JUDGMENT :

N.V.ANJARIA, J.

This First Appeal is directed against judgment and decree dated 3.12.2008 passed by learned Additional Senior Civil Judge, Anjar, Kachchh, whereby the court below granted application Exhibit 58 filed by defendant Nos.8, 9 and 10 under Order VII Rule 11 of the Code of Civil Procedure, 1908, consequentially rejected the claim.

2. The Special Civil Suit No.16 of 2008 was instituted by five plaintiffs for the relief of permanent injunction and declaration, further to get cancelled the registered deeds. The subject matter of the suit was land bearing survey No.503/1 ad measuring 11 acres and 5 gunthas and survey No.503/2 ad measuring 3 acres and 21 gunthas, situated at village Moti Khedoi Taluka Anjar, Kachchh, which bear old survey No.576 paiki.

2.1 It was the case of the plaintiffs that as per the old record, in Sud book, one Takhatsang Bhupatsang Jadeja was shown as owner whereas one Pataji Becharji was named as agriculturists. The plaintiffs averred that plaintiff No.1 was heir of said one Takhatsang Jadeja whereas plaintiff Nos.2 to 5 were the heirs of Isharji Bhupatsang Jadeja.

3. The prayers sought for in the suit were as under,

(i) To permanently injunct defendant No.1- Company or its agent and servants from transferring, mortgaging etc. or doing any act including handing over the possession of the suit land to anybody.

(ii) To direct defendant Nos.10 and 11- the Mamlatdar and the Talati to mutate the entry and certify the same of three brothers named Takhatsang Bhupatsang Jadeja and Isharji Bhupatsang Jadeja declaring that they all have equal share in the suit property in view of Sud book of the land and the document of Fargati (the document dividing the shares).

(iii) To direct defendant No.1 to hand over to the plaintiffs the vacant and peaceful possession of the land.

(iv) To restrain the defendant No.1 and its agents and servants from utilizing in any manner either for industrial purpose or for placing the pipes etc. thereon till the final disposal of the suit.

(v) To declare as illegal and invalid the redemption of the mortgage deed dated 23.11.2004 got executed by defendant No.4, from defendant Nos.4 to 7 as well as the consequential mutation entry No.2340 entered in the revenue record.

(vi) To declare as illegal registered sale deed dated 19.5.2007 executed by defendant No.4 and Power of Attornies defendant Nos.2 and 3 and consequential kachha entry No.2798 made in the revenue record on 28.5.2007.

(vii) To declare as illegal that the promulgation entry No.329 dated 15.2.1970 and succession entry No.2240 made by defendant Nos.8 and 9 authorities. It was further prayed to substitute the same by making promulgation entry in the name of Takhatsang Bhupatsang and to direct the respondent Nos.8 and 9 authorities accordingly.

(viii) To permanently restrain defendant Nos.8 to 11 authorities from granting non-agricultural permission in respect of land survey No.503/1 and further to permanently restrain the said defendants from making any non-agricultural entry for both the suit lands.

(ix) To declare that defendant No.4 alone has no right or authority to sell, mortgage or redeem the mortgage or to execute the Power of Attorney, nor she alone has got ownership or possessory rights in respect of and over both the lands.

(x) To declare in favor of the plaintiff against defendant No.4 in particular that in respect of both the suit lands Takhatsang Bhupatsang and his two brothers had joint ownership and possession.

3.1 The plaintiffs averred in the plaint that since first promulgation in the year 1960, the land was in the name of one Takhatsang Bhupatsang Jadeja, that on particular in the Kachchhi Samvat Year 2002, a writing was executed amongst said Takhatsang and his two brother Ratansang and Isharji to avail them equal shares in the land, and therefore the plaintiffs has shares accordingly in capacity of heirs. The name of the agriculture field in question was ‘doniyo’ which was mentioned in the records of the erst