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Judgment
Bela Trivedi, J.—The present appeal filed u/s 100 of CPC arises out of the judgment and order dated 23rd October 2008 passed by the learned Additional District & Sessions Judge, Dahod (hereinafter referred to as the ''lower Appellate Court'') in Regular Civil Appeal No. 52 of 2006, whereby the judgment and decree dated 29th August 2006 passed by the Principal Civil Judge, Devgadh Baria (hereinafter referred to as the ''lower Court'') in Regular Civil Suit No. 98 of 1998 was confirmed.
At the outset, it is required to be stated that though the Second Appeal was filed as back as in March 2009, the same was adjourned from time to time for about 41 times at the requests made by the learned advocates for the parties, and remained pending at the stage of admission for such a long time. It is further required to be noted that today, during the course of hearing, it was found by the Court that the Appellants (original Defendants) had not stated the substantial questions of law in the memorandum of appeal. It is needless to state that the memorandum of appeal filed u/s 100, must precisely state the substantial questions of law involved in the appeal, as per Section 100(3) of CPC. This being mandatory provision, non-compliance of the same itself would be a ground to dismiss the present Second Appeal. However, without being technical, the Second Appeal is being heard and decided on merits also.
The present Respondents - original Plaintiffs had filed the suit being Regular Civil Suit No. 98 of 1998 before the trial Court seeking declaration that they were the owners of survey Nos. 102, 428/12 and 66 situated at the outskirt of village Sevania, Taluka: Devgadh Baria, District: Panchmahals (now Dahod) (hereinafter referred to as the ''suit properties'') and for permanent injunction restraining the Appellants (original Defendants) from entering into the suit properties or causing any obstruction to the Plaintiffs in their possession of the suit properties.
The Appellants - Defendants filed their written statement as also the counter claim in respect of the said suit properties seeking declaration that they were the co-owners in respect of the suit properties and seeking permanent injunction against the Plaintiffs restraining them from causing any obstruction in their possession of the suit properties. The trial Court, vide judgment and decree dated 29.08.2006, partly decreed the suit of the Plaintiffs by declaring that the Defendants had no right, title or interest in respect of survey No. 102 and survey No. 428/12 out of the suit properties and the Defendants shall not cause any obstruction to the Plaintiffs in their possession of the said suit lands and in cultivating the said suit lands. The trial Court dismissed the counter claim of the Defendants. Being aggrieved by the said judgment and decree, the Appellants - Defendants preferred the appeal being Regular Civil Appeal No. 52 of 2006 before the lower Appellate Court, which by the judgment and order dated 23.10.2008, dismissed the same. Being aggrieved by the said judgment and order, the Appellants- Defendants have preferred the present appeal u/s 100 of Code of Civil Procedure.
It has been submitted by learned advocate Mr. Kharadi for the Appellants that both the Courts have committed error of law in mis-appreciating the evidence on record and in not partly allowing the counter claim of the Defendants, more particularly, when the trial Court had believed the possession of the Defendants alongwith others in respect of survey No. 66. According to Mr. Kharadi, both the Courts have committed error of law in not allowing the counter claim of the Defendants. However, Mr. Niral R. Mehta, learned advocate for the Respondents has submitted that there being concurrent findings of facts as regards the possession of the suit properties, and there being no substantial questions of law involved in the Second Appeal, the Second Appeal should be dismissed.
Having regard to the submissions made by the learned advocates for the parties and the documents on record, more particularly, the judgments and orders passed by the lower Courts, it transpires that the lower Appellate Court has confirmed the findings of the trial Court on all the issues raised by the trial Court at Exh.49. It is true that the trial Court, while dealing with issue No. 5, had believed the possession of the Defendants alongwith others in respect of survey No. 66, however held that it was not clear from the evidence that the Defendants were in possession of the half of the suit land bearing survey No. 66. Under the circumstances, it appears that the said portion of the findings given by the trial Court is not properly worded, however, the lower Appellate Court has considered the same and held that the Defendants had failed to prove their counter claim in respect of all the three suit properties. The lower Appellate Court, after re-appreciating the evidence, did not find any illegality or infirmity in the order passed by the trial Court, and this Court also does not find any illegality or infirmity in the order passed by the lower Appellate Court.
Having regard to the concurrent findings of fact as regards the ownership and possession of the suit properties, and the learned Advocate Mr. Kharadi having failed to point out any substantial questions of law involved in the present appeal, the present appeal deserves to be dismissed. As stated earlier, the Appellants have also not stated in the memo of appeal the substantial questions of law, if any, involved in the present appeal filed u/s 100 of CPC and therefore also the appeal deserves to be dismissed.
In that view of the matter, the Second Appeal being decors the merits, deserves to be dismissed and is accordingly dismissed.