ORDER : 1. This Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (‘CPC’ for short) being aggrieved and dissatisfied with the judgment and order dated 29.9.2019 passed by the learned 3rd (adhoc) Additional District Judge, Patan in Regular Civil Appeal No.52 of 2007 as well as the judgment, order and decree dated 29.9.2007 passed by the learned 3rd Additional Civil Judge, Patan in Regular Civil Suit No.125 of 1997 raising the following substantial questions of law: “(1) Whether the both the lower courts have committed substantial error of law in holding that the suit of the plaintiffs was not barred as per the provisions of Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972? 2. Whether the both the lower courts have committed substantial error of law in holding that the suit of the plaintiffs was not barred as per the provisions of Gujarat Municipalities Act, 1963? 3. Whether the both the lower courts have committed substantial error of law in deciding the suit in absence of necessary and proper parties? 4. Whether the judgment and decree of the passed by the learned trial Court is rendered bad in law on account of non-compliance of requirement of Order 14 Rule 2 of Code of Civil Procedure, 1908? 5. Whether the judgment and decree of the first appellate court is rendered bad in law on account of non-compliance of the requirements of Order 41 Rule 31 of Code of Civil Procedure, 1908? 6. Whether both the courts below have committed substantial error of law in misreading and misinterpreting the documentary as well as oral evidence on record while passing the impugned orders?” 2. The appellants are the original defendants in the suit and the opponent is the original plaintiff in the suit. The parties are addressed by their original status for the sake of convenience. 3. The appellants are the original defendants in the suit and the opponent is the original plaintiff in the suit. The parties are addressed by their original status for the sake of convenience. 3. The facts leading to filing of this second appeal are such that the plaintiff filed the suit before the learned trial court stating that the plaintiff is the owner and in possession of the immovable property bearing survey no.62 of tika no.12/4 having doors facing north and south and having a public road on the north, south and west, which is purchased by him from one Dhudiben Amthabhai vide registered sale deed dated 20.4.1985 and since then he has been using the public road to approach to his immovable property; that he used to place his vegetable lorry in front of such a public road situated on the north of his immovable property and so far as such a road situated on the west of his said property, the same is 15 ft, road and meant to approach his mohalla; that the defendant nos. 1 and 2 are the owners of the immovable property bearing survey no.61 of tika no.12/4 and their such property is situated at some distance from plaintiff’s said property; that despite this, the defendant nos.1 and 2 encroached upon the said 15 ft. public road illegally on the said west public road and made construction without the permission and licence of the defendant no.3-municipality; and therefore the plaintiff filed the suit with the prayers which are reproduced hereunder: “(a) The declaration declaring that a road situated on the north and west of immovable property having S.no.62 of Tika no.12/4 situated near Chhindiya Darvaja, Patan is a public road. (b) Prohibitory injunction restraining the first and second defendants from carrying out any construction on such a public road more particularly a road situated on the west of said immovable property. (c) Mandatory injunction directing the first and second defendants to remove encroachment they had made in the form of construction on such a public road more particularly on a public road situated on the west of the said immovable property. (d) Mandatory injunction directing the third defendant- Municipality to demolish such encroachment situated on such a public road in the event the said first and second defendant fails to remove the same.” 4. (d) Mandatory injunction directing the third defendant- Municipality to demolish such encroachment situated on such a public road in the event the said first and second defendant fails to remove the same.” 4. The learned trial Court, after framing the issues, considering the oral and documentary evidence led by the parties and considering the arguments advanced, passed the following order : “The suit is decreed with full costs. It is declared that the road situated on the north and west of plaintiff’s said immovable property having S.no.62 of Tika no.12/4 is a public road. Consequently, the first and the second defendants are permanently restrained from carrying out any construction on such a public road more particularly on a road situated on the west of plaintiff’s said immovable property. Further the first and the second defendants are hereby directed to demolish such encroachment they had made in the form of kachha house and on such a public road more particularly on a public road situated on the west of plaintiff’s said immovable property namely S.no.6y2 of Tika no.12/4 and the exact measurement of such illegal construction has been shown in the said map Ex.65 and within 60 days from this order. Finally if the said first and second defendants fails to remove such illegal construction within aforestated 60 days, the third defendant namely Patan Municipality will demolish such illegal construction made on such a public road. Let the decree be drawn accordingly.” 5. Being aggrieved by the said judgment and decree, the defendants approached the lower appellate court by way of filing appeal. The said appeal was heard and dismissed, against which the present second appeal is filed. 6. Heard learned advocate for the appellant. Let the decree be drawn accordingly.” 5. Being aggrieved by the said judgment and decree, the defendants approached the lower appellate court by way of filing appeal. The said appeal was heard and dismissed, against which the present second appeal is filed. 6. Heard learned advocate for the appellant. 6.1 Learned advocate Mr.Gandhi for the appellants- original defendants has submitted that the suit itself was not maintainable; that the suit was filed for removal of construction made by the present appellants on the land which is not owned by the original plaintiff and therefore such declaration by third party cannot be granted; that there is a bar against entertaining such suit under the provisions of Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972 (the Act of 1972 for short); that the state was not joined as a party though the land was owned by the state and therefore the suit suffered from non-joinder of necessary party; that without service of notice under Section 252 to the municipality, the impugned judgment directing the municipality to demolish the construction could not have been passed; that the suit is barred by the provisions of Gujarat Municipalities Act; that both the courts below have not properly appreciated the oral and documentary evidence and have erred in passing the impugned judgments. He, therefore, prayed to allow this second appeal. 7. In support of his submissions, learned advocate Mr. Gandhi has relied on the judgments in the cases of : (1) Gujarat State Road Transport Corporation V/s Vimlaben L Shah reported in 1996(1) GLH 72 (2) Gujarat Electricity Board V/s Mohanbhai Merubhai Parmar reported in 1993(0) GLHEL-HC 203913. 8. I have considered the arguments advanced by learned advocate for the appellants and also perused the material placed on record including the impugned judgments. 9. At the outset, it is required to be noted that this second appeal is filed in the year 2019 and is pending till now, i.e. for a period of around five years, even without issuance of any notice. No stay or interim relief is also granted against the impugned orders. 10. It transpires that the defendants who are the appellants herein have filed the written statement to the suit, but they did not lead any oral and documentary evidence before the learned trial court. No stay or interim relief is also granted against the impugned orders. 10. It transpires that the defendants who are the appellants herein have filed the written statement to the suit, but they did not lead any oral and documentary evidence before the learned trial court. The learned trial Court framed the issues which are (translated into English) as under: “(1) Whether the suit is barred by notice under Gujarat Municipalities Act? (2) Whether the plaintiff proves that he has purchased the property bearing survey no. tika no.12/4? (3) Whether the plaintiff proves that the doors were already put on the north and south site of the property which is purchased by him? (4) Whether the plaintiff proves that there is a public road in the three sides i.e. north-south and west of his property and it was used by his predecessor owner also? (5) Whether the plaintiff proves that the defendant nos.1 and 2 have encroached upon the government land? (5-a) Whether the defendant nos.1 and 2 prove that the plaintiff does not have any right to file the suit for removing the encroachment? (5-b) Whether the defendant nos.1 and 2 prove that the suit is liable to be dismissed for not joining the government and the other heirs of defendant nos.1 and 2 though they are necessary parties? (5-c) Whether the defendants prove that the civil court does not have jurisdiction to try this suit? (6) Whether the plaintiff is entitled for the relief as prayed for in paragraph 8(1)? (7) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for in paragraph 8(2)? (8) Whether the plaintiff is entitled for the relief as prayed for in paragraph 8(3)? (9) What order and decree?” The learned trial court gave the findings as under: “(1) In the Negative. (2) In the Affirmative. (3) In the Affirmative. (4) In the Affirmative. (5) In the Affirmative. (5-A) In the Negative. (5-B) In the Negative. (5-C) In the Negative. (6) In the Affirmative. (7) In the Affirmative. (8) In the Affirmative. (9) As per final order.” 11. The learned trial Court has considered the evidence on affidavit filed by the plaintiff at Exh.40, the evidence on affidavit of the defendant no.3-Municipality at Exh.62 and also the documentary evidence brought on record by the plaintiff and the defendant no.3. 12. (6) In the Affirmative. (7) In the Affirmative. (8) In the Affirmative. (9) As per final order.” 11. The learned trial Court has considered the evidence on affidavit filed by the plaintiff at Exh.40, the evidence on affidavit of the defendant no.3-Municipality at Exh.62 and also the documentary evidence brought on record by the plaintiff and the defendant no.3. 12. The learned trial court has considered the provisions of Section 4(1), 2(F) and Section 16 of the Act of 1972, Section 9 of the CPC, the judgment in the case of Illuri Subbayya Chetty and Sons V/s State of Andhra Pradesh reported in AIR 1964 SC 322 , Section 81 of the Gujarat Municipalities Act, the judgment in the case of Anzar Municipality V/s Ruparel Dharmsingh Narajni reported in (1978) 19 GLR 58, and held that the civil court has jurisdiction to try this suit. 13. Further, the learned trial court has held that the suit cannot be held as incompetent in absence of a statutory notice because the municipality has been given by law a right to demolish such illegal construction made on a public road, but the facts of this case show that the letters issued by Keshabhai Gamabhai to the Collector and the Collector to the defendant no.3-Municipality suggests that the Municipality has failed to demolish such disputed construction on the public road considering the judgment in the case of Savarkundla Nagarpalika V/s Maninagar Nivas Nirmal Sahkari Mandli Ltd. Reported in 1981 GLR 886. 14. Further, as regards the suit is barred by non- joinder of necessary parties, the learned trial court has observed that the suit is filed for declaration and injunction and the disputed road on which kachha house is situated is vested in the defendant no.3-Municipality; that the plaintiff has not sought any relief against the State of Gujarat and it is found that the such disputed construction was situated on public road, that there is no dispute as regards the title of the plaintiff’s and contesting defendants in respect of their respective immovable property and therefore the State of Gujarat and remaining heirs of deceased Motibhai are not necessary or proper parties in the suit. 15. The learned trial Court, therefore, decreed the suit in favour of the plaintiff. 15. The learned trial Court, therefore, decreed the suit in favour of the plaintiff. When the matter was carried in appeal by the original defendants, the learned lower appellate court reappreciated the evidence, framed the points of determination as required under Order 41 Rule 31 of CPC and dismissed the appeal confirming the decree passed by the learned trial Court. 16. There is nothing on the record to show that the appellants-original defendants have any title over the public road, it is found from the evidence that they are encroachers over the said land and therefore the suit was decreed in favour of the plaintiff with an order to demolish the construction over the said public road. 17. On going through the observations and findings given by both the courts below, which are concurrent in nature, I find that they are well reasoned judgments which do not contain any illegality, perversity or impropriety, which requires any interference by this Court in this second appeal, as there are no substantial questions of law involved in this second appeal. 18. Section 100 of CPC reads as under: “[100. Second appeal.—(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.” 19. It is fruitful to refer the judgment in the case of Gurbachan Singh (Dead) Through Lrs Gurcharan Singh (Dead) Through Lrs and Others, reported in 2023 SCC Online SC 875 paragraphs 7, 14 and 15 which are reproduced as under: “7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed v. J. Kamala (2- Judge Bench), it was observed:— “27. In [HeroVinoth v. Seshammal, (2006) 5 SCC 545 ], this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545 ] are set out hereinbelow : (SCC p. 554, para 21) “21. The phrase “substantial question of law”, as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying “question of law”, means— of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with—technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1) (a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC 172 ] the phrase “substantial question of law” as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969 ] : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ], AIR p. 1318, para 5) ‘5. … when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.’ 28. To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.” (Emphasis supplied) 14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgment entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgment entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are:— “(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” 15. A Bench of three learned Judges, recently in Balasubramanian v. M. Arockiasamy (Dead) Through LRs. , had referred to, with approval judgment rendered in Ramathal v. Maruthathal (two-Judge Bench) wherein it was observed that the restraint in interfering with questions of fact under the jurisdiction of second appeal, is not an absolute rule. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence “suffers from material irregularity” the court will be justified in interfering with such findings.” 20. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence “suffers from material irregularity” the court will be justified in interfering with such findings.” 20. It is also fruitful to refer to the judgment of the Hon’ble Apex Court in the case of Nazir Mohamed vs J. Kamala reported in AIR 2020 SC 4321 , wherein, it is observed in paragraphs 56, 57 and 59 as under: “56.As held by the Privy Council in Peri v. Chrishold reported in (1907) AC 73, it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner...and if the rightful owner does not come forward and assert his right of possession by law, within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever distinguished, and the possessory owner acquires an absolute title. 57.The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law. 59.When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of Section 100 of the CPC.” 21. Further, the decree is passed by the learned trial court on 29.9.2007, the lower appellate court passed the impugned judgment on 29.9.2019 and this second appeal is filed in the year 2019, which is pending even without issuance of notice or stay, which means that the learned trial court’s decree is in existence as on today and the same may have been given effect with the efflux of time. Therefore, also I do not find it proper to entertain this second appeal at this stage after a period of lapse of five years from the date of dismissal of the appeal. Even on merits, as observed hereinabove, both the courts below have given a well reasoned judgment after considering the evidence and material on record and therefore also, this second appeal is required to be dismissed as no substantial question of law is involved. 22. In view of the above, this second appeal is dismissed. In view of the dismissal of the second appeal, civil application for stay does not survive and is accordingly dismissed.