Case Note & Summary
The case involves a first appeal under Section 96 of the Code of Civil Procedure, 1908, filed by the defendant (appellant) challenging the judgment and decree dated 19.12.2003 passed by the City Civil Court, Ahmedabad in Civil Suit No. 5146 of 1995. The suit was filed by the plaintiff (respondent) seeking removal of unauthorized construction and a perpetual injunction. The property in dispute was part of Survey No.10B in T.P. Scheme No.6, Mouje Asarva, Ahmedabad, originally owned by Chimanlal Dahyabhai Shah H.U.F., consisting of 16 blocks with 16 units each and common amenities. In 1976, some units were sold via registered sale deed, and on 16.01.1976, a partition took place between the plaintiff and defendant, dividing the remaining property. The plaintiff alleged that the defendant constructed a structure (Mark-B) encroaching upon the plaintiff's portion, as confirmed by a Court Commissioner's report (Exhibit-90). The trial court decreed the suit, directing removal of the construction within one month and granting a perpetual injunction. The defendant appealed, arguing that the partition deed was not binding and the Commissioner's report was flawed. The High Court, after reviewing the evidence, found that the partition deed was valid and the Commissioner's report clearly showed encroachment. The court held that the trial court's findings were based on proper appreciation of evidence and no interference was warranted. The appeal was dismissed, and the decree was upheld.
Headnote
A) Civil Procedure - First Appeal under Section 96 CPC - Challenge to Decree - The appeal challenged the judgment and decree dated 19.12.2003 in Civil Suit No. 5146 of 1995, whereby the City Civil Court, Ahmedabad decreed the suit directing removal of disputed construction and granting perpetual injunction. The High Court upheld the decree, finding no error in the trial court's appreciation of evidence, including the Commissioner's report and partition deed. (Paras 1-14) B) Property Law - Partition Deed - Evidentiary Value - The partition deed dated 16.01.1976 between the plaintiff and defendant was held to be a valid document demarcating the suit property. The court relied on the Commissioner's report (Exhibit-90) which showed the disputed construction (Mark-B) encroached upon the plaintiff's portion. (Paras 2-10) C) Injunction - Perpetual Injunction - Removal of Construction - The trial court's grant of perpetual injunction restraining further construction and directing removal of the disputed structure was affirmed. The High Court held that the plaintiff's right to property was established and the defendant failed to prove any title or right to the disputed area. (Paras 11-14)
Issue of Consideration
Whether the trial court erred in decreeing the suit for removal of construction and granting perpetual injunction based on the Commissioner's report and partition deed.
Final Decision
The High Court dismissed the appeal and upheld the judgment and decree dated 19.12.2003 passed by the City Civil Court, Ahmedabad in Civil Suit No. 5146 of 1995.
Law Points
- Section 96 CPC
- Order 26 Rule 9 CPC
- Section 54 Transfer of Property Act
- 1882
- Section 44 Evidence Act
- 1872
