NANIKRAM SOBHARAJ MILLS PRIVATE LIMITED Vs. KIRTIDEV CHINUBHAI

JUDGEMENT

(1.) The plaintiff went to Court with a case that on partition of the joint family estate the suit land admeasuring about 1167 sq. yds. and forming part of S. Nos. 133 and 134 in the estate known as Madhubhai Mill Compound came to his share as per the partition deed dated the 3 of October 1963. The defendant mills were in occupation of the substantial part of the estate as a tenant of the joint family and on partition they continued to be tenant in respect of the property which had come to the share of the plaintiff and which was already in occupation of the defendant as a tenant. But so far as the suit land is concerned it was the plaintiffs case that the same was never let out to the defendant nor was any permission granted to the defendant to make use of the same at any time. The defendant however oft and on was illegally entering upon the suit land and storing its coal thereon creating obstruction in plaintiffs possession and enjoyment of the same. As the defendant continued in its acts of trespass and as it was intending to put U? wire fencing and iron and cement pillars the plaintiff filed the said suit praying for a permanent injunction. By an amendment the plaintiff in the afternative prayed for possession in the event of the Court accepting the plea of the defendant that it was in actual possession of the suit land.

(2.) The defense of the defendant mills was that along with the mill property let out to the defendant mill in the year 1938-39 the suit land was also let out as it formed part of the tenancy existing between the defendant mill and the landlord of the mill property. It was contended that the defendant had been in possession of the suit land as a tenant of the same and it was denied that it had trespassed upon the same as alleged. The title of the plaintiff to the suit land was also challenged and it was contended that as the defendant was a tenant in respect of the suit land the City Civil Court at Ahmedabad had no jurisdiction to try the suit which would be triable by the exclusive forum under the Rent Act viz. the Court of Small Causes at Ahmedabad.

(3.) The learned Judge of the City Civil Court at Ahmedabad on the evidence led before him found that the plaintiff had proved that he was the owner of the suit land and that the defendant had illegally entered on the same. The defendants case that he was in possession as a tenant was negatived and so was also negatived its case that it had become owner by adverse possession. The Court also held that it had jurisdiction to entertain and try the suit and it therefore passed a decree and order for possession against the defendant in respect of the suit land which was found to be admeasuring 870.66 s. yds. instead of 1160 sq. yds as initially contended by the plaintiff. A permanent injunction was also granted in favour of the plaintiff restraining the defendant from obstructing the plaintiff in the possession and enjoyment of the suit land and from putting up any hedge or wire fencing around the suit land. The trial Court also directed an inquiry with regard to mesne profits from the date of the institution of the suit till the delivery of possession to the plaintiff under Order XX Rule 12 (1)(c) of the Code of Civil Procedure and further ordered the defendant to pay costs of the suit to the plaintiff and bear its own.