KAXMIBEN LALJI Vs. RATANBA VAGHI SOLANKI WIDOW

JUDGEMENT

(1.) IN present Second Appeal, following substantial question of law is raised and involved which is as under:-

(2.) CIVIL Suit No.30 of 1980 filed by Solanki Lalji Hathubhai before CIVIL Judge (J.D.), Mundra at Kutch with a prayer of declaration and permanent injunction is to be granted against original defendant, respondent herein. The suit filed by the plaintiff was allowed vide judgment and decree dated 24.04.1984 by CIVIL Judge (J.D.), Mundra at Kutch with a direction to respondent and their agent and heirs not to disturb the possession and occupancy of plaintiff by defendant in suit land. Against which Regular CIVIL Appeal was preferred by respondent " Solanki Vaghji Tejmal registered as No.76 of 1984 which has been decided issue whether in present nature of merely relief of declaration and permanent injunction, suit is maintainable or not. While deciding issue Nos.3 and 4, the Appellate Court has come to conclusion that original plaintiff, appellant herein was not in possession of suit land, but on the contrary, defendant " appellant before lower Appellate Court who is in actual possession of suit land. These discussions made in paragraph Nos.12 and 13 are relevant, therefore, quoted as under:

(3.) IN view of aforesaid interim order passed by this Court prima facie this Court has observed that plaintiffs may have title to suit property, but they were not in actual possession of suit land on the date of filing of suit cannot be ignored.