MAHENDRAKUMAR BHAGVANJIBHAI PATEL Vs. UNION OF INDIA

JUDGEMENT

(1.) Present Second Appeal under section 100 of Code of Civil Procedure has been preferred by the appellants herein - original plaintiffs challenging the judgment and decree dated 22.12.2004 passed by the learned Civil Judge (S.D.), Surendranagar in Special Civil Suit No.90 of 1997 which came to be confirmed by the learned Appellate Court by judgment and order dated 25.01.2008 passed in Regular Civil Appeal No.145 of 2005 by which the learned Trial Court dismissed the Suit instituted by the appellants herein - original plaintiffs which was filed for declaration that suit land in question has been encroached upon by the Railways and decree for possession has been refused.

(2.) Appellants herein - original plaintiffs instituted Special Civil suit No.90 of 1997 against respondent - Union of India in the Court of learned Civil Judge (S.D.), Surendranagar for declaration and possession contending inter-alia that suit land in question has been encroached upon by the Railways. On appreciation of evidence, oral as well as documentary, learned Trial Court dismissed the suit by judgment and order dated 22.12.2004 by holding that there is no encroachment by defendant as alleged. Being aggrieved and dissatisfied with the judgment and order dated 22.12.2004 passed by the learned Trial Court in Special Civil Suit No.90 of 1997, appellants herein - original plaintiffs preferred First Appeal before this Court, however, in view of amendment same came to be transferred to the District Court, Surendranagar and it was numbered as Regular Civil Appeal No.145 of 2005. By impugned judgment and order dated 25.01.2008, learned Appellate Court dismissed said Regular Civil Appeal No.145 of 2005 confirming the judgment and order passed by the learned Trial Court, hence, appellants herein - original plaintiffs have preferred present Second Appeal under section 100 of Code of Civil Procedure.

(3.) Mr.Gaurang Bhatt, learned Advocate appearing on behalf of the appellants herein has vehemently submitted that both the Courts below have materially erred in ignoring and not considering report at Exh.47, Rojkam at Exh.61, Map at Exh.62 prepared and submitted by the Court Commissioner as well as his deposition at Exh.60 in Special Civil Suit No.90 of 1997. It is submitted that in the report submitted by the Court Commissioner in Special Civil Suit No.90 of 1997, there is clear reference to encroachment made by the Railways. It is submitted that even both the Court below have materially erred in not considering report at Exh.15, measurement sheet at Exh.23 prepared and submitted by the Court Commissioner - Shri Bahadursingh Rupasangsinh Jhala as well as his deposition at Exh.22 in respect of same disputed land bearing Survey No.688 in another identical suit - Regular Civil Suit No.216 of 1995 preferred by the appellants against Surendranagar - Dudhrej Joint Municipality. It is submitted that if aforesaid documentary evidence would have been considered by both the Courts below, in that case, encroachment made by the Railways on the suit land in question would have been established and therefore, both the Courts below have materially erred in dismissing the suit preferred by the appellants. No other submissions have been made.