SANJAYKUMAR RAMESHCHANDRA MEHTA Vs. DECEASED UKKADBHIA CHHABLABHAI BHIL

JUDGEMENT

(1.) Present appellant, who was the original plaintiff in Regular Civil Suit No. 146 of 2007 before the trial Court and appellant in Regular Civil Appeal No. 1 of 2016 before the first appellant Court, has challenged the judgment and decree passed by the learned Principal District Judge, Narmada at Rajpipla in Regular Civil Appeal No. 1 of 2016 on 28.10.2016.

(2.) However, this appeal was fixed for hearing at the admission stage, considering the issue involved in the appeal as well as concurrent findings of the trial Court as well as first appellate Court of dismissing the suit as well as appeal preferred by the present appellant, on a request, learned advocate has produced the relevant documents relied upon by the courts below, this appeal is taken up for final hearing.

(3.) Brief facts of the present case may be referred as under: Civil Suit was filed by the plaintiff with a prayer to remove the encroachment of the suit land, being survey no. 12 paiki 3 and get the possession of the suit property. As per the averments made by the plaintiff, he was an owner of the suit land admeasuring hectare 0-80-94 per aare of survey no. 12 paiki 3 situated in village Borutar Ta: Nandod, Dist: Narmada. That, the entire land was having survey no. 12 admeasuring of 15 acre 15 guntha. That, out of this land, 6 acre land was possessed by the father of the defendant no.2 late Shri Kashiram Ramdas Tadvi and on the basis of statement, entry no. 2 was entered in the revenue record on 18.05.1949. Thereafter, vide entry no. 30, the name of the defendant no.2 was entered in the revenue record. On filing of the suit by the plaintiff, land admeasuring hectare 2-42-85 per aare of survey no. 12 paiki 4, the land was transferred in favour of the defendant no.2. That, while deducting the land of acre 6 from the entire land of 15 acre 15 guntha, the remaining land admeasuring 7 acre 15 guntha was transferred to the father of the respondent no.1/1 to 1/3 deceased Ukkadbhai Chhabalabhai under the Tenancy Act and it was purchased through power of attorney of the plaintiff Shri Biharilal and necessary entry thereof was made vide entry no. 55 on 03.03.1961. After completing the installments, tenancy certificate was issued on 10.07.1970. That, defendants No. 1/1 to 1/3 are the legal heirs of the deceased Kashiram Ramdas Tadvi. That, in family arrangement, the land admeasuring 2 acre 18 guntha was come into share of the defendant no.1/1, land admeasuring 2 acre 18 guntha was come into share of the defendant no.1/2 and land admeasuring 2 acre 19 guntha was come into share of the defendant no. 1/3. That, total land admeasuring 7 acre 15 guntha was entered into the revenue record vide entry no. 237 on 08.07.2000. In the year 1998, the measurement of survey no. 12 paiki 3 was made through the District Surveyor and it was found that the measurement of the land of the plaintiff was hectare 0-36-48 per aare, while in the village form no. 7/12, it was entered as hectare 0-80-94 aare. That, adjoining land of survey no. 9 was measured on 30.06.2006 and it was found that the land admeasuring hectare 0-16-26 aare was encroached and therefore, the land encroached by the encroacher was removed by them and possession of the land admeasuring hectare 0-16-26 aare was handed over to the plaintiff. That however, the defendants have encroached the land admeasuring hectare 0-28-00 per aare on north-south and west under the ownership of the plaintiff. A request was made by the plaintiff to re-measure the land and thus, he applied before the Deputy Collector, Rajpipla, as the defendant was denying to sign for measurement of the land, and therefore, the plaintiff had constrained to file the suit with a prayer to hand over the peaceful and vacant possession of the encroached land admeasuring hectare 0-28-00 per aare made by the defendant and till the possession is handed over to the plaintiff, mesne profit be paid by the defendants with interest @ 18% p.a. and grant permanent injunction restraining the defendants, his servants, agents from making any disturbing with the possession of the plaintiff's land ie., survey no. 12 paiki 3 or making any encroachment in the land admeasuring 0-80-24 aare till final disposal of the suit.