( 1 ) ZAVERBHAI Somabhai Patel the appellant-original plaintiff has filed this Second Appeal under section 108 of Code of Civil Procedure. against the judgment and decree dated 16. 3. 1977 passed by the learned Extra Assistant Judge, Nadiad in Regular Civil Appeal No. 28 of 1976. The learned Appellate Judge by his judgment and decree was pleased to allow the appeal and pleased to quash and set aside the judgment and decree dated 2. 2. 1976 passed by the learned Civil Judge (JD) at Dakore, Kheda District in Regular Civil Suit No. 11 of 1973 filed by the plaintiff. 1. 1 The appellant is the original plaintiff and the respondents are the original defendants and they are referred to as such in this judgment for the sake of convenience and brevity.

( 2 ) BEFORE I set out the facts I shall set out the pedigree which is given by the learned advocate for the appellant in this behalf. Said pedigree is as under:khatubhai Bapuji : died on 2. 11. 1945 - : : Banjiben Vakhatben (Daughter-D1) (Daughter) : Pre deceased Khatubhai : Madhabhai D2 Motibhai D-3 : : : : Chhaganbhai Zaverbhai (plff.)

( 3 ) FROM the pedigree it emerges that Khatubhai Bapuji had two daughters Banjiben and Vakhatben. Vakhatben died before the death of Khatubhai. Khatubhai died on 2. 11. 1945. Banjiben the other daughter had two sons vis. Madhabhai Motibhai and Vakhatben had two sons viz. Madhabhai-deft. no. 2 and Motibhai deft. no. 3. Vakhatben had 2 sons viz. Chhaganbhai and Zaverbhai. Zaverbhai is the plaintiff of the suit; whereas Banjiben is defendant no. 1 and Motibhai is defendant no. 3.

( 4 ) IT may be noted that in the village Mithana=-muvada there is a piece of land bearing Gram Panchayat No. 150. To the east of the said land is the land of Kanubhai, to the east there is public road, to the north there is land of Somabhai and to the south there is land there is G. P. No. 149 belonging to Madhabhai. The value of the land is alleged to be Rs. 400. 00 and there is a kutcha hut therein and the pegs meant for tethering cattle. On 1. 11. 1918 Khatubhai made a registered will under which it is provided that the properties would go to his widow as a limited owner having no right to transfer or alienate the properties; to his sons or widow on condition that she does not remarry and she would take limited owner and his two daughters viz. Banjiben defendant no. 1 and Vakhatben-mother of the plaintiff. the will also provided that in the event of the death of any of his daughters, the property would go to her heirs

( 5 ) THE said land belonged to the plaintiffs mother Vakhatas father and after his death some 25 years back a partition took place as between the plaintiff and defendant no. 1. The said land came to the share of the plaintiff and his brother Chhaganlal and since then not only the said land runs in the name of plaintiff but it has been in possession of plaintiff and his brother chhaganlal as owner. It is the case of the plaintiff that though the defendants have no rights and yet on 4. 2. 1973 they dug pillars in the suit land and started construction thereon without obtaining permission from the Panchayat. The plaintiff gave an application to the Panchayat objecting to the same. Therefore, the Sarpanch and two other members prevented the defendants from placing any construction and yet the defendants continued with the said act of construction by force. 5. 1. Being aggrieved by the said action, the plaintiff was constrained to file the Regular Civil Suit No. 11 of 1973 in the court of learned Civil Judge (Sd) at Dakore for restraining the defendants from interfering with the plaintiffs possession in the suit land and the construction as placed in the suit land should be removed at the cost of the defendants and he may be awarded the costs of the suit. The plaintiff also filed application exh. 4 for temporary injunction in this behalf which was granted on 8. 2. 73.

( 6 ) THE defendants filed written statement exh. 17