Rabia Adam Badin vs Hava and Others

Honorable Mr. Justice M.R. Shah

Present Second Appeal u/s 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") has been preferred by the appellant herein - original defendant to quash and set aside the impugned judgment and decree passed by the learned Additional Civil Judge, Ankleshwar dated 09.01.2009 passed in Regular Civil Suit No. 287 of 2000 by which the learned trial Court has decreed the said suit instituted by respondents herein - original plaintiffs as well as the impugned judgment and order passed by the learned Appellate Court - learned 2nd Additional District Judge, Bharuch dated 19.02.2011 passed in Regular Civil Appeal No. 18 of 2009 by which the learned Appellate Court has dismissed the said appeal preferred by the appellant herein - original defendant confirming the judgment and decree passed by the learned trial Court. That respondents herein - original plaintiffs had instituted Regular Civil Suit No. 18 of 2009 against the appellant herein - original defendant in the Court of learned Civil Judge, Ankleshwar for declaration and permanent injunction declaring that the disputed suit property - Ghaban (place to keep cattle) which is situated adjacent to property No. 309 is belonging to the plaintiff and that the defendants have no authority to disturb the possession of the plaintiff and restraining the defendants, their agents, service from entering into the suit premises. That the learned Additional Civil Judge, Ankleshwar by judgment and decree dated 09.01.2009 decreeing the said suit by holding that the southern side of the property No. 309 which was used as Ghaban and upon which the plaintiff has constructed the house belongs to the plaintiff and consequently the learned trial Court granted the permanent injunction was prayed for restraining the defendants, their agents, servants from entering into the suit property.

1.1 Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Additional Civil Judge, Ankleshwar dated 09.01.2009 passed in Regular Civil Suit No. 2 of 287 of 2000 in decreeing the suit and granting declaration and permanent injunction as prayed for in favour of the original plaintiff, the appellant herein - original defendant preferred Regular Civil Appeal No. 18 of 2009 before the learned District Court, Bharuch and the learned 2nd Additional District Judge, Bharuch by impugned judgment and order has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court.

1.2 Hence, being aggrieved and dissatisfied by the judgment and order passed by both the Courts below, the appellant herein - original defendant has preferred the present Second Appeal u/s 100 of the CPC.

1.3 That the appellant herein has also submitted Civil Application No. 2043 of 2012 seeking permission for production of additional evidence in exercise of powers under Order 41 Rule 27 of the CPC. It appears that as, earlier the time was granted to the appellant to submit application for additional evidence within stipulated time, however, the same was not filed and therefore, Civil Application No. 182 of 2012 has been preferred for extension of time to submit the additional documents.

1.4 Civil Application No. 4926 of 2011 has been preferred for interim relief during the pendency and final disposal of the Second Appeal.

Shri J.M. Malkan, learned advocate appearing on behalf of the appellant has vehemently submitted that both the Courts below have material erred in holding that the plaintiff is the owner of the disputed suit property in question. It is submitted that in view of the registered sale deed dated 11.04.1942 executed by the predecessor of the original plaintiff in favour of the predecessor of the original defendant at Exh.65, both the Courts below have materially erred in not holding the defendant as owner of the suit property.

2.1 It is further submitted by Shri Malkan, learned advocate appearing on behalf of the appellant that the learned trial Court has not properly appreciated the situation of the land - disputed property in question. It is submitted that as such the property falls in Tekri falia, which is back side of Unda falia, the learned trial Court has materially erred in holding that the property is situated in Unda Falia.

2.2 Relying upon the additional evidence produced along with Civil Application No. 2043 of 2012, it is sought to be submitted that as such by passage of time the ownership and boundaries have also changed and therefore, the impugned judgment and decree passed by the learned trial Court confirmed by the Appellate Court cannot be sustained. Shri Malkan, learned advocate appearing on behalf of the appellant has heavily relied upon the decision of the Hon''ble Supreme Court in the case of Haryana State Industrial Development Corporation Vs. Cork Manufacturing Co., in support of his prayer for additional evidence. Making above submissions and relying upon above decision, it is requested to allow the present Second Appeal.

Present appeal is opposed by Shri Tirmizi, learned advocate appearing on behalf of the original plaintiffs. It is submitted that as such there are concurrent findings of fact given by both the Courts below on appreciation of evidence that the plaintiff is the owner of the suit property in question which is adjacent to property No. 309 belonging to plaintiff which is on southern side of the property No. 309. It is submitted that on appreciation of evidence both the Courts below have concurrently found that property described by the defendant is different than that of the suit property and the same is in the different falia and the suit property in question is in the Unda falia where the property of the plaintiffs exist. Now, so far as the application for additional evidence is concerned, it is submitted by Shri Tirmizi, learned advocate appearing on behalf of the original plaintiff that by additional evidence the defendants want to make out altogether a new case which was not pleaded and/or which was not the case of the defendant before both the Courts below and therefore, by such additional evidence the defendant cannot be permitted to make out a new case. Therefore, it is requested to dismiss the application for additional evidence.

Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and order passed by both the Courts below and this Court has also considered the record produced before the Court inclusive of the application for additional evidence and the supporting document therein. At the outset it is required to be noted that there are concurrent findings of fact given by both the Courts below holding the plaintiffs to be the owner of the disputed suit property which has been constructed by the plaintiff on ghaban (place to keep cattle) which is just adjacent to and on southern side of the property / house bearing No. 309 belonging to the plaintiff. The aforesaid findings of fact given by both the Courts below are on appreciation of evidence. Both the Courts below have concurrently found that the defendant has failed to prove that he is the owner of the disputed suit property/ghaban. It is also required to be noted that both the Courts below have concurrently found that the plaintiff is in possession of the disputed property since last more than 60 years. Both the Courts below have also disbelieved the case on behalf of the defendant that he is the owner of the disputed ghaban considering the fact that property of the defendant in different falia and even there was no electricity connection which was sought to be contended on behalf of the defendant. Under the circumstances, as such no case is made out to interfere with the impugned judgment and order passed by both the Courts below. It is also required to be noted at this stage that as such it was the plaintiff who instituted the suit for declaration and permanent injunction and not the defendant.

4.1 It is to be noted that as such the present Appeal is u/s 100 of the CPC and unless and until it is pointed out that any substantial question of law arises to be considered by this Court, the present Second Appeal is not required to be entertained. When repeatedly asked, the learned advocate appearing on behalf of the appellant is not in a position to point out any substantial question of law arising in present Second Appeal.

4.2 Now, so far as the application submitted by the appellant for additional evidence under Order 41 Rule 27 of the CPC is concerned, it is required to be noted that by impugned application the appellant wants to make out altogether a new case submitting that by passage of time the ownership and boundaries have also changed. It is to be noted that it was never the case of the defendant either before the trial Court and/or before the Appellate Court. Considering the above, aforesaid application for additional evidence deserves to be dismissed.

4.3 Now, so far as the reliance placed upon the decision of the Hon''ble Supreme Court in the case of Haryana State Industrial Development Corporation (Supra) in support of his prayer for additional evidence is concerned, considering the facts before the Hon''ble Supreme Court and the facts of the case on hand, the said decision will not be of any assistance to the applicant. Under the circumstances, the Civil Application for additional evidence deserves to be dismissed. In view of the above and for the reasons stated above, present Second Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. Civil Application No. 2043 of 2012 for additional evidence is also dismissed. Consequently, on dismissal of Second Appeal, no order in Civil Application No. 182 of 2012 and Civil Application No. 4926 of 2011.