1. This appeal under Section 100 of the Code of Civil Procedure is at the instance of the original defendants against the judgment and decree dated 7.10.1989 passed by learned Extra Assistant Judge, Valsad at Navsari in Regular Civil Suit No.21 of 1985, whereby the judgment and decree passed by the learned Civil Judge (S.D.), Navsari dated 29.11.1984 in Regular Civil Suit No.300 of 1981 came to be confirmed. In the suit, the decree of permanent injunction is passed against the present appellants, restraining them from interfering with the possession of the property bearing Survey No.44 and from making any construction thereon.
2. It is the case of the original plaintiffs that land bearing Survey No.44 belongs to the plaintiffs and they have been in continuous possession of the suit property, that there is a land bearing Survey No.41 towards western side and there is also a house being Municipal Census No.932 belonging to the father of plaintiff Nos.2 to 5. It is further case of the plaintiffs that the defendant No.1, who was brother of defendant Nos.2 and 3, has been residing in Municipal House Nos.933 and 932, which were constructed on Survey Nos.40 and 41 respectively. There were some disputes as regards entry in the record of the city survey and as per the allegation in the plaint, the appellants-defendants attempted to enter into the suit property i.e. Survey No.44. Therefore, the plaintiffs were constrained to file the suit praying for permanent injunction against the appellants- original defendants.
3. The suit was resisted by the appellants and it was stated that the open land of Survey No.44, which is on the back side of the property constructed on Survey No.41, was of the ownership of the appellants and since the property bearing Survey Nos.41 and 44 both were running in the name of the respondents and subsequently, the property bearing Survey No.41 was sold with open land, which was part of Survey No.44 to the appellants, the appellants were entitled to use and enjoy the possession of that portion of the property bearing Survey No.44 as owner of the said portion.
4. On the basis of the pleadings, following issues were raised and answered by the learned Trial Judge:-
(1) Whether the Plffs. prove to be the owner and in possession of the suit properties ?
(2) If yes, whether they prove that the Defts. have been trying to cause obstruction in their possession of this property ?
(3) If yes, whether the Plffs. are entitled to the grant of an injunction to restrain the Defts. from causing any such obstruction ?
(4) Whether the suit is not properly valued and hence, this court has no jurisdiction to hear this suit ?
(5) To what reliefs are Plffs. entitled ?
(6) What order and decree ?
Answers to the above issues are as under:
(1) In the affirmative
(2) In the affirmative
(3) In the affirmative
(4) This court has jurisdiction to hear this suit.
(5) As per order passed below.
(6) As per order passed below.
5. Before the Trial Court, both the parties led evidence, including documentary evidence in the nature of title deeds of both the properties bearing Survey Nos.41 and 44 at Exhs.84 and 51. On appreciation of the evidence available on record, the learned Trial Judge came to the conclusion that the plaintiffs were owner and in possession of the suit property bearing Survey No.44 and also recorded the finding that the appellants-defendants tried to cause obstruction to the respondents in their peaceful enjoyment of the property bearing Survey No.44. Learned Trial Judge, therefore, allowed the suit and granted decree of permanent injunction restraining the appellants from interfering with the possession of the suit property bearing Survey No.44 and from making construction thereon.
6. The appellants unsuccessfully carried the judgment and decree passed by the learned Trial Judge in the Court of learned Extra Assistant Judge, Valsad by filing Regular Civil Appeal No.21 of 1985. The learned Appellate Judge appreciated the evidence available on record and also construed the documents presented for consideration which were there on the record of the case and concurred with the findings recorded by the learned Trial Judge and ultimately dismissed the appeal by judgment and decree dated 7.10.1989. It is this judgment and decree passed by the first Appellate Court which is under challenge before this Court in this Appeal.
7. Learned advocate Mr. Digadh Popat appearing for the appellants has stated that below mentioned substantial questions of law have arisen for consideration of this Court:-
(1) In the facts and circumstances of the case, it should have been held that the plaintiffs have failed to prove their title and possession on the suit property and thus they are not entitled to the relief of injunction as prayed for.
(2) It should have been held that the defendants have proved their title by documents at Exh.82 & 84.
(3) In the facts and circumstances of the case, it should have been held that in the event of mis-description of property as to its numbers or area created for the purpose of determining the exact extended the nature of the property would in the said event to be four boundaries compounded thereon.
(4) It should have been held that the plaintiffs have failed to prove their alleged possession, they are not entitled to succeed in proving their title.
8. Learned advocate Mr. Popat has submitted that both the Courts below have committed serious error in construing the document of title at Exh.84 in respect of the property bearing Survey No.41, wherein it is clearly stated by the owner of the property, who was also owner of the property bearing Survey No.44, that open land touching behind the land bearing Survey No.41, which is also forming part of Survey No.44, was being sold to the appellants by sale deed at Exh.84. He submitted that there was no dispute about the title and ownership of the property bearing Survey No.41 but so far as the property bearing Survey No.44 was concerned, though the original defendants were owner of the property bearing Survey No.44, still since both the properties were commonly held by one owner at the relevant time when the sale deed was executed of the property bearing Survey No.41, he had consciously sold out the open portion of the land from Survey No.44. He submitted that documentary evidence would certainly weigh against oral evidence of the parties and when there was a document available on record, which was executed at Exh.84, the same was admissible in evidence and requires to be read strictly and construed so as to accept the say of the appellants that the open portion from Survey No.44, which was touching the land bearing Survey No.41, was also sold to the appellants. He submitted that if there was a clear title by virtue of the sale deed for Survey No.41 in favour of the appellants, which also included the open portion from Survey No.44, there was no reason to rely upon the oral evidence of the defendants so as to deny the right of the appellants, which was there on the basis of the documentary evidence available on record in the form of title deed at Exh.84. He, therefore, submitted that both the Courts below have committed grave error in granting injunction in favour of the plaintiffs in respect of the entire property being Survey No.44 ignoring the basic document in favour of the appellants in respect of the property of Survey No.41. He thus urged that the appellants having successfully proved through the document at Exh.84 about their rights to hold and use the portion of open land from Survey No.44, this Court may interfere with the findings recorded by both the Courts below as the findings are contrary and on wrong construction of document at Exh.84. He submitted that the aspect of construction of document is substantial question of law to be considered by this Court and since both the Courts below have committed serious error in construction of document at Exh.84, this Court may quash and set aside the judgment and decree passed by both the Courts below and allow this appeal.
9. As against the above-said arguments canvassed by learned advocate for the appellants, learned advocate Mr. Kunal Shah appearing for the respondents has submitted that there are clear and distinct rights available to both the parties. The respondents being original owners of the property bearing Survey No.44, were all throughout entitled to use and enjoy the entire area of Survey No.44. In fact, as per his submission, the appellants wanted undue advantage of some loose drafting of the sale deed which is found in last four line of the sale deeds, which states that, 'over and above the land bearing Survey No.41, open portion of the land called Vada Kachha was also given to the appellants'. He submitted that the said document at Exh.84 was purely for land of Survey No.41 and by virtue of such sale deed, the appellants were not entitled to any land over and above the land forming part of Survey No.41. He submitted that simply because in the said document, reference of Vada Kachha is made, that would not by itself make the appellants entitled to use or have any right over the open portion of the land not forming part of Survey No.41. He further submitted that whatever stated in the said document at Exh.84 would not take away the right of respondents being in respect of Survey No.44. In view of this, he pointed out that when both the Courts below have found, as a matter of fact on appreciation of the evidence, that the plaintiffs were owners and in possession of the entire property of Survey No.44, no substantial question of law can be said to have arisen for consideration of this Court. He submitted that the substantial questions framed in the Second Appeal as pointed out by learned advocate for the appellants, are questions of facts and not the substantial questions of law. He submitted that both the Courts below have not only on the basis of the oral evidence but also on the basis of construction of all documentary evidence found that the plaintiffs were owners of the land and have been in actual possession of the land bearing Survey No.44. In view of this, he submitted that this Court may not interfere with the findings of fact recorded by the Courts below as no substantial question of law has been pointed out by the learned advocate for the appellants.
10. Having heard the learned advocates for the parties and having perused the judgment and decree passed by both the Courts below as also the record of the case, it appears to this Court that the appellants though claimed their right over the land bearing Survey No.44 on the basis of the document at Exh.84, still remained unsuccessful in proving such rights so far as open plot in Survey No.44 is concerned. It appears that before the Trial Court, evidence as regards ownership and possession of the property bearing Survey No.44 was adduced by both the parties and on the basis of the document of title of the plaintiffs as also of the appellants for their respective properties, the learned Trial Judge has recorded the finding that it is not possible to draw inference from the provisions of the Evidence Act nor any presumption was permissible under Section 90 of the Evidence Act as suggested by the learned advocate for the appellants, especially when the documents are clear to know about the titles of the respective properties of the parties. It further appears that Exh.84 was only for the purpose of transferring the rights in respect of Survey No.41, however in the last portion of the document at Exh.84, the author of the document has stated that open portion commonly known as Vada Kachha, touching back portion of Survey No.41, measurement of the same would be considered in the measurement of the land bearing Survey No.41. This is being attempted and emphasized by the learned advocate for the appellants to establish the right of the appellants by further stating that while executing the document at Exh.84 in respect of the land bearing Survey No.41, the original owner of Survey No.44 had also given away the open portion called as Vada Kachha to the appellants. If this was the intention, it is not understood as to why specific reference of Survey No.44 was not spelled out in the said document. If original owner of the land wanted to sell away the portion of the land from Survey No.44, the document would have in fact recited that open portion of Survey No.44 was also being sold out through this document at Exh.84 but that is not mentioned in the document. Simply because, this document mentioned about Vada Kachha land, that by itself is no ground to believe, as suggested by learned advocate for the appellants, that open portion of the land of Survey No.44 was also sold away vide the document at Exh.84 in favour of the appellants. Construing this document as it is, I am unable to accept the contentions canvased by the learned advocate for the appellants. In my view, both the Courts have recorded findings of fact on the basis of the documentary evidence to the effect that the plaintiffs were owners and in possession of the land bearing Survey No.44 and therefore, it cannot be said that the Courts below have committed any error in granting permanent injunction. I do not find any substantial question of law has arisen as suggested by the learned advocate for the appellants for consideration of this Court. This appeal being devoid of any merits is required to be dismissed.
11. In the result, the Appeal is dismissed. Interim relief, if any, stands vacated.
12. Record and Proceedings be sent back to the concerned Trial Court.
omkar Sd/-
(C.L. SONI, J.)