MER DHANIBEN Vs. MER RUPIBEN VIRAM

JUDGEMENT

(1.) Both these two appeals arise out of judgment and decree dated 24.10.2008 rendered by learned 2nd Addl.Sr.Civil Judge, Porbandar in Special Civil Suit No.94 of 2002. First Appeal No.1188 of 2009 is preferred by original defendants No.1,2 and 3 and First Appeal No.2747 of 2009 is separately preferred by original defendant No.4. In FA No.1188 of 2009, the respondents No.1 to 4 are original four plaintiffs and the respondent No.5 is original defendant No.4. In First Appeal No.2747 of 2009, the respondents No.1 to 3 are original defendants No.1,2 and 3 and respondents No.4 to 7 are original plaintiffs No.1 to 4. Under such circumstances, parties to both these appeals shall be hereinafter referred to as per their original status in the suit, for the sake of convenience. The four plaintiffs, namely, Mer Rupiben Viram, Mer Rajubhai Viram, Mer Bhikhu Viram and Mer Ram Viram, happen to be the widow and sons respectively of deceased Viram Vagha. They prayed for declaration that the defendants No.1,2 and 3, namely, Mer Dhaniben Malde, Mer Liluben Malde and Mer Rambhiben Malde, who happen to be widow and daughter respectively of deceased Mer Malde Vagha, have no right or authority to sell lands Survey No.95/2 and Survey No.61/1 to the defendant No.4, namely, Bhima Ranmal by a sale-deed dated 29.4.2002 and to declare said sale transaction as illegal, void and without any authority. They have also prayed for the relief of permanent injunction restraining the defendants No.1,2 and 3 from transferring or otherwise alienating the land bearing S.No.242. They have also prayed for the relief directing the defendants to handover the vacant and peaceful possession of the lands bearing S.No.242 paiki, S.No.95/2 and S.No.61/1 to them and they claimed mesne profit from the defendants till they deliver the actual and vacant possession of the above referred lands to the plaintiffs.

(2.) Learned civil Judge vide impugned judgment and decree dated 24.10.2008 partly allowed the suit and declared that the land bearing S.No.242 paiki, admeasuring 4 acres and 35 gunthas and land bearing S.No.95/1, admeasuring 1 acre and 16 gunthas are of the ownership of the plaintiffs in capacity as heirs and legal representatives of deceased Viram Vagha. The learned civil Judge also allowed the decree for declaration that the land bearing S.No.61/1, admeasuring 1 acre and 16 gunthas is ancestral land and the plaintiffs as well as the defendants No.1,2 and 3 are coparceners of the land. The learned civil Judge declared the sale transaction dated 29.4.2002 entered into between the defendants No.1,2 and 3 on one hand and defendant No.4 on other hand of lands bearing S.No.95/2 and 61/1 as illegal, invalid and without any authority. The learned civil Judge also granted decree of permanent injunction restraining the defendants No.1, 2 and 3 from selling, transferring or otherwise alienating the land S.No.242. The defendants were directed to handover the vacant and peaceful possession of the lands S.No.242, 95/2 and 61/1 to the plaintiffs. The revenue entries in the name of defendants No.1, 2 and 3 regarding the above-referred lands were held to be illegal and liable to be cancelled. The defendant No.4 Bhima Ranmal was permanently restrained from transferring or alienating the lands S.No.95/2 and 61/1. Being aggrieved and dissatisfied with the impugned judgment and decree, the original defendants No.1, 2 and 3 preferred First Appeal No.1188 of 2009 and original defendant No.4, namely, Bhima Ranmal preferred First Appeal No.2747 of 2009.

(3.) Vagha Laxman was original ancestor and he had four sons, namely, Viram, Malde, Karsan and Tapu. Viram died on 27.3.2000 whereas Malde died somewhere in 1984-85. Plaintiffs No.1 to 4, namely, Rupiben, Raju, Bhikhu and Ram are widow and sons respectively of deceased Viram, whereas defendants No.1,2 and 3, namely, Dhaniben, Liluben and Rambhiben are widow and daughters respectively of deceased Malde. As per the case of the plaintiffs, land S.Nos.242/1, 95/2 and 61/1 are situated in the outskirts of village Bhavpara and the lands S.No.242/1 and 95/2 were purchased by Viram Vagha by a registered sale-deed dated 29.4.1957 (Exh.65) from one Kara Veja. It is the case of the plaintiffs that so far as the land S.No.61/1 is concerned, it belonged to their original ancestor Vagha Laxman as Vagha Laxman had purchased said land on 2.6.1964 by a registered sale-deed, Exh.66. It is further the case of the plaintiffs that by executing the registered sale-deed dated 23.3.1979 (Exh.69) deceased Viram Vagha sold 2 acres and 3 gunthas of land out of S.No.242 to one Devshi Haja (sale-deed dated Exh.69) and on the same date, deceased Viram Vagha sold 4 acres of land out of S.No.242 to one Haja Mepa (sale-deed Exh.70). It is the case of the plaintiffs that after the sale transaction which took place on 23.3.1979, deceased Viram Vagha along with this family members left village Bhavpara and shifted to village Vadala. However, since Malde along with defendants No.1,2 and 3, continued their residence at Bhavpara and though in the original revenue records, in capacity as registered owner of land S.No.242 and 95/2, the name of deceased Viram Vagha was mutated and about land S.No.61/1, the mutation entry was in the name of Vagha Laxman, but because of cyclone and heavy flood in 1975, the relevant revenue record came to be destroyed and, thereafter, deceased Malde Vagha and his heirs and representatives in collusion with concerned revenue authorities got these lands mutated in their names. Before the year 1996, when deceased Viram Vagha came to know about such revenue entries, he challenged said revenue entries before Dy.Collector, first in point of time, and since Dy.Collector rejected the application of Viram, the said order was challenged before the Collector, Porbandar. That Collector, Porbandar confirmed the order of Dy.Collector and, therefore, the plaintiffs preferred revision application in the revenue department of the Government and it is stated at bar that till today, said revision application is pending.