IMPORTANT POINT
The central legal point established in the judgment is the interpretation and application of the provisions of the Gujarat Public Premises Act, the Gujarat Municipalities Act, and the jurisdiction of the civil court in property disputes.

ORDER :

1. This Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (‘CPC’ for short) being aggrieved and dissatisfied with the judgment and order dated 29.9.2019 passed by the learned 3rd (adhoc) Additional District Judge, Patan in Regular Civil Appeal No.52 of 2007 as well as the judgment, order and decree dated 29.9.2007 passed by the learned 3rd Additional Civil Judge, Patan in Regular Civil Suit No.125 of 1997 raising the following substantial questions of law:

“(1) Whether the both the lower courts have committed substantial error of law in holding that the suit of the plaintiffs was not barred as per the provisions of Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972?

2. Whether the both the lower courts have committed substantial error of law in holding that the suit of the plaintiffs was not barred as per the provisions of Gujarat Municipalities Act, 1963?

3. Whether the both the lower courts have committed substantial error of law in deciding the suit in absence of necessary and proper parties?

4. Whether the judgment and decree of the passed by the learned trial Court is rendered bad in law on account of non-compliance of requirement of Order 14 Rule 2 of Code of Civil Procedure, 1908?

5. Whether the judgment and decree of the first appellate court is rendered bad in law on account of non-compliance of the requirements of Order 41 Rule 31 of Code of Civil Procedure, 1908?

6. Whether both the courts below have committed substantial error of law in misreading and misinterpreting the documentary as well as oral evidence on record while passing the impugned orders?”

2. The appellants are the original defendants in the suit and the opponent is the original plaintiff in the suit. The parties are addressed by their original status for the sake of convenience.

3. The facts leading to filing of this second appeal are such that the plaintiff filed the suit before the learned trial court stating that the plaintiff is the owner and in possession of the immovable property bearing survey no.62 of tika no.12/4 having doors facing north and south and having a public road on the north, south and west, which is purchased by him from one Dhudiben Amthabhai vide registered sale deed dated 20.4.1985 and since then he has been using the public road to approach to his immovable property; that he used to place his vegetable lorry in front of such a public road situated on the north of his immovable property and so far as such a road situated on the west of his said property, the same is 15 ft, road and meant to approach his mohalla; that the defendant nos. 1 and 2 are the owners of the immovable property bearing survey no.61 of tika no.12/4 and their such property is situated at some distance from plaintiff’s said property; that despite this, the defendant nos.1 and 2 encroached upon the said 15 ft. public road illegally on the said west public road and made construction without the permission and licence of the defendant no.3-municipality; and therefore the plaintiff filed the suit with the prayers which are reproduced hereunder:

“(a) The declaration declaring that a road situated on the north and west of immovable property having S.no.62 of Tika no.12/4 situated near Chhindiya Darvaja, Patan is a public road.

(b) Prohibitory injunction restraining the first and second defendants from carrying out any construction on such a public road more particularly a road situated on the west of said immovable property.

(c) Mandatory injunction directing the first and second defendants to remove encroachment they had made in the form of construction on such a public road more particularly on a public road situated on the west of the said immovable property.

(d) Mandatory injunction directing the third defendant- Municipality to demolish such encroachment situated on such a public road in the event the said first and second defendant fails to remove the same.”

4. The learned trial Court, after framing the issues, con