MANILAL MAGABHAI VANKAR Vs. MANIBA CHANDANSINH PARMAR

JUDGEMENT

(1.) THE present Appeal under Section 100 of the Code of Civil Procedure arises out of the judgment and order dated 03.08.2009 passed by the Additional District Judge, Himmatnagar (hereinafter referred to as the 'lower Appellate Court') in Civil Appeal No.16 of 2007 by which order, the judgment and decree dated 20.01.2007 passed by the learned 4th Additional Senior Civil Judge, Sabarkantha @ Himmatnagar (hereinafter referred to as the 'trial court') in Regular Civil Suit No.187 of 1998 was confirmed.

(2.) IT appears that the present appellants were the original defendant Nos.3 and 4, present respondent Nos.1 to 3 were the original plaintiffs and respondent Nos.4 and 5 were the original defendant Nos.1 and 2 in the suit. The present respondent Nos.1 to 3 (original plaintiffs) filed Regular Civil Suit No.187 of 1998 before the trial court seeking declaration to the effect that the defendants had no right to cause any obstruction to the plaintiffs in using the suit land bearing Survey No.30+33/6, Block No.27/A or cultivating the said land; and also seeking permanent injunction restraining the defendants from causing any obstruction to the plaintiffs from entering the said suit land and cultivating the same. The trial court, after appreciating the evidence on record and hearing the learned advocates for the parties, decreed the suit vide judgment and decree dated 20.01.2007. Being aggrieved by the same, the present appellants (original defendant Nos.3 and 4) preferred Civil Appeal No.16 of 2007 before the lower Appellate Court which, by judgment and order dated 03.08.2009, dismissed the said appeal. Being aggrieved by the same, the appellants have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.

(3.) HAVING regard to the submissions made by the learned advocates for the parties and the Record and Proceedings, as contained in the paper-book submitted by the appellants, it appears that the plaintiffs had filed the suit seeking the declaration and permanent injunction with regard to the land bearing Survey No.30+33/6, which was amalgamated and given Block No.27/A under the scheme of amalgamation for the village Bakarpura, Taluka Idar, District, Sabarkantha. It is pertinent to note that it has not been disputed by the appellants that the predecessor of the plaintiffs i.e. Chandansinh Parmar was the original owner of the Survey Nos.30+33/6 and 34 and the said Chandansinh Parmar had sold out Survey No.34 to the appellants (original defendant Nos.3 and 4) in the year 1972, sale deed in respect of which was produced on record at Exh.59 before the trial court. It is also not disputed that the appellants herein, had never purchased the Survey No.30+33/6. The appellants also do not appear to have led any evidence to show that the possession of Survey Nos.30+33/6 was ever given to them by the predecessor of the plaintiffs at any point of time. However, the whole controversy appears to have arisen because of the wrong entries made by the revenue authorities at the time of amalgamating Survey Nos.30+33/6 and 34, allotting new Block number as Block No.27, showing the name of defendant No.3-Manilal Magabhai Vankar as the occupier of the said Block No.27. When the revenue authorities came to know about the said mistake, the same was sought to be rectified in the year 1997 by bifurcating the said Block No.27 into two Blocks i.e. Block No.27/A covering Survey No.34 and Block No.27/B covering Survey No.30+33/6 by mutating the entry which was on record at Exh.65 before the trial court. It further transpires that being aggrieved by the said mutation entry, the appellants had filed appeal before the Deputy Collector, Himmatnagar under the Bombay Land Revenue Code read with Gujarat Land Revenue Rules. The Deputy Collector dismissed the said appeal vide order dated 31.03.2000, against which, the present appellants had preferred revision application before the Collector, Sabarkantha. The Collector, Sabarkantha, vide order dated 10.02.2006 (Exh.65), dismissed the said revision application, however, observed that the parties shall have to implement the final order that may be passed in the Regular Civil Suit No.187 of 1998 pending in the Civil Court. From the said RTS proceedings, it clearly transpires that though mistake was committed in making Entry No.94 in the village Form No.6 on 22.11.1997, the same was corrected by Entry dated 12.08.1988 i.e. prior to filing of the suit by the plaintiffs. Under the circumstances, Block No.27 allotted after amalgamation of Survey Nos.30+33/6 and 34 was bifurcated into Block No.27/A and 27/B covering Survey No.34 and Survey No.30+33/6 respectively prior to filing of the suit. As rightly submitted by learned advocate Mr.Chhaya for the respondents, because of the mistake committed by the revenue authorities, the defendant Nos.3 and 4 wanted to take undue advantage by entering into their field bearing Survey No.30+33/6, Block No.27/A and, therefore, the suit was required to be filed, otherwise the plaintiffs only were in possession of the said Block No.27/A.