CHANDRAKANT KANTILAL OZA Vs. TRIVEDI GUNVANTLAL TRIKAMLAL

JUDGEMENT

(1.) Present appeal is preferred by the appellants under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 16.8.1979 passed by the learned District Judge, Mehsana in Regular Civil Appeal No. 91 of 1977 confirming the judgment and decree dated 31.3.1977 passed by the learned Civil Judge [J.D.], Kheralu in Regular Civil Suit No. 63 of 1969.

(2.) Original plaintiff-Oza Kantilal Mohanlal, deceased father of the present Appellants filed Regular Civil Suit No. 63 of 1969 against the original defendants-respondents for declaration that he was sole owner of "Ota" and for permanent injunction restraining the defendants from causing any obstruction to the plaintiff. The said suit was dismissed by learned Civil Judge [J.D.], Kheralu vide judgment and decree dated 31.3.1977 after recording depositions and going through the documentary evidence on the record of the case. The said judgment and decree was challenged by the plaintiff before the District Court, Mehsana by filing Regular Civil Appeal No. 91 of 1977 which appeal was dismissed by the learned District Judge, Mehsana by judgment and decree dated 16.8.1979. Being aggrieved and dissatisfied with the said judgment and decree, the appellants have preferred the present appeal.

(3.) Mr J.R. Nanavati, learned advocate for the appellants submitted that both the courts below have failed to appreciate the oral evidence on the record of the case. Both the courts below have erred in holding that exh.92 does not show that the suit Ota which is on the south of the part and parcel of the house of the appellants was of the ownership of the appellants' ancestors. Documents at exhs. 92, 93 and 62 have not been appreciated by the courts below in proper perspective. The courts below have committed an error in interpreting the panchnama at exh. 127 which was prepared by the Commissioner in the suit property. The courts below have not placed reliance on the document at exh. 64 which is the permission granted by the Nagar Panchayats to the plaintiff to reconstruct "ota" and the said permission was granted by the defendant no.1 who was Chairman of the Managing Committee of the Nagar Panchayat. Thus, learned advocate submitted that as the substantial question of law is involved in the Second Appeal and both the courts below have committed an error in not appreciating the entire evidence in proper perspective, the appeal requires to be allowed and the judgment and decree passed by the learned Civil Judge [Junior Division] in Regular Civil Suit No.63 of 1969 as confirmed in the appeal by the learned District Judge, Mehsana requires to be quashed and set aside.