CHABILDAS HARJIVANDAS MEHTA Vs. NAGINDAS HARJIVANDAS MEHTA

JUDGEMENT

(1.) THE present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant herein original defendant to quash and set aside the impugned judgement and decree dated 31/12/1996 passed by learned Civil Judge (J.D.), Mahuva in Regular Civil Suit No.99 of 1993, by which, learned Trial Court has decreed the said suit preferred by the respondent herein original plaintiff and directed the appellant herein original defendant to remove encroachment and to hand over peaceful and vacant possession of 16 gunthas of the land, which had gone to his share as well as to quash and set aside the impugned judgement and order dated 15/07/2011 passed by learned Appellate Court i.e. learned 3rd Additional District Judge, Bhavnagar, Camp at Mahuva in Regular Civil Appeal No.11 of 1997, by which, learned Appellate Court has dismissed the said appeal confirming the judgement and decree passed by learned Trial Court.

(2.) THAT the respondent herein original plaintiff instituted Regular Civil Suit No.99 of 1993 in the Court of learned Civil Judge (J.D.), Mahuva for recovery of possession of 16 Gunthas of the land, which has been encroached upon by the original defendant and to direct the original defendant to remove encroachment of 16 Gunthas of land. It was the case on behalf of the plaintiff that the land bearing Survey No.61 paikee land admeasuring 8 Acres and 19 Gunthas, assessed to Rs.47-37 situated in the sim of Mahuva was of the joint ownership of the plaintiff and defendant. THAT the houses were constructed on the north-east side of the field and has been distributed among them. THAT the land having constructed house, Well, etc., the defendant being elder brother, on the way to eastern side going towards field having land admeasuring 3 Acres and 24 Gunthas and the old road going towards western side admeasuring 4 Acres and 35 Gunthas has been agreed to be divided in two parts and the said distribution has been done in the year 1970 and such oral distribution has been registered by the Talati by entry No.2036 on 03.06.1970, after due verification and after testimony, both the parties are possessing the land of their possession as owners. THAT the parties have decided to make marks on their field and due to some delay in making marks for measurement, during the intervening period, the Government has started the measurement to regularise the names of the concerned owner of the land but the defendant has not taken care in such proceeding and in such process, 16 Gunthas excess land came with the defendant. THAT the defendant is using 16 Gunthas land illegally and, therefore, with a view to avoid any dispute in this regard, the plaintiff has given notice on 28.11.1980 to the defendant but the defendant had not replied properly. Therefore, the plaintiff instituted the suit for the aforesaid relief.

(3.) MR.Tanvish Bhatt, learned advocate appearing on behalf of the appellant herein has vehemently submitted that both the Courts below have materially erred in holding that 16 Gunthas more land has gone to the share of the appellant herein original defendant. It is submitted that as such when the partition took place on 17/12/1985, the land in question was divided by metes and bounds as per partition deed dated 17/12/1985 and under the said partition deed, respective parties were put in possession of the land, which had gone to their respective shares. It is submitted that both the Courts below have materially erred in not properly appreciating the application given by the appellant herein and Kabulat dated 14/06/1970 before Talati. It is submitted that the application, which was given at the relevant time was to brought the khatas divided pursuant to the partition deed dated 09/03/1970 and it was not with respect to measurement and, therefore, it is submitted that both the Courts below have misinterpreted and the same is wrongly considered as an application for measurement. It is submitted that as such at the time of partition deed dated 09/03/1970, in presence of the witnesses land was divided by metes and bounds and the respective parties were given the actual possession, which had gone to their respective shares. Therefore, it is submitted that both the Courts below have wrongly held that at the relevant time when the partition deed dated 09/03/1970 was executed, there was no actual measurement done and the same was required to be done subsequently. Therefore, it is requested to allow the present Second Appeal.