MUKESH MUTNEJA Vs. CHATTERBHUJ LILAWATI TRUST

JUDGEMENT

(1.) THIS order would dispose of R.S.A. Nos. 250 and 251 of 2003 as common question of law and facts have been raised in both these appeals. For the purposes of this judgment, the facts are being taken from R.S.A. No. 250 of 2003.

(2.) THIS appeal has been filed by the defendant-appellants under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code') challenging the concurrent findings of facts recorded by both the Courts below holding that the plaintiff-respondent Trust is an exclusive owner in possession of the suit property described in the site plan Ex. P.9 as ABCD and it is using the aforesaid property as Rasta. It has further been held that the defendant- appellants have no right, title or interest therein. The instant appeal has been preferred by the defendant-tenants who are tenants under defendant- respondent Nos. 2 to 4. In the suit it was alleged that plaintiff-respondent Trust is owner in possession of the suit property and no one else including the tenant-appellants as well as defendant respondent Nos. 2 to 4 have any right to use the suit property as passage for ingress and outguess to the property owned by defendant-respondent Nos. 2 to 4 and rented to the tenant- appellants. It is pertinent to mention at the outset that no appeal has been filed by the defendant respondent Nos. 2 to 4. The views of the learned Addl. District Judge holding that plaintiff-respondent No. 1 Trust is owner in possession of the suit property read as under :

(3.) SHRI C.B. Goel, learned counsel for the plaintiff-respondent Trust has submitted that the appeal is without any merit because defendant respondent Nos. 2 to 4 who are the landlord of tenant-appellants have accepted the concurrent findings of the Courts below. In such a situation there is no right of the tenant-appellants to dispute the concurrent findings of facts with regard to the title of their landlord. The learned counsel has further pointed out that apart from the descriptions given in paras 35 to 37 of the judgment of the lower Appellate Court, there is ample evidence to conclude that the plaintiff-respondent No. 1 is exclusive owner in possession of the suit land. In this regard, the learned counsel has referred to the discussion wherein documents Ex. P.4 to P.8 which are copies of the judgments and decree dated 7.1.1984 passed on an award of the Arbitrator. He also refers to Ex. P.10 a copy of the Will dated 18.1.1979 and the site plan Ex. P9 which have been discussed by the trial Court to conclude that the suit property is being used as rasta for the trust property and the defendant-respondent Nos. 2 to 4 or the defendant-tenants have no right, title or interest over it. Therefore, according to the learned counsel the description of the boundaries showing rasta to the kothi of Chaterbhuj on the eastern side would not lead to the conclusion that the afore mentioned property is joint with defendant- respondent Nos. 2 to 4. Learned counsel has stressed that the findings recorded by both the Courts below are based on cogent evidence and in exercise of its appellate jurisdiction this Court under Section 100 of the Code should be very slow in interfering with such findings of facts.