A second appeal under CPC does not warrant interference when no substantial question of law arises, affirming the necessity of establishing ownership before claiming possession.

JUDGMENT :

J. C. DOSHI, J.

A. IMPUGNED JUDGMENT AND DECREE:-

1. The present Second Appeal calls in question the legality and propriety of the judgment and decree rendered by the learned Principal District Judge, Navsari, in Regular Civil Appeal No. 52 of 2009, whereby the appellate Court reversed the judgment and decree passed by the learned Principal Senior Civil Judge, Gandevi, in Regular Civil Suit No. 95 of 2003. For the sake of brevity and convenience, the parties shall hereinafter be referred to in their original nomenclature as they stood before the learned Trial Court.

B. BRIEF FACTS OF THE CASE:-

2. Smt. Niruben Mohanbhai Lad, instituted Regular Civil Suit No. 95 of 2003 before the learned Civil Court, seeking possession and ancillary reliefs in respect of a residential property situated at village Waghrech, Kumbharwad, Taluka Gandevi, District Navsari, bearing Gram Panchayat House No. 269 (new No. 447), admeasuring approximately 1040 sq. ft., and bounded by the properties of Durlabhbhai Bhanabhai Prajapati on the east, Sukhabhai Haribhai on the west, a Gram Panchayat road on the north, and agricultural land of Zina Vishram Tandel on the south. The said property was purchased by the plaintiff under a registered sale deed dated 18.02.1999 from its original owner, late Bhagwanbhai Jerambhai Mistry, who had constructed the building in 1994–95 under the supervision of the plaintiff’s husband and had subsequently executed a General Power of Attorney in his favour on 28.09.1995. Bhagwanbhai thereafter expired in England on 20.04.2002. The plaintiff’s husband, having been in possession and paying house tax since 1998–99, had, out of goodwill, permitted the defendants—who are closely related family members—to temporarily occupy the suit premises in the year 2000 owing to their residential difficulties, on the assurance that the same would be vacated upon securing alternate accommodation. However, despite repeated demands and a legal notice issued through RPAD, the defendants failed to vacate the premises and allegedly issued threats on 20.12.2003, thereby giving rise to the cause of action for the present suit seeking recovery of vacant and peaceful possession.

2.1. The learned Civil Court, Gandevi, conducted the suit proceedings and dismissed the plaintiff’s suit. The judgment and decree rendered therein were challenged by filing Regular Civil Appeal No.52 of 2009. The learned First Appellate Court, upon a re- appreciation of the evidence and having found substance in the case of the appellant–plaintiff, allowed the appeal, set aside the judgment and decree of the learned Civil Court, and consequently decreed the civil suit in favour of the appellant–plaintiff.

2.2. The Second Appeal, at the instance of the defendant–appellant, assails the impugned judgment and decree on various grounds, raising the following substantial questions of law:-

a) Whether in the facts and circumstances of the case, the Lower Appellate Court was right in law in not framing the points for determination as mandated under Order 41 Rule 31 of CPC and merely framing a vague question of illegality and perversity as the same is contrary to the settled legal position?

b) Whether in the facts and circumstances of the case, the Lower Appellate Court committed an error of law in overlooking the binding decision of the Apex Court in H. Siddiqui (dead) by Irs. Vs. A. Ramlingam [JT 2011(3) 522] where the Apex Court has directed that being final court of fact, the Appellate Court is expected to consider the ent