Point in Issue :
Whether first appellate Court has rightly held that plaintiff can not claim ownership of disputed land of ‘Wada’ ?

K.A. Puj, J.—The appellants/original plaintiffs have filed the Second Appeal under Section 100 of the Civil Procedure Code challenging the judgment and decree passed by the learned Assistant Judge, Surat on 10th October 1983 in Regular Civil Appeal No. 79 of 1981 reversing the judgment and decree dated 17th February 1981 passed in Regular Civil Suit No. 11 of 1979 by the learned Civil Judge (J.D.), Kathor and thereby dismissing the suit filed by the plaintiffs.

2. The Second Appeal was admitted by this Court on 16.02.1984 and following substantial question of law was framed by the Court for determination and consideration of this Court:

(1) Whether in the facts and circumstances of the case, the lower Appellate Court has materially erred in law in interpreting the sale deed Exh.46.

3. The brief facts giving rise to the present Second Appeal are that: the plaintiffs filed a suit for declaration that they are the owners of the land behind their houses bearing Nos. 1/58, 1/59, 1/60, 1/61 and 1/62 in village Bherav, Taluka:Kamrej, District:Surat. The area of the house along with the lands is 1313 Sq.Yards and thus, the measurement was given as 72 x 131 feet north-south. However, the plaintiffs have constructed their houses on the open land, which was purchased in the public auction and there are about 5 houses of the plaintiffs along with the ‘Wada’. The ‘Wada’ is on the southern side of their houses. But the said ‘Wada’ is in joint possession of the plaintiffs and thus, the plaintiffs have further alleged that the ‘Wada’ is about 64 feet in length east-west and on the southern side. It is triangular in shape and it is on the back side of the ‘Wada’ of the defendant No. 1. There are two Gobber Gas Plant in their ‘Wada’ and the plaintiffs are using the said ‘Wada’ for keeping agricultural implements and also growing grass in the monsoon. It is also recorded in the Government records. The house of the defendant No. 1 is on the western side of the house and the ‘Wada’ of the plaintiffs. The house of the defendant No. 1 bears No. 1/57 and it was purchased on 25th June 1974. There is a registered sale deed and the house is purchased from Devchandbhai Durlabhbhai and thus the defendant No. 1 is in possession and enjoyment of the house along with the Wada according to the sale deed. The house of the defendant No. 1 is 16 feet in breadth and 48 feet in length. The Wada is about 68 feet in length. Hence, the total length is 116 feet according to the sale deed. The plaintiffs have been using the said land for the last many years and a hedge, Papaiya trees and other flower plants in the Wada were brought up by the plaintiffs. The defendant No. 1 has alleged that the said portion of the land was exchanged with the defendant No. 2, even though the plaintiffs are in possession of the Wada land. This fact was also mentioned in the registered sale deed. The defendant No. 1 and defendant No. 2 desire to take away the said land and they are trying to take away said portion of the wada land. The plaintiffs therefore filed a suit for injunction against the defendants.

4. On service of the summons, the defendants appeared before the trial Court and filed their written statement at Exh.18 and contended that there was a mistake in the measurement and the description of the boundary and therefore the plaintiffs desired to take an undue advantage of the said mistake. The defendant No. 2 was in possession of the land for the last more than 20 years and there was only a mistake of the boundary in the sale deed. It was also contended that the Commissioner had measured the defendants’ property in which the house was found 50 feet in length north-south and thereafter, the Wada is about 59x6 feet up to the Gobber Gas Plant and there is a dung pit, which is touching to the Gobber Gas Plant. It admeasures about 19 feet. So, the length of the Wada is about 78.6 feet. The Commissioner has not reported about any hedge of Mahendi.

5. After considering the rival