(1.) THIS appeal under Section 100 of the Code of Civil Procedure is by the original defendant against whom the respondents herein had filed Regular Civil Suit No.7 of 1983 in the court of learned Civil Judge (J.D.) at Nakhatrana -Kutch seeking recovery of the possession of the land, admeasuring 7 acres and 25 gunthas of Survey No.82 on North side situated at village Nakhatrana -Kutch.
(2.) THE case of the plaintiffs in the suit is that the plaintiffs purchased half of the land admeasuring 7 acres -25 gunthas from Survey No.82 from widow Rabari Sartabai of deceased Sava Sadan, who was brother of husband of defendant and who was having his one -half share as owner in the land bearing Survey No.82. The said land was purchased by registered sale deed dated 10.2.1972. However, the defendant had filed one Civil Suit No.28 of 1972 against the plaintiffs and co -owner of the land bearing Survey No.82 for declaration that the defendant was owner of the entire land of Survey No.82 and for permanent injunction restraining the plaintiffs from causing any obstruction in the enjoyment of the entire land of Survey No.82. The said suit of the defendant was allowed, against which the plaintiffs had preferred Civil Regular Appeal No.63 of 1979 and the appeal was partly allowed and the judgment and decree passed by the Trial Court granting declaration that the defendant was occupant of the entire area of Survey No.82 was set aside and rest of the judgment and decree passed by the Trial Court of granting permanent injunction against the plaintiffs from disturbing the possession of the defendant was confirmed and it was observed that the plaintiffs could recover possession of one -half of the land purchased by them from Survey No.82 by following due procedure of law. The plaintiffs have, therefore, filed this suit for declaration that the defendant is not entitled to hold possession of the land of Survey No.82 admeasuring 7 acres and 25 gunthas on the North side on the basis of the writing dated 7.3.1969 and for declaration that the possession of the defendant of the said land is unauthorized and illegal and the defendant is not entitled to such possession and the defendant be directed to handover the said land to the plaintiffs on the basis of the sale deed dated 10.2.1972.
(3.) THE suit of the plaintiffs was resisted by the defendant by filing written statement at Exh.10 inter alia stating that on the basis of the sale deed dated 10.2.1972, the plaintiffs were not entitled to get possession from the defendant, that writing dated 7.3.1969 in favour of the defendant was not required to be registered and such writing dated 7.3.1969 established the transaction of mortgage in favour of the defendant and under such writing, the defendant is entitled to continue with the possession of the land and to get the possession from the defendant of the disputed land, the plaintiffs were required to file suit for redemption of the mortgage and the suit of the nature presently filed was not maintainable at law.