FAKIRBHAI BHAGWANDAS Vs. MAGANLAL HARIBHAI

JUDGEMENT

(1.) THIS is a second appeal against the decision of the learned Dist. J. Surat who modified the decree passed by the learned Civil Judge at Bulsar in favour of the pltfs. The facts which gave rise to this second appeal may be shortly stated as under.

(2.) THE suit land is an alluvial land adjoining a piece of land out of survey No. 302/1/1 of Bhadeli Jagalala measuring about 15 acres. The adjacent land of about 8 acres out of this survey No. 802/1/1 belonged to certain Kolis and it was purchased from them by deft. 1 by a sale-deed dated 25 9-1937. The Kolis were, however, not in possession of that piece of land but one Mrs. Ansell was in possession of the same. It was, therefore, agreed between deft. 1 and the Kolis that if the Kolis got possession of the said land, they should hand it over to deft. 1 or deft. 1 should obtain possession of the land by lawful means from Mrs. Ansell. Mrs. Ansell, however, continued in possession of the same and the possession of that piece of land could not be recovered either by the Kolis or by deft. 1. Defendant 1, therefore, filed a suit being Suit No. 44 of 1941 in the Ct. of the Second Class Subordinate Judge at Bulsar against Mrs. Ansell claiming possession of the piece of land together with the trees therein and for damages, injunction and other reliefs. Mrs. Ansell died during the pendency of that suit and her son Capt. Ansell was brought on the record of the suit as her son and heir. Daring the pendency of this suit applns. were made by Mrs. Ansell as also by the Kolis for allotment to them of this alluvial land which was adjoining to the piece of land in dispute in the suit and on 29-10-1942, the Govt. granted this alluvial land to Capt. Ansell under a grant which is Ex. 98 in the case. A sketch was annexed to this grant. The property in dispute in that suit was marked with the red letter D in the sketch and the alluvial land which was adjoining thereto was marked with the red letter B. The property marked with the red letter D was described in the sketch as forming part of survey No. 302/1/1 and as being in possession of Mrs. Ansell. It was further noted that her name was registered as the kabjedar or person in possession in the records. The land marked with the red letter B was described as comprising 15 acres and as the property which had been claimed by Mrs. Ansell. The grant which was made on 29-10-1942, was in fact made in favour of Capt. Ansell, the son and heir of Mrs. Ansell, and in the grant it was stated that the alluvial land should be given to the riparian owner Capt. Ansell on his paying occupancy price equal to three times the assessment. The grant also mentioned that the appets. Jeram Gopal and others of the village who had requested for granting the land to them for the village use should be informed that their request was refused since the riparian owner had a better right over the land. Jeram Gopal and others were the Kolis who had sold the land which was the subject-matter of Suit No. 44 of 1941 to deft. 1.

(3.) SUIT No. 44 of 1941 resulted in a consent decree and under the terms of that consent decree a piece of property out of the suit property admeasuring 8 or 14 gunthas as mentioned in the judgment of the lower appellate Ct. was declared to be of the ownership of Capt. Ansell and Capt. Ansell agreed to pay Rs. 100 to deft. 1 in lieu of the same. Capt. Ansell gave in favour of the pltf. all his rights or share (hak hissa) over the property thats was in his possession out of the suit property remaining after leaving the property above mentioned and deft. 1 was to enjoy all those rights and Capt. Ansell was to give to him on 15-5-1943, the possession of the property which remained after leaving the property above described. The consent decree proceeded to state that the property reserved for Capt. Ansell and which stood in the name of Capt. Ansell should be kept as it was and Capt. Ansell should give the necessary statement or kabulayat for getting the remaining property entered in the name of deft. 1 and deft. 1 should pay the Govt. revenue in respect of the same. Capt. Ansell agreed to give to deft. 1 the property out of the property mentioned above after removing the barbed wire fencing with the nails which had been put up by Capt. Ansell. A description of the property was annexed to the consent decree in which the boundary to the west was described as the Arabian Sea after leaving the Govt. land that had come out of the sea. This consent decree was obtained on 14-4-1943, and five days later, viz. on 19-4-1943, Capt. Ansell sold to the original pltfs. in this suit the alluvial land which had been granted to him by the Govt. under the grant of 29-10-1942. On 31-12-1943, the father of deft. 1 entered into an agreement on his behalf with deft. 2 granting him certain rights to cut babul trees on this alluvial land for the consideration therein mentioned. Defendant 2 exercised these rights under that agreement and it was thereupon that the original pltfs. filed this suit against defts. 1 and 2 asking for an injunction restraining them from entering upon the suit land or ushering their men in it to cat babul trees and from removing them therefrom.