SUMRA ABU HAJI Vs. HIMATSINHJI JUVANSINHJI JADEJA

JUDGEMENT

(1.) This is an appeal filed by the appellant (original plaintiff) whose suit has been dismissed on a preliminary ground that such a suit is not maintainable in law.

(2.) The short facts learned to this appeal briefly slated are that the appellant-plaintiff filed a suit being Special Civil Suit No. 78 of 1972 in the Court of the learned Joint Civil Judge Senior Division Jamnagar for a declaration and injunction that he had become the owner of the suit land bearing Survey No. 311 admeasuring 3 acres and 8 gunthas situated in the Sim of Jamnagar by adverse possession. It is averred in the plaint that the defendants were owners of the suit land and they filed a suit being Civil Suit No. 8 of 1956 against the appellant-plaint in the Court of the Mamlatdar Jamnagar for recovering possession under the Mamlatdars Courts Act 1906 In that suit before the Court of the Mamlatdar the present plaintiff fled a written-statement and challenged the right of the present respondents-defendants on the ground that he was in possession of the suit land for more than 12 years and therefore he had become the owner by adverse possession and the defendants had no right title or interest in the suit land. However the Mamlatdar decreed the said suit in favour of the present defendants by his order dated 24/26-12-1956. According to the appellant-plaintiff the said decree of the Mamlatdar is barred by limitation and it has become unexecutable. It is further averred in the plaint that the plaintiff was in possession of the suit land from 10 and thereafter from 26-12-1956 and is enjoying peaceful possession of the suit land continuously and adversely for a period exceeding 12 years. The defendants have never objected the said possession and therefore after 12 years the title of the defendants in the suit property has been extinguished and the plaintiff has become owner thereof and is therefore entitled to a declaration and injunction as prayed for.

(3.) Defendant No. 10 filed his written statement at Ex. 29 contending inter alia that the suit is not bona fide and is not maintainable. Several other contentions are also raised therein which I do not propose to deal with since issue No. 3-A was raised by the learned trial Judge regarding the maintainability of the suit and the same was ordered to be heard as a preliminary issue. After hearing the arguments of the parties the learned trial Judge relying upon the decision of the Supreme Court in Nair Service Society Ltd. v. K. C. Alexanaler AIR 1968 Supreme Court 1165 came to the conclusion that the suit was not maintainable and dismissed the same.