The plaintiff, having lost the case on title dispute, was not entitled to permanent injunction against the true owner.

JUDGMENT :

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 24.10.2018 passed by the High Court of Gujarat in Second Appeal No. 8 of 2016 by which the High Court has dismissed the said appeal and has confirmed the judgment and decree passed by the trial court further confirmed by the First Appellate Court granting injunction in favour of the original plaintiff restraining the defendant from disturbing the possession of the plaintiff, the original defendant has preferred the present appeal.

2. That the dispute is with respect to the land bearing Revenue Survey No.49 ad-measuring 6 acres and 15 gunthas situated at the village Mahadeviya, District Deesa. The husband of the original plaintiff had executed a Sale Deed dated 17.06.1975 in favour of the appellant herein – original defendant (hereinafter referred to as the “original defendant”) by which he sold his agricultural land in question.

2.1 That on the basis of the sale deed, the name of the defendant No.1 was mutated in the Revenue record in the year 1976 itself. All throughout the name of the original defendant No.1 was mutated in the Revenue record as an owner right from the year 1976 onwards. It is the case on behalf of the defendants that thereafter between 1975 to 1997, he had authorised and completed construction projects on the land. He also availed a bank loan where the suit property was given as a collateral security.

2.2 That in the year 1999, the husband of the original plaintiff, who executed the registered sale deed died. That after a period of approximately 22 years, respondent No.1 herein – original plaintiff (hereinafter referred to as “original plaintiff”) instituted Regular Civil Suit No. 123 of 1997 in the Court of Civil Judge (Junior Division), Deesa for the reliefs of cancellation of the registered Sale Deed dated 17.06.1975, declaration and permanent injunction.

2.3 The case on behalf of the original plaintiff was that her husband was addicted to liquor and as the family was in need of finances, her husband decided to sell 1 acre of the land out of total 6 acres and 15 gunthas to the defendant No.1. According to the plaintiff, defendant No.1 taking advantage fraudulently got the sale deed registered of the entire suit property, i.e., 6 acres and 15 gunthas. Therefore, it was the case on behalf of the plaintiff that the defendant No.1 played a fraud upon her family. According to the plaintiff, the possession of only 1 acre was handed over to the defendant No.1 and the plaintiff continued to be in possession of the remaining 5 acres and 15 gunthas of land. It is the case of the plaintiff, no sooner she came to learn about the alleged fraud and as the defendant No.1 tried to disturb her settled possession in the suit land, she instituted the regular civil suit for the aforesaid reliefs.

2.4 The suit was opposed by defendant No.1. It was the specific case on behalf of the defendant No.1 that he has purchased the entire land, i.e., 6 acres and 15 gunthas under the registered sale deed duly executed by the husband of the plaintiff. It was also the case on behalf of the defendant No.1 that he is in possession of the entire suit land and is cultivating the same since many years. According to the defendant No.1, the plaintiff has no right, title or interest in the suit property. At this stage, it is required to be noted that the plaintiff joined the brothers of her husband as defendant Nos. 2 and 3 against whom as such no reliefs were claimed.

2.5 The trial court framed the following issues:-

“1. Whether the plaintiff proves that her husband had given in writing 1 acre land located on the North from survey no. 49 paiki for construction of well?

2. Whether the plaintiff proves that the defendant no.1 along with defendant no. 2 and 3 got the sale deed of survey no. 49 admeasuring 6 acre - 15 guntha land executed. on 17/6/75 for Rs. 4000/- from her husband falsely?

3. Whether the defendant proves that the husband of plaintiff had