Gujarat High Court
Ravjibhai Viththalbhai Tadvi & 2 vs Sabarmati Ashram Gaushala Trust on 7 March, 2017
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SA/273/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 273 of 2016
With
CIVIL APPLICATION NO. 10664 of 2016
In
SECOND APPEAL NO. 273 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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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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RAVJIBHAI VITHTHALBHAI TADVI & 2....Appellant(s)
Versus
SABARMATI ASHRAM GAUSHALA TRUST....Respondent(s)
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Appearance:
MR MANOJ SHRIMALI, ADVOCATE for the Appellant(s) No. 1 - 3
MR. D.C.DAVE, SENIOR ADVOCATE with MR JIGAR M PATEL, CAVEATOR
for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 07/03/2017
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ORAL JUDGMENT
1. The present Second Appeal is filed by the Appellants / Original Defendants being aggrieved with the impugned judgment and order in Regular Civil Appeal No.3 of 2010 by the learned Additional District Judge, Kheda at Nadiad dated 7.12.2015 confirming the judgment and decree in Regular Civil Suit No. 66 of 1999 by the learned Principal Civil Judge, Kheda at Nadiad dated 30.3.2009 posing the substantial questions of law as follows:
(1) Whether, on the facts and law, the judgment and decree passed by the Ld. Appellate Court confirming the judgment and decree passed by the Ld. Trial Court are in accordance with law? (2) Whether the Ld. Appellate Court erred in not properly appreciating the oral and documentary evidence on the record of the case?
(3) Whether the Ld. Appellate Court erred in not considering the aspects of appellants' possession, occupation and ownership of the disputed land since years?
(4) Whether the Ld. Appellate Court erred in not properly appreciating the evidence as regards tenancy of the appellants prior to the year 1950?
(5) Whether the Ld. Appellate Court erred in not considering provisions of sections 29 and 85 of the Tenancy Act and Rules? (6) Whether the Ld. Appellate Court erred in not deciding the issue of exemption u/s 88-B of the Tenancy Act being in absence of the appellants?Page 2 of 10
HC-NIC Page 2 of 10 Created On Mon Aug 14 05:58:35 IST 2017 C/SA/273/2016 JUDGMENT (7) Whether the documents produced by the appellants are not enough to prove their ownership?
(8) Whether the Ld. Appellate Court and Ld. Trial Court have also erred in not properly applying its mind to the case and not independently looked into the matter?
(9) Whether both the lower Courts have erred in not considering the issue of adverse possession?
(10) Whether both the lower Courts have erred in not considering the issue of suit being barred by limitation?
2. The background of the facts as it emerges from the record are that the Respondent / Original Plaintiff is the Sabarmati Ashram Gaushala Trust, which is registered under the Bombay Public Trust Act as a Charitable Institute. The said Trust has been exempted under Section 88(B) of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as the "Tenancy Act") for which the entries are made in the revenue record. The Appellants herein had claimed the tenancy right under Section 32(g) of the Tenancy Act by initiating the proceedings, which came to be dismissed as discussed in the judgment impugned. However, as the Appellants have not given the possession in spite of the notice under the provisions of the Tenancy Act terminating the tenancy, the possession has not been handed over. Therefore, the suit came to be filed, which has been decreed and the Appeal filed before the Page 3 of 10 HC-NIC Page 3 of 10 Created On Mon Aug 14 05:58:35 IST 2017 C/SA/273/2016 JUDGMENT first appellate court by the Appellants was also dismissed. Therefore, the present Second Appeal has been preferred by the Appellant as stated above claiming the tenancy rights on the grounds stated in the memo of Second Appeal that the certificate under Section 88(B) of the Tenancy Act has not been produced and they are in possession since long. Therefore, learned Advocate Shri Manoj Shrimali for the Appellants submitted that the land is of two different villages i.e. Bahrampura and Govindpura and there is no certificate for exemption produced and therefore both the courts below have committed an error and he has therefore right to harp upon the possession to contend that the exemption is not produced on record and therefore the present Second Appeal may be entertained.
3. Per contra, learned Senior Counsel Shri D.C. Dave appearing with learned Advocate Shri Jigar M. Patel for the Respondent / Original Plaintiff has referred to the background of the facts and submitted that the provisions of Section 88(B) of the Tenancy Act provide:
"Exemption or certain provisions to land of local authorities, universities and trusts. ........"
and Section 88(B)(b) further provide:
"to lands which are the property of a trust for an educational Page 4 of 10 HC-NIC Page 4 of 10 Created On Mon Aug 14 05:58:35 IST 2017 C/SA/273/2016 JUDGMENT purpose, [c] [a hospital, Panjarapole, Gaushala]....."
4. Learned Senior Counsel Shri Dave referred to the papers and submitted that in fact the tenancy proceedings were initiated by Tenancy Case No. 33 of 1993 for making a claim of tenancy, which has been dismissed. He pointedly referred to the observations made in the judgment of the first appellate court that the exemption certificate under Section 88(B) of the Tenancy Act has been obtained in favour of the Respondent / Original Plaintiff Trust which has not been challenged. He also referred to the same contentions raised and discussed in paragraph 15 of the judgment. Learned Senior Counsel Shri Dave submitted that it has been clearly observed that the exemption certificate under Section 88(B) of the Tenancy Act has been granted in favour of the Respondent Trust and in fact the same has been accepted by the Appellants / Original Defendants though it was sought to be contended that it was granted in the absence of the Appellants herein. Learned Senior Counsel Shri Dave submitted that the issue has been decided by the coordinate bench with regard to the same Trust for which he referred to and relied upon the judgment of the coordinate bench (Coram: Paresh Upadhyay,J) reported in 2014 (0) GLHEL- HC 230710 in case of Sabarmati Ashram Gaushala Trust v.
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Bhailalbhai Nanabhai and submitted that as observed in this judgment posing the questions of law it has been clearly observed that such contentions are misconceived, and this judgment was carried by way of Special Leave Appeal (Civil) No. 6203/2014, which came to be dismissed. Therefore, learned Senior Counsel Shri Dave submitted that as the issue is settled, the present Second Appeal may not be entertained. He also referred to the papers including the deposition of the Appellant and his admission that the Tenancy Case No. 33 of 1993 has been terminated in view of the exemption certificate under Section 88(B) in favour of the Respondent Trust. He also submitted that it has been admitted that in spite of the service of the notice, the possession has not been handed over. He therefore submitted that in fact the order passed by the Mamlatdar and the Revenue Tribunal in Tenancy Case No. 33 of 1993 on the contrary referred to the fact that earlier also such proceedings were initiated which has been held to be barred by resjudicata. He therefore submitted that the claim cannot be permitted to be agitated and that too in the Second Appeal. He also referred to and relied upon the judgment of the another Bench of the High Court (Coram: R.D.Kothari,J) in Second Appeal No. 177 of 2015 with Civil Application No. 9405 of 2015, again qua the same Trust, and submitted that it has been observed that such an Page 6 of 10 HC-NIC Page 6 of 10 Created On Mon Aug 14 05:58:35 IST 2017 C/SA/273/2016 JUDGMENT issue cannot be considered in the Second Appeal.
5. Learned Advocate Shri Shrimali again referred to the observations made in the judgment of the trial court and the first appellate court and submitted that the exemption certificate which has been referred to is not produced admittedly and therefore it could not have been accepted merely on the basis of the averments and the pleadings. He has therefore tried to submit that the present Second Appeal may be entertained.
6. In view of these rival submissions and having regard to the background of the facts as discussed herein above, the moot question, which is required to be considered is whether the present Second Appeal deserve consideration in light of the background of the facts and the substantial questions of law posed by the Appellants / Original Defendants.
7. As could be seen from the background of the facts and the questions of law, it can hardly be said to be questions of law much less any substantial question of law. The background of the facts as discussed herein above has a reference to the claim for the tenancy right under the Tenancy Act for which the Tenancy Case No. 33 of 1993 was initiated which came to be dismissed referring to the earlier proceedings and resjudicata. Further, as could be seen from the judgment of the trial Court as well as the first Page 7 of 10 HC-NIC Page 7 of 10 Created On Mon Aug 14 05:58:35 IST 2017 C/SA/273/2016 JUDGMENT appellate court, the fact remains that the certificate of exemption under Section 88(B) of the Tenancy Act has been granted in favour of the Respondent Trust. The provisions of Section 88(B) (b) of the Tenancy Act clearly provides for exemption in view of the fact that the land belong to the Respondent Trust and therefore what is required to be considered is the exemption qua the institution and not the land. Therefore, the exemption in respect of the land belonging to the Trust is granted, which has also been believed and accepted with reference to the entries made in the revenue record, and it is too late now in the light of the day to permit to agitate any such questions in the present Second Appeal.
8. Further, the judgment and order as well as the proceedings of Tenancy Case No.33 of 1993 and the findings given clearly indicate that the Appellants herein had sufficient opportunity and they had not challenged the exemption certificate granted in favour of the Respondent Trust under Section 88(B) of the Act. Not only that, but the entries made are also not challenged. In fact as recorded and discussed in paragraph 15 of the judgment of the trial court, the Appellants / Original Defendants have accepted such certificate, and on the contrary contended that it was issued in their absence, meaning thereby, the certificate which is said to have been issued, is accepted to the knowledge of the Appellants. It has Page 8 of 10 HC-NIC Page 8 of 10 Created On Mon Aug 14 05:58:35 IST 2017 C/SA/273/2016 JUDGMENT also been accepted that no proceedings are initiated to challenge such certificate. Similarly, the revenue proceedings earlier, which have not been carried further, including even a notice of termination of tenancy has not been challenged. Therefore, as the same issue has also been considered by the another Bench as discussed above, which has also been confirmed by the Hon'ble Apex Court, it hardly requires any consideration in the present Second Appeal.
9. In view of the scope of exercise of discretion under Section 100 of the Code of Civil Procedure after the amendment in 1976, the concurrent findings of facts may not be disturbed easily unless the substantial question of law can be said to have been involved. The Hon'ble Apex Court has laid down the broad guidelines with regard to approach expressing a word of caution that normally the concurrent finding of facts may not be disturbed unless the substantial question of law is involved. In the facts of the case, as stated above, it can hardly be said that there is any substantial question of law which can to be said to have been involved. The Hon'ble Apex Court has made the observation in the judgment in case of Gurdev Kaur & Ors. V/s Kaki & Ors. reported in 2007 (1) SCC 546 referring to the scope of exercise of discretion under Section 100 of the Code after the amendment in the Code of Civil Page 9 of 10 HC-NIC Page 9 of 10 Created On Mon Aug 14 05:58:35 IST 2017 C/SA/273/2016 JUDGMENT Procedure in 1976. It has been clearly observed;
"Now, High Courts can interfere thereunder only where substantial questions of law are involved and have been formulated in the memorandum of appeal - The amendment clearly indicates that the legislature never intended the second appeal to become a third trial on facts or 'one more dice in the gamble'."
10.Therefore, having regard to the background of the facts as discussed herein above, it can hardly be said to have any issue involved which can be permitted to be re-agitated again and again which would otherwise amount to abuse of the process of the court. Therefore the present Second Appeal cannot be entertained and deserve to be dismissed and accordingly stands dismissed. Civil Application also stands dismissed.
(RAJESH H.SHUKLA, J.) JNW Page 10 of 10 HC-NIC Page 10 of 10 Created On Mon Aug 14 05:58:35 IST 2017