Dahyabhai Zinabhai Maisuriya vs Hasmukhben

Rajesh H. Shukla, J.—The present second appeal has been filed by the Appellant, original Defendant, raising the following substantial questions of law:

(i) Whether the learned Appellate Judge has materially erred in law as well as in facts in reversing the judgment and decree passed by learned Trial Judge in Regular Civil Suit No. 28 of 2001?

(ii) Whether the learned Appellate Judge has materially erred in law as well as in facts in not properly appreciating the documents at Exhibits 143 to 169 and the documents at Exhibits 82, 83 and 84?

(iii) Whether the learned Appellate Judge has materially erred in law as well as in facts in not properly appreciating that no permission to construct the compound wall could have been given especially in view of the fact that the National Highway No. 8 is passing near to the land in question and it is falling within the central point of the National Highway No. 8?

Learned advocate Mr. Bhatt has stated that he does not press question No. (iii) and therefore the substantial questions of law for consideration of this Court are only question Nos. (i) and (ii), which cannot be said to be any substantial questions of law.

The submissions have been made referring to the past history with regard to part of the premises owned and possessed by the Plaintiff and the Defendant. He has made the submission referring to the details with regard to the premises contending that without the permission of the authority under the National Highway, it could not have been constructed. Further, he has contended about the right of way and also submitted that the lower appellate court has passed the impugned judgment reversing the order of the trial court which is erroneous and therefore the present appeal has been filed.

Though the submissions have been made, as stated above, brief facts of the case are required to be considered that both the Plaintiff and the Defendant are successor-in-title as the property in question was purchased by the father of the present Appellant-original Defendant and the mother-in-law of the Plaintiff from one Chunilal Bhagwanji Shah. Thereafter, when the mother-in-law of the Plaintiff predecessor-in-title expired, she proposed to construct the house which was objected to by the Appellant-Defendant and she left for abroad and when she returned in 1990-91 the construction was completed. Therefore, it is obvious that the same premises was partly owned and possessed by the Plaintiff and the Defendant. The neighbour has also made the compound wall and if there is any objection with regard to such construction of the compound wall as the national highway is nearby, the same could be raised by the authority concerned and the present Appellant-original Defendant has no reason to raise such objection particularly when the neighbour has already constructed the compound wall.

Therefore a suit was filed by the Plaintiff being Regular Civil Suit No. 28/2001 for injunction which came to be rejected by the learned Addl. Senior Civil Judge, Navsari vide judgment and decree dated 30.8.2008 against which the original Plaintiff preferred an appeal before the District Court by way of Regular Civil Appeal No. 45/2009, which came to be allowed and therefore the present second appeal has been preferred by the Appellant-original Defendant raising the aforesaid substantial questions of law.

The issue involved is only with regard to construction of the compound wall which can hardly be said to be involving any substantial questions of law as there is no dispute with regard to title or possession of part of the premises both by the original Plaintiff and the Defendant. Therefore, considering the submissions raised with regard to appreciation of evidence and even the documents exhs. 82, 83 & 84 it can hardly be said that there is any substantial question of law involved.

It is well accepted that the scope of second appeal u/s 100 of CPC is very limited and only when there is any substantial question of law which can be said to have been involved, it could be entertained. As there is no substantial question of law involved, the present appeal appeal cannot be entertained in light of the guidelines laid down by the Hon''ble Apex Court in catena of judicial pronouncements including the judgment reported in the case fo Mst. Sugani Vs. Rameshwar Das and Another,

Therefore, the present Second Appeal deserves to be dismissed and accordingly stands dismissed in limine. No order as to costs.