BHAMBHI AMARABHAI LEBABHAI Vs. CHENVA MANABHAI KALABHAI

JUDGEMENT

(1.) THE appellant ori. plaintiff has filed this Second Appeal under Section 100 of the Civil Procedure Code, challenging the judgment and decree dated 17. 7. 2006 passed in Regular Civil Appeal No. 94 of 2005 by the learned Additional District Judge, Sabarkantha at Himmatnagar, confirming the judgment and decree passed by the learned 3rd Additional Civil Judge, Himmatnagar in Regular Civil Suit No. 248 of 1999 on 11. 11. 1995, whereby suit filed by the plaintiff was decided against the plaintiff and in favour of the defendant.

(2.) HEARD Mr. N. N. Prajapati, learned advocate appearing for the appellant and perused the orders passed by the Courts below. It is the case of the appellant ori. plaintiff that the appellant is resident of Village Vadol, Taluka Idar. He is having ownership right and possession over the suit vada land, which is situated besides appellant's residence. It is also the case of the appellant that the opponents were trying to snatch the possession of the appellant's land and they were putting illegal construction on the suit vada. The appellant has, therefore, moved an application for temporary injunction before the Idar Taluka Panchayat. The Taluka Panchayat has granted ad-interim injunction in favour of the appellant, but the opponents have not stopped the construction, therefore the appellant has filed the Criminal Complaint in the Police Station. The appellant has also filed objection before the Dy. Collector. Despite the order of the Dy. Collector the opponents have not stopped construction. Therefore, the plaintiff has filed suit for declaration and permanent injunction. The opponents have filed written statement Ex. 20 and opposed the suit filed against them. The Court has framed the issues on the basis of pleadings and after considering the documentary evidence and hearing the parties, the suit was dismissed by the Appellate Court. An appeal preferred against the order of dismissal was also dismissed and hence this Second Appeal is filed before this Court.

(3.) MR. PRAJAPATI, learned advocate appearing for the appellant has submitted that both the Courts below have committed error in appreciating the evidence produced before them. He has further submitted that the Courts below ought to have framed the issue under Section 37 (2) of the Bombay Land Revenue Code and, thereafter, it ought to have decided the said issue. He has further submitted that both the Courts below have committed error of law as well as on facts and hence appeal requires admission and following substantial questions of law arise from the order of the Appellate Court.