DWARKADHISHJI TEMPLES JAGIR TRUST Vs. BAKALI FATMABAI IBRAHIM

JUDGEMENT

(1.) THE appellant -Dwarkadhish Temple Jagir Trust through its Administrator and sole trustee -the Collector, Kutch has preferred the present appeal, which is addressed to the judgment and order dated 05th April, 1997 passed by the learned Assistant Judge, Ktuch -Bhuj, whereby Regular Civil Appeal No.17 of 1990 came to be dismissed, in term, judgment and order dated 18th December, 1989 in Civil Suit No.133 of 1975 passed by learned Civil Judge (J.D.), Bhuj -Kutch, came to be confirmed.

(2.) WHEN the appeal was admitted by this Court, with regard to the challenge to the aforesaid judgment and order, following substantial questions of law has found to be formulated for consideration:

(3.) A Profile of facts giving rise to the present appeal may be set out. The dispute relates to the suit land which is an orchard. The plaintiff -appellant instituted civil suit praying that defendant be directed to hand over vacant possession of the suit orchard land further to pay Rs.100/ - as mesne profit from 01st June, 1974 till handing over of the possession. It was the case that plaintiff was a Jagir Trust administered by the Collector, who is sole trustee. The owner of the suit land is the Jagir Trust, as the suit land belonged to the Trust. The plaintiff stated in the plaint further that in the suit land there was one Dela (small house) and in that house, the defendant was permitted to reside on condition that he would maintain the orchard/garden in the land and further that he would every day feed Awada (a small hodge wherefrom cattle are feeded drinking water.), which was situated on the eastern side of the suit orchard land with water. The Awada was a facibily of water to the cows and cattle. It was averred that defendant had committed breach of those conditions and because of non -maintaining of the garden land the orchard was damaged and flowers and fruits were not become available to the temple. It was further alleged that the defendants were not feeding water in the Awada. It was stated that cause of action to institute the suit had arisen since the plaintiff had given notice dated 22nd May, 1974 calling upon the defendant to vacate and handover the possession but he did not comply with the instructions of notice.