VASANTIBEN PRAHLADJI NAYAK Vs. SOMNATH MUIJIBHAI NAYAK

JUDGEMENT

(1.) Appellants (plaintiffs) filed a suit bearing No. 116 of 1968 in the Court of Civil Judge, Narol for a declaration that they were owners of ancestral house site land bearing G.P. No. 497 in Sarkhej, district Ahmedabad and for recovery of possession thereof from the respondents (defendants) and also for permanent injunction restraining respondents from interfering with their possession over the disputed land. According to the appellants, the suit land was ancestral property belonging to father-in-law of Vasantiben (appellant No. 1) and after his death the property came in possession of her husband. According to the appellants, in the lifetime of the husband of appellant No. 1, the respondents used to tell the husband of appellant No. 1 to allow them to make construction on the land. According to appellant No. 1, her husband did not permit the respondents to make construction till his death, i.e. six years prior to the institution of the suit. That even before his demise, the respondents used to tell appellant No. 1 to donate the land to the community which she refused and soon thereafter the respondents started constructing a compound wall without her permission. In the circumstances, she filed a suit on 25th March, 1968 to prevent the respondents from disturbing her possession.

(2.) The respondents inter alia denied in the suit that the husband of appellant No. 1 was in possession of the suit land till he died or that after his demise, the appellants were in possession of the suit land. In the suit, they contended that they were in possession of the suit land for more than twelve years and that they were owners by adverse possession. They also contended that the suit was barred by limitation. In the suit, there was a dispute regarding the identity of the land. In the suit, there was a dispute regarding title of the appellants over the suit land. By the judgment and order dated 10th November, 1975, the trial Court dismissed the suit on the ground that the appellants have failed to prove their title over the suit land. Being aggrieved, the appellants went by way of Civil Appeal No. 133 of 1976 to the District Court, Ahmedabad which came to the conclusion that the appellants had identified the suit land. Further, the District Court came to the conclusion that the appellants had proved their title to the suit land. Consequently, the appeal was allowed vide judgment and order dated 27th March, 1978.

(3.) Being aggrieved, the respondents herein went by way of second appeal under S.100, C.P.C. to the High Court being Appeal No. 360 of 1978. By judgment and order dated 22nd January, 1997, the High Court came to the coclusion that the lower appellate Court could not have passed the decree for possession in favour of the appellants without deciding the issue of limitation and adverse possession. Consequently, keeping the second appeal pending before it, the High Court called for the findings on the above two issues from the District Court, Ahmedabad. On remand of the above issues, the District Court found that the respondents were in possession since 1934 as indicated by the books of accounts and revenue receipts for payments made to its revenue assessment. The District Court further found that the respondents have been paying land revenue from 1940. The District Court further found that the Gram Panchayat had even permitted the respondents to construct the compound wall vide a resolution (Ex. 132). In the circumstances, the District Court came to the conclusion that the respondent had acquired title by way of adverse possession. On the point of limitation, the District Court found that the respondents were in possession from 1935 or in any event from 1941 whereas the suit has been filed only on 25th March, 1968 for possession and consequently the suit was barred by law of limitation. Therefore, both the issues were decided in favour of the respondents herein by the District Court vide judgment dated 30th April, 1997. The High Court which was seized of the Second Appeal No. 360 of 1978 after hearing the parties confirmed the findings of the District Court on above two issues and accordingly disposed of the second appeal vide impugned judgment dated 28th April, 1998. Hence, the original plaintiffs have come by way of civil appeal to this Court.