Gujarat High Court
Rameshbai Shantilal Mistry vs Chaturbhia Kanjibhai Panchal on 4 April, 2018
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SA/6/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 6 of 2016
With
CIVIL APPLICATION NO. 1 of 2017
With
CIVIL APPLICATION NO. 1 of 2018
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RAMESHBAI SHANTILAL MISTRY
AND OTHERS ......Appellants
Versus
CHATURBHIA KANJIBHAI PANCHAL
AND OTHERS .....Respondents
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Appearance :
MR N K MAJMUDAR, ADVOCATE for the Appellants
MR RAJESH K SHAH, ADVOCATE for the Respondents No.1,10.1,10.2,10.3,
10.4,2.1,3.2,3.3,3.4,7
DS AFF.NOT FILED (N)(11) for the Respondents No. 10.5,10.6,10.7,3.1,3.5,
3.6,3.7,4.1,4.2,5.1,6,9
NOTICE SERVED(4) for the Respondents No. 10.5,10.6,10.7,3.1,3.5,3.6,3.7,
4.1,4.2,5.1,8,8.1
NOTICE UNSERVED for the Respondent No. 9
UNSERVED EXPIRED for the Respondent No. 6
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CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 04/04/2018
ORAL ORDER
Page 1 of 6
C/SA/6/2016 ORDER
1. Challenge in this Second Appeal is made by the legal heirs of the original defendant, to the concurrent findings of both the Courts below, the details of which are as under.
(i) the judgment and decree passed by the 3rd Additional Civil Judge, Anand dated 31.03.2008 in Regular Civil Suit No. 535 of 1984.
(ii) the judgment and decree passed by the 3rd Additional District Judge, Anand dated 07.11.2015 in Regular Civil Appeal No. 47 of 2008.
2. Mr. N.K. Majmudar, learned advocate for the original defendant submitted that substantial question of law arises in this appeal, inasmuch as the Courts below fell in error by not appreciating the fact that the suit was hit by the principle of res-judicata and the decree could not have been passed. It is submitted that this appeal be entertained.
3. On the other hand, Mr. Shah, learned advocate for the contesting respondents - original plaintiffs has submitted that no question of law arises in this appeal and therefore no interference be made by this Court.
4. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds as under.
4.1 The plaintiffs are the members of a Co-operative Housing Society. It was the case of the plaintiffs before the Page 2 of 6 C/SA/6/2016 ORDER Trial Court that the defendant was also one of the members of the said Society and was occupying a residential tenament, which was adjacent to the common plot of the society. It was the case of the plaintiffs before the Trial Court that the said defendant had encroached upon the common plot of the society for his personal use, which was to be used by all the members of the society. It was prayed before the Trial Court that the said defendant needs to be restrained from doing so and declaration to that effect was also asked for.
4.2 The Trial Court had, on the basis of the pleadings of the parties, framed the following issues, and on the basis of the evidence led before it, answered them as under:
"(i) Whether the plaintiff proves that, the common plot, as mentioned in Para : 1 and 2 of the plaint, should be kept open as per the Rules and Regulation ?
(In affirmative)
(ii) Whether the plaintiff proves that, the defendant intends to use (grab) the said common plot for the construction of his house ?
(In affirmative)
(iii) Whether the plaintiffs are entitled to the relief as prayed for ?
(In affirmative)
(iv) What order and decree ?
(As per final order)
Page 3 of 6
C/SA/6/2016 ORDER
(v) Whether the defendant proves that, he
is the owner of the disputed plot in view of the adverse possession and is he in possession and occupation of the same ?
(In negative)
(vi) Whether the suit is barred by the
principle of res judicata ?
(In negative)"
4.3 Based on the above findings, the Trial Court passed the final judgment and decree dated 31.03.2008 and gave declaration and granted permanent injunction, as prayed for by the plaintiffs. The operative part the said judgment reads as under (translated from original Gujarati).
"1. The suit of the plaintiffs is hereby partly allowed with costs.
2. It is declared that the plot in question as described in Para-2 of the plaint at Exh.1, is in the joint ownership and possession of the parties and the defendant does not have any right to use the said plot individually. Further, permanent injunction is granted against the defendant that he shall not put any construction or encroach upon the said piece of land for his personal or commercial use. ..."
4.4 Being aggrieved, the original defendant had approached the District Court by filing a Regular Civil Appeal. The Appellate Court below has also examined the issues and has found that Page 4 of 6 C/SA/6/2016 ORDER the Trial Court has not committed any error. This Court finds that both the Courts below have noted the findings to the effect that, it was common plot of the Co-operative Housing Society and the same is required to be used by all the members of the Society. Both the Courts below have declared the same and the defendant is restrained from using the said common plot, for his personal / commercial use.
4.5 The contention is raised that the issue of res-judicata is not properly decided by the Trial Court. This Court finds that the Trial Court had framed a specific issue in that regard. This Court has considered the reasons recorded by the Trial Court as well as by the Appellate Court below. Both the Courts below have recorded proper reasons in that regard and this Court does not find any error therein. One more factor which needs a mention is that, according to the plaintiffs, there was some connivance between the office bearers / administrator of the Society and the elders of the original defendant and with the said arrangement, some suit was filed before decades, in which, some order was passed. The Courts below have taken note of the same and considering the fact that the parties were different to the said suit, it will not operate as res-judicata qua the present plaintiffs, who are the members of the Co- operative Housing Society. This Court finds that, the Courts below have not committed any error in deciding the point of res-judicata also.
4.6 Considering the totality, this Court finds that, no question of law, much less any substantial question of law arises in this appeal, which may be required to be gone into by this Court. This Second Appeal therefore needs to be dismissed.
Page 5 of 6 C/SA/6/2016 ORDER5. For the reasons recorded above, this appeal is dismissed. Interim arrangement, if any, would now not stand. Civil Applications would not survive.
(PARESH UPADHYAY, J) SALIM/34 Page 6 of 6