CHAUHAN CHELSING NATHUSING Vs. RABARI KARMSHIBHAI KARSHANBHAI

JUDGEMENT

(1.) THIS appeal has been filed by the appellants who are the original plaintiffs assailing the judgment and decree dated 29.04.2008 passed by the learned Additional District Judge and Presiding Officer (3rd Fast Track Court), Mehsana, in Regular Civil Appeal No.52 of 2006, whereby the judgment and decree dated 11.05.2006 passed by the learned Principal Civil Judge, Kheralu in Regular Civil Suit No.43 of 2001, has been upheld.

(2.) BRIEFLY stated, the case of the appellants is that they are the residents of village Dharoi, Taluka Satlasana, where they own land bearing revenue Survey No.49 admeasuring 89 Acres and 7 Gunthas and Survey No.50 admeasuring 168 Acres and 00 Gunthas. It is the case of the appellants/plaintiffs before the trial Court that the said land is owned and possessed jointly by them and they are carrying on agricultural activities thereupon. The revenue records reflect their names and no other person has any right over the suit land. The respondents/defendants are headstrong persons who are trying to encroach upon the land of the appellants by using force and threats and are grazing their cattle on the suit land and, therefore, the appellants/ plaintiffs were constrained to file the suit against the respondents/defendants praying for a declaration and permanent injunction to the effect that the respondents/defendants do not have any right upon the suit land and may be restrained from entering upon the said land.

(3.) THE respondents/defendants contested the suit by filing a written statement at Exh.44 wherein the averments made in the plaint are denied, except those specifically admitted. It is stated that the appellants/plaintiffs were the former landlords of Dharoi Village and their 'Jagirdari' rights were abolished on coming into force of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953. It is stated by the respondents/ defendants in the written statement that in respect of the suit land, an inquiry under the provisions of Section 37(2) of the Bombay Land Revenue Code ("the Code" for short), was conducted by the Mamlatdar and by order dated 27.2.1960, it was held that the appellants are the owners of the land in question but the village people have the right to graze their cattle upon the said land. It is also asserted that the order dated 27.2.1960 of the Mamlatdar has been upheld by various revenue courts, upto the Gujarat Revenue Tribunal and, as the respondents have grazing rights upon the suit land, the suit be dismissed. The trial Court, after hearing the parties and taking into consideration the evidence on record, framed as many as six issues. On the basis of oral and documentary evidence on record, the trial Court found that although the suit land was of the ownership of the appellants, however, the village people had been given grazing rights thereupon by an order dated 27.2.1960, passed by the Mamlatdar after holding an inquiry under the provisions of Section 37(2) of the Code, and this order has been upheld right upto the Revenue Tribunal.