Balvantbhai Hathisangbhai Barad vs Punjabhai Talashibhai Sabadiya & ...

BALVANTBHAI HATHISANGBHAI BARAD....Appellant(s) Versus PUNJABHAI TALASHIBHAI SABADIYA & 2....Respondent(s) ============================================= Appearance:

MR. JAY M THAKKAR, ADVOCATE for the Appellant(s) No. 1 MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 3 MS MEGHA JANI, ADVOCATE for the Respondent(s) No. 1 ­ 2 ============================================= CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 08/04/2015 ORAL ORDER ORDER PASSED IN SECOND APPEAL:

1. By way of the present appeal filed under Section 100 of the Code of the Civil Procedure, 1908, the appellant - original plaintiff has challenged the judgement and order dated 06.05.2013 in Regular Civil Suit No. 12 of 2010 passed by the learned Additional Civil Judge, Botad, by which the suit filed by plaintiff for a decree a declaration that the defendant Nos. 1 and 2 have no right, title and interest, to raise any construction on the land adjacent to the plot No. 17 belongs to the plaintiff. It was also prayed for a decree declaring that the defendant Nos. 1 and 2 be restrained from constructing on the land adjacent to the plot belongs to the plaintiff as well as the judgement and order dated 27.08.2013 in Regular Civil Appeal No. 32 of 2013 passed by 5th Additional Page 1 of 5 C/SA/244/2013 ORDER District Judge, Bhavnagar, Camp at Botad, by which the appeal preferred by the present appellant under Section 96 of the Code has been dismissed.

2. Brief facts arise from the record are as under:

2.1. That the present appellant - original plaintiff filed Regular Civil Suit No. 12 of 2010 and prayed for a decree as stated herein above. It was the case of the appellant that defendant Nos. 1 and 2 are trying to put up construction of permanent nature in front of his property i.e. plot No. 17 situated in Survey No. 87/1 of village Pipaliya. The said construction is being made on the public road. Pursuant to summons issued, the defendant Nos. 1 and 2 opposed the suit by filing written statement. The trial Court, after appreciating the deposition of witnesses and examining the documentary evidence, held that the plaintiff has failed in establishing that whether the alleged construction, which is being made by the defendant Nos. 1 and 2 is on the public road and the defendant Nos. 1 and 2 are not entitled to construct on the so­ called road. It was also held that the plaintiff has not examined the important witnesses from the Government Department to establish the case that whether the construction is being made on the road itself and what size of alleged illegal construction is being made. The trial Court, therefore, dismissed the suit. The appellate Court has considered the judgement and order of the trial Court and has also examined the record of the case and framed proper points for consideration on the line of issues framed by the trial Court, the appellate Court came to the conclusion that the plaintiff has failed in establishing his case either before the trial Court or before the appellate Court and therefore, dismissed the appeal. Hence, the present second appeal.

Page 2 of 5 C/SA/244/2013 ORDER

3. Pursuant to notice issued by this Court, respondents - original defendant Nos. 1 and 2 appeared through Ms. Megha Jani, learned advocate and respondent - original defendant No. 3 appeared through Mr.H.S.Munshaw, learned advocate.

4. Mr. Jay M. Thakkar, learned advocate for appellant - plaintiff would submit that both the trial Court as well as the appellate Court have erred in coming to the conclusion that defendant Nos. 1 and 2 have not constructed any building on the road. By taking me through the deposition of the plaintiff, defendants and also one of the witness namely Padhiyar Natvarsinh Balvantbhai at Exh. 55, from the office of Talati Cum Mantri, Pipaliya Gram Panchayat, learned advocate would submit that the property, defendant Nos. 1 and 2 have put up construction, is on road and therefore, both the trial Court as well as the appellate Court have committed mistake. Learned advocate would further submit that there are substantial questions of law, which are referred in para - 2 of the memo of appeal and therefore, the appeal is required to be admitted.

5. On the other hand, Ms. Megha Jani, learned advocate has opposed this appeal and would submit that there are concurrent findings of the facts in favour of defendant Nos.1 and 2 and the plaintiff has miserably failed in establishing that defendant Nos. 1 and 2 have put up construction on the road. Learned advocate has also relied upon the deposition of the witnesses and would submit that plaintiff himself has admitted that the construction is not on the road but has been made between the road and the land adjacent to the plaintiff. Learned advocate would submit both the Courts have after elaborating discussion held that the construction Page 3 of 5 C/SA/244/2013 ORDER is not on the road, therefore, there is no question to interfere with the concurrent findings of the facts by both the Courts below. Learned advocate would further submit that scope of section 100 of the Code is very limited, since there is no substantial question of law is involved in the case. Hence, the present appeal be dismissed.

6. Heard learned advocates for the respective parties. Perused the judgement and order passed by both the Courts below. I have also perused the deposition of witnesses and scrutinized the same in detail. It is pertinent to note that though at the instance of the plaintiff, the Court Commissioner was appointed and map was prepared, the plaintiff did not take care to examine the witness and therefore, the report as well as the map prepared by the Court Commissioner have not been proved by the plaintiff. It is also pertinent to note that it was difficult for both the Courts below to come to the proper conclusion that whether the construction is being made on the road or not. Similarly, the deposition of the officer of the Government Department is also not clear that whether the construction is put up on the road or not. This witness has not produced any material which would establish that the construction made by defendant Nos. 1 and 2 is on the road. The trial Court, after examining the material available on record, came to the conclusion that the construction has been made beside the cart­way. Therefore, I would not like to interfere with the recording and findings of both the Court below by exercising the powers under Section 100 of the Code. Even otherwise, I do not find any substantial questions of law in the present appeal and hence, the present appeal being meritless is disposed of as dismissed. Notice discharged.

Page 4 of 5 C/SA/244/2013 ORDER ORDER PASSED IN CIVIL APPLICATION:

In view of the order passed in appeal, the present civil application does not survive. Hence, disposed of accordingly.

(A.J.DESAI, J.) *Kazi...

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