SURESHBHAI PRABUDASBHAI SHUKAL Vs. HIMANTLAL BHAISHANKAR DAVE

JUDGEMENT

(1.) Present Second Appeal is filed posing the following substantial questions of law:-

(2.) The short facts of the case briefly stated are that the suit being (Old Special Civil Suit No.89 of 1985) converted into Regular Civil Suit No.304 of 1993 came to be filed before learned 2nd Civil Judge (J.D.), Gondal. After hearing the parties on the basis of the evidence, the suit came to be dismissed and it has been specifically observed that the plaintiff No.1 and plaintiff Nos.2 to 5 have 1/3 share in the agricultural land in question. The specific contention which has been raised with regard to the partition and the adverse possession have been discussed and against the said judgment, Regular Civil Appeal No.39 of 1995 came to be filed before learned 2nd Additional District Judge, Gondal which also came to be dismissed confirming the order of the trial court vide judgment and order dated 29th April, 2009. Therefore, the present Second Appeal has been filed posing the substantial questions of law as stated above.

(3.) Mr.Tushar Sheth, learned advocate for appellant has tried to make his submissions with regard to two aspect i.e. (i) the adverse possession and (ii) hostile title which has been claimed by the present appellant-original defendant has not been believed erroneously and for that purpose, he has also referred to the papers including some of the testimony of evidence and other documentary evidences. He has submitted with regard to the entries in the revenue record and the position as prevailed with regard to the land in question. He has submitted that the Court has not believed that the plea of ouster on the basis of evidence has not been appreciated, and, therefore, present appeal may be admitted. He has also referred to and relied upon the judgment of the Hon'ble Apex Court P LAKSHMI REDDY v. L LAKSHMI REDDY, 1957 AIR(SC) 314 and emphasized the observations made in para:4.