1.0 Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant herein original plaintiff to quash and set aside the impugned judgment and decree dated 24.4.1981 passed by the learned Civil Judge (S.D.), Palanpur passed in Regular Civil Suit No. 189 of 1975 as well as the impugned judgment and order and decree passed by the learned Assistant Judge, Banaskantha at Palanpur dated 4.10.1991 passed in Regular Civil Appeal No. 40 of 1981, by which the learned Appellate Court has dismissed the said appeal preferred by the appellant hereinoriginal plaintiff confirming the judgment and decree passed by the learned trial Court dismissing the suit.
2.0 That the appellant herein original plaintiff instituted Regular Civil Suit No. 189 of 1975 against the respondents herein original defendants in the Court of learned Civil Judge (S.D.), Palanpur initially for permanent injunction only restraining the defendants, their agents and servants from causing any obstruction to its possession of the suit land i.e. Survey No.178 of the sim of Village Kidotar Tal: Palanpur admeasuring 3 acres and 29 gunthas of land. It was the case on behalf of the plaintiff that he is the owner and in occupation of the possession of the entire land bearing survey no.178 admeasuring 3 acres and 29 gunthas of land and that the defendants are trying to disturb his possession.
2.1. The suit was resisted by the defendants by filing written statement submitting that as such original plaintiff and his father executed the registered sale deed dated 4.5.1966 by accepting the sale consideration of Rs.600/. However, at the relevant time by mistake in the sale deed instead of survey no. 178 survey no. 84 was mentioned, however subsequently the same was corrected by correcting survey number as 178 admeasuring 3 acres and 29 gunthas of land which was counter signed by the plaintiff and his father and even the thumb impression of the plaintiff and his father were identified by his brother. It was specifically denied that the plaintiff is in possession of the suit land i.e. land bearing survey no.178 admeasuring 3 acres and 29 gunthas of land as alleged.
Therefore, it was requested to dismiss the suit.
2.2. It appears that thereafter the plaintiff amended the plaint by submitting that half portion of the land bearing survey no.178 was sold to the defendants and not the entire land bearing survey no.178 admeasuring 3 acres and 29 gunthas of land was sold to the defendants. The suit was also amended by submitting that as such the plaintiff is in possession of the western side of survey no. 178 admeasuring 89 RA 60 sq ft and therefore, an injunction was sought with respect to wester side of the land bearing survey no.178 admeasuring 89 RA 16 Sq ft. Even the prayer clause to the aforesaid effect was also amended in the plaint. Not only even the appellant original plaintiff amended the plaint making out altogether new case that the sale deed dated 4.5.1966 is without consideration which was alleged to have been mentioned in the said document was an agriculture amount and therefore declaration was sought that the sale deed dated 4.5.1966 is obtained by the defendants by playing fraud and without consideration. That the plaintiff was permitted to amend the plaint as prayed for. That the learned trial Court framed the issues at Exh.57.
2.3. That on behalf of the plaintiff, the plaintiff himself came to be examined at Exh.96. He examined one Shri Bhomaji Mungaji at Exh.106 and one Sonaji Galaji at Exh.107. He also produced some documentary evidence. On behalf of the defendants, defendant no.1 Devashibhai was examined at Exh.109 and one Shri Khetabhai Itha came to be examined at Exh.132, one Shri Kanabai Ramabhai came to be examined at Exh.133 and Shri Chatra Limba came to be examined at Exh,134 and one Sardarbhai Megabhai came to be examined at Exh.138. That on appreciation of evidence the learned trial Court held that the plaintiff and his father executed the sale deed dated 4.5.1966 with respect to the entire land bearing survey no. 178 admeasuring 3 acres and 29 gunthas of land and there was a mistake in mentioning the survey no. 84 in the sale deed which was subsequently corrected. The learned trial Court on appreciation of evidence also held that the plaintiff has tried to obtain the possession by constructing hut after obtaining exparte interim injunction. Thus, the learned trial Court on appreciation of evidence held that the plaintiff has failed to prove that he was in possession of the suit land i.e. land bearing survey no. 178 admeasuring 3 acres and 29 gunthas of land. Consequently the learned trial Court dismissed the suit by judgment and decree dated 24.4.1981.
2.4. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dated 24.4.1981 passed in Regular Civil Suit No.189 of 1975 the appellant herein original plaintiff preferred Regular Civil Appeal No.40 of 1981 before the learned Appellate Court, Banaskantha and the learned Appellate Court learned Assistant Judge, Banaskantha by impugned judgment and order had dismissed the said appeal confirming the the judgment and decree passed by the learned trial Court dismissing the suit.
2.5. Feeling aggrieved and dissatisfied with impugned judgment and order/ decree passed by both the Courts below in dismissing the suit confirmed by the learned Appellate Court, the appellant herein original plaintiff has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3.0 Shri Divyeshvar, learned advocate for the appellant has vehemently submitted that both the Courts below have materially erred in holding that the plaintiff and his father executed the sale deed in favour of defendants with respect to the land bearing Survey No. 178 admeasuring 3 acres and 29 gunthas of land. It is submitted that as such the plaintiff denied the execution of the sale deed in favour of the defendants. It is submitted that as such it was the specific case on behalf of the plaintiff that there was no consideration paid at the time when the sale deed dated 4.5.1966 was executed. It is further submitted that even appellant also denied that he and / or his father agreed to make necessary correction in the sale deed dated 4.5.1966 by correcting survey no. 84 to survey no.178. Therefore, it is submitted that the learned trial Court had materially erred in holding that the plaintiff and / or his father had executed the sale deed in favour of the defendants with respect to land bearing survey no.178 admeasuring 3 acres and 29 gunthas of land.
3.1. It is further submitted by Shri Divyeshvar, learned advocate for the applicant that as such the appellant hereinoriginal plaintiff was in possession of the entire land bearing survey no.178 admeasuring 3 acres and 29 gunthas of land and even till filing of the suit and at no point of time right from 1966 till suit was filed the defendants took any step to get the possession from the plaintiff. It is further submitted that only after the death of father of the plaintiff defendants tried to disturb the possession of the plaintiff and therefore, the plaintiff was constrained to file the suit for permanent injunction. Therefore, it is submitted that when the plaintiff was in possession of the entire suit land the learned trial Court ought to have granted permanent injunction as prayed for and ought to have granted declaration and permanent injunction as prayed for. By making above submissions, it is requested to allow the present Second Appeal.
4.0 Present Second Appeal is opposed by Shri S.K. Patel, learned advocate for the original defendants. It is submitted that as such there are concurrent findings of fact given by both the Courts below holding that the plaintiff and his father have executed the sale deed with respect to the entire land bearing survey no.178 admeasuring 3 acres and 29 gunthas of land. It is further submitted that both the Courts below have concurrently held and found that the plaintiff was never in possession of the suit land bearing survey no. 178. Therefore, it is further submitted that the aforesaid findings are given by both the Courts below on appreciation of evidence which are not required to be interfered with by this Court in exercise of powers under Section 100 of the Code of Civil Procedure.
4.1. It is further submitted that the findings of fact given by both the Courts below that the plaintiff and his father executed the registered sale deed dated 4.5.1966 with respect to the land bearing Survey no.178 considering the fact that description of the land mentioning in the said sale deed tallies with the land being Survey No. 178 and the learned trial Court has held that there was a obvious mistake in mentioning that the land bearing survey no. 84 in the sale deed instead of survey no.178.
4.2. It is further submitted by Shri Patel, learned advocate for the original defendants that even the plaintiff has changed his case from time to time and has came out with three different stories and the case. It is submitted that initially the appellant came out with a case that he is in possession of the entire land being survey no. 178 admeasuring 3 acres and 29 gunthas of the land and that he and or his father never executed any document / sale deed even the sale deed dated 4.5.1966. It is submitted that thereafter the very plaintiff made statement before the Agriculture Land Tribunal that he is in possession of some portion of the land bearing survey no.178 and only half portion of the land bearing survey no.178 was sold to the defendants. It is submitted that thereafter the plaintiff came out with a case that he is in possession of the western portion of the land bearing survey no. 178 and therefore, he prayed for injunction with respect to other portion of the land though initially the plaintiff came out with a case that he is in possession of the entire land being survey no. 178 admeasuring 3 acres and 29 gunthas of land. It is submitted that thereafter the plaintiff came out with altogether a new case that the sale deed dated 4.5.1966 was without any consideration and consideration which is stated in the said document was mortgage amount and therefore, it was prayed to declare the sale deed dated 4.5.1966 is a nullity. Therefore, it is submitted that when the plaintiff has come out with a three different cases and on appreciation of evidence that the learned trial Court has held that the plaintiff and his father have executed the registered sale deed dated 4.5.1966 which was with respect to land bearing survey no. 178 admeasuring 3 acres and 29 gunthas of land and consequently having found that the plaintiff was never in possession of the suit land i.e. land bearing survey no. 178 admeasuring 3 acres and 29 gunthas of land and consequently when the learned trial Court has dismissed the suit and when the same is confirmed by learned Appellate Court, it is requested to dismiss the present Second Appeal.
5.0 Heard the learned advocates for the respective parties at length and considered the impugned judgment and order passed by both the Courts below and evidence on record documentary and as well as oral from the record and proceedings received from the learned trial Court.
6.0 At the outset, it is required to be noted that as such there are concurrent findings of fact given by both the Courts below that the plaintiff and his father executed the sale deed with respect to the entire land bearing survey no.178 admeasuring 3 acres and 29 gunthas of the land and that original defendants are in possession of the entire suit land on the basis aforesaid registered sale deed. The aforesaid finding of facts are on appreciation of evidence, which are not required to be interfered with by this Court in exercise of powers under Section 100 of the Code of Civil Procedure. It is required to be noted that in the sale deed by mistake and through oversight the number of land as mentioned at Survey No.84 instead of survey no.178 which was corrected subsequently in the registered sale deed. On appreciation of evidence and considering the description of the land mentioned in the sale deed both the Courts below have specifically held that the plaintiff and his father in fact sold survey no.178 and by mistake survey no.84 was mentioned which belong to some other persons. While holding so the both the Courts below have considered the description of the land mentioned in the registered sale deed and the location of the survey no.178 tallies with the description mentioned in the sale deed. Therefore, no illegality has been committed by both the Courts below in holding that the plaintiff and his father in fact sold the survey no.178 to the defendants on payment of sale consideration of Rs.600/.
7.0 On appreciation of evidence both the Courts below have concurrently found the defendants to be in possession of the entire suit land in question i.e. land bearing survey no.178 admeasuring 3 acres and 29 gunthas of land and both the Courts below have specifically held and found that the plaintiff is not in possession of the suit land in question. At the outset, it is required to be noted that initially the plaintiff instituted the suit for permanent injunction with respect to entire land bearing Survey No.178 admeasuring 3 acres and 29 gunthas of land by submitting that he has never executed any sale deed in favour of the defendants with respect to the survey no.178 admeasuring 3 acres and 29 gunthas of the land and that he is in exclusive possession of the entire suit land bearing survey No. 178 admeasuring 3 acres and 29 gunthas. However, subsequently the very plaintiff submitted amendment application in the plaint praying for injunction (in the alternative) with respect to the 89 hectares and 60 sq mtrs of land out of land bearing survey no.178 which was on the westen side of the land bearing survey no.178. Not only that but thereafter the plaintiff by way of amendment came out altogether a new case that the sale deed dated 4.5.1966 with respect to land bearing survey no.178 admeasuring 3 acres and 29 gunthas of land is without consideration and the amount of sale consideration mentioned in the sale deed is in fact mortgage amount and therefore declaration was sought by way of amendment that to declare that the sale deed dated 4.5.1966 is obtained by defendants by forgery, fraud and without consideration. Thus, the plaintiff is changed different stand at different times. In any case, on appreciation of evidence both the Courts below have specifically found that the plaintiff and his father have sold the land bearing survey no.178 admeasuring 3 acre and 29 gunthas of land by registered sale deed dated 4.5.1966 and that the defendants are in occupation and possession of the suit land bearing survey no. 178 admeasuring 3 acres and 29 gunthas of land and has consequently dismissed the suit for permanent injunction, it cannot be said that both the Courts below have committed any error and / or illegality in dismissing the suit, which calls for the interference of this Court in exercise of powers under Section 100 of the Code of Civil Procedure.
8.0 In view of the above and for the reasons stated above, present Second Appeal fails and same deserves to be dismissed and is accordingly dismissed. No cost.
kaushik sd/ (M.R.SHAH,J.)