AMBA GOKAL Vs. PARBAT BHUTA

JUDGEMENT

(1.) . The appellant/original plaintiff has challenged the legality and validity of the judgment and decree passed by the learned Civil Judge (Senior Division), at Amreli, in Special Civil Suit No. 10 of 1974, dismissing the suit for possession of immovable property bearing old Revenue Survey No. 84 (new Revenue Survey No. 208/2), admeasuring about 2 Acres and 22 Gunthas, which is hereinafter referred to as the "disputed property" for the sake of convenience and brevity. The appellant, inter alia, contended that the agricultural land bearing old Revenue Survey No. 84 and situated, at Kolada, in Kunkavav Taluka of Amreli District, was ancestral property and was partitioned alongwith other ancestral properties between the brothers. Pursuant to the partition, the appellant and his brother, Jivraj Gokal got equal share out of the said land. The total area of the said land was 25 Acres and 16 Gunthas, out of which, according to the appellant's case, he and his brother, Jivraj, got 12 Acres 28 Gunthas, each as their shares. There is no dispute about the fact that Kolada is a village where the disputed property is situated and in old Saurashtra State, 1 Acre was considered equal to 2-1/2 (two and a half) bigha. Thus, according to the case of the appellant/ original plaintiff, his brother, Jivraj, was to be in possession of the land admeasuring 12 Acres and 28 Gunthas only. It is further pleaded that the respondents have made encroachment in respect of land admeasuring 2 Acres and 22 Gunthas. The respondents who are the original defendants, purchased the disputed property from the brother of the appellant, namely, Jivraj Gokal. Therefore, it was pleaded by the appellant that the possession of 2 Acres and 22 Gunthas in the land bearing Revenue Survey No, 208/2 belonging to him was illegally taken by the respondents and they are trespassers. The appellant requested the respondents to vacate the possession of the disputed property. However, they did not vacate. Therefore, the appellant/original plaintiff filed the suit for taking possession of the disputed property and for mesne profit of the disputed property from the date of filing of the suit till the recovery of the possession from the respondents/original defendants.

(2.) . Respondents appeared and resisted the suit by filing written statement, Ex. 11. There is no dispute about the fact that they are the purchasers of the disputed land from Jivraj Gokal, the brother of the appellant. They, inter alia, contended that the disputed property was in possession of Jivraj Gokal after partition of the property between the brothers and deceased Jivraj Gokal had sold the land received by him in the partition to them. The sale deed was executed by deceased Jivraj Gokal in favour of the respondents on 20th February, 1961, which is produced, at Ex. 45. The agricultural land bearing old Revenue Survey No. 84 was given new Revenue Survey No. 208, which was divided between the brothers and the share which came to the share of deceased Jivraj Gokal was sold away by virtue of the aforesaid sale deed. It was denied that the land bearing Survey No. 208 was equally divided between the appellant and his brother, deceased Jivraj Gokal. The respondents further contended that as the appellant was given the front portion of Survey No. 208 and it was a land with better quality, deceased Jivraj Gokal was given more land. Thus, according to their contention, the partition was made not as per the quantity of the land but as per the quality of the land. Since there was no actual revenue survey in respect of the agricultural land bearing Survey No. 208, the boundary marks were fixed in presence of disinterested persons and the appellant and his brother, deceased Jivraj Gokal. After partition, the appellant and his brother, deceased Jivraj Gokal started tilling their respective share, out of Survey No. 208. Thus, the respondents contended that deceased Jivraj was in actual possession of the disputed property since the date of partition and he had sold the disputed property to them by virtue of the sale deed. It is further contended that they are in possession of the disputed property since the date of the sale deed in their favour in 1961. The measurements and extent of agricultural land purchased by them were approximately stated as there was no regular revenue survey in respect of the agricultural lands at the time of partition and purchase. So, the property which was purchased by them was described as per the possession held by the parties at the relevant time. The respondents/original defendants raised dispute with regard to the jurisdiction and also the plea of limitation. Thus, alternatively, the respondents pleaded that they have become the owner of the disputed property by adverse possession.

(3.) . On appreciation of the evidence on record, the trial Court was pleased to hold that the land bearing Revenue Survey No. 208/1 of village Kolada, admeasuring about 12 Acres and 28 Gunthas came to the share of the original appellant and the remaining land bearing new Revenue Survey No. 208/2 (old Survey No. 84) admeasuring 12 Acres and 28 Guntlias came to the share of the deceased brother of the appellant, Jivraj Gokal. The plea of the respondents that in the partition of the property, the appellant was given lesser land bearing S. No. 208/1 as he was given the front portion, which was of good quality, was not accepted by the trial Court. However, the trial Court found that the respondents/original defendants became owners of the disputed property by adverse possession. Therefore, the suit of the appellant/original plaintiff for possession was held to be time barred and consequently it was dismissed.