AI Structured Summary
Not yet generated for this judgment
Judgment
Bankim N. Mehta, J.—The Appellants have preferred this appeal u/s 100 of the CPC on the following substantial questions of law formulated in the memorandum of appeal:
(1) Whether in the facts and circumstances of the case, the Suit is not barred by limitation?
(2) Whether in the facts and circumstances of the case, the Suit is maintainable in view of Order 2 Rule2?
(3) Whether in the facts and circumstances of the case, have the Appellants encroached upon the land?
The parties in the proceedings are referred to as they are in the original proceedings in the suit.
The Respondents-original Plaintiffs filed Regular Civil Suit No. 31 of 1990 in the Court of learned Civil Judge (Junior Division), Palitana, for a direction to the Defendants to remove the encroachment made on the suit property. It was the case of the Plaintiffs that they had taken land admeasuring about 61.3 x 61.3 sq. ft. situated in Ratanpar village from the State and by order dated 13.7.1944 passed by the authority, they had become owner of the said land. The predecessors of the Plaintiffs made construction of residential house on the said land. There is open land admeasuring 61 ft. on the East-West side and North-South side of the said property. The Defendants are neighbours residing on the North-West side of their property and have made encroachment on the open land belonging to the Plaintiffs before about 15 to 20 days without any right. The Defendants made encroachment on the Southern side of their house. Therefore, suit was filed for removal of encroachment.
The Defendants appeared in the suit and denied the allegations made in the plaint. It was contended that they did not make any encroachment as alleged by the Plaintiffs and that they have constructed their houses in the year 1968. Since then there is no change in the situation. Therefore, the suit is required to be dismissed.
Learned trial Judge framed issues and parties adduced evidence. After considering the evidence on record and the oral submissions, learned trial Judge by his judgment dated 30.7.2001 allowed the suit and directed the Defendants to remove the encroachment within 60 days. Therefore, the Defendants preferred Regular Appeal in the Court of learned Additional District Judge, Bhavnagar. It was registered as Regular Civil Appeal No. 77 of 2001. The first appellate Court after hearing learned advocate for the parties, by judgment dated 4.3.2009 dismissed the appeal.
Being aggrieved by the said decision, the Appellants-original Defendants have preferred the Second Appeal on the substantial questions of law formulated in the memorandum of appeal which have been reproduced hereinabove.
I have heard learned advocate Ms. Subhadra G. Patel for the Appellants and Mr. D.P. Vora for the Respondents at length and in great detail. I have also perused the impugned Judgment.
It appears that Respondent No. 1 has died during the pendency of the Second Appeal. However, his heirs and legal representatives were not brought on record of the case. Therefore, by order dated 14.9.2010 the appeal has abated qua Respondent No. 1.
It appears that the Plaintiffs were the owners of the land admeasuring about 61.3 x 61.3 sq. ft. and the Defendants were their neighbours. It also appears that there was open land between their properties. Documentary evidence produced before the trial Court indicates that the Defendants encroached upon the suit land. The trial Court also considered the documents produced on record as well as the map and the report submitted by the Commissioner appointed by the Court. It appears that the Court has also considered the oral evidence with regard to encroachment made by the Defendants. Findings of fact recorded by the trial Court have been affirmed by the first appellate Court. It also appears that the Defendants did not raise any plea with regard to limitation or bar under Order 2 Rule 2 before the Court below. Therefore, no substantial questions of law could be formulated in the Second Appeal. There is no pleading in that regard. Therefore, in my view no substantial questions of law as formulated by the Appellants arise for determination of this Court. Hence Second Appeal cannot be entertained.
In the result, Second Appeal fails and stands dismissed.
In view of dismissal of the Second Appeal, the Civil Application does not survive. It stands dismissed accordingly.