IMPORTANT POINT
The appellate Court's evaluation of evidence and finding no error in the trial Court's decision led to the dismissal of the appeal.

JUDGMENT :

1. The present appeal arises from the impugned judgment and decree dated 04.08.2023 passed by the learned 8th Additional District Judge, Kachchh – Bhuj Regular Civil Appeal No. 6 of 2022, whereby the learned appellate Court below has allowed the appeal by quashing and setting aside the judgment and decree dated 31.12.2021 passed by the learned Principal Civil Judge, Naliya in Regular Civil Suit No. 4 of 2012, allowing the suit in favour of the plaintiff.

2. Heard learned advocate for the appellant.

3.1 Learned advocate Mr. Maulik M. Soni for the appellant has submitted that the learned appellate Court below has not properly interpreted the documents produced by the appellant. He has submitted that the reasoning given by the learned appellate Court below is completely irrelevant, illogical and against the evidence as well as provisions of law. He has submitted that just key is with the respondent after the death of father which is not given by the appellant and therefore, entire case of the appellant is not believable by the learned appellate Court below. He has further submitted that the learned appellate Court below has failed in properly re-appreciating the entire evidence and important aspects that the appellant is the owner of the property in question and against his wish or consent, the defendant is in possession of the property.

3.2 He has also submitted that the learned appellate Court has failed to consider the important aspect that the necessity of formulation of points for determination by the learned appellate Court below cannot be considered lightly and brushed aside as benefit of technical plea cannot be granted. In fact, formulation of points for determination has to be such that it should cover all important issues in dispute. Therefore, such formulation of points for determination cannot be vague. He has submitted that this appeal may be admitted.

4.1 I have heard learned advocate for the appellant. I have considered the documents annexed with this appeal. I have perused the impugned judgment and decree passed by the learned Courts below.

4.2 From record, the following undisputed facts are emerged :

This is a dispute between two real brothers.

The dispute is regarding Shop, being Panchayat Shop No.3/2/90 situated at Village : Naliya, District : Kachchh.

The said shop was purchased by the elder brother viz., Thakkar Prakashbhai Kuvarji Vadera on 22.01.1992.

He was residing at Mumbai.

He has given the shop in question on rent to his younger brother viz., Thakkar Kishor Kuvarji Vadera, in presence of his father, on rent of Rs.300/- per month, which was directly transferred to Dena Bank Account, Naliya of the elder brother by the younger brother or some time paid in cash.

Thus, the possession of the shop in question is with the younger brother since the year 1993.

4.3.1 As averred, in the year 2012, when the elder brother visited village : Naliya, he found that his younger brother was in illegal possession of the shop in question and therefore, he has filed a suit being Regular Civil Suit No.4 of 2012 against the younger brother before the learned trial Court for eviction and possession.

4.3.2 The suit was decree in favour of the plaintiff – elder brother. Against which, the defendant – younger brother has filed the appeal before the learned appellate Court below, which is allowed by quashing and setting aside the judgment and decree of the learned trial Court.

4.3.3 It is this second appeal which is considered by this Court in view of above undisputed facts as well as contradictory findings by the learned Courts below.

5.1 The dispute before the learned trial Court was with regard to the eviction and possession. The plaintiff has mainly raised contention that the defendant has broken the lock of the suit property and has occupied the same and when the plaintiff requested him to vacate the same, the defendant has refused. The learned trail Court has framed the following issues (Exh.34 – para : 5 of the judgment) for its