1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant- original defendant no. 1 challenging the impugned judgment and decree passed by the learned Civil Judge (Junior Division), Pardi dated 22/04/1994 in Regular Civil Suit No. 91/1987 by which the learned trial Court decreed the said suit instituted by the respondents-original plaintiffs granting permanent injunction as prayed for with respect to the suit land as well as the impugned judgment and order passed by the learned appellate Court-learned Additional District Judge and Presiding Officer, Fast Track Court, Valsad dated 17/08/2009 in Regular Civil Appeal No. 65/2002 by which the learned appellate Court has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court.
2. At the outset, it is required to be noted that so far as respondent no. 1-original plaintiff no. 1 is concerned, he has died and his heirs are not brought on record and, therefore, at the instance of the appellant he has been ordered to be deleted vide order dated 07/05/2012 and, therefore, only respondent no. 2 is the only contesting party.
3. The respondents-original plaintiffs instituted Regular Civil Suit No. 91/1987 in the Court of the learned Civil Judge (Junior Division), Pardi against the appellant-original defendant no. 1 and others for permanent injunction with respect to the suit land i.e. land bearing Survey No. 215/7 and 218/7 and the said suit has been decreed by the learned trial Court, which has been confirmed by the learned appellate Court by which the learned trial Court has granted permanent injunction in favour of the respondents-original plaintiffs restraining the original defendants, there agents and servants from in any manner making any damage to the compound wall with respect to the aforesaid suit land, which is found to be in possession of the original plaintiffs and the learned Judge has also granted injunction in favour of the original plaintiffs and against the original defendants restraining the original defendants from in any manner making damage to the suit lands, who are found to be in possession.
4. As stated hereinabove, as respondent no. 1-original plaintiff no. 1 has been deleted at the instance of the appellant, the judgment and decree passed by the learned trial Court confirmed by the learned appellate Court qua original defendant no. 1-Manubhai Ranchodji Desai has attained the finality. As stated hereinabove, the suit was only for permanent injunction by the original plaintiffs claiming to be in possession of the suit lands. The original defendants have claimed that they have become the owners by oral sale and, therefore, injunction cannot be granted. It cannot be disputed that as such for a suit for permanent injunction what is primarily required to be considered is the possession and in the present case the original plaintiffs are found to be in possession. If the original defendants claim that they are the owners of the suit land, in that case, they are required to initiate the suit claiming to be the owners and/or on the basis of the title and as and when such a suit for title declaration is preferred the same is required to be considered in accordance with law and on its own merits and on the basis of the evidence led. So far as the present Second Appeal is concerned, there are concurrent finding of fact given by both the Courts below holding the original plaintiffs to be in possession of the suit land, which are on appreciation of evidence, which are not required to interfered with by this Court in exercise of powers under Section 100 of the Code of Civil Procedure.
5. Under the circumstances, the present Second Appeal, which is arising out of the judgment and decree passed by the learned trial Court granting permanent injunction confirmed by the learned appellate Court, is dismissed with an observation that it will be open for the appellant and/or original defendants to file a substantive independent suit for declaration that they are the owners of the suit land claiming the title and as and when such a suit is filed the same shall be considered in accordance with law and on its own merits and on the basis of the evidence led and the learned trial Court to decide the issue with respect to the title independently without, in any way, being influenced by any of the observations made in the impugned orders as well as the present order, which are passed in the suit for permanent injunction only.
6. With this, the present Second Appeal is dismissed. No order as to costs.
CIVIL APPLICATION No. 1872/2012 In view of dismissal of the Second Appeal, no order in the Civil Application.
(M.R.SHAH, J.)
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