JUDGMENT :

A.P. Thaker, J.

1. This First Appeal and Cross-Objection are arising from judgment and decree passed by learned Civil Judge, S.D. Himmatnagar dated 30.1.1982 in Special Civil Suit No. 17 of 1975. The First Appeal has been preferred by the original defendant, whereas cross-objection has been preferred by the original plaintiff.

2. By judgment and decree dated 30.1.1982, trial Court has partly allowed the suit of the plaintiff and restrained defendants and his agents and servants by way of permanent injunction from making any construction upon the land admeasuring 26 ft. (N-E) x 33 ft. (E-W) situated at Khedbrahma and bounded as shown in Para-5 of the plaint. At the same time, the defendants were restrained from disturbing the plaintiff from his use and occupation of the suit land except the land admeasuring about 83 ft. (E-W) x 9 ft. (N-S) as indicated by letter “A” mentioned in paragraph 51 as well as land admeasuring about 15 ft. (E-W) x 18 ft. (N-S) as indicated by letter “B” in paragraph 13 of his written statement, which are in actual possession of the defendant.

3. The defendant by way of First Appeal has submitted that the trial Court has committed an error of facts and law in passing permanent injunction in respect of the land, which is in actual possession of the defendant. The defendant has also submitted that the trial Court has committed error in believing the title of the plaintiff in respect of the suit land admeasuring 76 ft. x 33 ft. According to him, he has proved his title by various documents, which includes sale deed Exh.159 dated 8.4.1949, Sanad Exh.160 dated 15.12.1953 as well as Sanad Exh.161 dated 10.4.1973 and actual possession of the suit land. It is also contended that the defendant is in actual possession of the suit land since 1949 and the plaintiff has never objected to the same. It is also contended that the plaintiff has relied upon Sanad No. 122 dated 12.3.1932, Exh.123 dated 4.10.193 and Exh.124 dated 21.2.1934, however, the plaintiff does not aver that what he did for all these 50 years in respect of the suit land and plaintiff has slept over his right for more than 40 years.

3.1 It is also contended that the plaintiff has filed suit for permanent injunction only and thereby wanted and tried to take away possession from the defendant. It is also contended that the plaintiff himself has not deposed before the trial Court and his Power of Attorney Holder has been examined, who has admittedly no personal knowledge about the facts of the case.

3.2 It is also contended that trial Court has committed error of facts and law though it has believed the possession of the defendants in respect of the suit land and yet he has been restrained from utilizing the same. It is also contended that the plaintiff has failed to establish his title over the property in question and since he was not in possession, the suit filed for permanent injunction simplicitor is not maintainable. It is also submitted that the defendant is in possession of the suit land since many years and even if it is the case of the plaintiff that by way of Sanad of 1932, he has title over the land, even in that case, the possession of the defendant has become adverse and this issue of adverse possession ought to have been decided in favour of the defendant. It is contended that observation of the trial Judge that issue of adverse possession is redundant is not proper. The defendant has also contended that trial Court has failed to appreciate oral and documentary evidence of the defendant in proper perspective and has failed to draw proper and legal inference. According to the defendant, suit of the plaintiff ought to have been dismissed and relief sought by him in counter-claim ought to have been granted in favour of the defendant.

3.3 On all these averments, the defendant has prayed to set aside the judgment and decree passed in Special Civil Suit No. 17 of 1975 dated 30.1.1982 passed by Civil Judge, S.D. at Himmatnagar and to dismiss