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SA/34/2010 7/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 34 of 2010
With
CIVIL
APPLICATION No. 353 of 2010
In
SECOND
APPEAL No. 34 of 2010
=========================================================
RAMJIBHAI
VELJIBHAI BORAD - Appellant(s)
Versus
STATE
OF GUJARAT - Defendant(s)
=========================================================
Appearance
:
MR
GAURANG H BHATT for
Appellant(s) : 1,
None for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 05/02/2010
ORAL
ORDER
1). The
appellant (original plaintiff) in Regular Civil Suit No.272 of 1997
has approached this court under Section 100 of the Code of Civil
Procedure, 1908 assailing the judgment and order dated 1.12.2009
passed in Regular Civil Appeal No. 4 of 2009 by the Court of learned
Principal District Judge, Junagadh, whereunder the court has quashed
and set aside the judgment and decree dated 5.3.2003 passed by the
5th
Joint Civil Judge, Senior Division, Junagadh in Regular Civil Suit
No. 272 of 1997 for the reasons stated in the impugned judgment. The
appellant has framed the
following substantial questions of law for assailing the order and
judgment impugned in this second appeal.
(I) Whether
in the facts and the circumstances of the case, the Ld. Lower
Appellate Court is justified in the eye of law, in holding that the
plea of the ownership, and, the plea of Adverse Possession, cannot
exist and stand together even as the Alternative plea?
(II) Whether
in the facts and the circumstances of the case, the Ld. Lower
Appellate Court is justified in the eye of law, in holding that the
decision of the Revenue Authority has to be challenged so as to
establish the title of the plaintiff to the suit-land?
(III)Whether
the impugned judgment dated 1.12.2009 which is based upon the
perverse finding of facts, in an Arbitrary manner, contrary to the
Law of Evidence, is sustainable in the eye of law?
(IV) Whether
in the facts and the circumstances of the case, the Ld. Lower
Appellate Court is justified in the eye of law, in holding that the
plea of the adverse
possession could be considered from the date of rejection of the
Revision Application by the Revenue Authority, i.e;17.1.1996,
rather than from the date of application to the then Administrator,
i.e. 26.4.1936, which had been accepted, granted and acted upon by
both the parties during the pre- independence period?
(V)Whether
in the facts and the circumstances of the case, the Ld. Judge is
justified in the eye of law in deciding the issue as to the title to
the suit-land on the basis of the decision rendered by the
Revenue-Authorities in revenue- proceedings?
2). Facts
in brief leading to the filing of this second appeal deserve to be
set out in order to appreciate the contention raised by the learned
advocate for the appellant.
3). The
Appellant who is hereinafter referred to as a plaintiff had to file
Regular Civil Suit No.272 of 1997 for declaration and permanent
injunction against the defendant in respect of suit land. The
plaintiff made the
following prayers in the suit.
{1}
As the plaintiff is enjoying the suit land since last 60 years, the
defendant may not evict him and restrain him from using the said
land and permitted the plaintiff to continue his possession on the
suit land without any obstruction and declaration that the defendant
did not have any right to restrain the plaintiff for enjoying the
suit land.
{2}If
in case, the plea of plaintiff with regard to adverse possession is
not acceptable then, on the strength of plaintiff’s enjoyment of
the suit land for last more than 60 years, the defendant be directed
to regularize his possession on charging the requisite
fees/penalty.
{3}The
possession of the suit land may not be taken without following due
procedure of law.
4).
The Trial Court relying upon the document at exhi. 29 in the nature
of an application made by the father of the plaintiff to the then
administrator for seeking permission to put up window etc. on the
wall of the property on the land, which was said to have been
purchased by him. In view of this the due conclusion would be that
the father of the plaintiff owned the land by way of purchase and
such an application, which was made in the year 1936 was
sufficient evidence for declaring that the plaintiff and or his
father were purchaser of the suit land, and on that basis, the
Court decreed the suit in favour of the plaintiff by its judgment
and order dated 5.3.2003.
5). Being
aggrieved and dissatisfied with the said judgment and decree, the
defendant i.e State, preferred First Appeal No.4 of 2009 wherein the
Appellate Court came to the conclusion that the factum of Revenue
Proceedings and the order of State through its Deputy Secretary not
accepting the claim of the plaintiff with regard to land in question
could not have been brushed aside by the Trial Court and, therefore,
the documents which are relied upon by the Trial Court namely Exhi.29
could not have been said to be documents so capable of being
construed as title deed or conferring any title sustainable in law
with regard to land in question. The Appellate Court allowed the
appeal by quashing and setting aside the judgment and decree impugned
therein.
6). Being
aggrieved and dissatisfied with the said order of Appellate Court
dated 1.12.2009, the present second appeal is preferred raising the
aforesaid substantial questions of law.
7). Shri
G.H. Bhatt, learned advocate appearing for the appellant contended
that the defect in pleading cannot be held against the plaintiff for
denying him relief. The plaintiff though has made prayer in the suit
for regularization but, in fact, sought declaration of title on the
suit land as could be seen from the prayer in the plaint.
8). Shri
Bhatt further contended that the Revenue Proceedings are not to
govern the party’s right with regard to title if any on the land and
that being a clear legal position, the Appellate Court ought not to
have heavily relied upon the revenue proceedings or its finding for
denying the relief to the plaintiff and accepted the submissions of
the State for quashing and setting aside the judgment and decree
passed by the Trial Court.
9). Shri
Bhatt learned advocate appearing for the plaintiff-appellant further
submits that the appellant has acquired title by way of adverse
possession of the suit land since more than 60 years and, therefore,
his possession cannot be disturbed and prayers in the suit should
have been allowed.
10). This
court is unable to agree with the submissions made by the learned
counsel for the appellant. The position in law is very clear with
regard to the claim of the land and other properties on the basis of
plea of adverse possession. The concept of adverse possession and
its efficacy is to be looked
into from the angle of party’s right to continue the possession
without any disturbance on account of sufferance of the party who has
a legitimate right title and authority over the subject land. In
the instance case, the other party against whom, the adverse
possession is put up as a plea being
a State, the concept of adverse possession would have to be
appreciated in light of the status of the parties in the suit.
Moreover, it cannot be lost sight of the fact that revenue authority
did issue notice of eviction as it was treated as encroachment and
the revenue proceedings have attained its finality as the final order
passed in the revenue proceedings by the authority has remained
unchallenged. In other words, it can be said that the order passed
by the revenue secretary i.e State has attained finality as it has
not been challenged in any proceedings by the plaintiff. The
question with regard to seeking relief from the court of law on the
basis of plea of the adverse possession is though ingenious, not
acknowledged under the provisions of law and, therefore, this court
is of the view that the questions framed are not substantial
questions of law which warrants any interference with the judgment
and order passed by the Appellate Court.
11). The
substantial questions of law is answered hereinabove
by the aforesaid discussion and, therefore,
no elaborate discussion is required answering separately each and
every question framed hereinabove. In the result, the appeal fails
having no merits. No order as to costs.
12). In
view of the order passed in Second Appeal No.34 of 2010, no order in
civil application. Civil Application stands disposed of.
(S.R.BRAHMBHATT,J.)
Vahid
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