BABULAL HATHIRAM RAVAL Vs. DECEASED BAROT GIRDHARLAL JETHALAL

JUDGEMENT

(1.) This First Appeal and Cross-Objection are arising from judgment and decree passed by learned Civil Judge, S.D., Himmatnagar dtd. 30/1/1982 in Special Civil Suit No.17 of 1975. The First Appeal has been preferred by the original defendant, whereas cross-objection has been preferred by the original plaintiff.

(2.) By judgment and decree dtd. 30/1/1982, trial Court has partly allowed the suit of the plaintiff and restrained defendants and his agents and servants by way of permanent injunction from making any construction upon the land admeasuring 26 ft. (N-E) X 33 ft. (E-W) situated at Khedbrahma and bounded as shown in para 5 of the plaint. At the same time, the defendants were restrained from disturbing the plaintiff from his use and occupation of the suit land except the land admeasuring about 83 ft. (E-W) X 9 ft. (N-S) as indicated by letter "A" mentioned in paragraph 51 as well as land admeasuring about 15 ft. (E-W) X 18 ft. (N-S) as indicated by letter "B" in paragraph 13 of his written statement, which are in actual possession of the defendant.

(3.) The defendant by way of First Appeal has submitted that the trial Court has committed an error of facts and law in passing permanent injunction in respect of the land, which is in actual possession of the defendant. The defendant has also submitted that the trial Court has committed error in believing the title of the plaintiff in respect of the suit land admeasuring 76 ft. X 33 ft. According to him, he has proved his title by various documents, which includes sale deed Exh.159 dtd. 8/4/1949, Sanad Exh.160 dtd. 15/12/1953 as well as Sanad Exh.161 dtd. 10/4/1973 and actual possession of the suit land. It is also contended that the defendant is in actual possession of the suit land since 1949 and the plaintiff has never objected to the same. It is also contended that the plaintiff has relied upon Sanad no.122 dtd. 12/3/1932, exh.123 dtd. 4/10/193 and exh.124 dtd. 21/2/1934, however, the plaintiff does not aver that what he did for all these 50 years in respect of the suit land and plaintiff has slept over his right for more than 40 years.