Ajitbhai Chimanbhai Shah and Another vs Sharmisthaben and Another

Harsha Devani, J.—This appeal challenges the judgment and order dated 25.6.1990 passed by the learned District Judge, Panchmahals, dismissing the appeal preferred by the Appellants herein. While admitting the appeal, the Court had formulated two substantial questions of law.

In the present case, the Appellants had preferred the appeal before the Appellate Court against the judgment and decree passed by the learned Civil Judge (S.D.), at Godhra in Regular Civil Suit No. 134 of 1980, whereby he had decreed the suit filed by the Respondent No. 1 - Plaintiff and restrained the Appellants herein from disturbing the possession of the Plaintiffs and had also ordered the Appellants to remove the encroachment made by them in the suit land within three months from the date of the order and had further directed that if they fail to remove their encroachment, then the Plaintiff is at liberty to remove the encroachment with the assistance of the Court.

The Respondent No. 1 - original Plaintiff had instituted the aforesaid suit seeking a permanent injunction restraining the Defendant from disturbing the possession of the Plaintiff and for mandatory injunction removing the encroachment made over the land of the Plaintiff by the Defendant. The record of the case indicates that the disputed land was the land appurtenant to the municipal house No. 8191 bearing plot No. 41 of survey No. 199 at Godhra. The Appellants herein were the Defendants No. 1 and 3 in the aforesaid suit.

It is an admitted position between the parties that the suit land bearing plot No .41 and plot No. 43 viz. the land of the ownership of the Appellant No. 2 are not adjoining each others and there are no common boundaries between the said plots. A perusal of the map produced before the trial court indicates that plot No. 42 is situated between plots No. 41 and 43 and plots No. 41 and 43 do not have any common boundary.

Mr. A. J. Patel, learned advocate for the Appellants has on instructions of the Appellants stated before the Court that the Appellants have no interest in the suit land, viz., plot No. 41 and that, they have no interest in making any construction over the suit land and that they would be making construction only on the plot owned by the Appellants, that is, plot No. 43,

Ms. Tejal Vashi, learned advocate for Mr. V. H. Desai, learned advocate for the Defendant No. 1 states that in that case, she does not raise any issue in this regard.

As can be seen from the judgment and decree passed by the Trial Court, the Appellants have been restrained from disturbing the possession of the Plaintiff in relation to the suit land, viz., plot No. 41. In the circumstances, in the light of the statement made by the learned advocate for the Appellants that the Appellants herein are not interested in the suit land, and that they would be making construction only over the land of their ownership, being plot No. 43, nothing is required to be done in the present appeal.

In view of the above, Mr. A. J. Patel, learned advocate for the Appellants does not press the appeal. The appeal is, accordingly, disposed of as not pressed. No order as to costs.