HIRABEN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The above appeal arises under the following circumstances:

(2.) Appellants-plaintiffs had filed Special Civil Suit No. 114 of 1981 in the court of the Civil Judge (S.D.) Bharuch alleging that they had right title and interest in S. No 268/2 admeasuring 1 acre 3 gunthas situated in the sim of village Jadeshwar. It was alleged that out of the said land 17 gunthas had been acquired for the purpose of the National Highway near Narmada river near village Jadeshwar. It was further alleged that the plaintiffs were having only 11 gunthas of land out of the total land of S. No. 268/2 and that therefore there was an encroachment by the defendants over the remaining land of the said survey number. The plaintiffs had therefore prayed in the said suit for vacant possession of the land so trespassed upon. Alternatively plaintiffs had claimed Rs. 42 0 from the defendants in case a decree for possession of the said land was not passed in favour of the plaintiffs. Plaintiffs had also prayed for mesne profits of Rs. 900.00 upto the date of the suit and for further mesne profits from the date of the suit as well as for costs. The said suit was filed on 14-10-1981.

(3.) The suit was resisted as per the written statement dated 5-7-1982. After recording evidence the trial court was pleased to dismiss the suit with costs by judgment and order dated 28-2-1985 as the trial court came to the conclusion that it had no jurisdiction and that the suit was barred by time. It is pertinent to note that the issues relating to the above were not framed as preliminary issues and the whole suit was proceeded on merits and ultimately it resulted in dismissal as aforesaid.