JUDGMENT :

C.L. Soni, J.

This appeal under Section 100 of the Civil Procedure Code is at the instance of the original plaintiff, who had filed Regular Civil Suit No.73 of 1996 for declaration and permanent injunction.

2. It is the case of the plaintiff in her suit that the plaintiff is the owner and in possession of the land bearing survey No.31/1 which is old tenure land. The said land admeasuring 5 Acre 36 Gunthas, was purchased by the plaintiff on 16.04.1990. The plaintiff got possession of the said land as also the land which is already held for 30 years by the original owner Shri. Laxmanbhai Punjabhai. The plaintiff has developed the land and has grown many fruit trees. It is further averred by the plaintiff that the lands of the Forest Department are adjacent to the land of the plaintiff and they have unilaterally got their lands measured and stated to the plaintiff that the plaintiff had encroached upon the lands of the defendants. That on 19.01.1996, the officers of the defendants damaged the standing crop and trees of the plaintiff and, therefore, the cause has arisen to the plaintiff to file the suit. The plaintiff has further stated that the defendants have got no right or authority to interfere with the possession of the plaintiff’s land bearing survey No.31/1, as also the land which was originally in possession of Shri. Laxmanbhai. The plaintiff has, thus, prayed to declare that the plaintiff is owner of the land bearing survey No.31/1 admeasuring 5 Acre and 36 Gunthas and the defendants be restrained from interfering with the possession of the plaintiff’s land bearing survey No.31/1. The plaintiff has also prayed to declare that if the plaintiff is holding excess land than the land of survey No.31/1, the plaintiff has become owner of such excess land by adverse possession.

3. The suit of the plaintiff was resisted by the defendants by filing written statement at Ex.14. It was mainly stated by the defendants that the plaintiff has encroached upon the land admeasuring 1.3 Hector of survey Nos.32 and 33 belonging to the defendants. It was further stated that the plaintiff has wrongly considered the above land admeasuring 1.3 Hector to be part of survey No.31/1 and predecessor in title of the plaintiff namely Shri. Laxmanbhai has no right to give the land of the defendants to the plaintiff. That the land bearing survey Nos.32, 33, 34, 35, 36, 37/2 and 43 are declared to be the forest lands and on joint measurement carried out by the office of the District Inspector of Land Records (D.I.L.R.) and the department of forest, the plaintiff was found to have encroached on the forest land and the plaintiff has accepted such encroachment and has shown willingness to pay penalty. Therefore, the defendants stated that the suit of the plaintiff was required to be dismissed.

4. Learned Trial Judge, on appreciation of evidence, found that the plaintiff is the owner of the land bearing survey No.31/1 admeasuring 5 Acre 36 Gunthas. The learned Trial Judge also recorded the finding of facts that the plaintiff is in possession of the land admeasuring 1.3 Hector, over-and-above her own land bearing survey No.31/1 and in respect of such additional land, the plaintiff has become owner of the land by adverse possession. The learned Trial Judge, thus, allowed the suit of the plaintiff and declared the plaintiff to be the owner of the land bearing survey No.31/1 admeasuring 5 Acre 36 Gunthas and also declared that the plaintiff has become owner by adverse possession of the land to the extent of 1.3 Hector held by her in excess to her own land. The learned Trial Judge also granted permanent injunction restraining the defendants from interfering with the lands in possession of the plaintiff.

5. The State and its authorities who are the original defendants, therefore, filed Regular Civil Appeal No.69 of 2000 challenging the judgment and decree passed by the learned Trial Judge. The learned Appellate Judge, on appreciation of evidence, concurred wit