Jankapuri 2 Cooperative Housing ... vs Heirs Of Deceased Rushibhai ... on 19 December, 2018

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Gujarat High Court

Jankapuri 2 Cooperative Housing ... vs Heirs Of Deceased Rushibhai ... on 19 December, 2018

Bench: B.N. Karia

         C/SA/412/2018                                ORDER




 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SECOND APPEAL No. 412 of 2018
                           With
               CIVIL APPLICATION No. 1 of 2018

================================================================
  JANKAPURI 2 COOPERATIVE HOUSING SERVICE SOCIETY LIMITED
                           Versus
     HEIRS OF DECEASED RUSHIBHAI NAROTTAMBHAI PATEL
===============================================================
Appearance :
Mr SAMEE A URAIZEE(7747) for the PETITIONER(s) No. 1,2,3
for the RESPONDENT(s) No. 1,1.1,1.2,1.3
===============================================================

         CORAM: HONOURABLE         Mr. JUSTICE B.N. KARIA
                     19 December 2018
                         th



ORAL ORDER

Heard learned advocate S.A Uraizee for the appellants. Being aggrieved and dissatisfied with the judgment and decree dated 11th July 2018 passed by the Court of learned 3rd Additional District Judge, Bharuch in Regular Civil Appeal No. 48 of 2013 [hereinafter to be referred to as, "the impugned order"] whereby the aforesaid appeal preferred by the appellants came to be dismissed, the appellantsoriginal plaintiffs are before this Court questioning legality and validity of the impugned order.

Page 1 of 5 C/SA/412/2018 ORDER

Counsel for the appellants vehemently argued that the trial Court has erred in not granting mandatory injunction and recovery of possession, sought for by the appellants in Regular Civil Suit No. 183 of 2008, which came to be dismissed by judgment and decree dated 19th May 2013 by the learned 4th Additional Senior Civil Judge, Bharuch.

Counsel added that the learned first appellate Court has also erred in arriving at a finding that the ownership qua the land in question was not proved by the plaintiffs, however, encroachment of the defendant over the suit land; as claimed by the plaintiff was proved, though the issues framed by the trial Court in a suit filed by the appellantsoriginal plaintiffs were answered in the affirmative.

In supports of his preliminary arguments, counsel for the appellants placed reliance upon a decision of Apex Court in the case of Somnath Burman v. Dr. S.P Raju & Anr., reported in [1969] 3 SCC 129.

Issues require considerations. Hence, ADMIT. Page 2 of 5 C/SA/412/2018 ORDER The following substantial questions of law require determination :

[1] "Whether the lower Court was justified in dismissing the appeal preferred on its file by the present appellants cursorily without undertaking independent appreciation of the entire evidence and materials on record of the case ?"

[2] "Whether the lower Court was justified in dismissing the appeal preferred on its file by the present appellants without formulating appropriate points for determination as mandated by the provision of Order XLI Rule 31 of the Code of Civil Procedure, 1908 ?"

[3] "Whether the Courts below have misconstrued and failed to appreciate the true purport, object and the scope of the byelaws at Exh. 73 of the present Appellant no. 1Society ?"

[4] "Whether the Courts below were justified in overlooking the explicit mandate of byelaw no. 51 of the present appellant no.1Society, which inter alia authorized the Society to institute appropriate Page 3 of 5 C/SA/412/2018 ORDER legal proceedings for removal of encroachment and obstruction from spaces of common use and enjoyment ?"

[5] "Whether the Courts below were justified in dismissing the Suit of the present Appellants in view of the clear admission by the deceased Respondent no. 1 herein there exists open space, road and common plot of the ownership of the present appellant no. 1Society and that the Sale Deed at Exh. 92 executed in his favour by the power of attorney holder of the original owner bears no mention to the effect that the open space in question on the southern side of plot no. 1 was purchased by the deceasedrespondent no. 1original defendant no. 1 herein ?"

[6] "Whether the Courts below were justified in dismissing the suit of the present appellants in view of the clear and categorical finding that the deceased respondent no. 1 herein, had encroached upon and it in unauthorized occupation and possession of the open space of the present appellant no. 1Society, situated on the southern side of the plot no. 1.?"

Page 4 of 5 C/SA/412/2018 ORDER

[7] "Whether the present appellants holding atleast a possessory title to the land in question are entitled to seek the reliefs against the respondents herein, who are found to be rank trespassers ?"

IA ORDER IN CIVIL APPLICATION Rule returnable on 23rd January 2019.

[B.N Karia, J.] Prakash Page 5 of 5

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