PATEL CHHOTABHAI SHANKERBHAI Vs. PATEL SHANTABHAI NARSHIBHAI DECD

JUDGEMENT

(1.) This judgment will govern the disposal of appeal Nos. 363/70 and 364/70 which arise out of Civil Suit No. 142/65 and Civil Suit No. 124 respectively which were decided by the learned Civil Judge Umreth by in common judgment on 30th April 1969 Civil Suit No. 142/65 was filed by Patel Shantabhai Narshibhai since deceased. According to him he was cultivating the suit land bearing survey No. 41 of the village Thamna as a tenant of Shrimati Kamalagauri Trambaklal and others. He was declared to be a deemed purchaser of the suit land from 1st April 1957 and the proceedings were started by the Lands Tribunal under sec. 32-G of the Bombay Tenancy and Agricultural Lands Act hereinafter referred to as the Tenancy Act The Lands Tribunal fixed the price of the suit land at Rs. 1534.52 P. on 15th December 1962 and Shantabhai was directed to pay the said amount to the landlords. As Shantabhai was not in good health he was taking the help of one Patel Chhotabhai Shankerbhai for getting the suit land cultivated. In the year 1965-66 Shantabhai had raised paddy crop in the field. On 12th October 1965 Chhotabhai Shankerbhai illegally entered the suit field and removed paddy crop. Shantabhai therefore filed the above suit to obtain a declaration that the suit field was of his absolute ownership and that the defendant had no right whatsoever over the field and also a permanent injunction restraining the defendant from interfering with the possession of the field in question. He also prayed that the defendant should be ordered to return the paddy removed by him. As Shantabhai died on 1st March 1966 his widow and two minor sons were brought on record as his heirs and legal representatives. His widow also died on 14th July 1966 as a result of which the suit was continued by one Babarbhai Narshibhai as the guardian of the minor sons of deceased Shantabhai. Babarbhai is the brother of deceased Shantabhai. It appears that in the beginning Civil Court had issued an ad interim injunction against the defendant restraining him from interfering with the plaintiffs possession. It was however vacated subsequently. According to the plaintiffs after the ad interim injunction was vacated defendant Chhotabhai took possession of the suit field. They therefore made an application to amend the plaint. As a result of the amendment the prayer for possession of the suit field was also added.

(2.) Defendant Chhotabhai by his written statement Ex. 18 denied the suit. He contended that the plaintiff was not in possession of the suit field on the date of the suit but the possession of the field was with him. His further contentions were as follows:- As the plaintiff was unable to cultivate the suit land because of the illness he executed an agreement to sell the suit land to him on 10th June 1965 for Rs. 2900.00. As the plaintiff was unable to pay the instalments fixed by the Tenancy Court the defendant had paid Rs. 1755.46 in to the State Bank on 14th June 1965 on behalf of the plaintiff. The agreement of sale was acted upon and he was continued in possession of the suit field by the plaintiff. The plaintiffs suit for possession was not maintainable in view of the provisions of sec. 53-A of the Transfer of Property Act.

(3.) On 11th July 1966 the defendant of the aforesaid suit namely Chhotabhai Shankerbhai also filed a suit being Civil Suit No. 124/66 against Babarbhai Narshibhai who as observed above was appointed Guardian ad litem of minor plaintiffs in Civil Suit No. 142/65. According to Patel Chhotabhai the defendant Babarbhai was trying to recover the possession of the suit field on the ground that he was the guardian of Shantabhais minor sons. He was making an attempt to prepare a false record. Chhotabbai therefore filed the above suit in order to obtain a declaration that he was in actual possession of the suit field and also to obtain an in junction restraining the defendant from interfering with his possession.