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SA/345/1983 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 345 of 1983
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
JASWANTSINH
ANDARSINH GOHIL & 2 - Appellant(s)
Versus
FATESINH
NANSINH GOHIL & 2 - Defendant(s)
=========================================
Appearance
:
MR NR
TANDEL for
Appellant(s) : 1 - 3.
NOTICE SERVED for Defendant(s) : 1 -
3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 28/07/2010
ORAL
JUDGMENT
The
appellants/original plaintiffs have filed this Second Appeal under
Section 100 of the Civil Procedure Code, challenging the judgment
and order passed by the learned District Judge, Panchmahals at
Godhara on 16.7.1983 in Regular Civil Appeal No.105 of 1981,
confirming the judgment and decree passed by the learned Civil Judge
(J.D.) Godhara in Regular Civil Suit No.467 of 1978. This Second
Appeal was admitted and following substantial questions of law was
formulated by the Court;
Whether
in the facts and circumstances of the case, the Lower Appellate
Court has substantially erred in law in raising presumption under
Section 114 of the Indian Evidence Act, with regard to Entry No.581
dated 4.3.1967, particularly when the evidence on record shows that
no notice under Section 135 of the Bombay Land Revenue Code was
issued before holding the said Entry .
In
this appeal, learned advocate Mr. N. R. Tandel is appearing on
behalf of the appellants/original plaintiffs. Originally Mr. Akshay
H. Mehta, learned advocate appeared on behalf of the respondents.
However, on his elevation as a
judge of this Court, fresh notice was issued to the
respondents. Despite, service of notice nobody appears on behalf of
the respondents.
The
brief facts giving rise to the present Second Appeal are that the
appellants/original plaintiffs have filed Regular Civil Suit No.
No.467 of 1978 on or about 1.8.1978. All the Three appellants as
well as the respondent no.2 are the four brothers. The respondent
no.1 is the uncle of the appellants and the respondent no.3 being
the widow of Anopsinh Nansinh was joined as party in the suit and in
all subsequent proceedings. The appellants contended that in sim of
village Motal in Godhra Taluka, Block No.235, survey no.44/2
admeasuring about 1 Acre, 21 Gunthas is the joint property of both
the parties and in possession of them jointly. The suit land was
previously standing in the record of right in the name of their
uncle as well as Andarsinh, father of the appellants. Except
appellants and the respondents, no one has got any share in the suit
land. Since the deceased Vajesinh and Anopsinh have already
obtained their shares, they have not got any right , title or
interest over the suit land. During the life time of the father of
the appellants and respondent no.2, they were cultivating the suit
land jointly with the respondent no.1 but after the death of their
father, the appellants as well as the respondent no.2 and respondent
no.1 are cultivating the land jointly. On 12.7.1978, the appellants
had gone for the purpose of agriculture work in the suit land and
the respondents obstructed them alleging that the appellants have no
right, title or interest therein. The appellants, therefore,
inquired and came to know that the respondent nos.1 and 2 had
colluded and filed Regular Civil Suit No. 355 of 1974 in the Court
of the Civil Judge (S.D.) Godhara, and the respondent no.1 had
obtained a decree in his favour against the respondent no.2. It was
an ex-parte as well as collusive decree. Under this decree, the
respondents nos.1 and 2 did not allow the appellants to enter and
cultivate the suit land in spite of the fact that the appellants
have right, title or interest in the suit land. The respondent no.1
had not joined them as a party when he filed Regular Civil Suit
No.355 of 1974. Under the circumstances, the said ex-parte decree
is null and void and not binding on the appellants. On the basis of
the said decree, if the names of the appellants are got deleted from
the record of rights, it is not binding to the appellants. The
appellants as well as the respondent no.2 have got one half share in
the suit land and as such, the suit is filed by them for a
declaration to that effect. The appellants have prayed for
declaration in the suit that the lands admeasuring 1 Acre, 21
Gunthas of Revenue survey no.44/2 of Block No.235 situated in the
sim of village Motal, one half share from it is belonging to the
appellants and the respondent no.2. They have also prayed for
consequential relief of permanent injunction against the respondents
not to obstruct the cultivation and possession of the appellants.
The
said suit was contested by the respondent no.1 vide written
statement at Exhibit-14, wherein he denied all the averments made in
the plaint. The respondent no.2, the brother of the appellants had
made an attempt to commit a criminal tracepass by entering upon suit
land in 1974 and as such, Regular Civil Suit No.355 of 1974 was
filed against the respondent no.2 only. The respondent no.2 did not
succeed therein and the respondent no.1 obtained a declaration in
his favour, as per the judgment and decree dated 26.9.1977. The
respondent no.3 has also filed a written statement at Exhibit-23
contending that the averments and allegations made by the appellants
are made at the instance of the stand taken by the respondent no.1.
The
learned Civil Judge framed issues at Exhibit-18 and after recording
the evidence of both the sides, the learned Civil Judge came to the
conclusion that the appellants failed to prove that the suit land
was joint ownership of both the parties. The respondent no.1 proved
that there was a partition as per the averments made in Paras 4 and
6 of his written statement and the suit land is in possession of
respondent no.1. The learned Civil Judge accordingly, dismissed the
suit and passed the judgment and decree against the appellants.
Being
aggrieved by the said judgment and decree, the appellants have filed
Regular Civil Appeal No.105 of 1981. The learned Joint District
Judge, Panchmahals at Godhara, raised the following points for
determination;
(i)
Whether it is proved that the appellants-respondents are joint
owners of the suit land as alleged by the appellants ?
(ii)
Whether the respondent no.1 proves that there was a partition after
1966 and thereafter, he was only the person in possession of the
suit land ?
(iii)
Whether the suit is maintainable in view of the prior Regular Civil
Suit No.355 of 1974 ?
After
considering the rival submission of the parties and after
appreciating the evidence on record and the judgments and decree
passed by the learned Civil Judge, the Appellate Court came to
conclusion that the appellants have failed to prove that they have
one half share in the suit land. The appellants have also failed to
prove that they have got the possession of one half share or one
half portion of the suit land. When the mutation entry as well as
revenue record are there supporting the respondent no.1’s case and
when even in the prior suit when the respondent no.2 the brother of
the appellants has failed to establish his share, the appellants
cannot be allowed to reagitate that they were technically entitled
to file the suit because they were not the parties. The Appellate
Court, therefore, held that the judgment and decree passed by the
learned Civil Judge is quite legal, proper and consistent with the
facts and circumstances as disclosed in the evidence and there is no
reason to interfere in the same when the learned Civil Judge has
rightly appreciated the evidence on record.
It
is this order which is under challenge in the present Second Appeal.
Impugned
orders are challenged on the ground that during the pendency of the
suit, a Commissioner was appointed by the Court and the Panchnama at
Exhibit-41 was prepared by him, which clearly shows that one half
portion of land bearing Survey No.44/2 of Block No.235 was divided
in two parts by a cactous hedge and the appellants were in the joint
possession of the said land along with the respondents. It is
further contended that relying on the evidence of witness Vikramsinh
Makansinh together with the evidence of Pratapsinh Jivatsinh and the
Panchnama prepared by the Commissioner, the lower Appellate Court
should have appreciated that eastern portion of land bearing Survey
No.44/2 of Block No.235 was being cultivated by the appellants for
the last 18 to 19 years and therefore, possession of the suit land
by the appellants should not have been doubted by the Court. It is
further contended that if the appellants had no right, title or
interest in the suit property, then there was no need to divide the
suit land into two parts by a cactous hedge and the respondent no.1
would not have been permitted the appellants to cultivate the suit
land for the last 18 to 19 years. It is further contended that in
Regular Civil Suit No.355 of 1974 filed by the respondent no.1
against the respondent no.2, the appellants were never impleaded as
parties and hence the decree passed in the said suit would not be
binding on the appellants and even otherwise, decree in the said
suit was obtained in collusion by the respondent no.1 with
respondent no.2. It is further contended that the respondent no.1
was serving in the Police Department, and since he was out of
station, the appellants were cultivating the land on behalf of the
respondent no.1. If the appellants had no right, title or interest
in the suit land, they would not be interested in cultivating the
suit land without any reward and it is not the case of the
respondent no.1 that something was being paid or given in kind by
him to the appellants for cultivating the suit land. It is further
contended that raising presumption under Section 114 of the Indian
Evidence Act regarding Entry No.581 dated 4.3.1967 is not justified
in view of the fact that no notice under Section 135 of the Bombay
Land Revenue Code was issued on the appellants. It is, therefore,
urged that the judgments and decrees passed by the Courts below are
erroneous and bad in law and hence they are required to be set
aside.
As
stated earlier no one appears on behalf of the respondents after
service of the fresh notice. However, the judgments and decrees
passed by the Courts below have been perused by the Court
and records and proceedings
are also available with this court. Both the Courts below have
considered the materials and evidence produced before them and after
appreciation they have arrived at the conclusion that the
declaration sought for by the appellants cannot be granted in
absence of any evidence to that effect in their favour. The factum
of partition was accepted by the Courts below. Though, the
appellants were not parties in the earlier suit i.e. Civil Suit
No.355 of 1974, the judgment and decree passed therein was not
challenged or disputed by the respondent no.2 a brother of the
present appellants. It has also came on record that after
partition, Panch has passed a resolution and a reference to the said
resolution was made before the Courts below. The Entry No.581 dated
4.3.1967, clearly shows that the respondent
no.1 was the owner and in possession of the suit land. The said
Entry has not been challenged by the appellants even on the ground
that the same was passed without issuance of notice under Section
135 of the Bombay Land Revenue Code. Even if, the said Entry is
null and void it has to be challenged and got it quashed and set
aside in appropriate proceedings. So long as such Entry remains in
existence, it is binding on the parties affected by the said Entry.
The lower Appellate Court has clearly observed that the Entry No.581
was prepared after consulting all the brothers and after issuing
necessary notices. When mutation entry is made the parties concerned
are required to be contacted. The Court can presume that under
Section 114 of the Indian Evidence Act, the necessary procedure must
have been followed while entering the mutation entry. The learned
Trial Judge has also held that the appellants have got no evidence,
particularly any documentary evidence to show that they were paying
half of the land revenue or any land revenue for the part of the
revenue Survey No.44/2. The learned Trial Judge has further
observed that when the witnesses of the appellants have admitted
that the partition was evicted in the year 1966 and Entry No.581 was
made as per the partition and as per the shares that have gone to
the parties concerned, the appellants could not have been allowed to
back out from that Entry which was never challenged since then. The
Courts below, therefore, rightly held that the Entry No.581 is self
sufficient to show that the appellants have no case that they have
got the shares in the suit land.
Considering
the entire facts and circumstances of the case and scrutinizing the
evidence as well as impugned judgments and orders passed by the
Courts below, this Court is of the view that no interference is
called for by this Court while exercising its appellate jurisdiction
under Section 100 of the Civil Procedure Code.
This
Second Appeal is, accordingly dismissed, with no order as to costs.
(K.A.
PUJ, J.)
Pankaj
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