A plaintiff not in possession must seek recovery of possession to maintain a suit for injunction; failure renders the suit non-maintainable.

JUDGMENT :

J. C. DOSHI, J.

1. Coordinate Bench of this Court, vide order dated 13.06.2007, was pleased to admit the Second Appeal, formulating the following substantial question of law for consideration:-

“Whether on the facts and in the circumstances of the case, contrary to the documentary evidence on record, the Court below was justified; in upholding the possession of the defendant of the suit land and in refusing the relief to the plaintiffs ?”

A. IMPUGNED JUDGMENT AND DECREE:-

2. Present second appeal essentially challenges the judgment and decree delivered in Regular Civil Appeal No.16 of 2003 by the 2^nd Additional District Judge, Himmatnagar at Sabarkantha whereby the judgment and decree passed by the learned trial Court in Regular Civil Suit No.65 of 1996 has been upturned and suit was dismissed. For the convenience, parties are referred to their original status before the learned trial Court.

B. LITIGATION HISTORY:-

3. The appellant, who is the original plaintiff, instituted Regular Civil Suit No. 65 of 1996 before the learned Civil Judge (J.D.), Prantij, seeking a decree of permanent injunction to restrain the defendants from interfering with his lawful possession over the agricultural land bearing Survey No. 171/01, Block No. 283, situated at Village Pallachar, Taluka Prantij, District Sabarkantha. It was the case of the appellant that the suit land was originally granted to his progenitor, viz. Punjabhai Jivabhai (father of the appellant), under the Bhoomidān scheme, and the necessary mutation entries were duly made in the revenue records. After the demise of Punjabhai Jivabhai, the appellant’s name came to be recorded as the lawful occupant and cultivator of the said land, which he claims to have been personally cultivating ever since.

3.1. It was further the case of the appellant that the defendants, being the sons of his paternal uncle and residents of the same village, attempted to dispossess him from the suit land. Consequently, the appellant was constrained to file the aforesaid civil suit seeking injunctive relief. The learned Civil Judge (J.D.), Prantij, after appreciation of the evidence, decreed the suit in favour of the appellant vide judgment and order dated 13.03.2002. However, being aggrieved thereby, the defendants preferred Regular Civil Appeal No. 16 of 2003 before the learned District Judge, Sabarkantha at Himatnagar, which came to be allowed by judgment dated 13.10.2006, thereby setting aside the decree of the trial court. The appellant, feeling crestfallen and dissatisfied with the said appellate order, has preferred the present Second Appeal.

C. SUBMISSION OF THE APPELLANT:-

4. Learned advocate for the appellant submitted that the learned Appellate Court gravely erred in relying solely upon oral evidence while completely disregarding unimpeached documentary evidence on record. It is further submitted that the learned Appellate Court, in a manifest error of law and appreciation of evidence, chose to place undue reliance upon the oral depositions at Exhibits 72, 73, and 74, while simultaneously ignoring the documentary corpus adduced by the appellant at Exhibits 51, 52, and 53 to 66. The said documents, including the revenue entries No. 1045 dated 26.08.1954 and No. 5624 for the year 1986–87, indubitably demonstrate that the name of the appellant’s father was duly entered in the revenue records, which entries remained unchallenged at any point of time.

4.1. Learned advocate for the appellant submitted that the learned Appellate Court misdirected itself in law by attaching undue significance to the appellant’s employment and ignoring the legal po