123, 138 and 145. The Court Commissioner was also appointed, who was surveyor, who submitted Court Commissioner Report at Exh.91. That on behalf of the appellant herein- original defendant, maintenance surveyor was examined, who has given his report along with map, which was at Exh.148, which has been relied upon by the appellant herein. That on appreciation of evidence more particularly considering the Court Commissioner report and his deposition as well as even considering the map produced at Exh.148 (which was relied upon by the appellant herein – original defendant), learned Trial Court held that the appellant herein – original defendant has made encroachment on the plaintiff's property to the extent of 22.16 sq.mtrs. and consequently learned Trial Court decreed the suit and granted declaration as well as permanent injunction as well as mandatory injunction by directing the appellant herein – original defendant to remove encroachment done by her on the plaintiff's property, which is to the extent of 22.16 sq.mtrs. and also directed the defendant to close her two doors, which was put towards the northern side of her property and which are opening towards the plaintiff's property.
3. Being aggrieved by and dissatisfied with the judgement and decree dated 22/10/1996 passed by learned 2nd Joint Civil Judge (S.D.), Bharuch in Regular Civil Suit No.348 of 1987 decreeing the suit, the appellant herein – original defendant preferred Regular Civil Appeal No.7 of 1999 before District Court, Bharuch and learned Additional District Judge, Bharuch vide judgement and order dated 15/06/2011 has dismissed the said appeal confirming the judgement and decree passed by the learned Trial Court.
Being aggrieved by and dissatisfied with the judgement and orders passed by both the Courts below, the appellant herein – original defendant has preferred the present second appeal u/s.100 of the Code of Civil Procedure.
4. Mr.S.K.Bukhari, learned advocate appearing on behalf of the appellant herein – original defendant has vehemently submitted that both the Courts below have materially erred in holding that the defendant had encroached the plaintiff's property to the extent of 22.16 sq.mtrs.. It is submitted that the aforesaid finding given by the learned Trial Court and confirmed by learned Appellate Court is contrary to the map produced at Exh.148. It is further submitted that even considering map produced at Exh.148, it can be said that at the most the defendant has encroached the plaintiff's property to the extent of 8.28 sq.mtrs. only. It is further submitted that both the Courts below have not properly appreciated the map, which is resulted into miscarriage of justice and, therefore, it is requested to allow the present second appeal.
5. Heard Mr.Bukhari, learned advocate appearing on behalf of the appellant herein and considered the impugned judgement and orders passed by both the Courts below as well as documents, which were produced before learned Trial Court, which are made available by learned advocate appearing on behalf of the appellant inclusive of the Court Commissioner Report and even the map at Exh.148.
6. At the outset, it is required to be noted that there are concurrent findings of facts given by both the Courts below that the defendant has encroached upon plaintiff's property to the extent of 22.16 sq.mtrs.. The said findings of facts are on appreciation of evidence documentary as well as oral. While holding so learned Trial Court has considered the Court Commissioner Report, who was surveyor at Exh.91 as well as his deposition and both the Courts below have considered the map at Exh.148 and the Appellate Court has considered submission on behalf of appellant at Exh.148 in detail in the Appellate Court's judgement in Para Nos.10 and 11. It is to be noted that the map, which was relied upon by the appellant, produced at Exh.148 was prepared in the year 1984 and even at that time even according to the appellant, encroachment was there to the extent of 14.50 sq.mtrs. While decreeing the suit, learned Trial Court has considered position, which was prevailing at the time of preparation of the panchnama and at the time of filing of the suit in the year 1987. It appears that between 1984-1987, there is more encroachment by the appellant herein – original defendant and at the relevant time when the suit was filed, Court Commissioner was appointed and as per Court Commissioner Report encroachment was to the extent of 22.16 sq.mtrs. Under the circumstances, no illegality has been committed by the Courts below in decreeing the suit and in directing the appellant herein to remove the encroachment and granting permanent injunction as prayed for.
It is required to be noted that the present second appeal is under section 100 of the Code of Civil Procedure and unless there are substantial questions of law arise, the same is not required to be entertained. As such learned advocate appearing on behalf of the appellant herein - original defendant is not in a position to point out any substantial question of law except that both the Courts below have misinterpreted the map produced at Exh.148. It is to be noted that both the Courts below have considered the map at Exh.148 as well as Exh.91 and have discussed in detail both the map and thereafter on appreciation of evidence came to the conclusion that the appellant herein – original defendant has made encroachment on the plaintiff's property to the extent of 22.16 sq.mtrs. Considering the aforesaid facts and circumstances of the case, it appears that no illegality has been committed by the learned Trial Court in directing the original defendant to remove encroachment made on the plaintiff's property.
7. 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.
8. In view of the dismissal of the main second appeal, no order in Civil Application and Civil Application is also accordingly dismissed.
*dipti [M.R.SHAH,J]