SHANKARBHAI GAMAJIBHAI KOLI Vs. MULABHAI AMDARSINH KOLI

JUDGEMENT

(1.) THE present appeal filed under Section 100 of C.P.C. arises out of the judgment and order dated 23rd October 2008 passed by the learned Additional District & Sessions Judge, Dahod (hereinafter referred to as the 'lower Appellate Court') in Regular Civil Appeal No.52 of 2006, whereby the judgment and decree dated 29th August 2006 passed by the Principal Civil Judge, Devgadh Baria (hereinafter referred to as the 'lower Court') in Regular Civil Suit No.98 of 1998 was confirmed.

(2.) AT the outset, it is required to be stated that though the Second Appeal was filed as back as in March 2009, the same was adjourned from time to time for about 41 times at the requests made by the learned advocates for the parties, and remained pending at the stage of admission for such a long time. It is further required to be noted that today, during the course of hearing, it was found by the Court that the appellants (original defendants) had not stated the substantial questions of law in the memorandum of appeal. It is needless to state that the memorandum of appeal filed under Section 100, must precisely state the substantial questions of law involved in the appeal, as per Section 100(3) of CPC. This being mandatory provision, non-compliance of the same itself would be a ground to dismiss the present Second Appeal. However, without being technical, the Second Appeal is being heard and decided on merits also.

(3.) IT has been submitted by learned advocate Mr.Kharadi for the appellants that both the Courts have committed error of law in mis-appreciating the evidence on record and in not partly allowing the counter claim of the defendants, more particularly, when the trial Court had believed the possession of the defendants alongwith others in respect of survey No.66. According to Mr. Kharadi, both the Courts have committed error of law in not allowing the counter claim of the defendants. However, Mr. Niral R. Mehta, learned advocate for the respondents has submitted that there being concurrent findings of facts as regards the possession of the suit properties, and there being no substantial questions of law involved in the Second Appeal, the Second Appeal should be dismissed.