N.H. Bhatt, J.
1. This is an appeal filed by the original defendant of the Regular Civil Suit No. 123/69, decreed against him by the learned Joint Civil Judge, Junior Division at Narol, whose judgment had come to be confirmed by the learned Appellate Judge in the Regular Civil Appeal No. 35/77 in the District Court of Ahmedabad (Rural) at Narol filed by him.
2. The respondent-plaintiff had filed the suit against the appellant-defendant alleging that the defendant, his neighbour occupying property bearing No. 82 (the plaintiffs number being 85 on the western side) had encroached upon the land of his ownership No. 85, to the extent of 48' x. 48' and despite the injunction issued by the Panchayat regarding not putting up the structures without the Panchayat's permission, he had gone ahead. The respondent-plaintiffs suit initially was for an injuction restraining the defendant from interfering with his possession and going ahead with the construction, but during the pendency of this suit the appellant-defendant was alleged to have put up some construction and so, the plaint was amended and a prayer was added for a mandatory injunction for clearance of the land allegedly trespassed upon.
3. The defence of the defendant was that he was the owner of the disputed land which was a part and parcel of his property No. 82 and that at any rate he had acquired title by adverse possession he being in occupation for more than dozens of years prior to the institution of the suit.
4. The learned trial Judge had raised the issue to the fact whether the plaintiff proves that the suit land was a part of property No. 85 and whether the plaintiff was the owner thereof. The learned trial Judge held that the plaintiff was the owner of the disputed land, that the suit was not barred by delay, latches and acquiescence and that the plaintiff was entitled to the injunction sought for, meaning thereby the mandatory injunction. The learned trial Judge ordered that the defendant should remove his construction on the suit land. He also had issued a permanent injunction to the defendant restraining him permanently from entering the suit land.
4-A. When the matter came-up before the learned appellate Judge, he raised the following points for determination:
1. Whether the plaintiff proves that he is the owner of the suit land.
2. Whether the defendant proves that he is the owner of the suit land.
3. Whether the defendant proves that he has become the owner of the suit land by adverse possession.
4. Whether the suit is barred by delay, latches and acquiescence.
5. Whether the plaintiff is entitled to mandatory and perpetual injunction.
6. Whether the plaintiff is entitled to recover the possession of the suit land.
7. Whether the compensation would be the adequate relief.
The learned appellate Judge ultimately confirmed the finding about the ownership and ultimately confirmed the decree. Hence, the present Second appeal by the original defendant.
5. Mr. S.B. Vakil, the learned Advocate appearing for the appellant canvassed before me the following four points:
(i) The suit being one in respect of a boundary dispute within the exclusive jurisdiction of the Collector under Section 119 of the Bombay Land Revenue Code, the Civil Court had no jurisdiction to deal with the question.
(ii) The learned trial Judge had acted on irrelevant evidence on the question of title and hence, his finding was vitiated.
(iii) The defendant had proved that he had acquired the title at least by adverse possession, if not by grant.
(iv) At any rate the defendant having put up the structure at considerable costs and trouble, the discretionary relief of mandatory injunction should not be granted, but the plaintiff should be compensated in terms of money, as deemed fit.
6. I propose to take up these questions one by one. Mr. Vakil invited my attention to the plaint as well as the judgment of the learned appellate Judge and very vehemently contended that the dispute was regarding the boundary of the respective properties Nos. 85 and 82. The plaintiff asserted that the disputed land admeasuring 48' x 48' was a part and parcel of his property No. 85, whereas the defendant asserted that it was the part and parcel of his property No. 82, situated on the cast of the plaintiffs property. Mr Vakil therefore, urged that in final analysis, the dispute was between the two neighbours regarding the line of demarcation between the two property numbers and this in his submission was nothing, but a boundary dispute. Both the courts below, however, treated this as a dispute of title of the land. 1 frankly say that Mr. Vakil's submission that in the final analysis, the dispute may turn out to be a dispute regarding the boundary appears to be correct though the plaintiff asserted that this disputed as chunk of land admeasuring 48' x 48' was the land of his title and possession and that on the eve of his construction, the defendant had removed the hedge in order to build on his land. Even the approach of the learned Appellate Judge in particular and that of the learned trial Judge also proceeds on the consideration of whether the suit land is a part and parcel of the property No. 85 and whether it is not a part and parcel of the property No. 82. So, it can well be said that there is a dispute between the two neighbours regarding the boundary between their properties. However, as held by the Division Bench of the Bombay High Court in the case of Kanhailal Badridas v. Ismailbhai Kasambhai 28 Bombay Law Reporter Page 1498. the Civil Court's jurisdiction is not barred. It is an admitted fact that no survey had ever been carried out in respect of the plots of land in this village situated in Daskroi Taluka of Ahmedabad (Rural) District. Had there been any such survey and settlement, the parties would have referred to the properties by their survey numbers. The question is when the survey has not taken place, whether the Civil Court's jurisdiction is barred or not. The judgment of the Division Bench of the Bombay High Court is a clear answer to this contention. Moreover, the plea of adverse possession put forth by the defendant, of course alternatively also will fall within the exclusive jurisdiction of the Civil Court and to that extent it can be said that the Civil Courts certainly had the jurisdiction. It is to be recalled here that there are no words in Sections 119, 120 and 121 of the Bombay Land Revenue Code, excluding the Civil Court's jurisdiction. Mr. Vakil, therefore, urged that when the Collector was given the power to decide the boundary disputes and when his decision is stated to be 'determinative' under Section 121 of the Land Revenue Code, all that the Civil Court has to do is to keep the suit stayed and direct the parties to get the matter adjudicated by the Collector. Exclusion of the Civil Court's jurisdiction, therefore, was sought to be made out by Mr. Vakil by implication, which according to him, a necessary implication in the light of the provisions of Sections 119 and 121 of the Bombay Land Revenue Code. This argument has no scope in the scheme of the Revenue administration in the State of Gujarat. There is one piece of legislation styled as 'the Revenue Jurisdiction Act' which specifically deals with a bar of certain suit. Section 4 of the said Act specifically deals with this ouster or exclusion of Civil Court's jurisdiction. The said section in so far as it is relevant for our purpose reads as follows:
4. Bar of certain suits - Subject to the exceptions hereinafter appearing, no Civil Court shall exercise jurisdiction as to any of the following matters:
(g) Claims regarding boundaries fixed under the Bombay Land Revenue Code or any other law for the time being in force, or to set aside any order passed by a competent officer under any such law with regard to boundary mark. Proviso - Provided that, if any person claims to hold wholly or partially exempt from payment of land revenue.
There is Section 5 also which saves the operation of certain suits. Clause (b) mentions that suits between private parties for the purpose of establishing any private right, although it may be affected by any entry in any record of revenue survey or settlement or in any village-paper, are excepted from the ban contained in Section 4 quoted above. Even if the survey and settlement record shows otherwise, private parties suits for the purpose of establishing their private rights of ownership and possession can be litigated in a Civil Court, as expressly provided therein.
7. In above view of the matter, I do not uphold the contention of Mr. Vakil, though I uphold the initial submission of his that in final analysis the dispute between the two neighbours turns out to be a dispute about the dividing line between the properties Nos. 85 and 82.
The second and the third points pertain to the evidential aspect of the matter. Both the Courts below preferred the plaintiffs documents, and the oral evidence of his witnesses to those of the deft, and on appreciation of the evidence concluded that the plaintiff was the owner of the disputed land and that he was in possession thereof till the defendant strong-headedly trespassed on it and started digging foundations and going ahead with the construction, despite the pendency of the suit. As the questions of title and possession are also questions of facts, (in the absence of any questions arising as to interpretation of documents), I do not think that I have jurisdiction to behind those findings.
8. The last question pertain to the granting of mandatory injunction. Mr. Vakil in this connection invited my attention to the judgment of the Bombay High Court in the case of Bai Rewa and Ors. v. Vrijvalabh Mohanlal VI-Bombay Law Reporter page-41 and also another judgment of the Bombay High Court in the case of Malkarjunappa Sidramappa Deshmakh v. Anandram Annarao Deshmukh and Anr. 1929 I.L.R. page-767. Both these cases are of encroachment resulting into deprivation of some incidental rights of the person complaining of encroachment. In the present case the encroachment does not deprive the plaintiff of some more benefitial enjoyment of his property, but it deprives him of his property itself by an outrageous act. Such acts of trespass and particularly, after knowledge of the claim put forth by the other side cannot be permitted. The judgment of the Bombay High Court, in the case of Jethalal Hirachand Vakil v. Lalbhai Dalpntbhai Sheth ILR-28 Bom page-228 is a clinching answer to the contention put forth by the appellant-defendant.
In above view of the matter, the appeal is dismissed with costs, but it is directed that the decree shall not be executed for a period of four months from today, in order to enable the appellant to have further recourse in accordance with the law, if any.