Govindbhai Subabhai Tadvi vs Narmadaben Himmatbhai Mahurbhai Rajwadi

Rajesh H. Shukla, J.—The present Second Appeals have been filed by the applicant-original plaintiffs raising the following substantial question of law:

Whether both the courts below have erred in dismissing the suits of the plaintiffs on the ground that the possession of the defendants can be considered to be permissive possession as the defendants are in possession?

Whether both the courts below have erred in not considering the legal position that the possession of the defendants cannot be said to be the permissive by virtue of an Agreement to Sell inasmuch as there is no reference of handing over the possession of the land in the Agreement to Sell itself?

Whether both the courts below have erred in not decreeing the suit only on the ground that the defndants have nto led any evidence and not substantiated their pleadings or have not proved the documents produced on record?

Whether both the courts below have erred in not considering the evidence on an independent Surveyor (a Government Officer) appointed by the trial court?

Whether both the courts below have erred in finding that the suit is filed after a period of about 20 years and, therefore, no relief can be granted?

Learned advocate Mr. Shah has tried to submit referring to the judgment of the trial court and lower appellate court that though the transaction was with regard to sale of land, more land has been encroached upon by the defendants. For that, he referred to the judgment and particularly the observations made therein with regard to the report of City Surveyor and submitted that the conclusion arrived at by both the courts below is erroneous. Therefore, the present appeals may be allowed.

However, as it appears from the questions of law sought to raised, it only refers to the appreciation of evidence. There are concurrent findings given by two courts below on this aspect. Even with regard to the City Surveyor''s report there is a specific observation made in the same judgment that though the plaintiffs have stated that there is encroachment in which direction it is not averred in the plaint and it has not come on record.

Admittedly, there is a transaction with regard to the sale of the land since 1974 and possession is admittedly handed over in 1968 and the suit is filed in 1988. Therefore, considering the aforesaid circumstances, it cannot be said that any substantial question of law has been involved as sought to be canvassed which would call for any interference with the concurrent findings of facts given by the two courts below.

Therefore, in light of the guidelines with regard to the scope of second appeal u/s 100 of CPC as observed by the Hon''ble Apex Court in a judgment in the case of Mst. Sugani Vs. Rameshwar Das and Another, the present Second Appeals cannot be entertained and deserve to be dismissed and accordingly stand dismissed. No order as to costs.