Gujarat High Court
P G V C L City Division vs Alimamad Karim (Deleted) Through Hasam ... on 7 September, 2016
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
C/SA/90/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 90 of 2012
With
CIVIL APPLICATION NO. 12281 of 2014
In
SECOND APPEAL NO. 90 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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 or any order made thereunder ?
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P G V C L CITY DIVISION....Appellant(s)
Versus
ALIMAMAD KARIM (DELETED) THROUGH HASAM HAJI ABU RAVALIA &
9....Respondent(s)
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Appearance:
MR MIHIR THAKORE FOR MS LILU K BHAYA, ADVOCATE for the Appellant(s) No. 1
MR PC KAVINA FOR MR MAULIN G PANDYA, ADVOCATE for the Respondent(s) No. 7 - 10
MR MURALIN DEVNANI, ADVOCATE for the Respondent(s) No. 6
MR BIPIN BHATT AGP for the Respondent(s) No. 4 -5
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
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C/SA/90/2012 CAV JUDGMENT
Date : 07/09/2016
CAV JUDGMENT
1. By way of present Second Appeal preferred under Section 100 of the Code of Civil Procedure, the appellant, who is original plaintiff, challenges the judgment and order dated 23.5.2011 passed by the learned Additional District Judge, Porbandar, (hereinafter referred to as the "Appellate Court") in Regular Civil Appeal No.9 of 2011, confirming the judgment and decree dated 28.2.2005 passed by the learned Civil Judge, (S.D.), Porbandar, (hereinafter referred to as the "Trial Court") in Regular Civil Suit No.262 of 1985, whereby the learned trial Judge has dismissed the suit filed by the appellant herein - original plaintiff. (The parties of the present matter are referred as per their original status before the lower Court).
2. The facts of the present case are as under:
The appellant herein is a statutory body constituted under the Electricity Supply Act, 1848. The land admeasuring about 4500 to 4600 Sq. Yrd. known as Ravaliya in Porbandar City near Hanuman Chawk and on this land, admeasuring 259 Sq. Mtr. a sub station was constructed by the Porbandar State in the year 1935, which was originally owned by Mr. Memon Haji Moti Haji Isaq Ravaliya and on upper its part, a "Musafir Khana" was constructed, remaining land was kept open. It is also the case of the appellant herein that later on, this open land was plotted and there was sub station on one of the plot No. "D" since year 1935, which is called as "Fuvara Sub Station" and till today, the possession and enjoyment of the said plot is kept with the appellant since than 70 years and by Page 2 of 46 HC-NIC Page 2 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT this way, the appellant became owner of the said plot by way of adverse possession. It is also the case of the appellant that the respondent Nos.1 to 3 have the ownership of the said plot and the respondent No.5 has no any right to pass any order, but the revenue authority has transferred the tile of this plot of respondent No.7 and respondent No.6 issued him the construction permission. Thus, the respondent Nos.7 to 9 have started illegal construction on the plot. Therefore, the appellant has filed Regular Civil Suit No. 262 of 1985 for declaration and permanent injunction, wherein the lower Court has framed the following issues at Exhibit 61:
1. Whether the plaintiff, the electricity Board process that the suit land Plot No.269-00-00 Sq.
Yrd. is of exclusive and absolute ownership of the plaintiff as a successor in title of the erstwhile State of Porbandar and United State of Saurashtra as alleged in plaint para 5,6 and 10?
2. Whether the plaintiff proves that since, A.D., 1935, the suit land is in possession of the plaintiff openly as of right as an owner without interruption and so plaintiff has become its owner and the principle of prescription as alleged ?
3. Whether the plaintiff proves that the order dated 11.0.68 of the City Survey officer, confirmed by the superior authorities, is nullity as alleged?
4. Whether, the plaintiff proves that the defendant No.1 to 3 and 10 have lost right of ownership in Page 3 of 46 HC-NIC Page 3 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT the suit land by being out of possession since A.D. 1935 and the principle of prescription as alleged?
5. Whether the plaintiff proves that transfer of the suit land in favour of defendant Nos.7, 8 and 9 is invalid as alleged ?
6. Whether the defendant No.7 to 9 prove that they are bonafide purchasers or value without notice of the suit land as alleged in written statement para 9, Exh.54?
7. Whether the defendant No.7 to 9 prove that the suit is barred by estople of as alleged in para 12 and 17 of the written statement Exh.54?
8. Whether it is proved that the decision dated 11.10.86 given by the City Survey Officer and confirmed by superior authority, about ownership of the suit land of defendant No.1,2, 3 and 10, barred the trial of this suit by this Court on principle res-judicata as alleged ?
9. Whether it is proved that the suit barred by limitation as per articles 58, 110, 113 of the Limitation Act as alleged in the written statement para 9 of Exh.54?
10. Whether the defendant No.10 proves that the suit land originally belongs to his ancestors as alleged?
11. Whether the defendant No.10 proves that as Page 4 of 46 HC-NIC Page 4 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT successor in title of erstwhile State of Porbandar the plaintiff is only a licencee of the suit land ?
12. Whether the plaintiff proves that it will suffer legal injury if defendants make construction work on the suit land as alleged?
13. Whether the plaintiff proves that it is entitled to get relief of declaration and permanent and mandatory injunction as prayed for ?
14. Whether the suit against defendant No.6 is filed wrongly ? If yes, whether the defendant No.6 is entitled to get compensatory costs? If yes, what amount ?
15. Whether the defendant No.4 and 5 prove that the suit against them is not legal maintainable?
16. Whether the defendant No.4 and 5 prove that the suit of the plaintiff is premature ?
17. What order and decree ?
Thereafter, the trial Court after recording documentary evidence and oral evidence and hearing both the parties, dismissed the suit of the appellant on 28.2.2005. Against the said order, the appellant preferred Regular Civil Appeal No.9 of 2011 before the District Court, Porbandar, and same is also dismissed by learned Additional District Judge, Porbandar, by judgment and order dated 23.5.2011. Therefore, the appellant challenges the orders of the Courts below by way of present Second Appeal.
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3. This Court vide order dated 10.5.2012, admitted the appeal on the basis of following substantial questions of law:
1. Whether in the facts and circumstances of the case both the Courts below were right in law in holding that the appellant was only a licensee of lands admeasuring 269 sq.mtrs. with the standing building of Sub Station on the land?
2. Whether in the facts and circumstances of the case both the Courts below were right in law in overlooking the fact that the alleged license was an irrevocable license?
4. Earlier when the matter was listed on 19.7.2016, learned senior counsel Mr. Mihir Thakore appearing for Ms. Lilu Bhaya for appellant raised further questions of law and this Court has permitted him to argue on the said further questions of law by reserving liberty to give reply in favour of the learned senior counsel Mr. P.C. Kavina for Mr. Maulin Pandya appearing for the respondent Nos. 7 to 10. The further questions of law raised by the appellant are as under :
3. Whether in the facts and circumstances of the case, both the Courts below were right in law in dismissing the suit when the plaintiff admittedly was in settled possession of the suit property since 1935 and when the plaintiff was praying inter alia even for permanent injunction restraining the defendants from entering upon the suit land and mandatory injunction to remove the construction?Page 6 of 46
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4. Whether in the facts and circumstances of the case, when the plaintiff is in an uninterrupted possession of the suit land since 1935 and even after the order of the Hon'ble Supreme Court of India dated 28.04.1977, the suit inter alia for injunction of the plaintiff could not have been dismissed particularly, when in the event the defendant files a suit on the basis of title, the plaintiff is entitled to raise the defence of adverse possession under Article 65 read with Section 27 of the Limitation Act?
5. Learned senior counsel Mr. Mihir Thakor states that the land bearing City Survey Ward No.3, Sheet No.138 of Survey No.1284 situated at Hanuman Chowk, known as "Navabaug land" in the city of Porbandar admeasuring 272.39/269 Sq. Yrds. (227.69 Sq. Mtr. approximately) out of 4615.72 Sq. Yrds. of land with substation constructed by State of Porbandar known as "Fuvara bagg Substation", is undisputedly of the ownership of the appellant. Learned senior counsel Mr. Thakore submits that the order dated 10.12.1968 passed by the City Survey Officer, under Section 37(2) of the Bombay Land Revenue Code, hold that the defendant Nos.1 to 3 are the owners of plot No.D and construction belonged to the plaintiff and said order has achieved finality. He further submits that while the said land could be said to belong to the defendants, there was a permanent construction put up therein for sub-station as far back as in 1935 by the plaintiff with express or implied permission of the owners and the plaintiff is in continuous and uninterrupted possession and occupation of the land and also the sub station since 1935. He Page 7 of 46 HC-NIC Page 7 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT also submits that the said land i.e. 4615.72 Sq. Yrds., on which Musafarkhana was constructed and same was divided into suitable plots and on plot No.D, erstwhile Porbandar State constructed Electricity substation, which is popularly known as Fuvara Sub station in 1935 and that plot D admeasures about 269-0-0 Sq. Yrds. over which Fuvara substation is constructed. In the west of plot No.D, a public road was created from the said Musafarkhana land which admeasures about 615-0-0 Sq. Yrds. and rest of the land was permitted to be sold for the construction of a domed building like Swastik Bhavan. It is submitted by the learned senior counsel that in 1935, said Fuvara Sub station was constructed by the erstwhile Porbandar State for distributing electric to meet the needs of public. The power house was owned by the State and the said Fuvara Sub Station was part of power house owned by the erstwhile Porbandar State. Thus, right from 1935, upto the date, the land of plot No.D 269-0-0 Sq. Yrds. as successor of the Porbandar State and others and the said Fuvara Electric Sub station is owned and managed by the present appellant - original plaintiff along with said land and same is absolute property of the plaintiff. He also submits that the reset of the land of Musafirkhana except the land for road i.e. 615-0-0 Sq. Yrds. was allowed to be sold for the construction of a domed building. Thus, the plaintiff has acquired a title over the suit property by prescription-in-gross and is the absolute owner of the suit property admeasuring 269 -0 -0 Sq. Yrds. of Plot No.D over which the substation is constructed. Learned Senior counsel Mr. Thakore further submits that thus, the plaintiff as a successor-in-gross using the suit land since 1935 openly as a bona fide right to hold property, without any obstruction or interference and plaintiff even acquired right of ownership by Page 8 of 46 HC-NIC Page 8 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT prescription-in-gross and title of defendant Nos.1 to 3 & 10 is lost by prescription and the plaintiff has become the owner by prescription.
6. Learned senior counsel Mr. Mihir Thakore submits that the plaintiff is in continuous and uninterrupted possession and has title by prescription-in-gross i.e. adverse possession on presumption that the land was of defendant Nos.1 to 3. It is also submitted by him that the plaintiff has put up permanent construction since 1935 and as per the orders passed under Section 37(2), the same was put with express or implied permission of predecessors of the defendant Nos.1 to 3 and therefore, same can be said as an irrevocable licence. He therefore, submits that considering the facts and circumstances of the case, the appeal requires to be allowed by quashing and setting the orders of Courts below.
7. Learned senior counsel Mr. Mihir Thakore further submits that in this matter, at the time of admitting the present Appeal, the Court considered following substantial questions of law :
1. Whether in the facts and circumstances of the case both the Courts below were right in law in holding that the appellant was only a licensee of lands admeasuring 269 sq.mtrs. with the standing building of Sub Station on the land?
2. Whether in the facts and circumstances of the case both the Courts below were right in law in overlooking the fact that the alleged license was an irrevocable license?Page 9 of 46
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8. In connection to the above referred questions, learned senior counsel Mr. Mihir Thakore states that the plaintiff can be said as a licensee since 1935 as the defendants' predecessor permitted the plaintiff to put up permanent construction of electric sub station and since the plaintiff is using the said land and thereby, the licence is irrevocable. In view of the submissions, he relied upon provisions of Sections 58, 60 and 62 of the Easement Act.
"Section 58 : Grantor's duty not to render property unsafe.-The grantor of a license is bound not to do anything likely to render the property affected by the license dangerous to the person or property of the licensee.
Section 60 - A licence may be revoked by grantor, unless-
(a) It is coupled with a transfer of property and such transfer is in force.
(b) The licensee, acting upon the licence, has executed a work of a permanent character are incurred expenses in the execution. Section 62: A licence is deemed to be revoked-
(c) Where it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires, or the condition is fulfilled;
(f) Where the licence is granted for a specified purpose and the purpose is attained or abandoned, or becomes impracticable; "
9. Learned senior advocate Mr. Mihir Thakore states that from the above provisions of Easement Act, it is evident that the plaintiff acted upon the licence, has executed the work of permanent character and incurred expenditure in execution thereof and the purpose of licence has not been abandoned.
Page 10 of 46HC-NIC Page 10 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT The licence therefore, is irrevocable and cannot be revoked.
10. In support of the above submissions, learned advocate Mr. Mihir Thakore places reliance upon the following decisions:
1. Ram Sarup Gupta Vs. Bishun Narain Inter College & Ors.
(1987 AIR 1242), more particularly para 10 to 12
2. Bai Dahi Vs. Hiralal Chelabhai Lakdawla :
(1982) GLH 933
3. Narsingh Das Vs. Mian Safiulla Sha (AIR 1954 AII 773)
4. Mt. Manbi Vs. Kodn (AIR 1929 Naq 269)
5. Bachna Ram Vs. Bhikha Ram (2010) 159 PLR 179.
11. Learned senior counsel Mr. Mihir Thakore, while focusing on the question No.3, submitted that the question pertains to the settled possession of the plaintiff in suit property since 1935 and when the plaintiff was praying inter alia even for permanent injunction restraining the defendants from entering upon the suit land and mandatory injunction to remove the construction. As per the submissions of the learned senior counsel Mr. Thakore, assuming that plaintiff's answer to issue No.1 is not correct and assuming without admitting that the plaintiff is trespasser, it is undisputed fact that the plaintiff is in continuous uninterrupted possession since 1935. If so the plaintiff is in settled possession of the suit land and the possession cannot be disturbed except by taking recourse to law. The plaintiff's suit for injunction based on settled Page 11 of 46 HC-NIC Page 11 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT possession and therefore, the plaintiff is entitled to injunction. He also submitted that the defendant has neither filed any suit for possession nor counter claim. In absence of defendant's suit as the plaintiff is in settled possession, the plaintiff is entitled to injunction.
12. In support of above submissions, learned senior counsel Mr. Thakore placed reliance on the following decisions :
1. Puran Singh Vs. the State of Gujarat (1975) 4 SCC 518 (Paras 11, 12)
2. Rama Raltan Vs. State of U.P. (1977) 1 SCC 188 (Paras 4,5)
3. Rame Gonde Vs. M. Varadappa Niadu (2004) 1 SCC 769
13. Thereafter, learned senior counsel Mr. Mihir Thakore argued on question No.4 i.e. when the plaintiff is in an interrupted possession of the suit land since 1935 and even after the order of the Hon'ble Supreme Court dated 28.4.1977, the suit inter alia for injunction of the plaintiff could not have been dismissed particularly when in the event the defendant files a suit on the basis of title the plaintiff is entitled to raise the defence of adverse possession under Article 65 read with Section 27 of the Limitation Act.
14. In response to the same, learned senior counsel Mr. Thakore submitted that the suit is filed by the plaintiff for injunction and as per the submissions and reasons for the question No.3, the plaintiff is entitled to injunction since the plaintiff is in settled possession and when the defendants have to file the suit for eviction, the plaintiff is entitled to take defence of adverse possession since even after the defendants Page 12 of 46 HC-NIC Page 12 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT succeeded under Section 37(2) of the Bombay Land Revenue Code, the plaintiff has been claiming title & possession adverse to the defendants. Therefore, the plaintiff is entitled to claim title by way of adverse possession as more than 12 years have lapsed since the order under Section 37(2) and no action is taken by the defendant.
15. Learned senior counsel Mr. Mihir Thakore, in support of his above submissions, placed reliance upon the provisions of Section 27 of the Limitation Act and Article 65, the same are reproduced herein below :
"27. Extinguishment of right to property At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
Article 65 : For possession for immovable property or any interest therein based on title. Twelve years. When the possession of the defendant becomes adverse to the plaintiff.
Explanation : For the purpose of this article -
(a) Where the suit is by a remainderman, a reversioner (other than a landlord) or a devise the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee as the case may be, falls into possession.
(b) Where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of Hindu or Muslim female, the possession of the Page 13 of 46 HC-NIC Page 13 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT defendant shall be deemed to become adverse only when the female dies:
(c) Where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, the shall be deemed to be a representative of the judgment-debtor who was out of possession."
Learned senior counsel Mr. Mihir Thakore has relied upon the decision in the case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala reported in (2014) 1 SCC 669.
16. In view of the above submissions, learned senior counsel Mr. Mihir Thakore prayed to allow present Second Appeal by quashing and setting aside the orders passed by the Courts below.
17. As against, learned senior counsel Mr. P.C. Kavina submitted that present Second Appeal is required to be dismissed by confirming the orders passed by the Courts below as the Courts below have passed the orders after considering the records in true spirit. He submitted that as commonly agreed between the parties that the suit land was given by the present respondents to the Porbandar State for putting up an electric sub-station with the understanding that as and when the sub-station was shifted, the said land would be vacated and no rent or premium was ever charged for the same. He further submitted that in 1960, the said sub-station was shifted to another land and from that date, no generating activity has ever been carried out on the suit land and since there were some doubts as to whether the land belonged to the State or to the present respondents' predecessor in title, a dispute u/s.
Page 14 of 46HC-NIC Page 14 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT 37(2) of the Bombay Land Revenue Code was raised. Learned senior counsel Mr. Kavina also submitted that on 11.10.1968, the City Survey Officer after conducting a formal inquiry as contemplated under the Code, held that the land did not belong to the plaintiff but to the respondent's predecessor. Therefore, the plaintiff preferred an Appeal before the Dy. Collector being Appeal No.10 of 1968-69 and same was dismissed. Therefore, further Appeal being Appeal No.1 of 1970 was filed before the Collector, which also came to be dismissed. Thereafter, the plaintiff approached Gujarat Revenue Tribunal by way of Appeal No.TEN. A.R.12/1973 under Section 9 of the Revenue Tribunal Act, 1957 against the order of the Collector and same was also dismissed. Against the said order, Special Civil Application No.1685 of 1975 was filed, which was also dismissed by the High Court vide order dated 15.12.1976 with the observation that an adequate remedy of suit was available to the plaintiff. Said order was also challenged by way of Letters Patent Appeal No.221 of 1975 before the Division Bench, which came to be dismissed on the same ground.
18. Learned senior counsel Mr. Kavina submitted that thereafter, the plaintiff prayed for leave to appeal before the Hon'ble Supreme Court by way of Misc. Civil Application No.71 of 1976, which was rejected on 23.2.1976 by holding that there was no question of law worthy being appealed to the Hon'ble Supreme Court was involved. Then, the plaintiff filed Special Leave Petition (Civil) No.2471 of 1976 calling into question all the above referred orders and by order dated 28.4.1977, leave was refused and the appeal was dismissed. Learned senior counsel Mr. Kavina further submitted that the Page 15 of 46 HC-NIC Page 15 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT present respondent Nos.7,8 and 9 ultimately purchased the suit land from the respondent No.10 by registered sale deed dated 30.9.1985 along with possession and constructed 6 ft. high wall on the suit land along with other constructions. Thereafter, the plaintiff filed Regular Civil Suit No.262 of 1985 was filed by seeking specific relief and the trial Court after considering the evidence on records, dismissed the said suit by judgment and order dated 28.2.2005. Against the said judgment and order, the plaintiff preferred an appeal being Regular Civil Appeal No.9 of 2011 before the Court of learned Additional District Judge, Porbandar. Learned senior counsel Mr. Kavina also submitted that in the meantime, Special Civil Application Nos.19166 of 2006, 19167 of 2006 and 19169 of 2006 were filed by the respondents with a prayer that despite having lost at all places, the plaintiff was illegally adhering to the possession of the suit land and therefore, consequential relief against the present plaintiff to handover the suit land was also prayed. It is also submitted that while admitting the said writ petitions, this Court had observed vide order dated 19.3.2007 that when Civil Court has not recognized ownership rights of a public body, which is 'State' within the meaning of Article 12 of the Constitution of India. It is also submitted that in the meantime, Regular Civil Appeal No.9 of 2011 filed by the present appellant came to be dismissed by judgment and order dated 23.5.2011. Present appeal is filed challenging the said orders passed by the Courts below and while admitting the Appeal, this Court framed the substantial questions of law as stated in earlier part of this order.
19. Learned senior counsel Mr. Kavina submitted that after framing the substantial questions of law, the Civil Application Page 16 of 46 HC-NIC Page 16 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT (For Stay) No.6105 of 2012 filed by the plaintiff, was opposed by the respondents and therefore, the plaintiff - appellant herein withdrew the same and injunction in favour of the plaintiff - appellant was vacated. He also submitted that since the appellant had willingly given up any protection, the present respondents argued before the Learned Single Judge that possession should be granted to the respondents forthwith and by a common order dated 20.06.2014, the Learned Single Judge was pleased to dismiss the said petitions. The said common order was appealed against by filing Letters Patent Appeal No. 100 of 2014, 108 of 2014 and 107 of 2014 and said appeals were heard for admission and grant of interim relief by detailed order dated 05.05.2015, the Division Bench noticed the injustice of the case of the Appellant and granted mandatory directions to the Appellant to handover possession of the suit land to the present respondents. Learned senior counsel Mr. Mihir Thakore submitted that the present appellant preferred Special Leave Petition No. 13890 of 2014 wherein initially stay was granted and the order of the Division Bench was stayed. In the hearing which took place on 16.12.2014, the appellant and the present respondents jointly agreed that the impugned order shall not be implemented till the final disposal of the present Appeal. As per the submissions made by the learned senior counsel, in other words, the order passed by the Division Bench was not interfered with; its implementation was postponed till and subject to the result of the present Appeal.
20. Learned senior counsel Mr. Kavina submitted that on the Hon'ble Supreme Court requesting this Court to expeditiously dispose of the Appeal, the present Appeal has been taken up for hearing and after two days of submissions, on 18.07.2016, Page 17 of 46 HC-NIC Page 17 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT the appellant proposed further questions of law which are already stated in the earlier part of this order. He also submitted that the same are not the substantial questions of law as mentioned in Section 100 of the CPC, nor do they arise for consideration in the present Appeal.
21. Learned senior counsel Mr. Kavina further submitted that pleadings of the parties before the trial Court as well as Appellate Court, which are as under:
i) Before the Courts below, the appellant contended that the land was owned by the Nawab of Porbandar and the plaintiff being ultimate successor-in-title of the State of Porbandar was the owner of the land in question as successor in title. The other contention raised by the plaintiff was that the plaintiff being in possession from 1935, the Plaintiff had perfected its right, title and ownership of the suit land by prescription (adverse possession). Incidentally, the plaintiff also asked for an injunction restraining the present respondents from entering upon the Suit land and a mandatory injunction directing the removal of the construction put by the present respondents. On these pleadings, the plaintiff sought to prove its case and the Trial Court Issues No. 1 and 2 as follow:
"1. Whether the plaintiff the Electricity Board proves that the suit land plot D.269-00-00 sq. yards is of exclusive and absolute ownership Page 18 of 46 HC-NIC Page 18 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT of the plaintiff as a successor in title of the erstwhile State of Porbandar and united State of Saurashtra as alleged in the plaint para 5, 6 and 10?
2. Whether the plaintiff proves that since A.D. 1935 the suit land is in possession of the plaintiff openly as of right as an owner without interruption and so plaintiff has become its owner and the principle of prescription as alleged?
Both the above issues have been answered in the negative.
ii) The prayer for injunction was refused on the ground that no injunction can be granted to a possessor howsoever lengthy the possession, if the same is claimed against the true owner.
In giving these findings, the Courts below arrived at some clear findings of fact which are enumerated herein-below:
• That the land belonged to the predecessor of the present respondents and that the Nawab of Porbandar was never the owner.
• That the Porbandar State was allowed use of the land without charge for the purpose of putting up Sub-station only as permissive user (parvanedar) which finding is arrived at at page24 of the order.Page 19 of 46
HC-NIC Page 19 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT • That the trial Court also found that the suit was barred by limitation. This is so because after the decision of the Gujarat Revenue Tribunal on 22.04.1975, whereby the Order of the City Survey Officer was disputed by the plaintiff, the paintiff did not file suit within the period of one year as provided in Sec. 37(2) of the Bombay Land Revenue Code.
22. Learned senior counsel Mr. Kavina submitted that now before this Court, the appellant raised new point and argued on the same, which are such as under:
i) In addition to the submissions before the Courts below, for the first time in the memo of Appeal before this Court, the Appellant has contended in Ground B that the license for the Sub-station was an irrevocable license. This contention has never been taken in the plaint or in the arguments before the Trial Court neither in the memo of Appeal or arguments before the District Court. The contention of licensee has only been raised before the this Court for the first time in the present appeal.
Lastly, in alternative to all these contentions, the appellant contended that because the present respondents have not filed a suit for recovery of possession, the claim of the respondents is barred by limitation.
23. Learned senior counsel Mr. Kavina therefore, submitted Page 20 of 46 HC-NIC Page 20 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT that the plea of ownership by succession and ownership by prescription (adverse possession) are both findings of fact concurrently held by the Courts below and not susceptible to interfering in the present Second Appeal. That the suit land was never owned by the Nawab of Porbandar is a concurrent finding of fact decided by the lower courts and thus no question of ownership by succession arises. Further, the question as to the appellant being owner by prescription (adverse possession) has been concurrently answered in negative by the lower courts. Hence, these two contentions or any reliefs based thereupon, being purely based on decided questions of fact; do not merit perusal by this Hon'ble Court.
24. Learned senior counsel Mr. Kavina stated that the finding of adverse possession is a finding of fact and cannot be interfered with in a Second Appeal. Reliance placed by him on decision rendered by the Hon'ble Supreme Court in Thakur Kishan Singh v. Arvind Kumar reported in 1994 (0) GLHEL
- SC 31901:- [(1994) 6 SCC 591] "5. ... The learned Counsel, despite strenuous argument, could not demolish the finding of adverse possession. Attempt was made to rely on the evidence led on behalf of the parties and the evidence of the Commissioner who prepared the map. We are afraid that such an exercise is not permissible even in second appeal, what to say of the jurisdiction exercised by this Court under Art. 136 of the Constitution."
25. Learned senior counsel Mr. Kavina submitted that the plea of ownership by succession and prescription (adverse possession) are mutually exclusive pleas, destructive of each other and hence cannot be allowed to form part of the same Page 21 of 46 HC-NIC Page 21 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT cause of action. It is submitted that while taking alternate pleas is allowed, a party cannot take mutually inconsistent or destructive pleas; i.e. pleas that cannot co-exist. It is trite law that pleas based on title and adverse possession are mutually inconsistent as was held in L.N. Aswathama& Another v. V.P. Prakash reported in 2009 (0) GLHEL-SC 44378:-
[ (2009) 13 SCC 229 "17. ... It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced."
26. Therefore, in view of the aforesaid position, learned senior counsel Mr. Kavina submitted that the present appellant cannot be allowed to take the plea of ownership by adverse possession since it is inherently at conflict with the earlier plea of ownership by succession.
27. Learned senior counsel Mr. Kavina submitted that the plaintiff/appellant's possession was always permissive and the plaintiff had no right to seek a permanent injunction against the present respondents on the ground that after the decision of the Gujarat Revenue Tribunal, the plaintiff's possession had become adverse and/or that the present respondents had not filed a suit for recovery. (This contention of the plaintiff is predicated upon its assertion that after 1975, the possession of the plaintiff became adverse to the respondents). Even after the order of the Tribunal in 1975, the plaintiff's right was not perfected to adverse possession since the plaintiff filed the suit Page 22 of 46 HC-NIC Page 22 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT in 1985, a period of less than 12 years. Any time elapsed thereafter would not be an accretion to make up the period of 12 years necessary for adverse possession.
28. It is submitted that Section 37(2) of the Bombay Land Revenue Code must be read with Section 37(3) which provides for a limitation period of one year from the passing of order of the Collector, even in cases where the jurisdiction of the Collector is under challenge.
Section 37(3) of the Bombay Land Revenue Code reads as below:-
"Any suit instituted in any Civil Court after the expiration of one year from the date of any order passed under sub-sec (1) or sub- sec (2), or of one or more appeals have been made against such order within the period of limitation, then from the date of any order passed by the final appellate authority, as determined according to Section 204, shall be dismissed (although limitation has not been set up as a defence)if the suit is brought to set aside such order or if the relief claimed is inconsistent with such order, provided that in case of an order under sub- sec (2) the plaintiff has had due notice of such order."
29. In support of his submissions, learned senior counsel Mr. Kavina further placed reliance on the case of MedatiaIndrasinhji v. Raval Narayan Kishoresinh reported in 1993 (0) GLHEL - HC 207631, it has been held that where order of the Mamlatdar is challenged after one year, the suit is hit by Section 37(3), more particularly para 12 of the said decision, which reads as under:
"12. ... In view of the aforesaid ruling of the Supreme Court in the case of State of Punjab v. Gurdev Singh, AIR 1992 SC 111, the order at Exh. 83 was required to be Page 23 of 46 HC-NIC Page 23 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT challenged within the time limit prescribed under Section 37(3) of the BLR Code even if it is found to be a void order on account of want of jurisdiction. ..."
30. It is also submitted by the learned senior counsel Mr. Kavina that a similar view was taken by this Court in the case of Thakore Himmatsinh Bhupatsinh Vs. State of Gujarat, reported in 1985(1) GLR 251, wherein it was held that when a suit is filed containing a prayer inconsistent with the order of Mamlatdar falls within the purview of Section 37 of the Bombay Land Revenue Code. It is further submitted that mere absence of a suit for recovery by the true owner does not entitle a possessor to an injunction against dispossession. Further, adjudication of the appellant's title by the competent civil courts amounts to 'due process of law' and no further injunction may be granted to protect their unlawful possession. In Maria Sequeira Vs. Erasmo Jack de Sequeira reported in (2012)5 SCC 370, the Supreme Court upheld the rule laid down by the Delhi High Court in Thomas Cook (India) Ltd. v. Hotel Imperial reported in (2006) 88 DRJ 545 on the point of 'due process of law' with respect to eviction of a person in unlawful possession of a property: (Para 80 which is as under) "80. ... Now, this 'due process' or 'due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (Recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an Page 24 of 46 HC-NIC Page 24 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT action before the court and the court adjudicated upon it. If that is done then, the 'bare minimum requirement of due process or due course of law' would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction must grant an injunction anyway? I would think not. In any event, the 'recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action....We approve the findings of the High Court of Delhi on this issue in the aforesaid case."
31. The afore cited position of law has been upheld in the case of Union of India Vs. Vasavi Coop. Housing Society Ltd., reported in (2014)2 SCC 269 wherein the Hon'ble High Court of Andhra Pradesh observes as below:
"26. A Division Bench of this Court in C.Audilakshmamma v. A.Ramarao, AIR 1973 AP 149 observed that "the plaintiff in an ejectment suit must succeed on the strength of his own title and that could be done by adducing sufficient evidence to discharge the onus which is on him, irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendants is found against, in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited.""
32. It is further submitted that a licensee or a permissive user cannot, upon termination of the license claim adverse possession merely on the basis of absence of a suit for recovery of possession by the licensor. Hon'ble Supreme Court in Gaya Parshad Dikshit v. Dr. Nirmal Chander and Page 25 of 46 HC-NIC Page 25 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT Another, reported in 1984 G.L.H. 474:- [ (1984) 2 SCC 286], has observed as under:
"We have heard the learned counsel on behalf of the appellant and after hearing him and perusing the judgment of the High Court, we find ourselves wholly in agreement with the view taken by the High Court that mere termination of the license of a licensee does not enable the licensee to claim adverse possession, unless and until he sets up a title hostile to that of the licensor after termination of his license. It is not merely unauthorized possession on termination of his license that enables the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his license but that by itself cannot enable the licensee to claim title by adverse possession..."
33. It is submitted that the plea of license or permanent license invoked by the plaintiff was never advanced before the courts below and there was no basis in the pleadings before the courts below. The appellant has raised a completely new point in this Second Appeal which finds reference neither in the plaint, nor in the memo of the first appeal. It is humbly submitted that such plea is merely an opportunistic tactic adopted by the appellant to benefit out of the improper framing of issues by the learned judge, and the same is not based on any new evidence or fact. It thus presents no substantial cause fit for perusal at this belated stage of second appeal. This position of law has been upheld by the Hon'ble Supreme Court in numerous judgments.
Union of India v. Ibrahim Uddin, reported in 2012 (0) GLHEL - SC 51958[ (2012) 8 SCC 148] Page 26 of 46 HC-NIC Page 26 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT "62. ... A decision of a case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in absence of the pleadings in that respect.
69. To sum up: In view of the above discussion, we reach the following conclusion:
...
(vii) The court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding has been recorded by the Court, it is just to be ignored."
34. It has been aptly held by the Hon'ble Supreme Court in Bachhaj Nahar Vs. Nilima Mandal, 2008 (0) GLHEL SC 42971 [(2008) 17 SCC 491] that no relief can be granted on an alternate case which is not pleaded:-
"8. The High Court in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are:
(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue cannot be decided by the court.
(ii)A court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relied which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.
(iii) A factual issue cannot be raised or considered for the first time in a second appeal."
35. Learned senior counsel Mr. Kavina further submitted that Page 27 of 46 HC-NIC Page 27 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT in a Civil Suit parties are governed by rules of pleadings and there can be no adjudication of an issue in the absence of necessary pleadings. The High Court while deciding a civil suit does not have the same powers as it does while exercising its writ jurisdiction under Article 226 of the Indian Constitution. This position of law is enunciated by the judgment of Hon'ble Supreme Court in State Bank of India Vs. S.N. Goyal, reported in 2008 (3) GLH 512 as below:- [(2008) 8 SCC 92] "14. In this case, the minimum pleading that was necessary was that the Appointing Authority acted on extraneous material in arriving the decision or acted on the advice or recommendation of an Authority who was not concerned with the Enquiry. In the absence of appropriate pleading on a particular issue, there can be no adjudication of such issue. Adjudication of a dispute by a civil court is significantly different from the exercise of power of judicial review in a writ proceedings by the High Court. In a writ proceedings, the High Court can call for the record of the order challenged, examine the same and pass appropriate orders after giving an opportunity to the State or the statutory authority to explain any particular act or omission. In a civil suit parties are governed by rules of pleadings and there can be no adjudication of an issue in the absence of necessary pleadings..."
36. Learned senior counsel Mr. Kavina therefore, submitted that in view of the decisions cited above, the question regarding existence of an irrevocable license as framed by the learned single judge for consideration in the present Second Appeal, is unwarranted and finds no basis in the pleadings of the appellant. It is thus respectfully submitted that existence of Page 28 of 46 HC-NIC Page 28 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT an irrevocable license is not a substantial question of law and cannot be examined in this Second Appeal, nor can any relief be granted in this regard since the same is nowhere claimed in the pleadings and the term is a total invention by the learned single judge at the time of framing issues.
37. Learned senior counsel Mr. Kavina that thus, the substantial questions of law framed by the Court at the time of admission did not arise for consideration at all and therefore, it would be a proper exercise of power U/s. 100 of the CPC to discard such questions.
38. It is further submission of learned senior counsel that the further questions suggested on 18.07.2016 were not even questions of law, much less substantial questions of law. Both the questions seek to re-open clear findings of fact and mistakenly call the permissive use of the suit property by the Plaintiff as settled possession of the Plaintiff. Similarly, in the second question, the Plaintiff-Appellant wrongly contends that the present Respondents' rights have been extinguished U/s.
27. It is respectfully submitted that the present case does not meet the conditions precedent to adverse possession.
39. Learned senior counsel Mr. Kavina submitted that as per the judgment of the Hon'ble Supreme Court in Karnataka Wakf Board Vs. Government of India reported in 2004 (10) SCC 779, the two ingredients of adverse possession, i.e. physical fact of exclusive possession and the animus possidendi to exclude the actual owner must be unfailingly established. It is for the party claiming adverse possession to show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of Page 29 of 46 HC-NIC Page 29 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
40. It is also submitted that neither has the appellant anywhere pleaded the exact date on which its possession became adverse, nor did the appellant ever possess the requisite animus possidendi. In the absence of pleading to the effect of date of commencement of adverse possession, no amount of long possession can establish title by adverse possession. It has been laid down in S.M. Karim Vs. Bibi Sakinal, reported in AIR 1964 SC 1254 that:-
"..Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."
41. Learned senior counsel Mr. Kavina also submitted that further, the case at hand presents a special scenario wherein the appellant is actually a permissive user of the suit land and has been granted permission to work on the suit land for a specific purpose. The Hon'ble Supreme Court in Thakur Page 30 of 46 HC-NIC Page 30 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT Kishan Singh Vs. Arvind Kumar, reported in 1994 (0) GLHEL SC 31901 laid down the following rule against adverse possession in favour of permissive possessors in absence of a hostile animus to dispossess the true owner:-
"5. As regards adverse possession, it was not disputed even by the trial Court that the appellant entered into possession, over the land in dispute under a license from the respondent for purposes of birck-klin. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time, does not result in converting the permissive possession into adverse possession..."
42. The afore cited decision has been upheld by the Hon'ble Supreme Court in numerous judgments, including P.T. Munichikkanna Reddy &Ors Vs. Revamma,(2007) 6 SCC
59.
43. Learned senior counsel Mr. Kavina therefore, submitted that even in cases where facts and circumstances establish an adverse possession, there cannot be any relief in a Second Appeal on the basis of adverse possession since the plea is available only as a defence when proceedings are initiated against the possessor and he is arrayed as a defendant. The Hon'ble Supreme Court in Gurudwara Sahib Vs. Gram Panchayat Village Sirthala reported in 2013 (3) G.L.H. 375 has observed that adverse possession can be used as a shield and not as a sword:-
Page 31 of 46HC-NIC Page 31 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT "7. In the Second Appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable. There cannot be any quarrel to this extent and the judgments of the Courts below are correct and without any blemish.
Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
44. Learned senior counsel Mr. Kavina also submitted that the law of adverse possession has been frowned upon by the Indian judiciary in several judgments. It is indeed amusing how twelve years of illegality suddenly converts to yield a legal title to a trespasser, who is otherwise regarded as a wrongdoer. The law permitting ownership by way of adverse possession places premium on dishonesty and prejudices the rights of the true owner.
45. In support of his submissions, learned seniour counsel Mr. Kavina relied upon the Hon'ble Supreme Court in the case of Hemaji Waghaji Jat Vs. Bhikhabhai KhengarbhaiHarijan reported in (2009) 16 SCC 517 held as below:-
"The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner."
46. It is submitted that the plaintiff has contended that if none of the pleas of ownership or license are accepted, even Page 32 of 46 HC-NIC Page 32 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT then, plaintiff's possession should be protected and that atleast relief as far as prayer 15(2) for permanent injunction should have been granted. The said contention cannot be accepted on two counts - Firstly, such a relief would be available to a person in settled possession against all persons other than the true owner. Secondly, what constitutes 'due process of law' has to be decided in the facts and circumstances of each case and as held by the Hon'ble Supreme Court in Maria Sequiera(supra), it is no part of due process of law that a person such as the plaintiff having failed to establish any continuing right would then turn around and tell the defendant that now you must sue me to obtain possession. This is without prejudice to the contention of the respondents that the appellant being state cannot be permitted to take a plea which smacks off constitutional immorality.
47. In that regard, learned senior counsel relied upon the case of State of Haryana Vs. Mukesh Kumar reported in (2011) 10 SCC 404, the Hon'ble Supreme Court has criticised the state instrumentalities' practice of grabbing the lands of citizens by way of adverse possession, which the Hon'ble Supreme Court aptly refers to as a 'clandestine' manner of acquiring property. To quote verbatim, "24. The High Court, relying on the earlier judgments, observed that the welfare State which was responsible for the protection of life and property of its citizens, was in the present case, itself trying to grab the land/property of the defendants under the garb of plea of adverse possession and hence the action of the plaintiff is deplorable and disgraceful.
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25. Unfortunately, the State of Haryana, is still not satisfied with the three strong judgments by three different forums given against the State and is still quite anxious and keen to grab the property of the defendants in a clandestine manner on the plea of adverse possession."
48. In view of the aforesaid submissions, learned senior counsel Mr. Kavina urged to dismiss the present Second Appeal by confirming the order passed by the Courts below.
49. Herein this case, the appellant is a statutory body constituted under the Electricity Supply Act, 1948 and the land admeasuring about 4500 to 4600 Sq. yrd. known as Ravaliya in Porbandar City near Hanuman Chawk and on this land, admeasuring 259 Sq. Mtr. a sub station was constructed by the Porbandar State in the year 1935, which was originally owned by Mr. Memon Haji Moti Haji Isaq Ravaliya and on upper its part, a "Musafir Khana" was constructed, remaining land was kept open. It is also the case of the appellant herein that later on, this open land was plotted and there was sub station one of the plot No. "D" since year 1935, which is called as "Fuvara Sub Station" and till today, the possession and enjoyment of the said plot is kept with the appellant since than 70 years and by this way, the appellant became owner of the said plot by way of adverse possession. It is also the case of the appellant that the respondent Nos.1 to 3 have the ownership of the said plot and the respondent No.5 has no any right to pass any order, but the revenue authority has transferred the tile of this plot of respondent No.7 and respondent No.6 issued him the construction permission. Thus, the respondent Nos.7 to 9 have started illegal construction on the plot. Therefore, the appellant has filed Regular Civil Suit No. 262 of 1985 for Page 34 of 46 HC-NIC Page 34 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT declaration and permanent injunction, which was rejected by the learned Civil Judge (S.D.) Porbandar vide judgment and decree dated 28.2.2005. Against the said judgment and decree, the appellant preferred Regular Civil Appeal No.9 of 2011 and same was also rejected vide judgment and decree dated 23.5.2011 and same are impugned in this Second Appeal.
50. The Appeal is admitted by this Court vide order dated 10.5.2012, following substantial questions of law are framed :
1. Whether in the facts and circumstances of the case both the Courts below were right in law in holding that the appellant was only a licensee of lands admeasuring 269 sq.mtrs. with the standing building of Sub Station on the land?
2. Whether in the facts and circumstances of the case both the Courts below were right in law in overlooking the fact that the alleged license was an irrevocable license?
51. As per the submissions of learned senior counsel Mr. Mihir Thakore, the plaintiff is a licensee since 1935 and the plaintiff was permitted to put up permanent construction in 1935 and therefore, licence is irrevocable.
52. It also appears that the trial Court has framed the issues while deciding the suit of the plaintiff and the issue Nos.1 and 2 out of total issues, which are as under :
1. Whether the plaintiff, the electricity Board process that the suit land Plot No.269-00-00 Sq. Yrd. is of Page 35 of 46 HC-NIC Page 35 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT exclusive and absolute ownership of the plaintiff as a successor in title of the erstwhile State of Porbandar and United State of Saurashtra as alleged in plaint para 5,6 and 10?
2. Whether the plaintiff proves that since, A.D., 1935, the suit land is in possession of the plaintiff openly as of right as an owner without interruption and so plaintiff has become its owner and the principle of prescription as alleged ?
53. Said both the issues were answered in negative by considering the evidence on records and submissions made before the trial Court. Now, it also appears that the licence is not produced anywhere in the evidence and even there no any specific evidence or the averment in the earlier proceedings also preferred by the plaintiff. The issue relating to the licence was not raised before the Courts below and same is raised very first time before this Court. Therefore issue relating to the licence or irrevocable of the same is not required to be dealt herewith. Therefore, the cases produced by the appellant/plaintiff are not helpful so far as licence or irrevocable of licence and also the fact that the trial court has given detailed reasons after appreciating the evidence on record and the lower Appellate Court having concurred with the findings of fact after re-appreciation of the evidence on record, the present appeal does not give rise to the aforesaid substantial questions of law.
54. Learned senior counsel Mr. Thakore was permitted to raise further questions i.e. question Nos.3 and 4 of law when the matter was taken up for hearing and the same are as under :Page 36 of 46
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3. Whether in the facts and circumstances of the case, both the Courts below were right in law in dismissing the suit when the plaintiff admittedly was in settled possession of the suit property since 1935 and when the plaintiff was praying inter alia even for permanent injunction restraining the defendants from entering upon the suit land and mandatory injunction to remove the construction?
55. As per the submissions of learned senior counsel Mr. Mihir Thakore, the plaintiff is a trespasser and it is in continuous interrupted possession since 1935 and if so, the plaintiff is in settled possession of the suit land and the possession cannot be disturbed except by taking recourse to law. The defendants have never filed any suit for possession nor counter claim. In view of this position, the plaintiff is entitled for injunction. He relied upon the case of Puran Singh and Ors. Vs. The State of Punjab reported in (1975) 4 Supreme Court Cases 518, particularly paras 11 and 12, and submitted that right of trespasser to private defence of property and the trespasser to exercise the right must be in settled position on the basis of concepts as stated in the said decision. He further relied upon one another decision in the case of Rame Gowda (dead) by LRs Vs. M. Varadappa Naidu (dead) by LRs. reported in (2004) 1 Supreme Court Cases 769, paras 8 to 12, and submitted that occupant in settled possession cannot be dispossessed without recourse to law and the concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions.
56. In support of his submissions, learned senior counsel Mr. Page 37 of 46 HC-NIC Page 37 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT Mihir Thakore relied upon several cases as stated in earlier paras of this judgment.
57. As against this, learned senior counsel Mr. Kavina forcefully relied upon the decision in the case of S.M. Karim V. Bibi Sakina, reported in AIR 1964 SC 1254 and submitted that long possession is not necessarily adverse possession and there is no evidence here when possession became adverse.
Therefore, the question No.3 is not required to be dealt with. Even the trial Court has framed issue No.4 and answered to the same in negative. Learned senior counsel further submitted that a person pleading adverse possession has no equities in his favour and since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. It is also submitted that neither has the appellant anywhere pleaded the exact date on which its possession became adverse, nor did the appellant ever possess the requisite animus possidendi. Same ratio is absolutely applicable in the present case.
58. In support of his submissions, learned senior counsel Mr. Kavina relied upon the cases as stated in earlier part of this judgment.
59. This Court has perused the judgment and decree passed by the trial Court, wherein the issue Nos.3 and 4, which are as under:
3. Whether the plaintiff proves that the order dated 11.10.68 of the City Survey officer, confirmed by the superior authorities, is nullity as alleged?
4. Whether, the plaintiff proves that the Page 38 of 46 HC-NIC Page 38 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT defendant No.1 to 3 and 10 have lost right of ownership in the suit land by being out of possession since A.D. 1935 and the principle of prescription as alleged?
60. Above issues are answered by the trial Court in negative and it appears that merely the defendants were not in a possession, is not a ground that the defendants lost their ownership right over the suit property. The trial Court, while answering the said issues, considered the order passed by the City Survey Officer under Section 37(2) of the Bombay Land Revenue Cord dated 11.12.1968, which is confirmed by the Appellate Authority. Here in this case, even there is no any evidence to prove the aspect of adverse possession and it is also settled position of law that long and continuous possession would not constitute adverse possession, even if it was either permissive or possession without animus possidendi. It also appears from the records that the appellant cannot be allowed to take plea of ownership by adverse possession as there is mere ground of uninterrupted possession from 1935 and there is no any evidence about adverse possession of the plaintiff and it is also clear and established that on which date, the possession became adverse. Therefore, this Court has no reason deal with the question as raised by the appellant.
61. Similarly, the question No.4 is raised by the learned senior counsel Mr. Mihir Thakore at the time of hearing, which is as under :
4. Whether in the facts and circumstances of the case, when the plaintiff is in an uninterrupted possession of the suit land since 1935 and even Page 39 of 46 HC-NIC Page 39 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT after the order of the Hon'ble Supreme Court of India dated 28.04.1977, the suit inter alia for injunction of the plaintiff could not have been dismissed particularly, when in the event the defendant files a suit on the basis of title, the plaintiff is entitled to raise the defence of adverse possession under Article 65 read with Section 27 of the Limitation Act?
62. First of all, this Court perused the order passed by the Hon'ble Supreme Court in Special Civil Petition (Civil) No.2471 of 1976 dated 28.4.1977 and said petition was dismissed and as per the question as above, in the event, the defendant files suit on the basis of title, the plaintiff is entitled to raise the defence of adverse possession under Article 65 read with Section 27 of the Limitation Act. Herein this case, the defendants have never filed the suit for title over the suit land and therefore, there is no question of any adverse possession. This Court has perused the decisions relied upon by the learned senior counsel Mr. Kavina as reflected in his submissions as made by him. The trial Court has framed the issue No.9 which is as under :
9. Whether it is proved that the suit barred by limitation as per articles 58, 110, 113 of the Limitation Act as alleged in the written statement para 9 of Exh.54?
63. Said issue is answered in affirmative. This Court has also perused the reasons of the issue as stated above. It is observed by the trial Court that the cause of action arose on 20.9.1977, but the plaintiff claimed its ownership on 10.10.1985 by filing suit before the trial Court. Therefore, the Page 40 of 46 HC-NIC Page 40 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT trial Court has rightly held that the suit is barred by the limitation. The lower Appellate Court has confirmed the same observations made by the trial Court by discussing the same in detail.
64. Now, the other aspects are required to be considered for not considering the present Second Appeal and same are under :
(i) The Porbandar State allotted the land admeasuring 4618 Sq. Yrds. to Haji Moti Haji Ishaw Ravalia by order dated 2.7.1929. The said land was put in trust by the following persons namely (i) Haji Abu Haji Jasub, (ii) Shakur Ibrahim, (iii) Habib Irahim and (iv) Ismail Aadam.
(ii) Thereafter, in the year 1935, the Porbandar State constructed a sub station on plot No.D admeasuring 269 Sq. Yrds. which is known as "Fuvara Sub Station for distributing electric power etc. to meet the needs of public and to the West of Plot No.D, a public road was constructed on the said land area occupied by road approx. 615 Sq. Yrds. and rest of land was permitted to be sold for the construction of domed building. On 30.12.1942, Resolution No.360 passed by the Diwan of Porbandar State in pursuance to the agreement with trustees to the effect that the present land (excluding the land occupied by power station and road) be sold to a party to construct a new building and different land given to the trust.
Public notice issued by Habib Ibrahim Ravaliya and others for sale of 3584 Sq. Yrds. land after deducting the land of substation and road on 19.11.1943. In Page 41 of 46 HC-NIC Page 41 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT the year 1956, as per State Reorganization Act, the assets of Saurashtra Electricity Board were taken over by the Bombay State Electricity Board. When the Bombay District Municipal Act came into force, the road created from land also vested in Porbandar Nagarpalika. In the year 1960, all the assets of Bombay State Electricity Board, which were in Gujarat were taken over by the Gujarat Electricity Board on the formation of the Gujarat State. On 11.4.1960, the defendant Nos.1 to 3 served notice to the Porbandar Municipality that the road constructed on the land belonged to them as the land is given as licensee to the Municipality by the defendant Nos.1 to 3 and sought permission. On 26.7.1960, the defendant Nos.1 to 3 served notice to the GEB that the land admeasuring 269 Sq. Yrds. over which sub station was constructed belonged to them as the land is given to GEB as licensee by the defendant Nos.1 to 3 and sought permission. A letter dated 9.1.1963 issued by Hasim Haji Ravalia to GEB that the State of Porbandar in 1933 was allowed by him to put their electric sub-station as a licensee without taking any compensation on the condition that the said electric sub-station shall be removed by the State when called upon by him and called upon the GEB. On 18.3.1963, a letter issued by GEB to Hassim Haji Ravalia requesting to produce certificate of his Highness the Maharaja of Porbandar stating that the State of Porbandar was allowed by him to put the electric sub station as a licensee in the year 1933, without taking any compensatin, on the condition Page 42 of 46 HC-NIC Page 42 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT taht the said electric sub station shall be removed by the State when called upon and further called upon to produce any other document available in support of his case.
(iii) On 21.5.1968, letter issued by Hasim Haji Ravaliya to the City Survey Enquiry Officer that the Plot No.D belonged to his family as owners and same was handed over to the Porbandar State for locating temporary electricity sub station free of charge since they had a cordial relationship with the then Porbandar State without taking any compensation or rent. Thereafter on 10.12.1968, City Survey Officer passed order under Section 37(2) of the Bombay Land Revenue Code by holding the ownership of the defendant Nos.1 to 3 and construction belonged to GEB and therefore, either compensation should be paid to the defendant No.1 to 3 or said land should be vacated.
(iv) Against the said order dated 10.12.1968, the plaintiff filed appeal before the Dy. Collector being Appeal NO.10/68-69 and on 9.2.1970, the Dy. Collector dismissed the appeal. Therefore, on 6.6.1970, the plaintiff filed appeal before the Collector being Appeal No.1 of 1970 and same was dismissed by the Collector vide order datd 19.3.1972 by observing that the defendants have produced documentary evidence to prove the title over the disputed land and there is no evidence of the plaintiff to show that the said land/plot is acquired by State or the Municipality for public purpose.
Page 43 of 46HC-NIC Page 43 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT Therefore, the plaintiff filed Revision being No.GEN.A.R.12/1973 under Section 9 of the Bombay Revenue Tribunal Act, 1957 before the Revenue Tribunal. Said Revision was dismissed by the Tribunal vide orer dated 22.2.1975.
(v) Thereafter, against the said order dated 22.2.1975, the plaintiff preferred Special Civil Application No.1687 of 1975 before this Court. This Court vide order dated 6.10.1975, rejected the said petition on the ground of alternative remedy of filing the suit under Section 37(2) of the Bombay Land Revenue Code. Against the said order, the plaintiff preferred Letters Patent Appeal No.221 of 1975 and on 15.2.1976, said appeal was dismissed on the same ground. The plaintiff filed Special Leave Petition before the Hon'ble Supreme Court against said order dated 15.2.1976 and same was dismissed on 28.4.1977.
(vi) Thereafter, on 9.11.1984, a sale deed executed by Mohammad Hussain Ravaliya in favour of the defendant No.10 and thereafter, on 10.10.1985, the plaintiff filed Regular Civil Suit No.262 of 1985 against the defendants.
(vii) Except above aspects, by way of petition i.e. Special Civil Application Nos. 19166 of 2006, 19167 of 2006 and 19169 of 2006, the defendants sought a direction to the Gujarat Electricity Board (GEB) to handover the possession of the land of City Survey Ward No.3, Sheet No.138 of Survey No.1284, situated at Hanuman Chowk, Porbandar, Page 44 of 46 HC-NIC Page 44 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT admeasuring 272.39 square yards (227.69 square metres approximately), belonging to the petitioners along with other relief. Same was dismissed vide judgment and order dated 20.6.2013. Against the said judgment, the defendants preferred Letters Patent Appeal No. 100 of 2014 with allied matters and same is yet pending before this Court, but in the order dated 5.5.2014, by way of interim direction, the plaintiff was directed to handover the possession to the defendants as observed in order dated 23.4.2014 passed by this Court. Against that interim order, the plaintiff preferred Special Leave Petition (C) No.13890 of 2014 before the Hon'ble Supreme Court and when the said matter came up for hearing before the Hon'ble Supreme Court, the parties to the proceedings jointly agreed that the order of interim direction, shall not be implemented till present Appeal is finally disposed by this Court.
65. In this matter, earlier Civil Application No.6105 of 2012 for stay was filed and same was withdrawn as not pressed by the learned advocate for the appellant in view of the affidavit filed by respondent Nos.7 to 9 and therefore, this Court passed order on 4.7.2012 in the aforesaid Civil Application.
66. In the light of the aforesaid discussion, this Court is of the view that the impugned judgment and decree passed by the Appellate Court as well as trial Court does not suffer from any legal infirmity so as to give rise to any questions of law, much less, a substantial questions of law so as to warrant interference. The appeal is, accordingly, dismissed.
Page 45 of 46HC-NIC Page 45 of 46 Created On Thu Sep 08 00:57:29 IST 2016 C/SA/90/2012 CAV JUDGMENT Civil Application No.12281 of 2014 :
In view of the order passed in main Second Appeal, present Civil Application does not survive. Hence, the Civil Application stands disposed of.
(Z.K.SAIYED, J.) YNVYAS Further order :
After the pronouncement of the judgment and order, learned advocate Ms. Lilu Bhaya for the appellant requests to stay this judgment and order.
Learned senior counsel Mr. Kavina for Mr. Pandya vehemently opposed the aforesaid submission and states that earlier, the appellant has not pressed Civil Application for stay and same is disposed of by this Court vide order dated 4.7.2012 and even the Letters Patent Appeals are pending before this Court pertaining to the said issue. Therefore, no further stay may be granted.
Considering the submissions of both the learned advocates for the respective parties, request for stay is rejected.
(Z.K.SAIYED, J.) YNVYAS Page 46 of 46 HC-NIC Page 46 of 46 Created On Thu Sep 08 00:57:29 IST 2016