JUDGMENT :

B.N. Karia, J.

Present appellants, who are the original plaintiffs before the trial Court in Regular Civil Suit No. 8 of 1996 and appellants before the first appellate Court in Regular Civil Appeal No. 93 of 2001, have challenged the judgment and decree dated 27.09.2017 passed by the learned 5th Additional District Judge, Vadodara in Regular Civil Appeal No. 93 of 2001 confirming the judgment and decree dated 29.03.2001 passed by the learned Civil Judge (Junior Division) Karjan in Regular Civil Suit No. 8 of 1996.

2. This appeal was placed for admission stage, however, considering the facts of the case that learned trial Court and first appellate Court have arrived at concurrent findings of not considering the facts and prayer made by the plaintiff, this appeal is taken up for final hearing.

3. Learned advocate for the appellant has produced certain documents which were produced before the trial Court for consideration of this appeal.

4. The short facts of the case may be referred as under:

In the suit, the plaintiffs have averred that they were in ownership and possession of the different properties i.e., Survey Nos. 612, 750, 853, 959/1 and 780 situated at village Chorandani sim and was cultivating the agricultural lands. Measurement of the different land was also shown in the plaint by the plaintiffs. As per the averments, since 1965, they were in possession of the suit land, as it was allotted to them by Government in a capacity of "Vartania". Thereafter, on termination of services as Vartania, the land was confiscated but however, as per the demand of the plaintiffs, vide order dated 02.03.1965, the land was handed over to the plaintiff and the plaintiffs were cultivating the said land. That, defendant has no right, title and interest in the suit land, however, he was disturbing the possession of the plaintiff. On 18th January, 1996, threat was given by the defendant to the plaintiff that suit land was of the ownership of the defendant and he would get the possession by force. Hence, plaintiff was constrained to file the suit for granting permanent injunction restraining the defendants from distributing the possession of the suit land i.e., survey Nos. 612, 750, 853, 959/1 and 780 situated in the sim of village Chorandani.

5. On receiving the summons, the defendant filed his written statement vide Ex. 13 contending that he had equally share inasmuch as had preferred a suit for partition, being Regular Civil Suit No. 185/86 and the same was allowed and decree of partition was passed by the Civil Court on 19.10.1991 in his favour. That, execution of the said decree was done at the instance of Collector and Circle Officer. That, one half portion of the land was handed over to him. That, after passing a decree of partition, Civil Misc. Application No. 3/1992 was preferred by the plaintiff under Order 9, Rule 13, CPC to set aside the ex parte decree passed in Regular Civil Suit No. 185/1986, but was rejected by the civil court. That, being dissatisfied with the order passed in the Civil Misc. Application No. 3/1992, Regular Civil Appeal No. 42 of 1993 was preferred by the plaintiff, which was also came to be rejected by the District Court on 14.06.1994. That, the order passed by the District Court in the said appeal was not challenged. That, the plaintiff has also challenged the order of the Circle Officer of handing over the possession to the defendants by preferring appeal before the Deputy Collector, bearing No. T.A. No. 132/1993, which was also rejected. That, material fact was suppressed by the plaintif in the suit. That, plaintiff has misled the court, and therefore, requested to dismiss the suit.

6. Learned trial Court framed the issues vide Ex. 27. The plaintiff himself was examined vide Ex. 46 and one witness Kanubhai Bavjibhai was examined vide Ex.66 and defendant Somabhai Vasava was examined vide Ex. 69. The learned trial Judge, after recording the evidence of the parties, was pleased to dismiss the suit by an or