A suit for perpetual injunction is maintainable to protect possession when there is no legitimate cloud on title. A sale transaction involving agricultural land to a non-agriculturist, being void ab initio, does not constitute a valid dispute of title necessitating a suit for declaration.

JUDGMENT

1. By way of this Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as `the Code’), the appellant has prayed to quash and set aside the order dated 21.10.2003 passed by the learned Joint Civil Judge (Senior Division), Dhrangadhra in Regular Civil Suit No.101 of 2000 below Exh.107 and order dated 6.11.2004 passed by the learned Joint District Judge and 2nd Fast Track Court, Surendranagar @ Dhrangadhra in Regular Civil Appeal No.32 of 2003.

2. Heard learned advocate Mr. Manan Paneri for the appellants. Though served, none appeared for respondent/s. Perused the record.

3. The facts in brief of the case are as under:

4. The plaintiff - respondent filed a suit for permanent injunction restraining defendants from entering into the suit property and also prayed for a relief of protection of possession of the land bearing survey No.340 paiki admeasuring about 8 Acres, 35 Gunthas. The plaintiff asserted possession and ownership qua suit property pursuant to a revenue entry No.624 dated 27.12.1968. As per the allegation of plaintiff in the plaint, on 15.11.2000, defendant with other unknown persons came at the suit land and threatened plaintiff to execute a sale deed and on refusal to sale of the suit land, defendant and other unknown persons caused injuries to plaintiff. The defendant also threatened plaintiff that he would create hindrance in the possession of plaintiff, which constrained plaintiff to file a suit. The defendant appeared and filed written statement at Exhibit 17. On the basis of pleadings vide Exhibit 58, the learned trial Court framed following issues:

(1) Whether the plaintiff proves that the plaintiff has been in continuous possession of 8-35-gutha acres out of survey number-340 of the boundary of Rawadiyavadar since the time of the plaintiff's grandfather?

(2) Whether the plaintiff's claim barred by estoppel or latches ?

(3) Whether the defendant proves that he has been in possession of the claimed land since the sale deed dated 15-10-1974 ?

(4) Whether the plaintiff is entitled to the relief as per the plaint?

(5) What order and decree?

5. Plaintiff examined his son, Jeevanbhai Harjibhai through a Special Power of Attorney vide Exhibit 80. The plaintiff examined a witness at Exhibit 88 and also produced documentary evidences that of extracts of entries recorded in revenue record. The defendant examined himself at Exhibit 98 and also examined a witness at Exh.102. After considering the evidence on record, the learned trial Court decreed the suit on 21.10.2003 and directed the defendant not to enter in the suit property and not to create any hindrance or obstruction in possession of plaintiff. Being aggrieved and dissatisfied with the impugned judgment and decree, the defendant filed First Appeal before the learned Joint District Judge and 2nd Fast Track Court, Surendranagar being Regular Civil Appeal No.32 of 2003. The learned First Appellate Court, after confirming the judgment and decree on 6-11-2004 dismissed the appeal. Being aggrieved and dissatisfied with the rejection of the First Appeal, the defendant has filed present Second Appeal.

6. At the time of admission of the Second Appeal, the coordinate Bench of this Court, by order dated 18.10.2005 has admitted the appeal on the following substantial question of law.

(1) Whether, in the facts and circumstances of the case, the lower Appellate Court e