SHAHBUDDIN ISHABHAI NURANI Vs. SADARUDDIN ZAFARBHAI NURANI

JUDGEMENT

(1.) Challenge in this appeal is made by the original plaintiff to the concurrent findings of both the Courts below. The plaintiff had filed a suit for permanent injunction and mesne profit before the trail Court. The Civil Judge (S.D.) Valsad, vide judgment and decree dated 30.06.1997, dismissed the said suit being Special Civil Suit No.78 of 1993. The said judgment and decree of the trial Court was challenged by the original plaintiff, initially before the High Court by filing First Appeal No.2544 of 1997, however with the change in the jurisdiction, the said appeal got transferred to the District Court, Valsad and was registered as Regular Civil Appeal No.103 of 2005. The Additional District Judge, Valsad dismissed the said appeal vide judgment and decree dated 12.05.2010. It is this judgment and decree, which is challenged by the original plaintiff in this second appeal before this Court.

(2.) Mr. Majmudar, learned advocate for the appellant - original plaintiff has submitted that, the appellant - original plaintiff is the owner of the suit property. The sale deed, pursuant to which he got title over the suit property, was on record at Exh.66 and index thereof was at Exh.67. It is submitted that the respondent was permitted gratuitously by the plaintiff to continue his profession in the said premises. It is submitted that when he was asked to vacate the premises, he refused and therefore the suit for injunction and allied relief was filed. It is submitted that though the defendant had claimed his status as a tenant vis-a-vis the present appellant, qua the suit property, there was no evidence on record in that regard. It is submitted that both the Courts below fell in error on this material aspect, while reading the evidence on record. Attention of this Court is invited to the order dated 25.08.2010 passed by this Court (Coram : Hon'ble Mr. Justice H.B. Antani) to contend that the following substantial questions of law are already framed and the same be answered in favour of the appellant.

(3.) On the other hand, Mr. Vyas, learned advocate for the original defendant - present respondents has vehemently opposed this appeal. It is submitted that there is concurrent findings of both the Courts below and this Court may not interfere in it. It is submitted that the Court has very little play in the second appeal in exercise of powers under Section 100 of the Code of Civil Procedure, 1908 and on the basis of the findings of two Courts below, this appeal be dismissed. It is submitted that the substantial questions of law as framed by this Court, be answered against the appellant and in favour of the present respondents. It is submitted that this appeal be dismissed.