The rejection of the application under Order 26 Rule 9 CPC was justified as there was no dispute about the location, identity, and demarcation of the land. The pecuniary jurisdiction of the Civil Judge, Class-II to decide the suit was upheld as the Civil Judge had the jurisdiction to determine the suit of the value not exceeding Rs. 2,50,000 after the amendment.

ORDER :

1. Appellant/plaintiff has filed the present second appeal being aggrieved by the judgment and decree dated 04.12.2012 passed by Civil Judge, Class-II, Manavar, district Dhar and judgment dated 22.09.2016 passed by Additional District Judge, Manavar, district Dhar whereby the suit for declaration and permanent injunction and the first appeal both have been dismissed respectively.

2. Facts of the case in short are as under:

Plaintiff filed a suit for declaration and permanent injunction in respect of a piece of land admeasuring 35 x 12 x 8 sq. ft. situated in Ward No. 13, Juni, Manavar, district Dhar (hereinafter referred as ‘the suit land’). According to the plaintiff, the said land came into his share by way of partition as the same was joint family property/vardiloparjit property. He is using the said land since last so many years for storing garbage, wood, animals and their food etc. He is residing in the house situated at Juni Mohalla, Manavar since last 13 years. The suit land is situated 12 ft. away from the south side of the said house. He purchased the west facing house admeasuring 24 x 75 sq. ft. in the year 1996 from Gajanand. He had an agreement to sell with the father of defendant No. 2 and his brother Chaganlal for sale of 30 x 40 sq. ft. house and since then he is in possession in it. He received a notice dated 11.08.2009 from the Court of Tehsil in Case No. 342/08-09 then he came to know that the defendant No. 2 being the owner of the suit land has donated it to defendant No. 1 vide registered gift deed dated 06.06.2008. There was collusion between defendant Nos. 1 and 2. The defendant No. 2 had no right and title over the land to execute the gift deed and on the basis of the gift deed the defendant No. 1 is trying to dispossess him forcibly which gave cause of action to him for filing the civil suit for the relief of declaration and permanent injunction.

3. Defendant No. 1 filed the written statement as well as counter claim for the reliefs of declaration and possession of the suit property. The defendant No. 2 also filed the written statement in favour of defendant No. 1. According to the defendants, Maganlal and his brother Chaganlal both jointly purchased large area of the land vide registered sale-deed dated 26.06.1943 from Jawharlal (minor). Maganlal and Chaganlal both have expired and the defendant No. 2 being the son became the exclusive owner of the suit property. He was in possession over the suit property as well as other lands. The area of the suit land is 35 ft. from north to south, 12 ft. on the north side and 8 ft. on the south side. There is a concrete road on the east side and house of Vijay Barve and Namdev Dharamshala are situated on the west side. The defendant No. 2 has admitted the execution of the gift deed dated 06.06.2008 in favour of defendant No. 1 and denied the title of the plaintiff. The plaintiff purchased the house from the father of defendant No. 2 by way of agreement to sell but since the sale-deed was not executed, therefore, he has no title. The defendants have specifically denied the title of the plaintiff by way of succession and also denied that the suit property is vadiloparjit property. The defendant No. 2 has admitted that he had handed over possession of the suit land to defendant No. 1 on 06.08.2008 and thereafter the plaintiff has forcibly taken possession on 25.07.2009 by erecting fencing.

4. Plaintiff filed the written statement to the counter claim of defendant No. 1. He has also denied that the suit property is not the part of the land purchased by Maganlal and Chaganlal vide registered sale-deed dated 26.06.1943. Neither the father of defendant No. 2 purchased the suit land nor did the defendant No. 2 have the right to execute the gift deed.

5. On the basis of the pleadings in the suit as well as counter claim and written statement, the trial Court framed eight issues for adjudication. In support of his case the plaintiff examined himself as PW-1, Vittal as PW-