KAMLABEN WD O NARANBHAI JHINABHAI Vs. PATEL GOPALDAS VENIDAS

JUDGEMENT

(1.) This is an appeal by the original plaintiff of the Civil suit No. 125 of 1969 filed by him in the court of the Civil Judge (J. D.) Dholka being a suit for injunction seeking to restrain the defendant from interfering with his possession which he had allegedly acquired from the two predecessors-in-the as per the agreement of sale Ex. 129 dated 28-3-69 followed by the regular sale deed Ex. 130 dated 15 which was procured by the plaintiff after seeking permission from the competent authority under the provisions of the Bombay Prevention of Fragmentation and Holding Act 1947 the permission being required because the suit land originally consisting of two survey numbers was constituted a block and given block No. 498 as per the provisions of the said Act. The learned trial Judge dismissed the suit. So the original plaintiff had filed the Civil Appeal No 40 of 1973 in the District Court at Ahmedabad (Rural) at Narol where the learned District Judge came to dismiss the same. The present second appeal under sec. 100 of the Civil Procedure Code therefore had come to be filed by the original plaintiff who died during the pendency of the second appeal and this appeal is being prosecuted by his heirs and legal representatives brought on the record as per the order passed by this Court in the Civil Application No. 607 of 1982.

(2.) The plaintiffs suit was essentially for a permanent injunction on the allegation that the suit field was owned and possessed by him as the successor-in-interest of Shantaben Mohanbhai and Laxmiben Mohanbhai who had firstly executed the agreement of sale for the consideration of Rs. 10 501 and on receiving Rs. 7 1 in the first stage had put him into possession on the very day of the agreement in past performance and that his title had come to be perfected as per the sale deed procured by him during the pendency of the suit that is on 15-11-69. The suit in question had come to be filed by the plaintiff on 21-7-69 on the allegation that the defendant had tried to disturb his possession and actual operations of cultivation which he had started soon after his being put into possession pursuant to the agreement of sale Ex. 129 dated 28-3-69.

(3.) The say of the defendant as reflected by his written statement Ex. 18 and his additional written statement Ex. 56 was that though the suit field belonged to said two ladies Shantaben and Laxmiben as the heirs of their father Mohanbhai he being related to them was cultivating the field as their relative and as a permanent tenant and as such he was in possession of the land and he was never thrown out of possession at any time and therefore there was no question oS the plaintiffs being in possession or his having been threatened in the manner and at the time alleged.