HUSENABEN WIDOW OF RASIKBHAI Vs. KIRANKUMAR RANCHHODBHAI

JUDGEMENT

(1.) THIS appeal is preferred by the heirs of deceased Ganibhai Ramzanbhai against the judgment and order dated 30 -04 -2007 passed by the learned Judge, City Civil Court, Ahmedabad in Civil Suit No. 908 of 1985 whereby the suit was decreed in favour of the original plaintiffs.

(2.) THE plaintiffs filed the suit seeking declaration that defendants had trespassed over the open space (hereinafter referred to as "the disputed open space") situated on the northern side of the property bearing Municipal Census No. 1078/1/2/3, Survey No. 16 of Madhupura Ward, Ahmedabad and for mandatory injunction directing the defendants to remove the two gullas placed in the said disputed open space and for permanent injunction restraining the defendants from placing any other goods or articles in the open space.

(3.) LEARNED Advocate Mr. Jigar P. Raval representing the appellants submitted that the learned Judge has misread and misinterpreted the evidence on record of the case in holding that the appellants were rank trespassers and, therefore, they are required to be evicted from the disputed open space. The learned Advocate submitted that even proper issues were not framed by the learned Judge while deciding the suit filed by the respondents. The learned Judge ought to have held that as the present appellants have not committed any trespass over the open space and since they are in possession of the open space for more than 30 years, they cannot be evicted. The learned Judge ought to have come to the conclusion that the open space in respect of which the respondents had filed the suit was part of the tenanted premises and it was land appurtenant to the tenanted premises. Even the learned Judge has not given any reasoning in that regard. It has been contended on behalf of the appellants that the respondents had on earlier occasion filed various suits against the appellants on many grounds with a view to harass the appellants by filing bogus and frivolous litigation. It has also been submitted by the learned Advocate that on earlier occasion, a suit bearing No. 1866 of 1987 was filed in the Small Causes Court wherein identical questions were involved and, therefore, the learned Judge ought not to have entered into the merits of the matter and decreed the suit filed by the respondents. The learned Advocate submitted that in view of the evidence on record of the case, the present appeal deserves to be allowed and the order passed by the learned Judge be quashed and set aside. The learned Advocate, in the alternative, submitted that as the issue with regard to appurtenant land with the tenanted premises has not been discussed by the learned Judge at length and in great detail, it is a fit case to remand the matter to the learned Judge to consider the entire issue afresh by giving opportunity to both the sides to lead evidence.