IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT : Kutch

FIRST APPEAL NO. OF 2017

1. Joshi Madhavji Jethanand

Aged 88 years, Hindu,

Occupation: Retired,

Residing at Narayan Sarovar,

Taluka: Lakhpat

District: Kutch.

2. Joshi Hasmukh Shamji

Aged years, Hindu,

Occupation: Service,

Residing at Narayan Sarovar,

Taluka: Lakhpat

District: Kutch. …

Appellants

(Original Plaintiffs)
 VERSUS

1. Aboti Ramilaben Amrutlal

Aged , Hindu,

Occupation: Housewife

Residing at Narayan Sarovar,

Taluka: Lakhpat

District: Kutch. …Opponent

(Original Defendant)

Appeal against the judgment

and decree dated 24.04.2017

passed by the City Civil Court

at Kutch in Civil Suit no.

24/2014

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Appeal under section 96 of the

Code of Civil Procedure,1908

TO

THE HON’BLE CHIEF JUSTICE AND

OTHER HON’BLE JUDGES OF

AT AHMEDABAD.

The humble appeal of the

Appellants above named.

MOST RESPECTFULLY SHEWETH THAT:

1. Being partly aggrieved and dissatisfied by the

judgment and decree dated 24.04.2017 passed

by the City Civil Judge at Kutch in City Civil

Suit no. 24/2014, the present appellants beg to

prefer this Appeal before this Hon’ble High

Court.

2. That the impugned judgment and decree were

passed on 24.04.2017 and the application for

certified copy was made on 28.04.2017, and

the same is delivered on the same day i.e.

28.04.2017. The present appeal is filed within

the period of limitation.

decree passed by the Trial Court are produced

herewith and marked as ANNEXURE – A.

4. The appellants state and submit that

appellants are challenging the impugned

judgment and decree, Ann. A, partly to the

extent that Hon’ble Trial Court had not granted

prayers no. 13(3) to 13(6) of the Suit filed by

the appellants-original plaintiffs regarding

granting of permanent injunction and to

remove encroachment made by the present

respondent and cost of the suit more

particularly after holding that the present

appellants are the owners and possessors of

the suit premises.

5. That the main grounds inter alia of this appeal

are as under :-

GROUNDS
(1) That the Hon’ble Trial Court has erred in not

considering the well settled principles of law.

(2) That the Hon’ble Trial Court has erred in not

properly appreciated the evidence on record

produced by the present appellants.

(3) That the Hon’ble Trial Court has erred in

observing that the appellants had failed to

established that without permission of the

appellants, the respondent had constructed the

drainage line in suit premises.

(4) That Hon’ble Court rightly concluded that as

per the survey register plot no. 48/1 and 48/2

are shown in the name of the present

appellants but materially erred in observing

that present appellants had failed to prove that

in which portion of suit premises, the

respondent had encroached by construction of

drainage line.
(5) That the Hon’ble Trial Court has erred in not

appreciating the fact that since respondent had

failed to cross-examine the plaintiffs and her

right of cross examination was closed, the

averments and contentions raised in the

plaintiff’s suit and documentary evidences

produced by them have gone uncontroverted

and unchallenged and therefore committed

error in not believing the fact that present

respondent had encroached the suit property

and had constructed the drainage line.

(6) That the Hon’ble Trial Court has erred in not

considering the fact that except the plot which

is allotted to the present respondent

admeasuring 100 sq.yards, the present

respondent had encroached the suit premises

by constructing the drainage line which is

adjacent to this 100 sq. yards plot belonging to

the present appellants.

considering the fact that present appellants

had not produced on record the Panchnama

prepared by the District Panchayat relating to

the suit premises.

(8) That the Hon’ble Trial Court has erred in

believing that the present appellants had not

produced any evidence to establish that in

which portion of suit premises i.e. 82 sq. mtrs.,

the respondent had constructed the drainage

as stated by her in her evidence.

(9) That the Hon’ble Trial Court has grossly erred

in not considering the fact that in cross

examination of the present respondent, she

admitted that she is not the owner of the land

on which she used to keep her buffalos and

had constructed the drainage line.

believing the fact that present respondent had

kept her buffalos and had constructed the

drainage line on the suit premises belonging to

the present plaintiffs.

(11) That the Hon’ble Court had rightly come to the

conclusion that the suit premises is having

ownership of and possession of the present

appellants but committed serious error in not

believing the fact that present appellants failed

to established that the present respondent had

constructed drainage in it.

(12) That the Hon’ble Trial Court has erred in not

appreciating the fact that once the Hon’ble

Court had come to the conclusion that the

present appellants are the owners and

possessors of the suit premises, they have

absolute rights attached to the suit premises in

by any party including present respondent be

permitted on it.

(13) That the Hon’ble Trial Court has erred in not

granting the prayer for permanent injunction

restraining the present respondent from

encroaching the suit premises more

particularly after coming to the conclusion that

the present appellants are the owners and

possessors of the suit premises.

(14) That the Hon’ble Trial Court has erred in not

granting the prayers prayed in para13(3) to

13(6) of the Suit filed by the appellants-

appellants.

(15) That the Judgment and Decree passed by the

learned Civil Judge to the extent as challenged

in this appeal are even otherwise illegal, unjust,

aside.

6. In view of aforesaid facts and circumstances

and the grounds mentioned in this appeal as

well as those may be taken at the time of

hearing of present appeal, this Hon’ble Court

may be pleased to partly quash and set aside

the judgment and decree dated 24.04.2017

passed by the City Civil Judge at Kutch in City

Civil Suit no. 24/2014 to the extent of rejection

of prayers prayed vide para nos. 13(3) to 13(6)

of the Suit filed by the appellants-appellants by

allowing this appeal.

Place : Ahmedabad Mehul Vakharia