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SA/198/1996 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 198 of 1996
=========================================================
MAMLATDAR
& 1 - Appellant(s)
Versus
KISHOR
VALLABH - Defendant(s)
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Appearance
:
MR
JANAK RAVAL AGP for Appellant(s) : 1 - 2.
MR YOGESH S LAKHANI for
Defendant(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 07/07/2011
ORAL
ORDER
1. Identical
issue was involved in another appeal being Second Appeal No.47/1997,
which came to be disposed of by this Court vide judgment and order
dated 22.04.1997. The said judgment reads as under;
“This Second Appeal which
is filed under section
100 of the Code of Civil Procedure,1908 has arisen from
the suit brought by the respondent for declaration that
the orders passed by Mamlatdar, Ranavav on March 10,1981
and March 30,1981 as well as order passed by Gujarat
Revenue Tribunal on July 2,1985 are void, illegal and
without jurisdiction and for perpetual injunction
restraining the defendants from interfering with his
possession of the suit property.
2. Survey no.219, admeasuring 4 acres is situated at
village Dharampur, Taluka : Ranavav, District :
Junagadh. The land was hilly, rocky and uneven. It was
the case of the respondent that he was in possession of
the suit land for a period of more than 30 years and had
spent a huge amount to improve the land. According to
the respondent, he had dug a well on the suit land and
had also grown fruit-bearing trees as well as flower
trees on the land. The Mamlatdar,Ranavav started
proceedings for evicting the respondent from the suit
land. He passed orders on March 10,1981 and March
30,1981 directing the respondent to remove encroachment
made by him over the suit land. Against the said orders,
respondent preferred an appeal before Revenue Tribunal,
but the same was dismissed on July 2,1985. The
respondent thereupon served a notice under section 80 of
the Code of Civil Procedure,1908 and filed Regular Civil
Suit no. 198/86 in the Court of learned Civil Judge
(S.D.) at Porbandar claiming a declaration that the
orders passed by the Mamlatdar, Ranavav on March 10,1981
and March 30,1981 as well as order passed by the Gujarat
Revenue Tribunal on July 2,1985 were illegal, without
jurisdiction and against the principles of natural
justice. He also prayed to grant perpetual injunction
retraining the appellants from dispossessing him from the
suit land and from interfering with his possession of the
suit land.
3. Appellant no.1 contested suit by filing written
statement at exh.13; whereas appellant no.2 contested
suit by filing written statement at exh.29. The
appellants in their respective written statements
contended that as the State Government was owner of the
land, suit filed by the respondent was not maintainable.
It was averred therein that the respondent had taken
possession of the suit land only in the year 1976-77 and,
therefore, the respondent had not become owner of the
land by adverse possession. What was claimed in the
written statement was that on preliminary investigation
it was found that the respondent had illegally encroached
upon the disputed land and, therefore, orders dated March
10,1981 and March 30,1981 were passed against the
respondent calling upon him to remove encroachment made
by him unauthorisedly over the suit land. It was pleaded
in the written statement that suit filed by the
respondent was barred by the period of limitation
prescribed by law. By filing written statements, the
appellants demanded dismissal of the suit.
4. Having regard to the pleadings of parties, Trial
Court framed 8 issues for determination. In order to
prove his case, the respondent examined himself at
exh.30. He also examined Nathabhai Samatbhai at exh.36
and Malde Karna at exh.38 in support of his case pleaded
in the plaint. On behalf of the appellants, Rameshbhai
Rambhai Maghera, Governemnt Circle Inspector discharging
duties in the Office of Mamlatdar, Ranavav was examined
at exh.40. Jerambhai Harshadbhai who was
Talati-cum-Mantri of village Dharampur was also examined
at exh.41 by the appellants in support of the case
pleaded in the written statements. The parties also
produced documentary evidence in support of their
respective claims. On appreciation of evidence led by
the parties, Trial Court held that the respondent proved
that he was cultivating and was in possession of the suit
land since more than 30 years. It was deduced by the
Trial Court that the order passed by the Mamlatdar,
Ranavav and the order passed by the Revenue Tribunal were
illegal, ultra vires and against the principles of
natural justice. The Trial Court negatived the plea
raised by the appellants that the suit was liable to be
defeated for non-joinder of necessary parties. The Trial
Court did not uphold the contentions raised by the
appellants that the suit was barred by period of
limitation. Ultimately, the Trial Court concluded that
the plaintiff was entitled to have declaration and
injunction as prayed for. In view of these conclusions,
Trial Court decreed the suit by judgment and order dated
May 2,1992.
5. Feeling aggrieved by the above-referred to
decree,the appellants preferred Regular Civil Appeal no.
33/92 in the Court of learned Assistant Judge at
Porbandar. The learned Assistant Judge, Porbandar
dismissed the appeal by judgment and order dated December
28,1993, giving rise to the present appeal.
6. Miss Kuberaben Valikarimvala, learned A.G.P.
contended that the respondent had not adduced any
evidence that he was cultivating and was in possession of
the suit land for a period of more than 30 years and
therefore, second appeal should be entertained. It was
argued that two orders of Mamlatdar as well as order
passed by the Tribunal were neither illegal nor ultra
vires nor against the principles of natural justice and,
therefore, the declaration and injunction as prayed for
should not have been granted by the Courts below. What
was emphasised by the learned Counsel for the appellants
was that the respondent was in unauthorised possession of
the land in question and had no right to retain the same
and, therefore, the declaration as well as injunction
granted by the Courts below are liable to be set aside.
It was also emphasised that suit could not have been
decreed by the Courts below, as it was barred by period
of limitation.
7. In my view,there is no substance in any of the
contentions raised on behalf of the appellants and the
second appeal cannot be entertained. It is an admitted
fact that the respondent has no title over the suit land.
According to him, he is in possession of the suit land
for more than 30 years and on expiry of period of 30
years had become owner of the same by adverse possession.
The claim of the appellants on the other hand is that the
respondent had taken illegal possession of the suit land
in the year 1976-77 and, therefore, was not entitled to
claim title over the suit land on the ground of adverse
possession. The clinching evidence on the record of the
case establishes that the land was hilly, rocky and
uneven. It is also an admitted fact that the respondent
had spent a huge amount for improving the land and making
it cultivable. The fact that the respondent had dug well
over the suit land or that he had grown fruit-bearing
trees or flower trees on the suit land is not in dispute
in the present appeal. In order to substantiate his
claim that he was in possession of the land in quetion
for a period of more than 30 years, the respondent
examined himself at exh.30. In his deposition on oath he
has clearly stated that he was in possession of the land
in question for a period of more than 30 years and had
dug well, grown fruit bearing trees etc. on the land.
Though he was cross-examined at length, nothing has been
brought on record to discredit his version that he was in
possession of the land in question for a period of more
than 30 years. Apart from his own evidence, the
respondent also led evidence of Nathabhai Samatbhai at
exh.36. This witness has got agricultural land
admeasuring 20 acres at village Dharampur just adjacent
to the land which is in possession of the respondent.
This witness has also asserted before the Court that the
respondent is in possession of the disputed land for 30
to 40 years and had developed the same by incurring huge
expenditure. The witnesss has given particulars about
the fruit-bearing trees which were grown by the
respondent on the suit land. The respondent also
examined another witness i.e. Malde Karna at exh.38 in
support of his case. This witness also asserted in his
evidence that the respondent was in possession of the
suit land for a period of more than 35 to 40 years. The
witness has stated that the land in question was waste
land full of rocks, but the respondent had improved the
same by spending huge amount and had made it cultivable.
Though the witnesses examined on behalf of the respondent
are cross-examined by the appellants, nothing has been
elicited during cross-examination to discredit their
assertion made on oath.
8. The appellants on the other hand had examined
Rameshbhai Rambhai at exh.40 and Jerambhai Harshadbhai at
exh.41 to establish their case that the respondent had
taken illegal possession of the land in question in the
year 1976-77. From the evidence of Rameshbhai Maghera,
it is evident that at the relevant time he was serving as
Revenue Circle Inspector in the Office of Mamlatdar,
Ranavav. There is no manner of doubt that he had given
deposition on the strength of record of the case and had
no personal knowledge pertaining to land in question.
This witness had produced two orders dated March 10,1981
and March 30,1981 passed by Mamlatdar, Ranavav asking the
respondent to remove encroachment made by him over the
suit land. In cross-examination by the respondent, this
witness admitted that he had joined service in the year
1983 and knew nothing as to when the respondent was in
possession of the suit land. The witnesses admitted in
his deposition that except office record,he had no
personal knowledge about the case pleaded by the
respondent and statement that the respondent had
illegally taken possession of the suit land in the year
1976-77 was made because of the contents of two orders
passed by Mamlatdar, Ranavav. Again, the evidence
tendered by Jerambhai Harshadbhai at exh.41 shows that he
was Talati-cum-Mantri of village Dharampur since
December, 1991. This witness also admitted in his
deposition that he had no personal knowledge about the
contents of orders passed by Mamlatdar, Ranavav asking
the respondent to remove encroachment made over the suit
land. There is no manner of doubt that this witness has
given deposition on the strength of entries made in the
revenue record and had no personal knowledge at all.
9. On appreciation of evidence led by the
parties,the fact finding courts have come to the
conclusion that the respondent was in possession of the
suit land for a period of more than 30 years. While
recording the finding that the respondent was in
possession of the suit land for a period of more than 30
years both the Courts have relied on testimony of the
witnesses examined by the respondent who had first hand
information pertaining to the suit land. Though the
Mamlatdar, Ranavav had passed orders asking the
respondent to remove encroachment on the footing that the
respondent had encroached upon the land illegally in the
year 1976-77. Jerambhai Harshadbhai, who was examined by
the appellants at exh.41 has stated in his deposition
that the respondent had made encroachment over the suit
land before two years. As noticed earlier, he was
appointed in the year 1983 and if his case is believed to
be true, then two orders passed by Mamlatdar, Ranavav
would lose all their sanctity because encroachment would
be in the year 1981 and not in the year 1976-77 as
claimed by the appellants. In view of Village Form no.7
& 12 relating to survey no.219 of village Dharampur
produced at exhs.43 & 44, fact finding courts have held
that State Government was not in possession of the land
and even as per the village record land was given on a
Patta of 25 years from 1951-52 to Porbandar Municipality.
This belies the claim of the appellants that the State
Government was in possession of the suit land. By
applying the test of preponderance of probabilities, the
first appellat Court,whic is final court of facts has
held that the respondent succeeded in establishing that
he was in possession of land in question for a period of
more than 30 years and no error was committed by the
Trial Court in holding that the respondent proved that he
was in possession of the disputed land for more than 30
years. The Supreme Court time out of number has
emphasised that it is not for the High Court reappreciate
evidence while hearing second appeal and to substitute
findings recorded by fact finding Courts. It is not
brought to the notice of the Court that while recording
the finding that respondent was in possession of the
disputed property for a period of more than 30 years, any
evidence led by the appellants is either ignored or
misconstrued by the Courts below. The question whether
the respondent was/is in possession of the suit land for
a period of more than 30 years or not is essentially a
question of fact and not of law much less a substantial
question of law. As the finding that the respondent is
in possession of the suit land for a period of more than
30 years is based on proper appreciation of evidence, the
same is hereby upheld.
10. The next question which requires determination is
whether the respondent became owner of the suit land by
adverse possession on expiry of period of 30 years. The
evidence of the respondent clearly establishes that he
had dug well on the suit land and had grown fruit-bearing
trees as well as flower trees. His evidence also
indicates that the land which was hilly and uneven was
improved by him by incurring huge expenditure and it was
made cultivable. The assertion of the respondent that he
had dug well on the suit land or had grown fruit-bearing
trees on the suit land or that he had made the land
cultivable after spending huge amount is amply
corroborated by the evidence of two witnesses who have
been examined by him at exhs.36 & 38. Mr. J.S.Parmar,
Talati-cum-Mantri of Dharampur Gram Panchayat had
prepared a rojkam on February 21,1991. The original
rojkam is produced on the record of the case at exh.34.
In the rojkam it is mentioned that land was a hilly one
and the respondent had spent a huge amount and improved
the same. It is also mentioned therein that the
respondent had dug a well on the suit land and had grown
fruit-bearing trees in an area admeasuring 4 acres.
Exh.34 indicates that Talati-cum-Mantri had prepared
rojkam in presence of four independent panchas. The
rojkam prepared by Talati-cum-Mantri also clearly
establishes that substantial acts were done by the
respondent to the knowledge of officers of the State
Government indicating that he was in possession of the
land openly, peacefuly and without interruption from any
one. Adverse possession as the words imply,must be
actual possession of another’s land with intention to
hold it and claim it as his own. It must commence with
the wrongful dispossession of the rightful owner at some
particular time. It must commence in wrong and must be
maintained against right. It must be actual,open,
notorious hostile under claim of right, continuous, and
exclusive and maintained for the statutory period. Mere
possession, however long does not necessarily mean that
it is adverse to the true owner. Adverse possession
really means a hostile possession which is expressly or
impliedly in denial of the title of the true owner, and
in order to constitute adverse possession,the possession
proved must be adequate in continuity, in publicity and
in extent so as to show that it is adverse to the true
owner. Having regard to the substantial acts done by the
respondent with reference to disputed land, there is no
manner of doubt that the respondent was holding the land
on his own behalf. The possession had commenced with
wrongful dispossession of the rightful owner. It was
actual, open, notorious, hostile under claim of right,
continuous and exclusive and maintained for the statutory
period. The hostile possession was expressly in denial
of the title of the State Government. It was possible
for the appellants to use the land and exercise due
diligence by taking action to oust the adverse possessor.
However, inspite of several substantial acts having been
done by the respondent openly and notoriously, no attempt
at any point of time was made by the appellants to remove
the respondent from the possession of the suit land. The
possession of the respondent was overt and without any
attempt of concealment. When he dug well on the suit
land and grew fruit-bearing trees and flower trees , his
intention was to claim exclusive title to the property.
Therefore, the finding recorded by both the Courts that
the respondent has become owner of the land in question
by adverse possession cannot be termed as erroneous so as
to warrant interference of the Court in the present
appeal. In the case of Nair Service Society Ltd. vs.
K.C.Alexander and others, A.I.R. 1968 S.C. 1165 the
respondent had filed suit for possession of properties
mentioned in the plaint. The defendant which was
appellant before Supreme Court contended that plaintiff’s
lands were Government Reserve and plaintiff was
dispossessed by Government from those lands. Suit was
partly decreed by the Trial Court. High Court reversed
the decree of the Trial Court and decreed it against
appellant. While interpreting Articles 64 & 65 of the
Limitation Act,1963, the Supreme Court has held as under
:-
“A person in possession of land in assumed
character of owner and exercising peaceably the
ordinary rights of ownership has a perfectly good
title against all the world but the rightful
owner. And if the rightful owner does not come
forward and assert his title by the process of
law within the period prescribed by the
provisions of the statute of limitation
applicable to the case, his right is for ever
extinguished and the possessory owner acquires an
absolute title. In the event of disturbance of
possession by a third party and not the owner,
the plaintiff can maintain a possessory suit
under the provisions of Specific Relief Act in
which title would be immaterial or a suit for
possession within 12 years in which the question
of title could be raised.
11. In my view, the principle laid down by
the Supreme Court in the above quoted decision squarely
applies to the facts of the present case. The respondent
was in possession of land in question in assumed
character of owner. He exercised peaceably the ordinary
rights of ownership,but the rightful owner i.e. State
did not come forward and assert its title by the process
of law within the period prescribed by the provisions of
statute of limitation. Under the circumstances, rightof
the State is forever extinguished and the respondent who
was/is in possession of the land, has acquired an
absolute title to the land. As the respondent has become
owner by adverse possession, Second Appeal cannot be
entertained.
12. Again, so far as two orders passed by
Mamlatdar,Ranavav and the order passed by Gujarat Revenue
Tribunal are concerned, it is relevant to notice that
those orders were passed on the footing that the
respondent had made encroachment over the suit land in
the year 1976-77, which is not found to be correct at
all. Accordingly, when the proceedings were initiated
against the respondent for removal of encroachment, State
Government was not owner of the property in question at
all and, therefore, no proceedings could have been
initiated for removal of encroachment. The Trial Court
as well as first appellate Court have rightly concluded
that the orders passed by the Mamlatdar as well as by the
Gujarat Revenue Tribunal are null, void and illegal and
no case is made out for interfering with the said
conclusion.
13. On overall view of the matter, I am of the
opinion that as correct conclusions have been arrived at
by the fact finding Courts, the Second Appeal cannot be
entertained and is liable to be dismissed.
For the foregoing reasons, the appeal fails and it is summarily dismissed.”
2. Against the aforesaid judgment, appeal being Special Leave to Appeal (Civil) No.3978/1998 came to be preferred before the Apex Court, which was rejected vide order dated 06.02.1998.
3. In view of the above, this appeal will be governed by the principle laid down in Second Appeal No.47/1997 disposed of on 22.04.1997. Hence, this appeal stands disposed of in terms of the aforesaid judgment and order.
[K.
S. JHAVERI, J.]
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