MOHAMED SALEH GHULAMALI Vs. KAZI EBRAHIM JAMALUDDIN

JUDGEMENT

(1.) I have heard the submissions of the learned Counsel appearing for the parties on various dates fixed in the Second Appeal. With a view to appreciate the detailed submissions made by the learned Counsel appearing for the parties, it is necessary to refer the facts of the case in brief.

(2.) The Second Appeal has been preferred by the Defendant Nos. 1/1, 1/2, 1/5, 1/6, 1/7 and 1/8 (legal representatives of the Original Defendant). The Respondent No.1 in the Second Appeal is the original Plaintiff and the Respondent Nos.2 to 4 are the other defendants. For the sake of convenience, the parties are hereinafter referred to with reference to their status in the Trial Court. The suit relates to a property bearing Survey No.20 (Part) admeasuring Hectare/Are 05539 situated at Vadavali, Taluka Vasai District Thane. The Appellants have referred to the suit filed by the Original Defendant and his brothers being Regular Civil Suit No.346 of 1938 against the plaintiff herein and others. In the said suit, the original defendant in the present suit and others were claiming the declaration of ownership and recovery of possession and other reliefs. The said suit was decided on 30/6/1942. In the said suit, it was held that the plaintiffs and the Defendant No.11 therein were the owners of the plots coloured in red and blue as shown on the map annexed to the plaint and trees standing thereon as also the structures standing on the plot coloured blue. The Plaintiffs and the defendant No.11 were held entitled to get possession of the plot coloured by red as shown in the map annexed to the plaint. Thus, by the decree passed in the said earlier suit, the plaintiffs therein were held to be owners of two plots coloured in red and blue in respect of which a decree of perpetual injunction was granted in favour of the said plaintiffs. The decree for possession was passed in favour of the plaintiffs in the said suit in respect of the plot coloured in red. The decision of the Trial Court in the said suit has been affirmed in appeal. It must be stated that the earlier suit also related to the same property bearing Survey No.20, the total area of which was 5 acres and 33 gunthas. The area of the plots marked by blue and red colour was 14 gunthas and 7 annas. The decree passed in the said suit was affirmed in Appeal by the District Court.

(3.) In so far as rest of the property forming part of the Survey No.20 is concerned, in the earlier suit, the case made out by the plaintiffs therein was not accepted. In the present suit, a case is made out by the plaintiffs herein that save and except the portion marked by blue and red colours in the map annexed to the earlier suit, the present defendant and his brothers cannot claim any right title and interest in respect of any other portion of Survey No.20. It must be noted that the plaintiffs (i.e. the defendant and his brothers in present suit) in the earlier suit were declared owners of plots coloured by red and blue colours by reason of adverse possession. In the present suit subject matter of the Second Appeal, the plaintiff claimed injunction restraining the defendant from interfering with the possession over the suit property having an area of 05539 bearing the same Survey No.20. The defendant filed written statement raising various contentions. The main contention was that the defendant is in adverse possession of a portion of land admeasuring 27 gunthas situated on the southern side of the Papdi Naigaon Road. The contention of the defendant is that he was in possession of the said area of 27 gunthas over and above the area which is declared to be in possession of the defendant and his family members in the decree passed in Suit No.346 of 1938. It is specifically contended by the defendant that he is in possession of the said area of 27 gunthas through his family members from the year 1938 and continues to be in possession on the date of filing of the written statement without any objection from the plaintiff. It is contended that the plaintiff is fully aware of the possession of the defendant over the said area of 27 gunthas atleast from the year 1956. The other contention raised by the defendant is that no cause of action had arisen in favour of the plaintiff on 3rd July 1989. It was contended that the plaintiff was not in possession of the suit land on the date of the filing of the suit and therefore, the suit for injunction was not maintainable.