Trial court erroneously determined it had no jurisdiction; jurisdiction persists for claims regarding trespass on land not acquired.

1. The above appeal arises under the following circumstances :
Appellants-plaintiffs had filed Special Civil Suit, 114 of 1981, in the court of the Civil Judge (S.D.) Bharuch alleging that they had right, title and interest in S.No. 268/2 admeasuring 1 acre 3 gunthas situated in the sim of village Jadeshwar. It was alleged that out of the said land, 17 gunthas had been acquired for the purpose of the National Highway, near Narmada river near village Jadeshwar. It was further alleged that the plaintiffs were having only 11 gunthas of land out of the total land of S. No. 268/2 and that therefore, there was an encroachment by the defendants over the remaining land of the said survey number. The plaintiffs had therefore, prayed in the said suit for vacant possession of the land so trespassed upon. Alternatively, plaintiffs had claimed Rs. 42,000/- from the defendants, in case a decree for possession of the said land was not passed in favour of the plaintiffs. Plaintiffs had also prayed for mesne profits of Rs. 900 up to the date of the suit and for further mesne profits from the date of the suit as well as for costs. The said suit was filed on 14-10-81.

2. The suit was resisted as per the written statement dated 5-7-82. After recording evidence, the trial court was pleased to dismiss the suit with costs by judgement and order dated 28-2-85, as the trial court came to the conclusion that it had no jurisdiction and that the suit was barred by time. It is pertinent to note that the aforesaid issues relating to the above were not framed as preliminary issues and the whole suit was proceeded on merits and ultimately it resulted in dismissal as aforesaid.

3. Being aggrieved by the aforesaid judgement and order, plaintiffs have come in appeal.

4. The following points arise for determination in the above appeal :-
(i) whether the trial court was right in reaching the conclusion that it had no jurisdiction to try the suit ?
(ii) Whether the suit was barred by time ?
(iii) Whether the trial court had erred in holding that the defendants had not trespassed upon the suit land ?
(iv) To what reliefs the plaintiffs would be entitled to ?

5. So far as the aspect of jurisdiction is concerned, it is to be appreciated that the plaintiffs are raising no contention regarding the land actually acquired by the defendants. On record is the copy of an award, Ex. 74, passed in LAQ/SR/105/70 dated 4-3-1971. It shows that the notification under S.6, Land Acquisition Act , was published on 24-9-1970. It further shows that the land acquired was 17 gunthas and 60 sq. meters of S. No. 268/2. It is clear from this award that the whole of S. No. 268/2 had not been acquired. On record, there is a document which had been produced at Item 2 of Ex.22. It is a certified copy of a public document. Mr. J.M. Panchal for the respondents has no objection to this document being exhibited as it is a certified copy of a public document. The said document is, therefore, given Ex.80. Ex.80 shows 17 gunthas of land, which were acquired for the purpose of the road. It also shows that the remaining land was 26 gunthas. It further shows that on actual measurement, the land covered by the said road was 32 gunthas and it further shows that the remaining land of S. No. 268/2 other than the land covered by the said road, as stated above, was 11 gunthas. Not only the aforesaid has been stated in Ex. 80, but also it has been made clear in Ex.80 that some amendment was necessary in the said circumstances in the award itself. The date