Gujarat High Court
Devayben Virabhai Rabari & 3 vs State Of Gujarat & 2 on 1 March, 2017
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SA/40/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 40 of 2017
With
CIVIL APPLICATION NO. 3275 of 2017
In
SECOND APPEAL NO. 40 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? No
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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DEVAYBEN VIRABHAI RABARI & 3....Appellant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR VIJAY H NANGESH, ADVOCATE for the Appellant(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 01/03/2017
ORAL JUDGMENT
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1. The present Second Appeal is preferred by the appellants-original plaintiffs under Section 100 of the Code of Civil Procedure being aggrieved with the impugned judgment and order in Regular Civil Appeal No.34 of 2004 by the Additional District Judge, Junagadh, dated 31.08.2016 confirming the judgment and order in Regular Civil Suit No.36 of 1994 by the 4th Joint Civil Judge (Senior Division), Junagadh, dated 31.03.2004 posing substantial question of law as follows:
(A) Whether both the learned lower court had failed to appreciation the documentary as well as oral evidenced produced by the appellant herein?
(B) Whether both the learned lower court had not fail to consider the issue and recorded finding without any evidence on record?
(C) Whether both the learned lower court can decide the issue with regard to adverse possession?
(D) Whether both the learned lower courts decided the important aspect with regard to possession of the appellants since long time?
(E) Whether both the learned lower courts decided and considered the aspect that whether appellants using the land as Vada land and tethering their cattle's and produce receipts?
(F) Whether both the learned lower courts considered Page 2 of 6 HC-NIC Page 2 of 6 Created On Mon Aug 14 02:07:17 IST 2017 C/SA/40/2017 JUDGMENT the admissible evidence and considered inadmissible and oral evidence?
(G) Whether both the learned lower courts finding are legally accepted evidence or finding based on surmise, conjectures or adverse finding?
(H) Whether both the learned lower courts can decide relevant and admissible evidence on record?
(I) Whether both the learned lower courts misconstruction, misread and misunderstood of evidence or documents?
(J) Whether the learned Civil Court and learned First Appellant court were justified in passing judgment-order and decree in favor of respondent in facts and circumstances of the case and on the evidence adduced upon record?
(K) Whether both the learned lower court replying upon documents which is not properly deciding controversy involved in suit and thereby committed gross miscarriage of justice where done?
(L) Whether finding recorded by Ld. Lower court is perverse finding?
(M) Whether finding recorded by the Trial court is sustainable in light of the facts and circumstance of the case and also in light of pleading of the parties before Page 3 of 6 HC-NIC Page 3 of 6 Created On Mon Aug 14 02:07:17 IST 2017 C/SA/40/2017 JUDGMENT the Civil Court and evidence adduced on record?
(N) Whether the First Appellant court is required to frame the various questions for its determination, based upon fact and circumstance of the case and evidence adduced on record or whether a solitary question for its determination that the judgment of the lower court requires any interference or not?
(O) Whether the First Appellant court is not expected to re-appreciate entire evidence as afresh and to give its own finding based upon fact and circumstance of the case and evidence adduced on record or it can simply discharge its judicial duty only by verbatical re-
producing the finding of the trial court in its own judgment, certifying the same as just and proper? (P) Whether court commissioner or sport visit is necessary for deciding issue involved in the suit?
2. Learned advocate Shri Nangesh has referred the judgment of both the courts below and submitted that both the courts failed to appreciate the continuous possession as well as issue of adverse possession. He has tried to submit that the provision of Order 43 Rule 31 of the Civil Procedure Code are not complied with while deciding the appeal and therefore the present Second Appeal may be considered. He has also referred to other record and submitted that the possession of the appellants-original plaintiffs is not in dispute and therefore both the courts have committed an error and therefore the present Second Appeal may be entertained and the possession may be protected.
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C/SA/40/2017 JUDGMENT
3. Though the submissions have been made, first aspect which is required to be considered is with regard to the scope of exercise of discretion under Section 100 of the Code of Civil Procedure disturbing the concurrent findings of fact and appreciation of material evidence, in view of the catena of judicial pronouncements laid down by the Hon'ble Apex Court.
4. The submissions made by learned advocate Shri Nangesh referring to the factual background with regard to appreciation of material and evidence would also fall within the realm of appreciation of material and evidence. It is not pointed out as to how the appellants-plaintiffs can claim any right, title and interest and on what basis the claim is made. Therefore, the submissions with reference to the judgment of the Hon'ble Apex Court would not have any application to protect the possession when such a possession cannot be said to be valid and legaly justifying the title and the possession could be protected provided it was legal and valid or at least initially it was valid with the permission like lease or the license. In the facts of the case, as discussed, there is hardly such materials and evidence. In fact, the appellants-plaintiffs having made the encroachment and also further encroachment over the area expanding the area. Therefore, the questions of law which have been posed are only with regard to the appreciation of material evidence and it cannot be said to be any substantial question of law.
5. The submissions which have recorded with regard to the Order 41 Rule 31, are required to be considered that the judgment of the Hon'ble Apex Court in the case of Gurdev Kaur & Ors. V/s Kaki & Ors reported in (2007) 7 SCC Page 5 of 6 HC-NIC Page 5 of 6 Created On Mon Aug 14 02:07:17 IST 2017 C/SA/40/2017 JUDGMENT 546 refers to the issue that the First Appellate Court should address the issue involved and materials because a specific issue is not mentioned, but if it has dealt with all relevant aspects, the provisions of Order 41 Rule 31 would stand complied with and it cannot be said that there non-compliance of the said provision. Therefore, having regard to the background of the facts and discussion made herein above, the concurrent finding of facts by both the courts below does not call for any interference in the present Second Appeal. The present Second Appeal, therefore, stands dismissed.
6. In view of the dismissal of Second Appeal, Civil Application does not survive and accordingly stands dismissed.
(RAJESH H.SHUKLA, J.) ABHISHEK Page 6 of 6 HC-NIC Page 6 of 6 Created On Mon Aug 14 02:07:17 IST 2017