JUDGMENT :

J.C. Doshi, J.

The Judgment is being structured in the following conceptual framework to facilitate the discussion: 

1. The unsuccessful plaintiffs of Special Civil Suit No.199 of 2000 (old No.127 of 1997), have preferred the present First Appeal under Section 96 of the Code of Civil Procedure 1908 (For short ‘the CPC’) assailing the impugned judgment and decree dated 30^th April, 2003, whereby, the learned Civil Judge (S.D), Gandevi, dismissed the plaintiffs’ suit.

2. For the sake of brevity and convenience, the parties are referred to their original status and position to the learned Trial Court.

THE FACTS:

3. The brief facts borne out of the record are that the plaintiffs filed the suit for permanent injunction against the defendants, inter alia, contending that they are the owners and occupiers of the immovable property bearing Block No. 410, Survey No.417, admeasuring 3 acres and 36 gunthas, situated at village Panikhadak, Old Taluka: Chikhli (hereinafter referred to as “the suit property”). The Revenue Entry No.327 dated 10^th November 1976, certi February, 1997, reflects the plaintiffs as the owners and occupiers of the suit property.

3.1 It is further the case of the plaintiffs that a school, hostel, and playground exist on a portion of the land bearing Block No.410, and that the school and hostel were constructed on land given by the plaintiffs. The plaintiffs also stated that they were cutting grass from the open land. Upon apprehending that the defendants intended to trespass upon the suit property and cause damage to the standing crops of tuvar and rice, the plaintiffs filed the suit for declaration as in negative terms, permanent injunction, seeking the following reliefs in paragraph 9 of the plaint:

“9(a) Be pleased to declare that the Defendants have no right or authority in the property described hereinbelow.

(b) We, the Plaintiff, pray that a permanent injunction may be granted in favour of the Plaintiff and against the Defendant that, the Defendant himself or through his servant, agents, associates, shall not perform or cause to be performed any acts that may cause hindrance, obstruction in the peaceful and the actual possession of the Plaintiff, neither shall he trespass nor cause to be trespassed into the possession thereof and neither shall he damage or cause to be damaged the crop (property) of the Plaintiff.

(c) Be pleased to award the entire cost of this suit from the Defendants.

(d) Be pleased to grant any such other and further reliefs that may deem appropriate and reasonable to the Honorable Court in view of the evidence on record and merits of this suit.”

3.2 Upon service of summons, the defendants appeared and filed their written statement at Exhibit 54, raising various contentions, including that the suit is not maintainable; that it is barred by limitation; and that it suffers from non-joinder and misjoinder of necessary parties, as the school, which is being run by a trust, has not been impleaded. It was further contended that one Mr. Nagjibhai and Vasiben had earlier filed Civil Suit in the Court of Civil Judge, Senior Division, Gandevi, in respect of the suit property, which came to be dismissed, and therefore, the present suit is barred by the principles of res judicata. The defendants also alleged that the plaintiffs had not approached the Court with clean hands. An important defence raised was that the suit property had been partitioned among the plaintiffs, defendants, and their ancestors, and defendants hold 1/2 share in Survey No.417, admeasuring 1 acre and 8 gunthas. It was further contended that corresponding revenue entries were mutated and the defendants are in actual possession of the said portion. Therefore, it was contended that the plaintiffs,