1. The present second appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellant herein - original defendant No.2 to quash and set aside the impugned judgement and decree dated 28/02/1991 passed by learned 5th Joint Civil Judge (S.D.), Vadodara in Special Civil Suit No.668 of 1998, by which, learned Trial Court has decreed the suit filed by original plaintiff, as well as impugned judgement and order dated 24/04/2012 passed by learned Appellate Court i.e. learned 5th Additional District Judge, Vadodara in Regular Civil Appeal No.354 of 2005, by which, learned Appellate Court has dismissed the said appeal preferred by the appellant herein - original defendant No.2 and has confirmed the judgement and decree passed by learned Trial Court.
2. Respondent No.1 herein i.e. sister of the appellant herein instituted Special Civil Suit No.668 of 1998 in the court of learned Civil Judge (S.D.), Vadodara against the appellant herein - original defendant No.2 and others for declaration, injunction and for recovery of possession of the suit property contending inter alia that the suit property has been purchased/constructed from her income and, therefore, to declare that she is the owner of the suit property. It is required to be noted that mother of the appellant herein was joined as defendant No.1 and another brother was joined as defendant No.3. It is also required to be noted that during the pendency of the suit, original defendant Nos.1 and 3 filed joint pursis declaring that the plaintiff is owner of the suit property. Therefore, defendant No.2 is only contesting party to the suit. The suit was resisted by defendant No.2 by submitting that he is owner of the suit property and the same has been purchased from his income. Learned Trial Court framed issues and on appreciation of evidence documentary as well as oral held that the suit property was purchased by defendant No.1 in the year 1977 by selling her property, which was in her name and super structure was constructed from income of the original plaintiff as she is serving as Nurse. Learned Trial Court decreed the suit and directed the appellant herein to hand over vacant and peaceful possession of the suit property to the original plaintiff.
Being aggrieved by and dissatisfied with the judgement and decree passed by learned Trial Court decreeing the suit, the appellant herein - original defendant No.2 preferred Regular Civil Appeal No.354 of 2005 before learned District Court, Vadodara and learned 5th Additional District Judge, Vadodara by impugned judgement and order has dismissed the said appeal confirming the judgement and decree passed by learned Trial Court decreeing the suit.
Being aggrieved by and dissatisfied with the impugned judgement and orders passed by both the Courts below, the appellant herein - original defendant No.2 has preferred the present second appeal u/s.100 of the Code of Civil Procedure.
3. Mr.S.P.Majmudar, learned advocate appearing on behalf of the appellant herein - original defendant No.2 has vehemently submitted that as such both the Courts below have materially erred in passing decree for recovery of possession. It is submitted that assuming that defendant No.2 failed to prove that he is owner of the suit property and the same is purchased from his income, in that case, as suit property was in the name of defendant No.1, both the Courts below have materially erred in declaring that the plaintiff is owner of the suit property. It is further submitted by Mr.Majmudar, learned advocate appearing on behalf of the appellant herein that even joint written statement was filed by the defendants submitting that it was joint property and they are joint owners and, therefore, both the Courts below have materially erred in declaring the plaintiff is owner of the suit property. By making above submissions, it is requested to allow the present second appeal.
4. Heard Mr.S.P.Majmudar, learned advocate appearing on behalf of the appellant herein - original defendant No.2 and considered the impugned judgement and orders passed by both the Courts below.
At the outset, it is required to be noted that there are concurrent findings of facts given by both the Courts below on appreciation of evidence and holding that the suit plot was purchased by defendant No.1 in the year 1977 by selling her property, which was in her name and thereafter super structure was constructed from the income of the original plaintiff, who was serving as Nurse. The said finding is on appreciation of evidence considering money orders sent by original plaintiff. It is also required to be noted that the original plaintiff was sending money orders not only for construction of super structure but also sending money orders for study and maintenance of the appellant himself, who was at the relevant time studying. It is also required to be noted that at the time when the suit plot was purchased, the appellant herein was studying, therefore, the case on behalf of the appellant herein that the suit property was purchased from his income is rightly not believed by both the Courts below.
5. Now so far as contention on behalf of the appellant herein that joint written statement submitted by the defendants by submitting that it is joint property and they are joint owners and, therefore, Courts below ought not to have granted declaration that the plaintiff is owner of the suit property is concerned, the same has no substance. Original defendant No.1 - mother and original defendant No.3 - another brother filed joint pursis declaring that the plaintiff is owner of the suit property. On appreciation of evidence, it has been found that the suit plot was purchased by defendant No.1 - mother by selling her own property and super structure was made by original plaintiff. Under the circumstances and in the facts and circumstances of the case, no illegality has been committed by learned Trial Court in passing decree of possession and in holding that original plaintiff is owner of the suit property and directing original defendant No.2 to hand over vacant and peaceful possession of the suit property to the original plaintiff.
6. Under the circumstances and in view of the above, there is no substance in the present second appeal and the same deserves to be dismissed and is accordingly dismissed.
7. In view of the dismissal of the main Second Appeal, no order in Civil Application No.7316 of 2012 and the same is also deserves to be dismissed and is accordingly dismissed. No costs.
[M.R.SHAH,J] *dipti Top