MOTIRAM BUDHABHAI BHOY Vs. SONIBEN MANGRUBHAI BHOY

JUDGEMENT

(1.) THIS appeal challenges the judgment and decree dated 9th February, 2011 passed by the learned 2 nd Additional District Judge, Navsari in Regular Civil Appeal No.14/2009 whereby he has dismissed the appeal preferred by the appellant ­ original defendant and has confirmed the judgment and decree dated 23rd April, 2007 passed by the learned Additional Civil Judge, Ahwa in Regular Civil Suit No.5/2003.

(2.) THE respondents ­ original plaintiffs instituted the above referred suit in the court of the learned Civil Judge, Ahwa contending that the plaintiff and the defendant are brothers having ancestral properties situated in village Don, district Dang. The said lands have been partitioned several years ago, pursuant to which Mutation Entry No.143 has been made on 11th March, 1992 and as per the partition, the land bearing Khata No.52 has come to the share of the plaintiff, the land bearing Khata No.85 has come to the share of Hira Budha and land bearing survey No.104 has come to the share of Motiram Budha, that is, the defendant (the appellant herein). That the lands bearing survey No.158/1, 184/2, 236 and 237 are included in the plaintiff's Khata No.52 and that the plaintiff is holding the same as independent owner thereof and that the defendant has nothing to do with the said land. It was the case of the plaintiff that out of the said lands, the defendant was in the process of encroaching upon the land bearing survey No.158/1 and that on 20th January, 2003, the plaintiff had obstructed the defendant from entering the said land, whereupon, he had threatened to kill the plaintiff. The plaintiff had, therefore, instituted the suit to restrain the defendant from encroaching upon his land. The plaintiff, accordingly, prayed that a permanent injunction be granted against the defendant restraining him from in any manner obstructing the plaintiff in the enjoyment of the suit lands. It appears that an application Exh.5 seeking temporary injunction came to be filed by the plaintiff which was granted in his favour. Upon issuance of summons by the court, the defendant filed written statement at Exh.17 submitting that the say of the plaintiff as regards Entry No.143 is correct. However, the fact that a partition has taken place is false. The trial court on the basis of the pleadings of the parties framed five issues. During the course of the trial proceedings, the plaintiff examined his power of attorney holder Tulshirambhai Manglubhai Bhoy at Exh.27 and the plaintiff Manglubhai Budhabhai Bhoy was examined at Exh.40. The plaintiff also produced documentary evidence in support of his case. However, the defendant did not adduce any evidence nor did the learned advocate for the defendant make any submissions during the course of hearing of the matter. The trial court on the basis of the evidence on record decreed the suit in favour of the plaintiff and granted permanent injunction restraining the defendant from obstructing the plaintiff in the enjoyment of the suit lands. The court also held that the plaintiff was the owner and was in legal occupation of the suit lands. The appellant carried the matter in appeal before the learned 2 nd Additional District Judge, Navsari in Regular Civil Appeal No.14/2009. The lower appellate court after reappreciating the evidence on record dismissed the appeal and confirmed the judgment and decree passed by the trial court. Being aggrieved, the appellant has preferred the present second appeal by proposing the following questions stated to be substantial questions of law:

(3.) ON the other hand, Mr. Zubin Bharda, learned advocate for the respondent ­ original plaintiff submitted that the appellant herein has not adduced any evidence before the trial court despite ample opportunities having been granted to him. It was submitted that the appellant has slept over his rights throughout and, is now trying to clutch at a straw by relying upon the fact that no order had been passed on the application Exhibit- 43A made by the plaintiff for closing the evidence of the defendant. Inviting the attention of the court to the rojkam of the proceeding before the trial court, it was pointed out that on 2nd February, 2007 the plaintiff had given a purshis for closing his evidence. Accordingly, the matter was adjourned to 12th March, 2007 for recording of evidence of the defendant. On 12th March, 2007, the parties as well as their advocates were present before the court and that as the defendant did not submit any affidavit of examination-in-chief nor did he submit any application seeking adjournment for leading evidence, the plaintiff submitted an application for closing the defendant's right to lead evidence. The said application was kept for hearing on 26th March, 2007, on which date, as per the rojkam, the right of the defendant to lead evidence had been closed which fact is duly reflected in the rojkam dated 26th March, 2007. It was submitted that thereafter the matter was adjourned to 10th April, 2007 on which date, the plaintiff and his advocate were present whereas the defendant and his advocate were not present hence, the trial court recorded the submissions made by the learned advocate for the plaintiff and adjourned the matter for orders on 23 rd April, 2007. On 23rd April, 2007, the court declared its judgment. It was submitted that thus, the appellant, at all times, was negligent in attending to the suit proceedings and as such the trial court was justified in proceeding further and deciding the suit. It was submitted that the lower appellate court has, therefore, rightly dismissed the appeal and confirmed the judgment and decree passed by the trial court. It was submitted that the impugned judgment and decree being based on concurrent findings of fact recorded by both the courts below does not give rise to any question of law so as to warrant interference.