Legal Heirs Of Decd Heeraben Dwarkabhai … vs Ujambhai Revanath Hanath on 10 July, 2026

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    Gujarat High Court

    Legal Heirs Of Decd Heeraben Dwarkabhai … vs Ujambhai Revanath Hanath on 10 July, 2026

                                                                                                                    NEUTRAL CITATION
    
    
    
    
                                 C/SA/386/2026                                    JUDGMENT DATED: 10/07/2026
    
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                                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    
                                          R/SECOND APPEAL NO. 386 of 2026
                                                        With
                                     CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
                                         In R/SECOND APPEAL NO. 386 of 2026
    
                           FOR APPROVAL AND SIGNATURE:
    
                           HONOURABLE MR. JUSTICE MAULIK J. SHELAT
                           =============================================
                                       Approved for Reporting                     Yes           No
                                                                                                 √
                           =============================================
                             LEGAL HEIRS OF DECD HEERABEN DWARKABHAI BHUTKA &
                                                    ANR.
                                                    Versus
                                      UJAMBHAI REVANATH HANATH & ORS.
                           =============================================
                           Appearance:
                           MR JAMSHED KAVINA(11236) for the Appellant(s) No. 1,1.1
                           MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,1.1
                           =============================================
    
                            CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
    
                                                              Date : 10/07/2026
                                                                JUDGMENT
    

    1. The present Second Appeal is filed under Section 100 of
    the Code of Civil Procedure, 1908 (hereinafter referred to as
    CPC“) against the judgment and decree dated 10/06/2026
    passed by the 3rd Additional District Judge, Banaskantha at
    Palanpur in Regular Civil Appeal No.74 of 2025, whereby it
    has confirmed the judgment and decree dated 04/11/2025
    passed by the 3rd Additional Senior Civil Judge, Palanpur in
    Regular Civil Suit No. 35 of 2008.

    2. The appellant herein is the legal heir of the original
    Defendant No.1, being Defendant No.1.2. Respondent No.1 is

    SPONSORED

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    the original plaintiff, whereas the rest of the respondents are
    the other original defendants. For the sake of convenience,
    herein after, the parties will be referred to as per their
    original status in the suit.

    SHORT FACTS OF THE CASE :

    3. The short facts of the case appear to be that the plaintiff
    has purchased non-agricultural plot Nos.8 to 12 at Village
    Madana (Gadh), Taluka Palanpur, District Banaskantha, which
    are situated at Revenue Survey No.349-351. The plaintiff
    appears to have purchased the said plot by way of a
    registered sale deed on 15/06/1990. Whereas Respondent-
    Original Defendant No.1 purchased plot Nos.4 to 7 by way of
    a registered sale deed on 28/5/1990 located immediately
    south of the plaintiff’s plot No.8.

    3.1 It is the case of the plaintiff in the suit that there is an
    approved layout plan sanctioned by the Taluka Development
    Officer (TDO), Palanpur, while converting the land in question
    from agricultural to non-agriculture vide its order dated
    24/05/1990. It has clearly reserved a 10-foot-wide lane on the
    east and a 20-foot-wide public road on the West to provide
    ingress and egress to all land owners and for the smooth
    movement of vehicles. The plaintiff has come out with a case
    that the defendants have illegally encroached upon
    approximately 10 out of the 20-foot-wide road on the western
    side running North to South by constructing a permanent
    compound wall, a latrine, a bathroom and a soak pit on the

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    northern corner, thereby narrowing down the public access
    road.

    3.2 Since the defendants have put up a permanent
    construction on such a public road and it has obstructed the
    plaintiff’s way to transport his agricultural equipment, etc., he
    approached the Civil Court by way of Regular Civil Suit No.35
    of 2008 in question. The plaintiff has prayed that the
    defendants may be directed to remove the illegal
    encroachment over the 20-foot-wide road and also sought for
    a perpetual injunction that, in future, the defendants shall not
    put up any construction over it.

    3.3 The defendants appeared and opposed the suit by filing
    the written statement, contending, inter alia, that the suit is
    barred by limitation and without any basis, a false allegation
    of illegal encroachment is made against them. The locus of the
    plaintiff was also challenged to maintain the suit. According to
    the defendants, they have not put up any illegal construction
    as alleged.

    3.4 Upon appreciation of the pleadings of the parties, the
    Trial Court has framed in all 12 issues and after appreciating
    the oral and documentary evidence made available on record,
    decreed the suit in favor of the plaintiff, whereby it directed
    the defendants to remove the encroachment done on the 10
    foot area in the 20 foot wide suit way situated at the western
    side of plot Nos.4 to 7 of the defendants’ ownership, as
    mentioned in the map prepared by the Talati-cum-Mantri

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    which is produced on record at Exhibit 63. It has also issued a
    permanent injunction against the defendants not to carry out
    any encroachment as well as not to create any hurdle or
    hindrance to the movement of the plaintiff on the 20-foot-wide
    suit way as referred to above.

    3.5 Feeling aggrieved and dissatisfied with the aforesaid
    judgment and decree, out of all, only Defendant Nos.1.1 and
    1.2 preferred Regular Civil Appeal No.74 of 2025 before the
    Appellate Court. After hearing the parties at length and upon
    re-appreciation of evidence on record, the Appellate Court
    vide its impugned judgment and decree dated 10/06/2026
    dismissed the said appeal, whereby it has confirmed the
    judgment and decree passed by the Trial Court.

    3.6 Now, this Second Appeal is filed at the instance of only
    one defendant, being Defendant No. 1.2, questioning the
    concurrent findings of fact recorded by the courts below
    against him.

    SUBMISSIONS OF APPELLANT/DEFENDANT NO.1.2 :

    4. Mr.Jamshed Kavina, learned advocate for the appellant,
    has made the following submissions:

    4.1 The Courts below have erroneously arrived at the finding
    that there is an encroachment done by the defendants on the
    20-foot-wide road in question. There is no legal evidence
    brought on record by the plaintiff which can prove that the

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    defendants have made any encroachment as alleged.

    4.2 The Courts below have wrongly placed reliance upon the
    map prepared by the Talati-cum-Mantri (Exhibit 63) as he was
    neither authorized in law to prepare any type of map nor he
    had given any prior intimation of his visit to the defendants.

    The oral evidence of witnesses examined by the plaintiff, more
    particularly the oral evidence of two revenue officers
    examined as PW-2 and PW-3 at Exhibits 49 and 78,
    respectively, were completely misconstrued by the Courts
    below and they arrived at a perverse finding that PW-3 was
    authorized in law to inspect the site and also authorized to
    prepare his report/map. Even neither PW-2 nor PW-3 had
    stated in their evidence that there is an encroachment over
    the 20-foot-wide road land in question.

    4.3 PW-3 in his cross-examination has categorically admitted
    that the land in question was converted to non-agricultural by
    the TDO, who had also prepared a layout plan and he had not
    obtained any prior permission from the TDO before doing the
    measurement at the site. The witness also admitted that no
    resolution was passed by the Panchayat authorizing him to
    carry out any such measurement. The Courts below ought to
    have appreciated such evidence and ought to have discarded
    the map prepared by PW-3.

    4.4 The plaintiff has failed to bring on record any material
    evidence wherefrom it can be confirmed that there is an

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    encroachment of 10 feet on the 20-foot-wide road and that too
    by the defendants. The Courts below have placed reliance
    upon inadmissible evidence and committed a serious error in
    allowing the suit despite the fact that the plaintiff did not
    prove his case. The plaintiff is also not residing at the plot
    purchased by him and being non-agricultural land, no revenue
    officer has any authority in law to come and measure any area
    of any such plot or otherwise. The balance of convenience and
    irreparable loss are also not tilted in favor of the plaintiff and
    he has failed to prove them on record.

    4.5 The Trial Court has committed a serious error in law by
    not answering Issue Nos.5, 7 and 8 though framed, which
    ultimately resulted into a miscarriage of justice. As per Order
    XIV Rule 2 read with Order XX Rule 5 of the CPC, it was
    incumbent upon the Trial Court to pronounce its judgment on
    all issues. This inherent defect was also not corrected by the
    Appellate Court which ought to have remanded the matter
    back to the Trial Court.

    4.6 This Court can always exercise its power under Section
    100
    of the CPC when the findings of fact recorded by the
    Courts below are perverse, grossly erroneous and contrary to
    law. It is a settled position of law that due to such a perverse
    finding which goes to the root of the matter, it can be
    corrected by this Court while exercising its power under
    Section 100 of the CPC.

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    4.7 To buttress his arguments, Mr.Kavina, learned advocate
    for the appellant has placed reliance upon the following
    judgments :

    (i) Tharammel Peethambaran and Ors. Vs. T.
    Ushakrishnan and Ors. – AIR 2026 SC 938 : 2026
    INSC 134.

    (ii) Rangammal Vs. Kuppuswami and Ors – (2011)
    12 SCC 220.

    5. No other or further submissions were advanced by the
    learned advocate for the appellant.

    ANALYSIS :

    6. I have heard Mr.Kavina, learned advocate for the
    appellant at length. He took me through the oral and
    documentary evidence of the respective parties and their
    witnesses made available in the form of paper-book with this
    appeal. The Second Appeal is filed by one of the defendants
    against the concurrent findings of fact recorded by the Courts
    below against him, whereby it has been held that the
    defendant has done an encroachment of a 10 foot area in the
    20 foot wide road situated at the western side of the
    defendants’ plot Nos.4 to 7 as per the map prepared by the
    Talati-cum-Mantri, which is produced on record at Exhibit 63.
    Therefore, the defendants are directed to remove the
    encroachment and are also further directed to be permanently
    injuncted from doing any encroachment as well as creating
    any hurdle or hindrance to the movement of the plaintiff on
    that 20-foot-wide road as referred to above.

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    7. At the outset, it is required to be observed that as per
    the settled principles of law, the power of this Court to
    interfere with the findings of fact recorded by the Courts
    below is very limited. Unless it has been shown by the
    appellant that such a finding of fact recorded by the Courts
    below is either perverse or grossly erroneous or contrary to
    law, this Court should refrain itself and cannot substitute its
    own opinion over the opinion of the Courts below.

    8. At this stage, it would be apt to refer and rely upon the
    recent decision of the Hon’ble Apex Court with regard to
    scope and ambit of power of this Court while adjudicating any
    second appeal filed under Section 100 of CPC. In the case of
    Russi Fisheries (P) Ltd. v. Bhavna Seth-2026 SCC
    OnLine SC 555, it has been categorically held by the Hon’ble
    Apex Court that this Court should not interfere with finding of
    facts recorded by the Courts below unless it is so perverse or
    grossly erroneous, and / or contrary to a settled principle of
    law. The relevant observations of the said decision read thus:

    “31. It is settled in law that the findings of fact howsoever
    erroneous, cannot be reopened and disturbed in second
    appeal which is required to be adjudicated only upon the
    substantial question of law, if any, arising therein. Thus,
    the argument that the High Court in second appeal ought
    to have examined the evidence to ensure the correctness
    of the findings of the First Appellate Court has no legs to
    stand and fails.

    32. Long back in 1981, three judges of this Court in the
    case of Bholaram vs. Ameerchand had ruled that even if
    findings of facts by courts below are wrong or grossly
    inexcusable that by itself would not entitle the High Court
    to interfere under Section 100 CPC in the absence of clear
    error of law.
    A similar view was reiterated in Madhavan

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    Nair v. Bhaskar Pillai (Dead) by Lrs., wherein it has been
    laid down that even if the First Appellate Court commits an
    error in recording a finding of fact, that itself will not be a
    ground for the High Court to upset the same.

    33. In Kashibai w/o Lachiram v. Parwatibai w/o Lachiram, a
    similar proposition of law was laid down by this Court and
    it was held that the High Court cannot reappreciate the
    evidence and interfere with the findings of facts unless a
    substantial question of law or a question of law duly
    formulated is to be decided. The second appeal does not
    lie on the ground of erroneous findings of facts based on
    appreciation of the relevant evidence.

    35. Again, in Kulwant Kaur v. Gurdial Singh Mann (Dead)
    by Lrs
    , it was emphasized that the fact remains that in a
    second appeal, a finding of fact, even if erroneous, will not
    be disturbed unless it is found that it stands vitiated for
    want of perversity. No such case for interference has been
    made out in the present case.”

    (Emphasis supplied)

    9. It is also profitable to refer and rely upon the decision of
    the Hon’ble Apex Court in the case of Jaichand (Dead)
    through Lrs and Others v. Sahnulal and Another – 2024
    SCC OnLine SC 3864, whereby, the Hon’ble Apex Court held
    as under:

    “25. In Kshitisn Chandra Purkait v. Santhosh Kumar
    Purkait
    reported in (1997) 5 S.C.C. 438), this Court
    held that in the Second Appeal, the High Court should
    be satisfied that the case involves a substantial
    question of law and not mere question of law.

    27. This Court in Kondira Dagadu Kadam v. Savitribai
    Sopan Gujar
    reported in AIR 1999 S.C. 2213 held:-

    “The High Court cannot substitute its opinion for the
    opinion of the first appellate Court unless it is found
    that the conclusions drawn by the lower appellate
    Court were erroneous being contrary to the

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    mandatory provisions of law applicable or its settled
    position on the basis of pronouncements made by
    the Apex Court, or was based upon inadmissible
    evidence or arrived at without evidence.”

    28. It is thus clear that under Section 100, C.P.C., the
    High Court cannot interfere with the findings of fact
    arrived at by the first Appellate Court which is the
    final Court of facts except in such cases where such
    findings were erroneous being contrary to the
    mandatory provisions of law, or its settled position on
    the basis of the pronouncement made by the Apex
    Court or based upon inadmissible evidence or without
    evidence.”

    (Emphasis supplied)

    10. As far as the decisions which are pressed into service by
    Mr. Kavina for the appellant are concerned, there is no cavil
    that in a case where this Court finds that the findings of fact
    recorded by the Courts below are perverse or based upon
    conjectures and surmises or contrary to the settled position of
    law, this Court can surely interfere with such findings of fact
    by exercising its power under section 100 of CPC. Also, there
    cannot be a dispute on the proposition of law that the plaintiff
    has to positively establish his case by bringing material
    evidence on record and it cannot rely upon the weakness of
    the defendant.

    11. Having appreciated the submissions of Mr.Kavina,
    learned advocate and upon perusal of the impugned judgment
    and decree passed by the Courts below, it appears that not
    only the Trial Court but the Appellate Court has in detail
    discussed the evidence on record and answered the issues
    germane to the matter, albeit in favour of the plaintiff. There

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    is no dispute amongst the parties that the plaintiff has
    purchased plot Nos.8 to 12, whereas the defendants have
    purchased plot Nos.4 to 7, thereby they become neighbors.
    The essential dispute before the Trial Court was in relation to
    an encroachment of 10 feet out of the 20-foot-wide road on
    the western side of plot Nos.4 to 7 owned by the defendants.

    12. The Trial Court has referred to documentary and oral
    evidence while answering the issues, wherein it appears that
    as per the N.A. order passed and the layout plan prepared by
    the TDO, there is a 20-foot-wide road shown in such layout
    plan. To prove the encroachment on the road in question, the
    plaintiff has examined himself at Exhibit 23 as well as
    examined two other witnesses, namely, PW-2 Ashish Kantilal
    Chauhan and PW-3 Karim Mohammed Ismailbhai Memon at
    Exhibits 49 and 78, respectively. The plaintiff filed an
    application for removal of encroachment before the office of
    the District Development Officer (DDO) and Taluka
    Development Officer (TDO), respectively, on 08/03/2011
    (Exh.61.). A similar application was also submitted to the
    Gram Panchayat vide his application dated 20/04/2011
    (Exhibit 62), which was received by the PW-3 on 22/04/2011
    in his official capacity.

    13. Pursuant to such application, PW-3, the Talati-cum-
    Mantri of the local Village Panchayat, appears to have visited
    the site and prepared the map which was produced at Exhibit

    63. To prove map and the encroachment on the 20-foot-wide
    road, the plaintiff has examined PW-3, who appears to have

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    retired as on the date of his deposition. As per PW-3’s
    deposition, after preparing the map at Exhibit 63 and
    comparing it with the layout plan of the TDO, he has deposed
    that the defendants have done encroachment on the 10-foot
    area of the 20-foot-wide suit road. PW-3 was thoroughly cross-
    examined by the defendants, but nothing fruitful came out;
    rather, he has specifically denied the suggestion of the
    defendants that he was not authorized to measure the alleged
    encroachment on the road as it is a non-agricultural plot. PW-
    3 has replied to the question that, being a Revenue Talati in
    his official capacity and while discharging his duty upon
    receipt of the application of the plaintiff (Exhibit 62), he had
    measured and prepared the map produced at Exhibit 63. It
    has also come out in his cross-examination that he had orally
    informed the plaintiff and defendants about his time of visit
    and he measured the encroachment in the presence of the
    defendants. Nonetheless, he has admitted that no written
    notice or signature of the defendant was obtained on the map
    (Exhibit 63). The defendant has not produced any material on
    record to show that, upon noticing the said map produced at
    Exhibit 63 or after completion of the oral evidence of PW-3,
    the defendants made any complaint about PW-3’s
    unauthorized act to his superior, nor called any witness from
    the Revenue Department to dislodge the oral evidence of PW-

    3. In short, no rebuttal evidence led by the defendants.

    14. Having appreciated the oral evidence of the plaintiff and
    also the documentary evidence, the Trial Court has correctly
    observed that the onus was shifted upon the defendants to

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    disprove the factum of encroachment as alleged by the
    plaintiff. Undisputedly, the defendants did not discharge such
    onus shifted on them and have not led any contrary evidence;
    rather, Defendant No.2 in his cross-examination has admitted
    that he does not know that he has constructed in the
    perimeter of the west side of the defendants’ plot where
    construction is not allowed and further played ignorance that
    he does not know that they (defendants) have also constructed
    on the road which is 20 foot wide on the western side of the
    perimeter. He has also pleaded ignorance that he does not
    know that on the northern corner, a bathroom has been
    illegally built in the 20-foot-wide road on the western side of
    the defendants’ plot. He has also pleaded ignorance that he
    does not know anything about Exhibits 61 to Exhibit 63.

    15. The Courts below have arrived at a finding that,
    considering the nature of the dispute and the map prepared
    by PW-3 in his official capacity, being a designated Revenue
    Officer under the Gujarat Land Revenue Code, 1879, as per
    Section 114 of the Indian Evidence Act, 1872, the law permits
    the Court to presume that his work was done in his official
    capacity. Since no rebuttal evidence was led by the
    defendants and they did not allege any mala fides in the act of
    PW-3, I am of the considered opinion that the finding of fact
    recorded by the Courts below that there is an encroachment
    of 10 feet cannot be said to be either perverse or grossly
    erroneous as submitted by Mr. Kavina, learned advocate.

    16. The Courts below have correctly arrived at the
    conclusion that the defendants have put up a permanent

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    construction, thereby doing an encroachment on the 20-foot-
    wide road which is meant for public use and in the absence of
    any rebuttal evidence led by the defendants, no infirmity can
    be found in the impugned judgment and decree passed by the
    courts below. It is required to be observed that the issues
    framed by the Trial Court are required to be judged on the
    principle of preponderance of probabilities, unlike an issue in
    a criminal trial, which is required to be proved beyond all
    doubt.

    17. Apart from the aforesaid, as per Section 105 of the
    Gujarat Panchayats Act, 1993, it was the duty of the
    Panchayat to remove any obstruction or encroachment upon
    public streets and open sites within the limits of its village. It
    is not in dispute that the 20-foot-wide road was within the
    limits of the Panchayat and in such cases also, the act done by
    PW-3 of the local Village Panchayat cannot be said to be
    unauthorized or illegal.

    18. As far as none answering few issues are concern, the
    Trial Court did supply its reasons which read thus:

    “IV. Issue no. 4, 5, 7 and 8
    IV.1 The above mentioned issues are the issue of
    facts, wherein the burden is casted upon the
    defendant, are therefore deliberated together. With
    respect to Issue No. 4, the fact of plaintiff residing at
    Plot No. 36 and 37 is not the issue at contention and
    furthermore the issue of fact bearing Issue No. 4, 5 ,7
    and 8 wherein burden is casted upon the defendant,
    does not warrant any deliberation and determination
    in the case at hand. The said issues have been framed
    by the my predecessor judicial officer and the framing

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    of issues in civil proceedings, governed by Order XIV
    of the Code of Civil Procedure
    , 1908 (CPC), is
    intrinsically linked to the pleadings of the parties,
    ensuring that judicial adjudication remains confined to
    the lis defined therein. A cardinal principle of civil
    jurisprudence, reiterated in Section 149 of the Civil
    Procedure Code and Section 7 of the Court Fees Act,
    1870, mandates that no decree or finding can be
    rendered in favor of a claim or relief unless it is
    expressly pleaded in the plaint or counterclaim,
    accompanied by the requisite court fees. Thus, when
    a defendant raises additional facts in the written
    statement under Order VIII CPC that go beyond mere
    denial or defense–such as seeking affirmative relief
    or independent cause of action–without filing a
    counterclaim as per Order VIII Rule 6A CPC, the court
    is precluded from giving finding on those facts. To do
    otherwise would impermissibly expand the scope of
    the suit, allowing the court to pronounce upon matters
    neither raised by the plaintiff nor substantiated by the
    defendant’s payment of ad valorem court fees,
    thereby violating the foundational rule against
    granting relief on unpleaded grounds, as affirmed in
    Trojan & Co. v. RM N.N. Nagappa Chettiar (AIR 1953
    SC 235) and Kedar Lal v. Hari Lal
    (1952 SCR 179).

    VI.2 This safeguard upholds procedural fairness and
    fiscal equity, preventing the plaintiff from being
    ambushed by extraneous issues and compelling the
    defendant to assume the onus of a separate suit if
    affirmative relief is desired. Furthermore, the instant
    suit being the suit for removal of encroachment and
    not claiming easementary right, the issue of alternate
    way does not warrant any inference and also the issue
    of fact, that the plaintiff has breached the condition of
    the allotment, in absence of counter claim, also
    cannot be deliberated and determined. Consequently,
    the absence of a counterclaim renders such
    defendant-raised facts evidentiary at best for
    defensive purposes, ineligible for issue-framing or
    consequential findings, thereby preserving the
    integrity of the suit’s original contours. Therefore, the
    said issues are hereby decided accordingly.”

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    19. After going through such reasons assigned by the Trial
    Court vis-à-vis the issues framed in the suit, I am of the
    considered view that there is no illegality committed by the
    Trial Court while not answering those issues. It seems that
    before the Appellate Court, the present appellant did not harp
    upon this aspect and requested the Court to remand the
    matter back to the Trial Court.

    20. Thus, taking note of the aforesaid facts and
    circumstances of the case and even after appreciating the
    submissions made by Mr.Kavina, learned advocate for the
    appellant, I am unable to agree with any of his submissions, at
    least, I could not find any perversity in the reasoning and/or
    findings of fact recorded by the Courts below in their
    impugned judgments nor its based upon any conjecture and
    surmise.

    21. Having not found any such infirmity in the impugned
    judgment and decree, I would not like to interfere with the
    concurrent findings of fact recorded by the Courts below. The
    present Second Appeal is found to be devoid of merits;
    accordingly, it is summarily dismissed. No order as to costs.
    Consequently, the connected Civil Application also stands
    disposed of.

    (MAULIK J. SHELAT, J)
    GAURAV J THAKER

    Page 16 of 16

    Uploaded by GAURAV J THAKER(HC00951) on Mon Jul 13 2026 Downloaded on : Mon Jul 13 21:43:18 IST 2026



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