1.00. Present Second Appeal under section 100 of he Code of Civil Procedure has been preferred by the appellants herein - original defendants to quash and set aside the impugned Judgement and Order passed by the learned Assistant Judge, Nadiad in Regular Civil Appeal No. 12 of 1980 dtd.6/1/1982, by which the learned appellate court has allowed the said appeal preferred by the respondents herein – original plaintiffs and has decreed the suit by quashing and setting aside the judgement and decree passed by the learned trial court in dismissing the suit. 2.00. That the original plaintiff – Sharifkhan Dosukhan Pathan instituted Regular Civil Suit No. 12 of 1977 against the defendants for permanent injunction against the defendants restraining the defendants from interfering with the occupation and possession of the suit land – Gabhan of the plaintiffs. It was the case on behalf of the plaintiff that he is the owner of the disputed Gaman which he has purchased by registered sale deed dtd.15/9/1976 and is in possession of the suit land as an owner and therefore, the defendants have no right, title and interest in the suit Gabhan and still they are trying to have forcible possession of he same. Therefore, the suit was instituted for permanent injunction only.
2.01. That on appreciation of evidence, the learned trial court found that the plaintiff is not in possession of the disputed suit land – Gabhanand therefore is not entitled to permanent injunction as prayed for. That Being aggrieved by and dissatisfied with the judgement and decree passed by the learned Civil Judge, Borsad in Regular Civil Suit No.12 of 1977 dtd.29/11/1979, the original plaintiff preferred appeal before the District Court, Kheda and the learned Assistant Judge, Nadiad vide judgement and order dtd.6/1/1982 has allowed the Regular Civil Appeal No. 12 of 1980 and has quashed and set aside the judgement and decree passed by the learned trial court dismissing the suit on the ground that the plaintiff has become owner by adverse possession. Being aggrieved by and dissatisfied with the Judgement and Order passed by the learned appellate court, appellants – original defendants have preferred the present Second Appeal under section 100 of the Code of Civil Procedure .
3.00. Mr.R.A. Patel, learned advocate appearing on behalf of the appellants – original defendants has vehemently submitted that the appellate court has materially erred in allowing the appeal by quashing and setting aside the judgement and decree passed by the learned trial court dismissing the suit and consequently decreeing the suit. It is submitted that as such the suit filed by the plaintiff was only for permanent injunction contending inter-alia only that he is in possession of the suit land in question as owner and therefore, the defendants cannot disturb his possession.
3.01. It is further submitted that on appreciation of evidence, the learned trial court has found that the plaintiff has failed to prove his possession as an owner and when consequently dismissed the suit, which was only for permanent injunction, learned appellate court has materially erred in allowing the appeal on the ground of adverse possession i.e. on the ground that the plaintiff has become owner by adverse possession. It is submitted that as such the issue with respect to the adverse possession was neither pleaded before the learned trial court nor it was specific case pleaded and prayed before the learned appellate court. Therefore, it is submitted that the learned appellate court has materially erred in considering the issue with respect to adverse possession and holding that the original plaintiff has become owner by adverse possession. Therefore, it is requested to allow the present Second Appeal.
4.00. Present Second Appeal is opposed by Mr.Bhatt, learned advocate appearing on behalf of the original plaintiff. It is submitted that when on facts the learned appellate court has held that the plaintiff has become owner by adverse possession, the same is not required to be interfered with by this Court. However, he is not in a position to dispute that the suit filed by the plaintiff was only for permanent injunction.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length and considered the Judgement and Orders passed by both the courts below.
6.00. At the outset, it is required to be noted that the plaintiff instituted the suit only for permanent injunction restraining the defendants from disturbing the possession of the suit land - Gabhan by submitting that he is owner of the said Gabhan, which he has purchased by registered sale deed. It is also required to be noted that there were no pleadings and/or issue with respect to adverse possession before the learned trial court and even in the plaint. Even it was not the case of the plaintiff that he has become owner by adverse possession, therefore no issue was framed by the learned trial court whether the plaintiff has become owner by adverse possession or not. As the suit was only for permanent injunction, when on appreciation of evidence the learned trial court found that the plaintiff has failed to prove his possession and therefore he is not entitled to permanent injunction and holding so when consequently, the learned trial court dismissed the suit, as such no illegality had been committed by the learned trial court in dismissing the suit. However, in an appeal preferred by the plaintiff, the learned appellate court, on altogether a new ground of adverse possession held that the original plaintiff has become owner by adverse possession and therefore, is entitled to decree. However, as stated above, it was never the case of the plaintiff before the learned trial court that he has become owner by adverse possession. Under the circumstances, the learned appellate court has materially erred in considering the issue with respect to adverse possession which was neither the case of the plaintiff before the trial court nor the same was pleaded and considered and even for which no issue to that effect was framed by the learned trial court. Under the circumstances, the impugned judgement and order passed by the learned appellate court cannot be sustained and the same deserves to be quashed and set aside. As the plaintiff has failed to prove his possession, the learned trial court has rightly dismissed the suit which was only for permanent injunction.
7.00. In view of the above and for the reasons stated above, present appeal succeeds. The impugned Judgement and Order passed by the learned Assistant Judge, Nadiad in Regular Civil Appeal No.12 of 1980 dtd.6/1/1982 is hereby quashed and set aside and consequently the judgement and decree passed by the learned Civil Judge, Borsad in Regular Civil Suit No.12 of 1977 dtd.29/11/1979 dismissing the suit, is hereby confirmed. In the facts and circumstances of the case, there shall be no order as to costs.
rafik [M.R. SHAH, J.]