PATEL KOHYABHAI JETHABHAI Vs. JAMBUISAR GROUP GRAM PANCHAYAT

JUDGEMENT

(1.) This Second Appeal is filed by appellant, original plaintiff, being aggrieved by the judgment and order dated 16th November, 1981, passed by Assistant Judge, Sabarkantha at Himatnagar, in Regular Civil Appeal No. 28 of 1981, whereby the learned Assistant Judge, Sabarkantha at Himatnagar, upheld the judgment and decree of Civil Judge (JD), Modasa, in Regular Civil Suit No. 107 of 1977, dismissing the suit of the plaintiff present appellant.

(2.) As per the brief facts of the case, the plaintiff being the owner of Survey No. 73 wada land at village Umedpur, after persuasion by the village people and leaders, allotted 2 gunthas of land out of survey No. 73 to the village for the construction of additional room for the school of the village Umedpur. It was the case of the plaintiff that in lieu of this 2 gunthas of land, village people had agreed vide resolution that he will be given two acres land from Survey No. 9, old survey No. 24. Thereafter, it appears that panchayat concerned considered this occupation of the plaintiff to be an encroachment and issued notice to remove the same against the plaintiff. Plaintiff filed Regular Civil Suit No. 76 of 1977 against such notice, but he withdrew the suit with permission to file fresh suit on the same cause of action and thus the present suit by the plaintiff came to be filed for permanent injunction that unless and until the defendants present respondents returns the 2 gunthas of land of Survey No. 73, they were not entitled to claim back the possession of the plaintiff of Survey No. 24 and for other consequential reliefs. The present respondents defendants on various grounds defended the suit, inter alia, defendant Panchayat urged that if any resolution was passed between village people and the plaintiff, the same was not binding, to the Panchayat. Panchayat never agreed to give any land to the plaintiff in exchange of 2 gunthas of wada land of Survey No. 73. According to defendants - respondents, the plaintiff had encroached upon the land bearing Survey No. 9, old survey No. 24, therefore, the plaintiff was served with the notice and ultimately before filing of the suit, the plaintiff was dispossessed from the land on 16th May, 1977, dismissal of suit, therefore, urged by the respondents.

(3.) After recording of the evidence and hearing both the parties, Trial Court held that the plaintiff was not given possession of two acres of land from survey No. 24 by the defendants and the plaintiff was in possession of 2 acres land in survey No. 24 of village Umedpur without any legal authority and, therefore, Regular Civil Suit No. 107 of 1977 filed by the plaintiff in the Court of Civil Judge (JD), Modasa, came to be dismissed on 21st July, 1987. Being aggrieved, the plaintiff filed the above said Regular Civil Appeal No. 28 of 1981 in the Court of District Judge, Sabarkantha at Himatnagar and learned Assistant Judge, Sabarkantha at Himatnagar dismissed the Appeal of the plaintiff on 16th November, 1981 and hence this Second Appeal.