Gujarat High Court
Morvi Nagar Palika vs Thakershi Dharamsinhbhai Patel on 29 August, 2024
NEUTRAL CITATION
C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 37 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MORVI NAGAR PALIKA
Versus
THAKERSHI DHARAMSINHBHAI PATEL & ORS.
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Appearance:
MR YN RAVANI(718) for the Appellant(s) No. 1
MR AR THACKER(888) for the Respondent(s) No. 2,3
MR YOGESH S LAKHANI(419) for the Respondent(s) No. 1
MR. JAY M THAKKAR(6677) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 29/08/2024
CAV JUDGMENT
1. This Second Appeal filed under section 100 of Code of Civil Procedure, 1908 (for short 'CPC') has been admitted on Page 1 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined 06.04.2002 by framing following substantial question of law :-
"(1) Whether the lower Courts have committed jurisdictional error in shifting the burden of proving ownership of the land in question on the plaintiff -
Municipality though by various notifications of State of Saurashtra and subsequently the State of Gujarat, produced at Exh.90 to 93 are clear to the effect that all the vacant plots and lands within Morvi Municipal area belong to the Municipality ?
(2) Whether the lower Courts have committed jurisdictional error in not passing decree in favour of the appellant - municipality though the defendant has not come with any document of title about the land in question ?
(3) Whether Trial Court as well as Appellate Court have committed jurisdictional error by not properly interpreting section 37 of the Bombay Land Revenue Code which provides that all public roads etc. and all lands which are not the property of others belonging to the Government particularly when the plaintiffs have produced documentary evidence Exh.90, 91 and 92 and also Exh.93, Exh.96 and Exh.97?"
2. This Second Appeal under section 100 of Civil Procedure Code, 1908 (for short "CPC") challenges concurrent judgment and decree passed by the learned Court below whereby, learned Civil Court at Morbi by judgment and decree dated 30.03.1999 dismissed the Regular Civil Suit No.225 of 1984 filed by the Page 2 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined appellant, learned Appellate Court in First Appeal No.9 of 1999 by judgment and decree dated 09.01.2002 approved and confirmed the same. Hence, being aggrieved, the appellant has filed this Second Appeal.
3. Parties are referred to as per their status before the learned Trial Court.
4. The facts in brief leading to filing this second appeal is as under :-
4.1. The plaintiff Morvi Nagarpalika is a corporate body working under the Gujarat Municipality Act. It is the case of the plaintiff that they have open land at Kayajipara, Morvi. Further it is case of the plaintiff that defendant is doing construction work in the said land which pertains to Nagarpalika and the defendant has already constructed 45 ft. work in length in the said land. It is case of the plaintiff that defendant has no right in the said land as the said land pertains to Nagarpalika and it is the say of the plaintiff that all the land of Government vest with the Morvi Nagarpalika. It is further contended by plaintiff that if we believe that said land is of defendant, then also he has no right to Page 3 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined construct without following due process i.e. production of title deed, map and approval of plan from the plaintiff. Therefore, plaintiff has filed the suit and prayed for declaration and injunction and also prayed to restrain the defendant to make further construction in the said land without taking prior permission of plaintiff and also prayed to demolish the construction work made in the suit property. Learned Trial Court vide judgment dated 30.03.1999 rejected the Regular Civil Suit No.225 of 1984. Being aggrieved, the appellant preferred Regular Civil Appeal No.9 of 1999 and learned Appellate Court vide judgment dated 09.01.2002 dismissed the appeal. Hence, the appellant has preferred present Second Appeal.
5. Heard learned advocate Mr.Y.N.Ravani appearing for the appellant - Morbi Nagar Palika and learned advocate Mr.Jay Thakkar appearing on behalf of learned senior advocate Mr.Yogesh Lakhani for respondent no.1 and learned advocate Mr.Shivang Thacker for learned advocate Mr.A.R.Thacker for respondent nos.2 and 3 who are joined by order of Registrar (Judicial) by passing order in Civil Application No.10896 of 2008. Page 4 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024
NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined
6. Learned advocate Mr.Ravani for the appellant taking this Court through Record and Proceedings of the suit as well as appeal would submit that although the Courts below have given concurrent findings and denied relief claimed by the plaintiff, the Courts below have committed serious error in interpreting documents at Exh.90 to 93. He would submit that in view of these documents, it could be established that all open land, which are not of private ownership, vests with Morbi Nagar Palika. He would submit that disputed land being plot no.60 is open land and it vest with Morbi Nagar Palika as defendants could not establish their ownership on disputed land but the learned Courts below have committed serious error in discarding documentary evidence at Exh.90 to 93 by giving erroneous reason that in the notifications, Government has not specifically mentioned that plot no.60 vest with Morbi Nagar Palika. It is submitted that even otherwise in view of section 80 of Gujarat Municipalities Act, 1963 read with section 37 of Gujarat Land Revenue Code, all the lands which are open and not having any private ownership within territorial jurisdiction vest with Morbi Nagar Palika and in such a way, Morbi Nagar Palika is owner of disputed land but the learned Courts below have committed serious error.
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NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined 6.1. It is also submitted that since notifications as well as provisions of law earmark that open land having no private ownership belongs and owned by Municipality, the defendants who claim ownership on plot no.60 were required to prove same by leading cogent evidence but the learned Courts below have committed serious error in shifting burden of proving ownership of the land in question on plaintiff - Municipality and thereby serious error has been committed by the Courts below. It is also submitted that learned Courts below were required to read the evidence as it is but failed to read the same in true perspective and therefore, substantial question of law arise in this matter. 6.2. On factual aspect, learned advocate Mr.Ravani for the appellant submits that learned Courts below committed serious error in referring to sale deed of third party and more particularly, quadrilateral recited therein to believe that plot no.60 is of private ownership. It is submitted that before learned Trial Court, Morbi Nagar Palika in no uncertain terms pleaded and also proved that plot no.60 belongs to Morbi Municipality and since defendant was carrying out illegal construction without permission of the Municipality, suit was filed claiming permanent and mandatory injunction to remove such Page 6 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined construction with declaration that defendant has no right to carry out any construction on plot no.60 (disputed land). It is submitted that considering the nature of the suit, question never arose about establishing title on disputed land but the learned Courts below committed serious error in arriving at conclusion that Morbi Nagar Palika failed to establish title over plot no.60 (disputed land) and as such failed to discharge burden under section 101 and 102 of Evidence Act and therefore, plaintiff cannot succeed in suit. Such findings of learned Trial Court is totally erroneous. Learned advocate Mr.Ravani for the appellant relied on judgment of the Hon'ble Apex Court in the case of Nagar Palika, Jind v/s. Jagat Singh, Advocate [(1995) 3 SCC 426].
6.3. Upon above submissions, learned advocate for the appellant submits to allow the Second Appeal.
7. On the other hand, learned advocate Mr.Jay Thakkar for respondent no.1 supports impugned judgment and decree passed by Courts below and would further submit that in ordinary circumstances, the High Court should not interfere with Page 7 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined the concurrent findings arrived by the Courts below untill compelling circumstances or reasons to do as regards in law is established. In present case, Morbi Nagar Palika claims that plot no.60 (disputed land) belongs to and owned by Morbi Nagar Palika as it vest with Morbi Nagar Palika in view of notifications at Exh.90 to 93. It is submitted that witness of Morbi Nagar Palika admitted that they have not produced any documents which establish ownership of plot no.60 (disputed land) nor produced any other documents to say that disputed land belongs and owned by Morbi Nagar Palika. It is further submitted that document being registered sale deed of third party produced by the defendant in the suit along with deposition of said person in whose favour registered sale deed was executed establish that plot no.60 (disputed land) is private property. Presumption therefore arise that it is private property of original defendant no.1 He would submit that flood in form of natural calamity struck Morbi city in the year 1979 and it has washed out title documents of the plot no.60 and therefore, defendant could not produce title document of plot no.60 (disputed land). It is submitted that since before the learned Trial Court, Morbi Nagar Palika claims that plot no.60 belongs and vests with Morbi Nagar Palika, burden to prove by leading cogent evidence lies upon the Page 8 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined plaintiff. It is submitted that learned Trial Court has rightly held that notification produced at Exh.90 to 93 does not specify land of plot no.60 vest with Morbi Nagar Palika and in absence of any other evidence, plaintiff failed to discharge burden lying on it. Thus, learned Courts below have rightly dismissed the suit and appeal.
7.1. Upon above submissions, learned advocate Mr.Jay Thakkar submits to dismiss the second appeal.
8. Learned advocate Mr.Shivang Thakkar for learned advocate Mr.A.R.Thakkar for respondent nos.2 and 3 who are joined by order of Registrar (Judicial) submits that though they were not party to the proceedings which took place before the Courts below but has been joined as respondents in the matter and claimed that disputed land belongs and owned by respondent nos.2 and 3 and they have purchased the same from erstwhile owner Ravji Kuvarji and therefore, submits that respondent nos.2 and 3 are real owner and occupier of plot no.60 (disputed land) and not Morbi Nagar Palika. He also submitted that erstwhile Prince of Morbi executed deed for plot no.52 and 60 in Page 9 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined favour of Viram Kima Satwara, later on Viram Kima Satwara had executed sale deed in favour of Ravjibhai Kuvarbhai and pending proceedings, Ravjibhai has sold this plot to respondent nos.2 and 3 and as such title which commenced from Ravjibhai has perfected in favour of respondent nos.2 and 3 qua disputed land. 8.1. In view of above, learned advocate Mr.Thakker submits that Morbi Nagar Palika has no whatsoever right to say that plot no.60 vests with Morbi Nagar Palika.
9. Having heard learned advocate for both the sides and having gone through Record and Proceedings, at the outset, let refer relief (it is in Gujarati, for better understanding it is translated in English) claimed by the plaintiff which reads as under :-
"1. Be pleased to grant prayer of declaration that the defendant, without permission of the plaintiff, is not entitled to carry out any kind of construction or any kind of work regarding construction in the place shown in para- 8 in the plaint.
2. Be pleased to grant perpetual injuntion that the defendant may not carry out any kind of construction or any kind of work regarding construction in the place shown in para-8 in the plaint and further be pleased to pass mandatory injunction order to remove and demolish Page 10 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined whatever work is carried out.
3. Be pleased to award all the cost of this suit and be pleased to grant further and other relief/s which may deem fit and proper."
10. Morbi Nagar Palika in para 2 and 3 of the plaint stated that defendant is carrying out construction in open land belonging to Nagar Palika without prior permission. It is also stated that defendants are head strong persons and they are carrying construction on the land of local government land which vest with Nagar Palika.
11. Learned Trial Court went into trial by framing following issues :
"(1) Whether the plaintiff proves that the defendant had illegally constructed on land belonging to the plaintiff ? (2) Whether the defendant proves that he had constructed wall compound covered the land ? (3) Whether the plaintiff is entitled to relief as claimed for ?
(4) What order and decree ?"
12. Though learned Trial Court has not framed issue about title of disputed land i.e. plot no.60, went to dismiss the suit of Page 11 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined the plaintiff believing that plaintiff failed to establish title of disputed land. The issue in dispute was as simple as whether the defendant is carrying out illegal construction on land belonging to plaintiff. The Court below search for title of plot no.60 and further questions that since plaintiff has failed to prove any documents to indicate that title of plot no.60 vest with it, defence claimed by the defendant is true and correct and suit requires to be dismissed and accordingly, dismissed the suit.
Learned Appellate Court went further saying that plaintiff must have to establish its own case on its legs and may not desire to get shelter of witness of other side. In nutshell, learned Courts below in search of title, failed to understand very basic nature of suit. Suit was filed simply to restrain defendants from carrying out illegal construction on plot no.60 and to remove construction already taken place on plot no.60.
13. To be recollected that suit is filed by Morbi Nagar Palika against defendants. Learned advocate Mr.Ravani mainly relied on Exh.90 to 93 to say that all the open land having no established private ownership within municipal limits of Morbi Nagar Palika belongs to Nagar Palika. The notifications are produced on record of learned Trial Court at Exh.90 to 93 and Page 12 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined again they are produced with list at Exh.128 and also given exhibit from Exh.130 to 132. First is Notification No.29 issued on 24.02.1950 by the Local Self Government Department, Government of Saurashtra. It was issued under sub-section 1 of Section 50 of the Bombay District Municipal Act, 1901 as adopted and applied to the State of Saurashtra. City of Morbi was part of State of Saurashtra. In pursuance of sub-section 2 of Section 50 of the said Act, Government of Saurashtra was pleased to declare that :
"(i) the properties enumerated in the schedule hereinbelow and situated within the limits of the said Municipality shall not be reserved by Government;
(ii) the said properties :
(a) shall vest in and belong to the said Municipality;
(b) shall be under the direction, management and
control of the said Municipality; and
(c) shall be held and applied by the said Municipality as
Trustee subject to the provisions and for the purpose of the said Act.
Schedule
(a) All public town walls and gates and manuro and night depots.
(b) Sir Wagji Vegetable Market including the portion known as Restaurant.
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14. By Notification dated 28.07.1955 issued by Government of Saurashtra, two more plots are added in the municipality one at Gandhi Chowk and another plot opposite Mill.
15. State of Gujarat vide Notification dated 17.01.1980 bearing No.Jamin-3979-MR-1660-G recognized notifications issued by the Government of Saurashtra (above notifications).
16. At this stage, I may refer to section 80 of the Gujarat Municipalities Act, 1963 :-
"80. Power to acquire and hold property for the purposes of the Act.
(1)A municipality may acquire and hold property both moveable and immovable, whether within or without the limits of the municipal borough.
(2)All property of the nature specified in the clauses to this section, not being specially reserved by the State Government, shall be vested in and belong to the municipality, and shall, together with all other property of whatever nature or kind, which may become vested in the municipality, be under its direction, management and control, and shall be held land applied by it as trustee, subject to the provisions and for the purposes of this Act:-
(a)All public town-walls, gates, markets slaughter-houses, manure and night soil depots.
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NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined
(b)All public streams, tanks, reservoirs, cisterns, wells, springs, acqueducts, conduits, tunnels, pipes, pumps and other water works; and all bridges, buildings, engines, works materials and things connected with or appertaining to such water works; and also any adjacent land, not being private property, appertaining to any public tank or well.
(c)All public sewers and drains; all sewers, drains, tunnels, culverts, gutters and water-courses in, alongside or under any street, and all works, materials and things appertaining thereto; all dust, dirt, dung, ashes, refuse, animal matter, filth or rubbish of any kind collected by the municipality from the streets, houses, privies, sewers, cesspools or elsewhere.
(d)All public lamps, lamp-posts and apparatus connected therewith, or appertaining thereto.
(e)All lands and public buildings transferred to it by the Government by gift or otherwise, for local public purposes.
(f)All public streets and the pavements, stones and other materials thereof and also all trees, erections, materials, implements and things provided for such streets:
Provided that lands and public building transferred to the municipality by the State Government under clause (e), shall not, unless otherwise expressly provided in the instrument of transfer, belong by right of ownership to the municipality but shall vest in it subject to the terms and conditions of the transfer, and on the breach of any of the said terms or conditions the lands with all things attached thereto, including all fixtures and structures thereon and the public buildings shall revest in the State Government and it shall be lawful for the State Government to resume possession thereof.
(3)Where any open site or waste, vacant or grazing land vesting in Government has been vested by Government in a municipality whether before or after the commencement of this Act, then it shall be lawful for the State Government to resume at any time such site or land, if it is required by it for any public purpose.
(4)In the event of the resumption of any land, building or site under sub-section (2) or (3) by the State Government otherwise than only for a breach of a condition on which Page 15 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined the same was held by the municipality, the municipality shall be entitled to compensation equal to the value of any improvement of such land, building or site by municipality and such value shall be determined in accordance with the provisions of the Land Acquisition Act, 1894 (1 of 1894).
17. Useful reference is also required to be made to section 37 of the Gujarat Land Revenue Code, which reads as under :-
"37. All public roads, etc., and all lands which are not the property of others, belong to the [Government] [(1)] All public roads, lanes and paths, the bridges, ditches, dikes, and fences, on or beside, the same, the bed of the sea and of harbours and creeks below high water-mark, and of rivers, streams, nallas, lakes, and tanks, and all canals, and water-courses, and all standing and flowing water and all lands wherever situated, which are not the property of individuals, or of aggregates of persons legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force are and are hereby declared to be, with all rights, in or over the same, or appertaining thereto, the property of [the [Government] [The words 'the Crown' were substituted for the words 'Government' by the Adaptation of Indian Laws Order in Council.]], and it shall be lawful for the Collector subject to the orders of the [State Government] [These words were substituted for the words 'Commissioner' by Gujarat 15 of 1964, section 4 Schedule], to dispose of them in such manner as he may deem fit, or as may be authorised by general rules sanctioned by [the Government concerned] [The words 'the Government concerned' were substituted for the words 'Government', by Gujarat 15 of 1964, section 4 Schedule], subject always to the rights of way, and all other rights of the public or of individuals legally subsisting.Page 16 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024
NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined Explanation. - In this section "high-water-mark:" means the highest point reached by ordinary spring-tides at any seasons of the year.
(2)[ Where any property or any right in or over any properties is claimed by or on behalf of [the [Government] [The original Section 37 was numbered as sub-section (1) of section 37 sub-sections (2) and (3) were added by Bombay II of 1912, section 1.] or by any person as against [the [Government] [The words 'the Crown' were substituted for the words 'Government' by the Adaptation of Indian Laws Order in Council.]], it shall be be lawful for the Collector or a survey officer, after formal inquiry of which duo notice has been given, to pass an order deciding the claim.] (3)Any suit instituted in any Civil Court after the expiration of one year from the date of any order passed [***] [The words 'by the Collector; were omitted by second schedule of the Bombay Repealing and Amending Act, 1919 (Bombay 2 of 1919).] under sub-section (1) or sub-section (2), or, if 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 the case of an order under sub-section (2) the plaintiff has had due notice of such order.] (4)[ Any person shall be deemed to have had due notice of an inquiry or order under this section if notice thereof has been given in accordance with rules made in this behalf by the [State [Government] ."
18. Conjoint reading of above provisions indicates that sub- Page 17 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024
NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined section (2) of Section 80 of the Gujarat Municipalities Act, all the properties of the nature specified in the clauses to this section, not being specially reserved by the State Government, shall be vested in and belong to the municipality. Sub-clause (e) of sub- section (2) of section 80 of the Gujarat Municipalities Act provides that all lands and public buildings transferred by the Government vest with Municipality. Same effect is given through section 37 of the Gujarat Land Revenue Code by employing phrase "all lands wherever situated, which are not the property of individuals, or of aggregates of persons legally capable of holding property, and except in so far as any rights of such persons may be established shall vest with State Government".
19. Notification indicates that since disputed land is within local limits of Municipality, in view of section 80 of the Gujarat Municipalities Act, it would vest with the plaintiff - Morbi Nagar Palika. The person or individual who claims right that property is his independent property, has to establish his right by leading evidence.
20. In background of above aspect, if we go through evidence Page 18 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined on record, it indicates that plaintiff examined Ashwinkumar Saghvi, Chief Officer at Exh.129. He has produced and proved notifications from Exh.90 to 93 which were again given Exh.130 to 133. Correctness of evidence is tried to impeach by saying that in the notifications, specific number of plot (disputed land) is not stated. It is obvious that specific number of each plot is not required to be stated in the notifications. Notifications states that all the lands vest with local self Government. Thus person or individual claims proprietary rights on particular piece of land is required to establish the same by leading evidence known to law. Thus when defendant claims that land belongs to and owned by him, it is his duty and burden to prove the same by leading necessary evidence. It is also significant to note that prior to filing of the suit, Morbi Nagar Palika has issued notice to Thakersinh Dharmsinh Patel directing him to remain present in the "Bhandkham Shakha" with necessary paper to show his title. This show cause notice is produced at Exh.94 to 96, which remains unreplied.
21. Another witness Hareshbhai Patel was examined at Exh.170. He has deposed that disputed land belongs to Nagar Page 19 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined Palika. Defendant entered into witness box as PW-1 at Exh.194. He deposed that he has purchased the disputed land (plot no.60) from erstwhile owner on 15.06.1976 by registered sale deed paying sale consideration of Rs.13,500/-. He further deposed that since natural calamity of flood struck Morbi city on 11.08.1979, his sale deed was washed away and therefore, he is not in position to produce the same but filed affidavit of Bhaishankar Ravashankar (Exh.195) to establish his title on disputed land. Learned Trial Court admitted this affidavit as documentary evidence. According to this Court, learned Trial Court fell in error by ignoring the aspect that affidavit is not documentary evidence. Plaintiff has produced on record certified copy of sale deed executed in the year 1974 between A.D.Chatwani and Sheth Chimanlal Manekchand. This is registered sale deed qua sale of one of the private property nearby disputed land. Said copy of sale deed is produced to claim that in quadrilateral land, it is stated that on southern side, plot no.60 is situated and it belongs to some other party. In nutshell, by this evidence on record, defendant who claims that his sale deed is washed away and copy of sale deed is not available from Sub Registrar Office, successfully could fetch copy of sale deed of some third party executed in the year 1974 from Page 20 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined Sub Registrar Office. Defendant claimed that he has searched about his sale deed from Sub Registrar Office, but did not find it, but he could have established the same by leading evidence of concerned Officer from Sub Registrar Office to establish that copy of his sale deed is not available even with Sub Registrar office. In substance, the defendant could not establish any title over disputed land, which he was required as per provision of Section 80(2) of the Gujarat Municipalities Act along section 37 of the Gujarat Land Revenue Code.
22. Ordinarily, the High Court should not interfere with the findings arrived by the Courts below except in case compelling reasons to do so are produced on record. Recently, in the case of Suresh Lataruji Ramteke v/s. Sau. Sumanbai Pandurang Petkar [2023 Live Law (SC) 821], the Hon'ble Apex Court in para 27.2 observed following :-
27.2 In ordinary course, the High Court in such jurisdiction does not interfere with finding of fact, however, if it does find any compelling reason to do so as regard in law, it can do but only after perusing the records of the Trial Court, on analysis of which the conclusion arrived at by such a Court is sought to be upturned. In other words, when overturning findings of fact, the Court will be required to call for the records of the Trial Court or if placed on record, peruse the same and only then question Page 21 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined the veracity of the conclusions drawn by the Court below."
23. In the case of Chunilal V. Mehta and Sons Ltd. v/s. Century Spg. & Mfg. Co. Ltd. [AIR 1962 SC 1314], Constitution Bench of Hon'ble Apex Court enunciated the principle for deciding when question of law becomes a substantial question of law and in para 6 it is held as under :-
"6....The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
24. In the case of Hero Vinoth v/s. Seshammal [(2006) 5 SCC 545], Hon'ble Apex Court relied on judgment in the case of Chunilal V. Mehta (supra) and other judgments and summarized the tests to find out whether a given set of questions of law were mere questions of law or substantial question of law. Relevant para of the said judgment is para 21, which reads as under :- Page 22 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024
NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined "21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with- technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal 2(2006) 5 SCC 545 shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [AIR 1928 PC 172] the phrase substantial question of law as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case [AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Mad 969 - para 5] :
"5.When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."
25. In the case of Nazir Mohammed v/s. J. Kamala [(2020) 19 SCC 57], the Hon'ble Apex Court referred to various authorities Page 23 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined on the subject and in para 31 and 32 observed as under :-
"31. Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. This proposition finds support from Santosh Hazari v. Purushottam Tiwari.
32. In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam. An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter."
26. Let switch back to the substantial question of law framed by this Court at the time of admission of second appeal. First question is in regard to shifting the burden of proving ownership of the land in question on the plaintiff - Municipality. It is clear from the evidence on record that notifications at Exh.90 to 93 are clear to the effect that all the vacant plots and land within local limits of Morbi municipality area belongs to Morbi. Exh.90 to 93 is supported by provisions of law discussed herein above. It also appears that the Courts below have ignored provision of section 80 of the Gujarat Municipality Act read with section 37 Page 24 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined of the Gujarat Land Revenue Code and went into decide issue before it on truncated interpretation. The Courts below have discarded notification at Exh.90 to 93, in absence of documentary evidence filed by the defendant to claim his ownership. Defendant, as discussed herein-above has not produced any evidence on record to unsettle that plot no.60 does not belong to Morbi Nagar Palika but it is his plot of private ownership.
27. Again if we look at the nature of suit, Morbi Nagar Palika was seeking injunction to restrain defendants from carrying out construction on the open plot and mandatory injunction to remove construction already taken place. This relief becomes more significant as Morbi Nagar Palika has issued show cause notice to the defendant calling him to show and produce his title on disputed land before carrying out any construction. Section 155 of the Gujarat Municipalities Act prescribe that before begin to construct any building or to alter externally or add to any existing building, or to construct or reconstruct any projecting portion of building, permission of Municipality is required. It is not the case of the defendant that before commencement of Page 25 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined construction on disputed land, they have taken permission from Morbi Nagar Palika under section 155 of the Gujarat Municipalities Act. Defendant started construction on disputed land without permission of Nagar Palika, which compelled Nagar Palika to issue notice which are referred above.
28. In nutshell, no gainsaying that learned Courts below have committed serious error in denying relief in favour of the plaintiff by misreading evidence on record and shifting burden to prove ownership of land on plaintiff Morbi Nagar Palika. In the facts and circumstances of the case, High Courts requires to interfere with concurrent findings arrived by learned Courts below.
29. For the foregoing reasons and discussion, substantial question of law framed by herein above are answered in affirmative.
30. Before parting with the order, it is necessary to observe that respondent nos.2 and 3 filed Civil Application for joining party being Civil Application No.10896 of 2008 directly in the proceedings of Second Appeal. Registrar (Judicial) on 18.03.2009 Page 26 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined issued Rule returnable on 27.04.2009 and then on 27.04.2009 passed following order :-
"Present application filed by the applicant to be joined party respondent in second appeal no. 37 of 2002 as supported documents produced along with Civil application and copy is already served to Learned Advocates Mr. YN Ravani and Mr. YS Lakhani. So, present application is allowed. Amendment be carried out accordingly."
31. Powers and duties of the Registrar are defined in Rule 12 and Rule 13 of the Gujarat High Court Rules. Plain reading of Rule 12 and 13 indicates that Registrar (Judicial) is not authorized to exercise powers to join third party in Second Appeal directly, more particularly, when it is contested matter. Thus, according to this Court, order passed by Registrar (Judicial) herein above to join respondent nos.2 and 3 is without jurisdiction and as such it is non-est. Upon such order, respondent nos.2 and 3 cannot claim any right to he heard in the matter.
32. In wake of above reasons, Second Appeal is allowed. Judgment and decree passed by the learned Trial Court in Regular Civil Suit No.225 of 1984 dated 30.03.1999 and Page 27 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024 NEUTRAL CITATION C/SA/37/2002 CAV JUDGMENT DATED: 29/08/2024 undefined confirmed by learned Appellate Court in Regular Civil Appeal No.9 of 1999 dated 09.01.2002 are quashed and set aside. Relief claimed by the plaintiff in Regular Civil Suit No.225 of 1984 is granted and accordingly declaration and injunction claimed by the plaintiff is issued against the defendant. Throughout cost is awarded in favour of the plaintiff - Morbi Nagar Palika. Decree be drawn accordingly. Record and proceedings be send back.
(J. C. DOSHI,J) After pronouncement of judgment, learned advocate Mr.Jay Thakkar for respondent no.1 submits to stay implementation and execution of this judgment for four weeks to enable respondent no.1 to approach higher Court. He would submit that status-quo order was operating since filing of Second Appeal. Request made by learned advocate Mr.Jay Thakkar is declined on the ground that respondent no.1 had no whatsoever title over the disputed property. Secondly, status-quo order was operating in favour of the appellant. Today, the Second Appeal is allowed, so question of extending status-quo order would not survive.
(J. C. DOSHI,J) SATISH Page 28 of 28 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 23:23:40 IST 2024