Decided on September 03,1973

AKBAR PATEL Respondents


- (1.) THE defendants are the appellants. This appeal is directed against the reversing decision of the lower Appellate Court.
(2.) ORIGINALLY, Arjun Patel, the ancestor of the plaintiffs was the owner of plot Nos. 1076 and 1097 measuring 27 decimals in aggregate, 9 decimals being comprised in plot No. 1076 and 18 decimals comprised in plot No. 1097. He was recorded in respect of the same in record of rights of 1926-27 settlement of Ex. Bamra State. Defendant No. 1 was the owner of plot No. 722 havingr an area of 54 decimals and of plot No. 790 having an area of 3. 15 decimals. Plot No. 790 is Goda land and plot No. 722 is paddy land. These two plots 722 and 790 are the suit lands set out in Schedule A of the plaint. In 1939, Arjun Patel exchanged his two plots Nos. 1076 and 1077 with the defendant No. 1's two plots Nos. 722 and 790. In accordance with the Revenue Rules of the Ex-State of Bamra, this exchange was sanctioned by the Revenue Authority in Rev. Misc. Case No. 430/m of 1939-40 and the relevant order in that proceeding is dated 13-4-1940. Following this sanction, plots 1076 and 1097 were taken off from Arjun Patel holding and included in the holding of defendant No. 1. Similarly plots 722 and 790 were removed from the holding of the defendant No. 1 and included in the holding of Arjun Patel. Thereafter Arjun Patel possessed defendant No. 1's Plots Nos. 722 and 790 and defendant No. 1 possessed plaintiff's plots Nos. 1076 and 1097. Arjun Patel and the plaintiffs constituted a joint family, till about 1949-50 when, in a family partition, plot 722 was divided into three shares and plot 790 which had been converted into an orchard by them, was kept joint. Defendant No. 1 by a registered deed of partition divided plots 1076 and 1097 amongst his three sons who have obtained separate mutation in respect of their shares. Thus the defendants dealt with plots 1076 and 1097 as their own and the plaintiff dealt with plots 722 and 790 as their own. Subsequently, in the early part of 1966 when the settlement operations were going on the defendants for the first time on the basis of the original record of rights of 1926-27 settlement claimed the suit lands as their own before the settlement authorities. That claim was refuted and was not countenanced by those authorities. Thereafter, the defendants, forcibly trespassed upon the suit lands, that is to say, plots Nos. 722 and 790 and sowedf paddy on 28-8-1966 which gave rise to the cause of action for the present suit. The plaintiffs, on these allegations, have prayed for declaration of title and confirmation of possession or in the alternative for recovery of possession.
(3.) THE defence case is that defendant No. 1 entered into a transaction of excha'nge of his plot No. 722 with the two plots, 1076 and 1097 of Arjun Patel and the said exchange was to materialise after obtaining State approval. Plot No. 790 was never the subject-matter of this exchange transaction. In order to get State sanction, Arjun Patel got a petition drafted and obtained signature of defendant no. 1 thereon, who signed it blindly and filed it before Revenue Authority. Rev. Misc. Case No. 430/m of 1939-40 was registered on the basis of that petition. Arjun fraudulently incorporated plot 790 in the said petition, and order of approval to the alleged exchange of plot 790, if any, was obtained by illegal means and by connivance of the Revenue staff. The defendants have all along been in possession of plot 790 and have grown an orchard thereon after fencing it.;

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