IMPORTANT POINT
The burden to prove the plaintiff's right to carry out business was on the plaintiff, and the court found that he failed to do so. The court also discussed the parameters of an appeal under Section 100 of the Code of Civil Procedure (C.P.C.) and found no substantial questions of law for consideration.

ORDER :

1. By way of the present appeal, the appellant has prayed to quash and set aside the impugned judgment and decree passed by learned 2nd Additional District Judge, Bhavnagar in Regular Civil Appeal No.87 of 2007 dated 03.11.2021 and further prayed to quash and set aside the judgment and decree passed by the learned 4th Additional Senior Civil Judge, Bhavnagar in Regular Civil Suit No.421 of 1990 dated 29.09.2007.

2. Brief facts of the case are as under:

2.1 The plaintiff is owner, occupier and possessor of cabin situated at Bhavnagar- Rajkot Road, 25 Ft. away from Corner road of RTO Office, Bhavnagar which are having wheels and sheets. That the plaintiff is carrying out his business of selling pan, bidi etc, since last 8 to 10 years in the said lari and thereby maintaining his family. That due to the business of the plaintiff, the same is not obstructer either to traffic or any other. That the plaintiff had carried out proceedings for regularizing the said cabin - which is in progress and also applied for electric connection and Bhavnagar Mahanagarpalika had issued certificate to that effect dated 17.05.1987.

2.2 The proceedings came to be initiated for removal of the cabins, however his cabin was not removed since it was legal. That the plaintiff has right to carry out business under Articles 14, 16, 19, 21 and 22 of the Constitution of India and the defendant cannot obstruct in it. Not only that, even if the cabin, lari etc. are in illegal possession then also, it cannot be removed without prior notice/affording opportunity of being heard. Inspite of that, the defendant is trying to dispossess the plaintiff by removing his cabin from the disputed place and intend to give to other. Therefore, the suit has been filed to restrain the defendant, not to dispossess the plaintiff from doing business in the disputed premises in his four wheel cabin.

3. The appellant has framed the suggested substantial questions of law in the memo of the appeal, which are as under:

“1. Whether the Ld. Trial Court could have effectively decided the question of title in a suit for permanent injunction.

2. Whether the Ld. Trial Court could have come to a conclusion/finding contrary to the cross-examination of a witness.

3. Whether the Ld. Trial Court is justified in ignoring the relevant evidence produced by the Appellant/Plaintiff.

4. Whether the Ld. Appellate Court was justified in holding that there was no cause of action to file the suit at the appellate stage when no such finding/issue was framed by the Ld. Trial Court.

5. Whether the Ld. Appellate Court was justified in holding that there was no cause of action merely on apprehension ?

6. Whether the Ld. Trial Court can determine the question relating to cabin without having determined the question of title of the suit property which was not in question in the said suit.”

4. Learned advocate Mr. Siddhant K. Gujarathi appearing for Nanavati Associates for the appellant submitted that learned Appellate Court has failed to appreciate the fact that the appellant is carrying out his business for 8 to 10 years from Cabin (Lari) on the disputed land, despite several documentary evidence placed before the Court and the appellant has successfully proved that he is in the business of selling pan, bidis etc. He has further submitted that both the Courts below have failed to consider the relevant evidence on record including the report of the Court Commissioner and it is pertinent to note that there is no evidence with regard to obstruction of traffic. He has further submitted that both the Courts have erred in holding that the respondent No.1 has the right to demolish the cabin of the appellant and that the impugned judgment and order passed by the learned Appellate Court is erroneous, arbitrary, unjust and improper and it is against the facts and evidence on record. He has referred to the judgment of the Hon’ble Apex Court rendered in the case of Mohd. Yunus vs. Gurubux Singh reported in 1995 Supp (1) SCC 418 a