BABUBHAI MUSABHAI MITHANI Vs. UNION OF INDIA

JUDGEMENT

(1.) The appellant herein is the original plaintiff. The plaintiff one Bavabhai Musabhai, now represented through his heirs and legal representatives, instituted Regular Civil Suit No.127 of 1982 for declaration and permanent injunction. Learned Civil Judge (S.D.) Amreli by his judgment and decree dated 2nd May 1985 decreed the suit. It was declared that the plaintiffs were the absolute owners of the suit property. A further declaration was given that the suit property was not declared to be an evacuee property and had not acquired by or vested in the State Government, and that the defendant state had no power or jurisdiction to allot, transfer or alienated the suit property. Regular Civil Appeal No. 63 of 1985 preferred by the defendants-respondents herein came to be allowed and the judgment and decree of the trial court was set aside.

(2.) The appellants are aggrieved by the said judgment and order dated 30th December 1992 of the learned Assistant Judge, Amreli. They have therefore, presented this appeal under section 100 of the Code of Civil Procedure, 1908.

(3.) The facts involved may be summarised. It was the case of the appellant-plaintiff that he was absolute owner of the suit property which was open plot of land, fenced by wire, bearing Gala No. 40 admeasuring 1389 sq. yds., and which was situated near Khatri Boarding, Station Road, Amreli. It was the case that the said property was neither declared to be an evacuee property, nor was acquired by or vested in the Government under the provisions of Displaced Persons Compensation and Rehabilitation Act, 1954. It was contended by the plaintiff that the defendants were not competent to exercise any power or jurisdiction with respect to the suit property. It was next pleaded by the plaintiff that there was a partnership firm of the plaintiff Babubhai, his elder brother and his father brought into existence a partnership in year 1944 in the name and style of M/s. Bavabhai Musabhai; the firm was carrying oil business at Amreli and other places; a plot was purchased from the funds of the partnership firm through public auction in the name of the elder brother of the plaintiff, which was Bavabhai Musabhai. It was averred that the name of said Bavabhai was mutated in the revenue records and after his death the plaintiff and his father Musabhai Jivabhai became the owners. When father Musabhai died, the plaintiff became the absolute owner of the property, which continue to remain in his exclusive possession and enjoyment. It was the case of the plaintiff that he was regularly paying revenue cess and other taxes.