MEDATIA INDRASINGHJI Vs. RAVAL NARAYAN KISHORESINH

JUDGEMENT

(1.) . The decision rendered by the learned Assistant Judge of Sabarkantha at Himatnagar on 22/07/1977 in Regular Civil Appeal No. 5 of 1973 is under challenge in this appeal at the instance of the appellant before this Court under Sec. 100 of the Civil Procedure Code, 1908 ('the Code' for brief). Thereby the learned lower appellate Judge dismissed the appeal and affirmed the judgment and the decree passed by the learned Civil Judge (S.D.) at Himatnagar on 12/01/1973 in Regular Civil Suit No. 46 of 1967. It is needless to say that the trial Court decreed the suit instituted by the present respondents.

(2.) . It may be mentioned that during the pendency of this appeal the original appellant has breathed his last and his heirs and legal representatives have been brought on record in his place by virtue of the Order passed by this Court on 17/10/1984 in Civil Application No. 2518 of 1984. The appellant was the defendant and the respondents were the plaintiffs in Regular Civil Suit No. 46 of 1967. For the sake of convenience I shall refer to the parties to this appeal as they were arraigned in the trial Court, that is, the appellant as the defendant and the respondents as the plaintiffs.

(3.) . The dispute centres round one piece of land admeasuring 12 ft. north-south and 36 ft. east-west situated in Himatnagar (the suit land for convenience). The plaintiffs claimed its ownership as its having been allotted to them on 9/03/1923 under the Parvana issued on 22/09/1947. It appears that the defendant disputed the grant of land to the plaintiff in 1923. According to him, the suit land was of the ownership of the State and it had constructed some building over it and he was in occupation of that building as a servant of the State. According to him, it was in dilapidated condition and he, therefore, applied on 22/04/1940 for its reparation at the expenses of the State or in the alternative he offered to purchase it at a price fixed by the State authorities. This dispute resulted into institution of one suit in the Court of the Civil Judge (S.D.) at Himatnagar by the plaintiff for the relief of permanent injunction against the defendant. It came to be registered as Regular Civil Suit No. 34 of 1966. It appears that a Commissioner was got appointed by the plaintiff in that suit and it transpired from the Commissioner's report that the defendant was in possession of the suit land. The plaintiffs thought of amendment of the plaint. It appears that, however, on second thoughts they withdrew the suit with a permission to file a fresh suit on the same cause of action. That is how Civil Suit No. 46 of 1967 came to be filed by the plaintiffs against the defendant in the Court of the Civil Judge (S.D.) at Himatnagar for a declaration that the suit land is of their ownership and for claiming its possession from the defendant and for getting demolished the wall constructed by the defendant. The defendant filed his written statement at Exh. 10 on the record of the case and resisted the suit on various grounds. On the pleadings of the parties, the learned trial Judge raised the necessary issues at Exh. 15 on the record of the case. After recording evidence and hearing the parties, by his judgment and decree passed on 12/01/1973 in Regular Civil Suit No. 46 of 1967, the learned Civil Judge (S.D.) Himatnagar decreed the suit instituted by the plaintiffs. That aggrieved the defendant. He, therefore, carried the matter in appeal before the District Court of Sabarkantha at Himatnagar. His appeal came to be registered as Regular Civil Appeal No. 5 of 1973. It appears to have been assigned to the learned Assistant Judge of Sabarkantha at Himatnagar for hearing and disposal. After hearing the parties, by his decision rendered on 22/07/1977 in Regular Civil Appeal No. 5 of 1973, the learned Assistant Judge of Sabarkantha at Himatnagar dismissed the appeal. The aggrieved defendant has thereupon invoked the further appellate jurisdiction of this Court under Sec. 100 of the Code for questioning the correctness of the aforesaid decision rendered by the lower appellate Court.