IMPORTANT POINT
Second Appeal is competent only if it involves, at the stage of admission, substantial question of law.

ORDER (ORAL)

Present Second Appeal has been preferred by the appellants – original defendants against the concurrent findings of the learned courts below arising out of the suit for getting vacant possession of the suit property from the defendants and mesne profit. The present Second Appeal has been preferred by the appellant against the judgement and decree passed by the learned 5th Additional District & Sessions Judge, Bhuj in Regular Civil Appeal No.10 of 2018 dated 11/7/2022, by which the learned first appellate court dismissed the appeal and confirmed the judgement and decree passed by the learned 2nd Additional Senior Civil Judge, Bhuj in Regular Civil Suit No.286 of 2002 dated 28/12/2017, by which the learned trial court decreed the suit in favour of the respondent plaintiff.

2. Factual matrix of the case is as under:—

2.1. Non-agricultural land at Revenue Survey No. 829 in the Camp area of Central Bhuj in Jesthanagar bearing Plot No.27 admeasuring 246.9 sq.mtrs. in Ward No.30 Sheet No.204 is registered at entry no. 3636 in the City Survey office. A division of the said plot bearing no. 27/B paiki admeasuring 131.6 consists of three houses out of which House No.3 consists of two rooms, one kitchen and one veranda. The veranda consists of one latrine, bathroom and stair case towards roof. The said house was of ownership of the Appellant No.1.

2.2. As per the case of the respondent plaintiff, he was in contact with Appellant No.2, who happens to be brother of the Appellant No.1. The Appellant No.2 informed the Respondent that his sister is owning the aforesaid house and wants to sell the same, therefore, the Respondent showed his willingness to purchase the same and purchased the same vide registered sale deed dated 21.10.1997 by paying considering of Rs.55,000/-.

2.3. As per the case of the respondent plaintiff in the sale deed that the possession of the property has been handed over to the Respondent, however, the actual possession remained with the Appellants. It is alleged that when the Respondent asked the Appellants to handover the possession, the Appellants made an excuse that some of the belongings are in house and they would be handing over the possession within 10 days. However, even after passage 10 days the Appellants did not handover the possession to the Respondent and requested for one month’s time.

2.4. As per the case of the respondent plaintiff despite repeated reminders the Appellants chose not to vacate the property, therefore, the Respondent vide registered notice dated 28.07.1998 called upon the Appellant No.1 to handover the possession of the property, however, the Appellant No.1 through its Advocate vide reply dated 19.08.1998 informed Respondent that she would handover the possession by 15.11.1998. However, the even after that the Appellant No.1 did not handover the possession. Therefore, the Respondent alongwith one Jayeshbhai went to the said house on 30.12.1998 to request the Appellant No.1 to handover the possession. At the said time the Appellant No.2 was present at the house and he threatened the Respondent that he will not get the possession and if he will ever try to take possession, the Appellant No.2 would finish him.

2.5. Therefore the respondent preferred Regular Civil Suit No. 286 of 2002 before the Learned Civil Court, Bhuj- Kachcch seeking relief possession of the suit property and seeking mesne profit of Rs.250/- per month from date of filing of suit till handing over of possession.

2.6. The learned 2nd Additional Senior Civil Judge, Bhuj vide judgement and decree dated 28/12/2017 decreed the Regular Civil Suit No.286 of 2002 in favour of the plaintiff – respondent herein.

2.7. Being aggrieved by and dissatisfied with the aforesaid judgement and decree passed by the learned trial court, the appellants – defendants preferred Regular Civil Appeal No.10 of 2018, which came to be dismissed by the learned 5th Additional District & Sessions Judge, Bhuj vide judgement and decree dated 11/7