1.0 Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellantsoriginal defendants no.1.1 to 1.5 & 2 challenging the impugned judgment and order passed by the learned Principal Civil Judge, Patadi dated 9.9.2009 passed in Regular Civil Suit No.158 of 2005 (Old No. Special Civil Suit No.8 of 1996) preferred by the respondent nos. 1 to 5 herein original plaintiffs, by which, the learned trial Court has partly allowed and decreed suit granting them declaration and permanent injunction with respect to suit land in question as well as impugned judgment and order passed by the learned Appellate Court dated 4.7.2011 passed in Regular Civil Appeal No.49 of 2009, by which the learned Appellate Court has dismissed the said appeal preferred by the appellants herein original defendants no.1.1 to 1.5 & 2 by confirming the judgment and decree passed by the learned trial Court.
2.0 That the respondents herein original plaintiffs instituted Special Civil Suit No. 8 of 1996 against the defendants for declaration and permanent injunction to declare that the plaintiffs are the owners and they are entitled to retain the possession of the suit premises and also for permanent injunction restraining the defendants, their agents and servants from disturbing the possession of the suit property. It was the case on behalf of the plaintiffs that land bearing Survey No. 671 admeasuring 7 acres 13 gunthas and land bearing revenue survey no.13 admeasuring 8 acres 06 gunthas situated at village Dasada was belonging to the original plaintiff no.1 and that they were in possession and were cultivating the same, however, the defendants have illegally entered into the suit land on 15.1.1996 and have handed over the possession to the original defendant no.2 illegally. It was also the case on behalf of the plaintiffs that the original defendant no.1 joined the hands with the revenue officer and get his name included in the revenue record by submitting that original plaintiff no.1 land owner has no heirs and he got the name of Mukesh Keshabhai Dabhi (original defendant no.2) mutated in the revenue record and as soon as plaintiff came to know, he submitted the application before the Deputy Collector, Dhrangadhra and pursuant to the order passed by the Deputy Collector the name of the plaintiff is mutated in the revenue record again on 14.12.1993. Therefore, it was requested to decree the suit and grant declaration and permanent injunction as prayed for. That the defendants resisted suit by filing written statement at Exh.18. It was the case on behalf of the defendants that they are in possession of the suit property in question and that original defendant no.1 has incurred the expenditure for the marriage of the daughter of plaintiff no.1 and is taking care and maintaining plaintiff.
2.1. That during the pendency of the suit, original defendant no.1 expired and therefore, his heirs were brought on record. It appears that thereafter the aforesaid suit was transferred to Court of learned Principal Civil Judge, Patadi which was numbered as Civil Suit No.158 of 2005.
2.2. That the learned trial Court framed the following issue at Exh.54.
(1). Whether the plaintiffs proves that they are the legal owner of the suit property?
(2). Whether the plaintiffs proves that by fraud the defendants have got the possession of the plaintiffs property?
(3). Whether the plaintiffs are entitled to get back the possession from defendants?
(4). Whether the defendants proves that he is legal owner and possessor of suit property and the sons of defendant no.1 has created and made illegal entries in revenue record?
(5). Whether the suit is barred by non joinder of necessary party?
(6). Whether the suit is barred by revenue jurisdiction ?
(7). Whether the plaintiffs is entitled to get relief as prayed for?
(8). What order and decree?
2.3. Both the sides led the evidence documentary as well as oral and on appreciation of evidence the learned trial Court partly allowed the suit granting declaration that the defendants have no right to occupy or retain the possession of the land bearing Survey No.13 admeasuring 18 acres 06 gunthas and that the plaintiffs are entitled to get back the possession of the said land. The learned trial Court on appreciation of evidence also held that the plaintiff is in possession of the land bearing survey no.671 admeasuring 7 acres 13 gunthas of land of which they are entitled to retain as owners and therefore, the learned trial Court granted the permanent injunction against the defendants with respect to the land bearing survey no.671 restraining the defendants, their agents and servants from entering into or disturbing the possession of the plaintiffs. The learned trial Court also passed an order that after getting back the possession of the land bearing survey no.13 which was found to be in possession of the defendants illegally, the defendants are restrained from disturbing their possession.
2.4. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court, Patadi dated 9.9.2009 passed in Regular Civil Suit No. 158 of 2005, the original defendants preferred Regular Civil Appeal No. 49 of 2009 before the District Court, Surendranagar and the learned 2nd Additional District Judge, Dhrangadhra by impugned judgment and order dated 4.7.2010 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court.
2.5. Being aggrieved and dissatisfied with the impugned judgment and order / decree passed by both the Courts below, the appellants hereinoriginal defendants have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3.0 Shri Mehul Shah, learned advocate for the appellants original defendants has vehemently submitted that in absence of any declaration / relief sought as regards title and partition by the plaintiffs, the learned trial Court has materially erred in granting declaration and decreeing the suit.
3.1. It is further submitted by Shri Mehul Shah, learned advocate for the appellants that both the Courts below have materially erred in recording findings as regards the title of the suit merely on the basis of entry in the revenue record.
3.2. Shri Mehul Shah, learned advocate for the appellants original defendants has further submitted that the learned trial Court has materially erred in placing reliance upon the order passed by the High Court in the matter arising from interim injunction proceedings while passing the final judgment and decree. By making above submissions, it is requested to allow the present Second Appeal.
4.0. Present Second Appeal is opposed by Shri N.D.
Nanavati, learned Senior Advocate appearing with Shri Y.J. Patel, learned advocate for the original plaintiffs. It is submitted that as such there are concurrent findings of fact given by both the Courts below holding that as owners the plaintiffs are entitled to occupation and possession of the land in question and that the defendant nos. 1 and 2 have illegally taken the possession of the suit properties from the plaintiffs who were cultivating the suit land. It is submitted that the said findings of fact given by both the Courts below 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.
4.1. Now, so far as the first contention on behalf of the appellants that in absence of any declaration sought with respect to the title/ ownership of the suit land by the plaintiffs and/ or any declaration with respect to the possession and partition the suit was not maintainable and / or learned trial Court was not justified in passing the decree is concerned, Shri Nanavati, leaned Senior Advocate for the plaintiffs has submitted that as such the learned trial Court framed the issue, more particularly, issue no.1 that whether the plaintiffs proves that they are legal owner of the suit property ? and the parties also led the evidence and gone for the trial with respect to the aforesaid issue also. It is submitted that as it was never the case of the plaintiffs that they have share in the suit land in question and according to the plaintiffs they were absolute owner of the suit land in question, there was no question of praying for any partition. It is submitted that the defendants miserably failed to prove that they were the owner of the disputed suit land in question. It is submitted that as such it was never the case of the defendants that they were the owners of the suit land in question. It is further submitted that as such the defendant no.1 tried to get his name mutated in the revenue record / name of Mukesh Keshabhai Dabhi mutated in the revenue record which was set aside by the Deputy Collector. It is submitted that on appreciation of evidence the learned trial Court has rightly held that the plaintiffs were in possession of the disputed land as owner and therefore, the learned trial Court has rightly granted the declaration. Therefore, 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 as well as paper books supplied by the learned advocate for the appellants. At the outset, it is required to be noted that there are concurrent findings of fact given by both the Courts below that the plaintiffs were in possession of the disputed land in question as owner and defendant no.1 has illegally entered into and took the possession of the suit lands in question. It is required to be noted that as such pursuant to the interim order passed by this Court the original plaintiffs widows were returned the possession of the land bearing survey no.671 and since then the plaintiffs are cultivating the said land bearing Survey No.671. It is required to be noted that defendants have miserably failed to prove that they were the owners of disputed land in question. It is required to be noted that as such the disputed suit land in question were in the name of Arjanbhai Karshanbhai original plaintiff and he was cultivating the suit land in question however original defendant no.1 illegally tried to mutate his name and the land was mutated in the name of Mukeshbhai Keshabhai son of original defendant no.1 and the said entry came to be set aside. On appreciation of evidence, it has also been found that original defendant no.1 after illegally taking the possession, handed over the possession to defendant no.3 illegally. All the defendants have failed to prove their title over the disputed suit land in question. Considering aforesaid facts and circumstance of the case, the learned trial Court has rightly declared that the plaintiffs are entitled to possession of the suit land in question as owners and as the possession of the land bearing Survey No.13 admeasuring 13 acres 06 gunthas has been taken over illegally, they are entitled to get back the possession of the said lands.
5.1. Now, so far as contention on behalf of the appellants original defendants that without seeking any declaration the suit of the plaintiffs is not maintainable is concerned, it is required to be noted that as such the parties have gone for trial even with respect to the ownership of the land of the plaintiffs and even issue no.1 framed by the learned trial Court was Whether the plaintiffs prove that they are the legal owner of the suit property (?) Therefore, when it was the specific case on behalf of the plaintiffs that they were owners of the disputed land in question and that they were cultivating the suit land in question and the possession of the suit land was illegally taken over by the defendants and that they have prayed for declaration that they are entitled to possession of the suit land in question as such the plaintiffs were not required to pray for declaration of title. In any case, the parties went for trial on the aforesaid issue no.1. Under the circumstances, on the aforesaid ground, the judgment and decree passed by the learned trial Court is not required to be quashed and set aside.
5.2. Now, so far as another contention on behalf of the appellantsoriginal defendants that plaintiffs never prayed for partition and therefore, the suit is not maintainable is concerned, it is required to be noted that plaintiffs never claimed that they have share in the suit land in question along with the defendants. It was the specific case on behalf of the plaintiffs that they are absolute owner of the suit land in question and therefore, there was no question of asking any partition.
5.3. Considering the aforesaid facts and circumstance, no illegality has been committed by the learned trial Court in decreeing the suit and granting declaration and permanent injunction as prayed for and judgment and decree passed by the learned trial Court is rightly confirmed by the learned Appellate Court. No case is made out to interfere with the judgment and order passed by both the Courts below in exercise of powers under Section 100 of the Code of Civil Procedure.
6.0. In view of the above and for the reasons stated above, present Second Appeal fails and same deserve to be dismissed and is accordingly dismissed. No costs.
“kaushik”
sd/ ( M. R. Shah, J. )