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Gujarat High Court
Judgename :J.N.Bhatt
THAKOR KANSING CHATURSING - Appellant
Versus
BHARWAD BHAGWAN RAIYABHAI - Respondent
Civil Revision752 of 1992
Decided On : 09/17/1993
A party asking for perpetual injunction on the allegation that the party is in possession of the disputed property and prays for intervention of the Court and for the grant of injunction restraining the other party, alleged to be disturbing the possession of the party in possession, is obliged to show that, he or she is in lawful possession of the property and it must be referable to a valid title. Mere possession does not `ipso facto entitle the party for the grant of perpetual injunction . It is incumbent upon the party to show that, he or she is holding a lawful possession or has some legal or valid title. The Court cannot grant perpetual injunction under the Specific Reliefs Act in favour of a person who is not holding possession lawfully and who has no legal and valid title in respect of such disputed property. It is amply clear from the evidence on record that the plaintiffs have not been able to show that they are in exclusive possession in respect of some or all disputed lands (in all 18 lands) or that they are in lawful possession or their possession is attributable to any valid or legal title . Therefore, the grant of pertual injunction restraining the defendants, in favour of the plaintiffs by the Trial Court is not only perverse, but also illegal and, therefore, such a decree is required to be quashed.
[Para 4 ]
Bombay Tenancy & Agricultural Lands Act, 1948 - Ses. 2(2) - Agriculturist - Definition of - Includes a firm where partners of the firm are agriculturists and are engaged in cultivation.
It is very well defined that whosover cultivates land, personally, is an " Agriculturist". Obviously, an "Agriculturist" term is to denote a person making his living by tilling the soil. In other words, one whose means of livelihood is essentially gained by cultivating land and does not necessarily mean a person who works with his hands. It includes a small holder of land who tills the soil, but not a large landed proprietor even though his sold income is derived from the land. The term "Agriculturist" as also used in Section 60(1) of the Code of Civil Procedure is intended to denote a real tiller of the land and cannot include a person who does not cultivate with his own hands.
[Para 7 ]
It is true that the firm, as such, in one sense, is not capable of personal cultivation of agricultural land. Truly speaking, no elaboration is necessary to understand the legal composition of a firm and its legal personality, which is a name given compendiously to a group of people who comprise its partners and those people have naturally to be living persons. When we talk of a firm cultivating land, we mean to say that it is the partners of the firm who cultivate the land and in that sense, the firm cultivates it personally. As such, where the firm is agriculturist or not would obviously depend upon the activities of its partners. If the partners are agriculturists and are engaged in cultivation, they will be entitled to be called as "Agriculturists" under Section 2, sub-section (2) of the BTAL Act.
[Para 8]
( 1 ) THE appellants, who are the original defendants, questioned the legality and validity of the judgment and decree, granting perpetual injunction in Special Jurisdiction Civil Suit No. 7 of 1969, passed by the learned Civil Judge (S. D.), Ahmedabad, on 28/02/1977, in favour of the respondents, who are the original plaintiffs. For the convenience and brevity sake, they are, hereinafter, addressed as they were arranged in the Trial Court. The Plaintiffs instituted the aforesaid suit for dissolution of partnership, accounts and perpetual injunction against the defendants, in respect of 18 pareels of lands, bearing different survey numbers, totally admeasuring approximately an area of 70 acres, and situated in Vatva village of Daskroi taluka, in Ahmedabad, which are, hereinafter, referred to as suit lands.
( 2 ) THE Plaintiffs, inter alia, contended that the suit lands originally belonged to one Aditram Narsidas and others and, original defendant, Kansing, was cultivating the suit lands, as a tenant since before 1956, with one Titaram Mathursing and one Mohanji. After those persons left the suit land, the original defendant- tenant, took the plaintiffs as joint tenants for cultivation of the suit land, in the year 1956, as the original defendant tenant was not in a position to cultivate personally. It was further contended by the plaintiffs that, they were taken as joint tenants by the original defendant-tenant with consent and connivance of the owner (landlord) of the suit land. The original defendant-tenant gave general power of attorney to the plaintiffs No. 2 and 3 to work and manage, and to do all acts in respect of the suit land, as per the plaintiffs contention.
( 3 ) THE plaintiffs further pleaded that a regular partnership deed was executed between the plaintiffs and defendant-tenant on stamp paper on 1. 3. 1960, which was, actually, formed on 1/01/1960. According to the further case of the plaintiffs, the partnership was constituted for cultivation and each partner was entitled to 25 per cent share in the profit. It was alleged by the plaintiffs that the defendant was giving co-operation to the plaintiffs until the middle of 1968 and, thereafter, he was instigated by other persons to drive away the plaintiffs from the suit lands. Therefore, he gave notice to the plaintiffs, at the instigation of one Bhimji Dungarji, who had filed a suit being Civil Suit No. 277 of 1967, against both the parties. As alleged by the plaintiffs, the said suit came to dismissed and the injunction was given against Bhimji. As, according to the plaintiffs, original defendant threatened to the plaintiffs and the plaintiffs apprehended that, they would be excluded from the management and the partnership business of cultivation, they instituted the above suit.
( 4 ) THE original defendant appeared and resisted the suit by filed a written statement, Ex. 136. It may be mentioned that, the original defendant died during the proceedings of the suit and, therefore, his three heirs were brought on the record. It may also be stated that original plaintiff No. 1 had died during the course of the proceedings and, therefore, his six heirs were brought on the record, in place of original plaintiff No. 1. The original defendant, inter tenants nor they were taken as partners by him for the cultivation. He denied all the allegations made in the plaint. According to the original defendant-tenant, he denied to have given the power of attorney to plaintiffs No. 1 and 2. Thus, the entire suit was challenged and competed. In short, according to the original defendant tenant, he has been in actual enjoyment and possession of the suit lands, as a tenant, since long and nobody has right to interfere with his tenancy rights. Having regard to the facts and circumstances, and the pleadings of the Parties, issues were settled at Ex. 155. Upon appreciation and examination of the facts and circumstances and the evidence on record, the Trial Court reached t
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