1. The present second appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellant herein – original plaintiff to quash and set aside the impugned judgement and order dated 08/04/2011 passed by learned Additional District Judge, Bhavnagar, Camp at Botad in Regular Civil Appeal No.76 of 2001, by which, learned Appellate Court has allowed the said appeal filed by the respondents herein – original defendants and has quashed and set aside the judgement and decree dated 03/08/2001 passed by learned Civil Judge (J.D.), Gadhada in Regular Civil Suit No.10 of 1995 and consequently dismissing the suit.
2. That the appellant herein – original plaintiff instituted Regular Civil Suit No.10 of 1995 against the respondents herein – original defendants in the court of learned Civil Judge (J.D.), Gadhada for permanent injunction u/s.38 of the Specific Relief Act restraining the defendants from entering into the suit land and/or restraining the defendants from obstructing the plaintiff from putting up construction on the suit land in question.
It appears that it was the case on behalf of the plaintiff that he had purchased the plot in question being plot No.2 from Babubhai Haribhai by registered sale deed dated 21/02/1995 and thereby he has become absolute owner and he is in possession of the suit land and put up the fancing. It was the case on behalf of the plaintiff that the defendants were not only trying to disturb the possession of the plaintiff on the aforesaid plot No.2 but they were also trying to encroach upon the road, which was situated on the western side of Plot No.2 and, therefore, the plaintiff prayed for permanent injunction, as stated hereinabove.
That the said suit was resisted by original defendants by filling written statement at Exh.14 denying averments in the plaint. It was disputed by defendants that the plaintiff is owner and in possession of the suit plot in question. Learned Trial Court framed issues and on appreciation of evidence documentary as well as oral, learned Trial Court specifically held that the plaintiff has failed to prove public auction of the plot in question and sale in his favour. However, learned Trial Court held that the plaintiff is in possession of the suit land in question and solely on that ground not only granted permanent injunction restraining the defendants from disturbing possession of the plaintiff but also granted permanent injunction restraining the defendants from obstructing the plaintiff from putting up construction on the suit land in question.
Being aggrieved by and dissatisfied with the judgement and decree dated 03/08/2001 passed by learned Trial Court in Regular Civil Suit No.10 of 1995, the respondents herein – original defendants preferred Regular Civil Appeal No.76 of 2001 before learned District Court, Bhavnagar and learned Additional District Judge, Bhavnagar Camp at Botad by impugned judgement and order dated 08/04/2011 has allowed the said appeal and has quashed and set aside the judgement and decree passed by learned Trial Court and consequently dismissing the suit.
Being aggrieved by and dissatisfied with the judgement and order dated 08/04/2011 passed by learned Appellate Court, the appellant herein – original plaintiff has preferred the present second appeal u/s.100 of the Code of Civil Procedure.
3. Mr.H.D.Chudasama, learned advocate appearing on behalf of the appellant herein – original plaintiff has vehemently submitted that learned Appellate Court has materially erred in holding that the plaintiff was not in possession of the land in question. It is submitted that the plaintiff has purchased the plot in question from Babubhai, who purchased the said plot in public auction and the plaintiff purchased the said plot in question from Babubhai Haribhai by registered sale deed dated 21/02/1995 and in which it was specifically mentioned that possession is handed over to the plaintiff and learned Trial Court rightly believed the possession of the plaintiff and learned Appellate Court has materially erred in disbelieving the possession of the plaintiff.
Mr.Chudasama, learned advocate appearing on behalf of the appellant herein has submitted that as such there was no suppression of facts with respect to execution of decree passed by learned Trial Court in suit filed by predecessor-in-title as the plaintiff was not aware about any dispute between Babubhai and one of the co-defendant and, therefore, learned Appellate Court has materially erred in holding against the plaintiff and not granting relief. It is submitted that the finding given by learned Trial Court that auction in favour of Babubhai was quashed and set aside and consequently finding given by learned Trial Court with respect to sale in favour of the plaintiff were either based on no evidence or contrary to the evidence on record. By making above submissions, it is requested to admit/ allow the present second appeal.
4. The present second appeal is opposed by Mr.Shrikar Bhatt, learned advocate appearing on behalf of the respondents herein – original defendants. It is submitted that finding given by the learned Trial Court with respect to auction have been quashed and set aside, which was in favour of the Babubhai. The sale transaction in favour of the plaintiff has attained the finality as the same is not challenged by the appellants herein. Therefore, it is not open for the plaintiff to make grievance with respect to issue Nos.5 and 8. The plaintiff claimed ownership on the basis of registered sale deed executed by Babubhai. However when the auction in favour of the Babubhai was quashed and set aside, naturally the petitioner cannot claim right, title and interest in the plot in question on the basis of the sale deed executed in his favour by Babubhai. It is submitted that finding given by learned Appellate Court not accepting the case on behalf of the plaintiff that he has purchased the plot in question by executing registered sale deed from Babubhai is on appreciation of evidence, which is not required to be interfered with by this Court in exercise of power u/s.100 of the Code of Civil Procedure.
5. Heard learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that original plaintiff instituted suit for permanent injunction against the defendants, restraining the defendants from disturbing the possession of the plaintiff and from obstructing the plaintiff from putting up construction on the suit land in question. It is required to be noted that the original plaintiff claimed to be owner of the suit plot in question on the basis of the sale deed executed by Babubhai on 21/02/1995. However, as per finding given by learned Trial Court, which has not been challenged by the appellants, auction in favour of the Babubhai has been quashed and set aside. Under the circumstances, when auction in favour of the said Babubhai has been quashed and set aside, original plaintiff has no better title than Babubhai. Under the circumstances, learned Appellate Court has rightly quashed and set aside injunction granted by learned Trial Court restraining the defendants from obstructing the plaintiff from putting up construction on the plot in question. Merely on the basis of possession (even the said finding is set aside by learned Appellate Court), learned Trial Court is not justified in restraining the defendants from obstructing the plaintiff from putting up construction on the suit land in question, meaning thereby, permitting the plaintiff to put up the construction with respect to suit plot when specific finding is given that he has failed to prove his ownership. Learned Trial Court held that the plaintiff is owner and in possession of the plot, the same is set aside by learned Appellate Court on appreciation of evidence. For that learned Trial Court has considered the fact that after filing of the suit, Babubhai and pre-predecessor in title of the plaintiff filed Execution Petition against one of the co-defendant to execute the concerned decree and to remove the encroachment by other persons, meaning thereby, at the time of filing of the suit, Babubhai filed execution petition, he was in possession and subsequently Babubhai was not in possession of the suit property, learned Appellate Court has rightly held that Babubhai has not handed over possession to the plaintiff and it is disbelievable that Babubhai has handed over the possession to the plaintiff. Considering the aforesaid facts and circumstances of the case, no illegality has been committed by learned Appellate Court in quashing and setting aside the judgement and decree passed by learned Trial Court, which do not call for interference of this Court in exercise of powers under Section 100 of the Code of Civil Procedure.
As such there are no substantial question of law arises in the present second appeal. Under the circumstances, on the said ground also, second appeal is also not required to be entertained by this Court.
6. In view of the above and for the reasons stated hereinabove, there is no substance in the present Second Appeal and the same deserves to be dismissed and is accordingly dismissed. Notice is discharged. No costs.
[M.R.SHAH,J] *dipti