1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants- original plaintiffs to quash and set aside the impugned judgment and decree passed by the learned Civil Judge (Junior Division), Vadhvan dated 11/02/2003 in Regular Civil Suit No. 54/1991 by which the learned trial Court has dismissed the suit preferred by the appellants-original plaintiffs as well as the impugned judgment and order passed by the learned Additional District Judge, Fast Track Court No. 1, Surendranagar dated 26/10/2007 in Regular Civil Appeal No. 6/2003 by which the learned appellate Court has dismissed the said appeal preferred by the appellants-original plaintiffs and has confirmed the judgment and decree passed by the learned trial Court dismissing the suit.
2. The appellants-original plaintiffs instituted Regular Civil Suit No. 54/1991 in the Court of learned Civil Judge (Junior Division), Vadhvan for permanent injunction only restraining the defendant, his agents and servants from disturbing the possession of the appellants-original plaintiffs of land bearing Survey No. 60/3, which according to the appellants-original plaintiffs they purchased by registered sale deed dated 15/03/1974. It was the case on behalf of the appellants- original plaintiffs that they are the owners of the land bearing Survey No. 60/3, which they have purchased from the original owner and their names were also mutated in the revenue record and they are in possession of the land bearing Survey No. 60/3 and the defendant is trying to disturb their possession and, therefore, the appellants-original plaintiffs prayed for permanent injunction. The suit was resisted by the defendant by filing the written statement at Exh. 19 denying the possession of the appellants-original plaintiffs on the land bearing Survey No. 60/3. It was the case on behalf of the defendant that the defendant was in possession of the land bearing Survey No. 60/3 admeasuring 1 Acre and 35 Gunthas however, the appellants-original plaintiffs are in possession of the land bearing Survey No. 60, which was given Survey No. 109, who has wrongly been given Survey No. 60/3 and the same has been wrongly mutated in the revenue record. It was submitted on behalf of the defendant that the appellants- original plaintiffs had not deliberately given the description of the land bearing Survey No. 60/3 in the plaint/suit and, therefore, no decree can be granted unless it is proved and identified of which portion of land the appellants-original plaintiffs are in possession and, therefore, it was requested to dismiss the suit. The learned trial Court framed the issues at Exh. 91. Appellant no. 1-original plaintiff no. 1 came to examined at Exh. 96 and documentary evidence came to be produced by the appellants-original plaintiffs. The defendant also led the evidence, oral as well as documentary, and examined himself at Exh. 151 and also examined one Shri Khodabhai Prabhubhai at Exh. 187 and Shri Ratnabhai Karshanbhai at Exh. 191. The defendant also produced surveyors report at Mark A, however, the same was not exhibited by the learned trial Court. On appreciation of evidence, the learned trial Court held that the appellants- original plaintiffs have failed to prove that they are in possession of the land bearing Survey No. 60/3 admeasuring 1 Acre and 35 Gunthas as alleged. The learned trial Court also held that as the appellants-original plaintiffs have not given full description of the land bearing Survey No. 60/3 in the plaint/suit and even in the deposition and, therefore, it is not possible to hold and/or prove that the appellants-original plaintiffs are in possession of the land bearing Survey No. 60/3 and, therefore, no decree can be passed for permanent injunction as prayed for and consequently the learned trial Court vide impugned judgment and decree dismissed the suit. Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned Civil Judge (Junior Division), Vadhvan dated 11/02/2003 in Regular Civil Suit No. 54/1991 the appellants-original plaintiffs preferred Regular Civil Appeal No. 6/2003 before the learned District Judge and Fast Track Court no. 1, Presiding Officer, Surendranagar and the learned Additional District Judge, Fast Track Court No. 1, Surendrangar dated 26/10/2007 dismissed the said appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit. Being aggrieved and dissatisfied with the impugned judgment and orders passed by both the Courts below the appellants-original plaintiffs have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3. Shri Hriday Buch, learned advocate appearing on behalf of the appellants-original plaintiffs has vehemently submitted that both the Courts below have materially erred in dismissing the suit/appeal and not granting the decree for permanent injunction as prayed for. It is further submitted by Shri Buch, learned advocate appearing on behalf of the appellants-original plaintiffs that the appellants-original plaintiffs are the owners of the land bearing Survey No. 60/3 admeasuring 1 Acre and 35 Gunthas, which they have purchased by registered sale deed dated 15/03/1974 and their names were also mutated in the revenue record and, therefore, the learned trial Court ought to have granted the decree for permanent injunction as prayed for. It is further submitted by Shri Hriday Buch, learned advocate appearing on behalf of the appellants-original plaintiffs that their names were mutated in the revenue record considering Section 135-J of the Bombay Land Revenue Code and, therefore, the learned trial Court ought to have granted the permanent injunction as prayed for by holding that the appellants-original plaintiffs are in possession of the land bearing Survey No. 60/3 admeasuring 1 Acre and 35 Gunthas. It is submitted that both the Courts below have materially erred in not interpreting the documentary evidence in the form of revenue record. It is further submitted that in any case both the Courts below have materially erred in not believing the possession of the appellants-original plaintiffs of the land bearing Survey No. 60/3 admeasuring 1 Acre and 35 Gunthas. By making the above submissions, it is requested to allow the present Second Appeal and to grant permanent injunction as prayed for.
4. The present Second Appeal is opposed by Shri Satyen Raval, learned advocate appearing on behalf of the defendant. It is submitted that as such the appellants-original plaintiffs are not in possession of the land bearing Survey No. 60/3 and is in possession of the land bearing Survey No. 60, which was wrongly given land bearing Survey No. 60/3. It is submitted that as such the appellants-original plaintiffs have deliberately not given the full description of the land bearing Survey No. 60/3 admeasuring 1 Acre and 35 Gunthas of the land in the plaint. It is further submitted that considering Order 7 Rule 3 of the Code of Civil Procedure, the appellants-original plaintiffs were required to give full description of the disputed land in question for proper identification. It is further submitted that even the Court Commissioner was not appointed to prepare the panchnama to show the actual possession of the appellants- original plaintiffs. It is further submitted that even in the deposition of the appellants-original plaintiffs giving the description of the land bearing Survey No. 60/3 is just contrary to the description of the land bearing Survey No. 60/3 mentioned in the sale deed dated 15/03/1974 relied upon by the appellants-original plaintiffs and, therefore, it is submitted that there is serious dispute with respect to description of the land bearing Survey No. 60/3 of which the appellants-original plaintiffs are claiming to in possession of the land in question. In absence of any specific description of the land bearing Survey No. 60/3 mentioned in the plaint, the learned trial Court has rightly dismissed the suit and the same is rightly confirmed by the learned appellate Court and, therefore, it is requested to dismiss the present Second Appeal.
5. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and orders passed by both the Courts below and the documentary as well as oral evidences from the Record and Proceedings, which has been received from the learned trial Court. At the outset, it is required to be noted that there are concurrent findings of fact given by both the Courts below holding that the appellants-original plaintiffs have failed to prove that they are in possession of the land bearing Survey No. 60/3 admeasuring 1 Acre and 35 Gunthas as alleged. The findings are on appreciation of evidence, which are not required to be interfered with by this Court under Section 100 of the Code of Civil Procedure. Even otherwise, it is required to be noted that the appellants-original plaintiffs have failed to prove that they are in possession of the land bearing Survey No. 60/3 admeasuring 1 Acre and 35 Gunthas. It is required to be noted that the appellants-original plaintiffs have not given full description of the land bearing Survey No. 60/3 admeasuring 1 Acre and 35 Gunthas in the plaint. From the pleadings and evidence on record, it appears that there is serious dispute with respect to identification and description of the land bearing Survey No. 60/3 admeasuring 1 Acre and 35 Gunthas of which the appellants-original plaintiffs claim to be in possession and, therefore, as such the appellants-original plaintiffs were required to give full description of the land bearing Survey No. 60/3 admeasuring 1 Acre and 35 Gunthas to identify it and in absence of full description of the land bearing Survey No. 60/3 admeasuring 1 Acre and 35 Gunthas, the learned trial Court has rightly dismissed the suit for permanent injunction and/or has rightly refused to grant the decree for permanent injunction. Even if the decree would have been granted the same would not have been workable as in absence of full description, identification of the land bearing Survey No. 60/3 admeasuring 1 Acre and 35 Gunthas cannot be done. It is also required to be noted that in the sale deed dated 15/03/1974, which has been executed in favour of the appellants-original plaintiffs and upon which reliance has been placed, there is a description of the land bearing Survey No. 60/3, which has been alleged to have been purchased by the appellants-original plaintiffs. However, description of the land bearing Survey No. 60/3, which is alleged to be in possession of the appellants-original plaintiffs, as mentioned in the deposition, is just contrary to the description of the land mentioned in the sale deed and, therefore, the appellants- original plaintiffs have miserably failed to prove that they are in possession of the land bearing Survey No. 60/3 admeasuring 1 Acre and 35 Gunthas and in absence of any specific description of the land bearing Survey No. 60/3, the learned trial Court has rightly refused to grant permanent injunction in favour of the appellants-original plaintiffs with respect to the land bearing Survey No. 60/3. The contention on behalf of the appellants- original plaintiffs that as their names are mentioned in the revenue record and, therefore, both the Courts below ought to have granted permanent injunction cannot be accepted. As per the settled proposition of law, mutation entry in the revenue record is only for fiscal purpose and merely because name of the appellants-original plaintiffs is mutated in the revenue record their possession cannot be accepted. If the appellants-original plaintiffs were in possession of the land bearing Survey No. 60/3 as alleged, in that case, to prove the same, they ought to have requested to appoint the Court Commissioner to prepare the panchnama, which the appellants-original plaintiffs have failed.
6. Considering the aforesaid facts and circumstances of the case, no illegality has been committed by both the Courts below in dismissing the suit for permanent injunction, which calls for interference of this Court in exercise of powers under Section 100 of the Code of Civil Procedure.
7. In view of the above and for the reasons stated hereinabove, the present Second Appeal deserves to be dismissed and is accordingly dismissed. No cost.
(M.R. SHAH, J.) siji