AI Structured Summary
Not yet generated for this judgment
Judgment
Paresh Upadhyay, J
Matter is called out twice. Ms. Rajmin Yadav, learned advocate for the appellant is not present in any of the two calls.
Heard Mr. Mehul Sharad Shah, learned advocate for the contesting respondents â€" original plaintiffs.
It is pointed out by the learned advocate for the respondents that, the sole appellant has died on 28.01.2007. A photo copy of the death certificate in
that regard, dated 22.07.2010 is tendered to the Court.
On merits, learned advocate for the respondents has submitted as under.
4.1 Challenge in this Second Appeal is made by the original defendant No.1 to the common judgment and decree passed by 2nd Joint District Judge,
Mehsana in Regular Civil Appeal Nos. 79 of 1998 and 88 of 1998.
4.2 The plaintiffs had approached the trial Court i.e. Civil Judge, (Junior Division), Mansa by filing Regular Civil Suit No. 163 of 1993 for permanent
injunction against the defendants therein. The said suit was decreed by the trial Court vide judgment and decree dated 30.04.1998. The trial Court
however, injuncted the plaintiffs and defendants - both the sides, from doing any construction on the suit land.
4.3 Being aggrieved, the plaintiffs and the defendants both filed appeals before the District Court being Regular Civil Appeal Nos. 79 & 88 of 1998.
Appeal No. 79 of 1998 was filed by the original defendant No.1 and Appeal No.88 of 1998 was filed by the original plaintiffs.
4.4 The appellant Court below allowed the Appeal No. 88 of 1998 and dismissed the Appeal No. 79 of 1998. The operative part of the judgment and
decree passed by the Appellate Court below dated 17.04.2002 reads as under.
ORDER
“1. Regular Civil Appeal No. 79 of 1998 is hereby dismissed.
No order as to costs.
The decree to be drawn accordingly.
Xxxxxxxxxx
Regular Civil Appeal No. 88 of 1998 is hereby allowed.
The judgment and decree passed by the learned Civil Judge (Junior Division) Mansa in Regular Civil Suit No. 163 of 1993 on dated
30.04.1998 is only set aside about plaintiffs are restrained to do construction in the 11’ land which is situated on the southern side plot
No. 3 and to maintain status quo by the plaintiffs in the said land. The rest of the judgment is confirmed.
No order as to costs.
The decree to be drawn accordingly.
The original R & P be returned to the court of learned Civil Judge (J.D.), Mansa.
The copy of this judgment be kept in the record of Regular Civil Appeal No. 88 of 1998.
Sd/-
2nd Joint District Judge, Mehsanaâ€
4.5 The net effect of the above is that the suit stands decreed as prayed for by the plaintiffs, without any injunction against them. The error which was
committed by the trial Court, is corrected by the Appellate Court below, which is challenged in this Second Appeal, which was admitted by this Court
on 23.07.2002.
As noted above, Ms. Yadav, learned advocate for the appellant is not present and further that the legal heirs of the appellant have not come on
record, even after more than a decade from the death of the appellant.
Appropriate order on the Appeal could be passed today, however, in the interest of justice, stand over to 20.01.2020.