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SA/6520/2007 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 65 of 2007
=========================================================
TAPODHAN
BRAHMSAMAJ - Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Defendant(s)
=========================================================
Appearance
:
MR
PR NANAVATI for
Appellant(s) : 1,
NOTICE SERVED for Defendant(s) : 1 - 2.
MR YM
THAKORE for Defendant(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 21/07/2008
ORAL
ORDER
1. Heard
learned counsel for the parties.
2. The
appellant, original plaintiff in Regular Civil Suit No. 242 of 1996
has approached this Court under section 100 of the Civil Procedure
Code by way of this second appeal assailing the judgement and order
passed by the appellate court in Regular Civil Appeal No. 47 of 2003
dated 09.08.2005 as well as the order and judgement dated 30.08.2003
passed by the trial court in Regular Civil Suit No. 242 of 1996
dismissing the suit filed by the present appellant.
3. The
facts in brief giving rise to the present appeal are set out as
under:
3.1 It
is the case of the appellant that land bearing survey no. 605, block
no. 43 admeasuring 1 hectre 6 Aare and 23 meter was transferred on
13.11.1946 by registered gift deed in favour of Shri Raval Ambaram
Anopram and five other by one Shri Jhuravarsinj Gambisinh, Ex. King
of Kotasan on payment of Rs. 271.00/- as najarana. Subsequent to
this, the land came in possession by way of non registered gift deed
dated 01.10.1983 for the purpose of using the land as cremation place
of the Topodhan Brahman Samaj and the appellant is in possession of
this land since 1983 onwards.
3.2 The
respondent no.3 claimed ownership of this land as Government gauchar
land on the basis of entry no. 410 dated 09.12.1976 in the revenue
record. Therefore the appellant preferred appeal before the
Mamlatdar, Mehsana who vide his order dated 14.10.1987 passed that
the land is of private ownership of the appellant. The respondent
no. 1 therefore preferred an appeal against this order of Mamlardar,
before the Pranth Officer, Mehsana and vide order dated 13.11.1995
the Pranth Officer directed the parties to appraoch the competent
court. Subsequently the appellant moved the court of Civil Judge
(S.D), Mehsana whereby the suit was dismissed by the court which was
carried in appeal by the present appellants. The appellate court
also dismissed the said appeal and therefore the present second
appeal.
4. Mr.
Nanavati, learned advocate appearing for the appellant has submitted
the substantial question of law that whether the courts below are
justified in arriving at a finding that the land bearing Block No. 43
(Survey No. 605) is owned by Respondent No. 3 and not by the
appellant and that whether the courts below are justified in
observing that the document of gift dated 13.11.1946 executed by the
Ex. King of Katosan State in favour of Raval Ambaram Anopram is not
produced before the courts, while in reality it is already produced
alongwith the suit before the Civil Judge (S.D) and the said court
exhyibited it as exhibit no. 3/1 as indicated in order dated 10.03.97
below exhibit 5 and further that whether the courts below were
justified in arriving at a finding that in absence of non
registration of a gift deed dated 01.10.1983 will lead to non
admissibility of that document in evidence if the parties are willing
to go for post facto registration.
5. As
a result of hearing and perusal of records, it is quite evident that
the trial court has gone into the evidence in detail and found that
the land under dispute is in the ownership of the government more
particularly the Gram Panchayat. From the evidence on record, more
particularly, Ex. 68 to 71, it appears that the said land has been
declared as ‘Gouchar’ by the government and therefore it can be said
that the trial court has found sufficient reasons to dismiss the
suit. The gift deed of 1946 relied on by the appellant could not be
properly proved by the appellant before the trial court. The trial
court while rejecting the said contention has given sufficient and
cogent reasons in para 13 of the order. No concrete evidence is
placed on record to show that the appellants have any right over the
land in question. I am in complete agreement with the concurrent
findings of both the courts below. No substantial question of law is
raised in the present appeal for consideration. In that view of the
matter, this Court has no option but to dismiss the appeal.
6. Accordingly,
this appeal is dismissed. No order as to costs.
(K.S.
JHAVERI, J.)
Divya//
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