Gujarat High Court
Maganbhai Jesingbhai Patel-Decd. & 4 vs Punambhai Gobarbhai Patel & 2 on 24 June, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
C/SA/86/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 86 of 2014
With
CIVIL APPLICATION NO. 3813 of 2014
In
SECOND APPEAL NO. 86 of 2014
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MAGANBHAI JESINGBHAI PATEL-DECD. & 4....Appellant(s)
Versus
PUNAMBHAI GOBARBHAI PATEL & 2....Respondent(s)
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Appearance:
MR P P MAJMUDAR, ADVOCATE for the Appellant(s) No. 1 - 1.1 , 2 - 2.5 , 3 -
5
MR SP MAJMUDAR, ADVOCATE for the Appellant(s) No. 1 - 1.1 , 2 - 2.5 , 3 -
5
MR NIRAL R MEHTA, ADVOCATE for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 24/06/2015
ORAL ORDER
1. This Second Appeal is filed by the original defendants challenging a judgment of the lower appellate Court dated 18.02.2014. Brief facts are as under:-
1.1 The respondents-plaintiffs had filed Civil Suit No.1 of 2001 against the present appellants in connection with 'wada' land attached to their residential unit in 'gamtal'. According to the plaintiffs, they were owners and in possession of the suit land since long. That had Page 1 of 8 SECOND APPEAL/86/2014 26/06/2015 02:02:56 AM C/SA/86/2014 ORDER put up small construction for toilet, etc. The defendants were obstructing the plaintiffs in the use and enjoyment of such 'wada' land. They therefore filed the said suit for a declaration that they are owners of the suit land and that the defendants have no right to prevent them from use and enjoyment thereof. The trial Court by judgment dated 28.03.2003 dismissed the suit holding that the plaintiffs failed to produce any document showing that they are owners of the land. The plaintiffs therefore filed appeal before the lower appellate Court. Such appeal came to be allowed by the impugned judgment. The appellate Court passed following order:-
"The Appeal is hereby allowed.
Judgment and decree passed by the trial court in R.C.S. No.01/2001 is set-aside and suit of the plaintiff is allow and relief claimed by the plaintiff vide Para-6-A of the pleading is hereby granted. Defendants and their agents, servants are permanently restrained by way of injunction in respect of the said property mentioned in Para-2 of the pleading.
Decree be drawn accordingly.
R & P be sent back to trial court along with the copy of this judgment and decree."
2. The Court referred to various documents Page 2 of 8 SECOND APPEAL/86/2014 26/06/2015 02:02:56 AM C/SA/86/2014 ORDER produced by the plaintiffs showing their possession of the land in question and collection of taxes by the Panchayat. The Court was of the opinion that being 'wada' land, the same may be of the ownership of the Government. Nevertheless, since the plaintiffs were in possession, use and enjoyment of such land since long, the defendants cannot obstruct their use and enjoyment of the suit land. Such conclusions can be culled out from the discussion in the impugned judgment which is as under:-
"14. The trial Court has not considered the evidence either plaintiff or defendant but looking to the oral evidence and the documentary evidence, it is crystal clear from the Exh.85 which is the certificate given by Sayra Gram Panchayat in which he is mentioned the property bearing Gamtal land of 51, 53, 32 and 41 and all the property belongs to the plaintiff and all the property are mentioned their measurement by panchayat, the said measurement clearly shows that Gamtal 41 is disputed property but trial Court has not consider the said fact moreover, plaintiff has also produced the abstract of the panchayat record regarding Kayami Upaj Patrak vide Exh.87 to 90 in which Exh.89 is also of the disputed property and it was granted for 30 years from 01/08/51 to 31/07/81. Village form no.7/12 of the said property is produced at Exh.93. All this document is not considered by the trial Page 3 of 8 SECOND APPEAL/86/2014 26/06/2015 02:02:56 AM C/SA/86/2014 ORDER Court. The trial Court has not considered the court commissioner panchnama which is produced at Exh.124. Looking to the said panchnama, it is clear that the said Vada land is situated adjoining to the plaintiff's house and one door is also erected for egress and ingress in the said vada land. Court Commissioner's panchnama which is not document of ownership of possession but the said panchnama can considered what are the actual position of the disputed land. Now the said panchnama is also exhibited and which is not challenge by defendants with said panchnama made by independent witness i.e. court commissioner. It is clear that defendants are not using the said land and plaintiff is using the said land hence it favour the plaintiff. Panch has also exhibited at 123. It supported with panchnama was made by Court commissioner in his favour. Now looking to the said panchnama, it is crystal clear that plaintiff is using the said land as vada land and it is adjoining with plaintiff's house. The trial court has not considered the said panchnama. The trial court denial in toto of the said evidence of the panch witness and court commissioner's panchnama. The panchnama is not document of possession of ownership but court can come to the conclusion with what are the positions of the disputed land. The said disputed land is adjoining to the plaintiff land and one door is also erected not before 20 to 30 days but it appears to be a long time and the said door is for egress and ingress and when defendant is Page 4 of 8 SECOND APPEAL/86/2014 26/06/2015 02:02:56 AM C/SA/86/2014 ORDER not established his evidence with the said land is in his possession then naturally trial court has rightly not considered the evidence of the defendant. The defendants are not residing near the said land in his possession. It is also assumed that defendant has nothing to do with the said land.
15. Now on above discussion, it is crystal clear that plaintiff is in possession of the said vada land. Whether this possession is legal or illegal is not issue before this Court but when plaintiff is in possession and panchayat is also having knowledge that plaintiff is in a long possession of the land which is known as Gamtal land and panchayat is also issued certificate then this land is in possession of the plaintiff and panchayat is also recovered the cess of the said land and trial court is also add in decision the said facts is discussed above. In Civil litigation plaintiff has to prove his case by preponderance of probability not a strict proof is required as in criminal case with beyond reasonable doubt the fact should be proved. Looking to all document produced by the plaintiff it shows that plaintiff is in possession of the said land no doubt the said possession was given for 30 days lease by the government but the said lease is continue when the possession of the plaintiff is not vacated by the panchayat. So, the trial court is erred in deciding the possession of the plaintiff. So, I do agree with the argument of learned advocate Mr.Modi that plaintiff is in Page 5 of 8 SECOND APPEAL/86/2014 26/06/2015 02:02:56 AM C/SA/86/2014 ORDER possession of the said vada land and decide issue no.1 in favour of plaintiff and when issue no.1 is decided in favour of plaintiff then issue no.2 is automatically goes his favour of the plaintiff. When plaintiff is in possession over the said land then naturally whatever Kaccha construction made on the said land is made by the plaintiff too.
16. Looking to the evidence laid by the defendant, Defendant is categorically mentioned that he is in possession of the said land. So, the said facts suggest that defendant also wants of the said land when defendant is neither established in documentary evidence that the said land is in favour of the defendant. When defendant is also averred in pleading and in affidavit and he is putting their agriculture equipment on the said land and plaintiffs have removed their equipment at the time of court commissioner's panchnama their equipment are turned down near the said land. So, it is also suggest that defendant is also try to get possession of the said land but looking to the document produced by the defendant it is also not believed by the trial court and trial court has rightly disbelieved the evidence of the defendant. Defendant is himself deposed on one witness has been examined but no documentary evidence produced by the defendant is admitted or considered by the trial court. So, the plaintiff apprehends that defendant get the possession by hook or crook and trying to get possession then naturally plaintiff came before this trial Page 6 of 8 SECOND APPEAL/86/2014 26/06/2015 02:02:56 AM C/SA/86/2014 ORDER court to get permanent injunction against the defendant. So, issue no.3 is decided in negative by the trial court is also an error of the trial court and this order is also required to be set aside when plaintiff has established issue no.1 and 2 in his favour."
3. In view of such discussion and findings of facts, I see no reason to entertain the Second Appeal. The findings of the lower appellate Court are based on evidence on record. The plaintiffs produced several documents exhibiting their possession which had to be protected against any infringement by the defendants. The appellate Court therefore correctly concluded that the defendants cannot obstruct the plaintiffs from use and enjoyment of the 'wada' land.
4. However, as can be seen from the body of the judgment reproduced above, even the lower appellate Court did not consider question of the plaintiffs' ownership. The appellate Court was of the opinion that whatever the nature of possession, the same may be protected against any encroachment by the defendants. This is not a same thing as to suggest that the appellate Court held that the plaintiffs were the owners of the land in question. Strenuous effort on part of the Counsel for the plaintiffs to the contrary must fail. In fact, the appellate Court even referred to nature of possession and Page 7 of 8 SECOND APPEAL/86/2014 26/06/2015 02:02:56 AM C/SA/86/2014 ORDER observed that whether legal or illegal possession, the defendants cannot obstruct since the 'wada' land would be of the ownership of the Government.
5. Whether the plaintiffs became owners of the land or the Government continued to be the owner were issued neither necessary nor could be gone into in absence of the Government. The lower appellate Court therefore advisedly did not do so. The final direction of allowing suit in terms of prayer clause-6-A therefore would be some more incongruent with such findings of the appellate Court and my confirmation thereof. In para-6- A, the plaintiffs had claimed a declaration that they are owners of the suit land. The lower appellate Court neither intended to nor could have granted any such declaration. Rest of the directions were perfectly in order and call for no interference. Subject to this clarification, Second Appeal is dismissed along with Civil Application.
(AKIL KURESHI, J.) SHITOLE Page 8 of 8 SECOND APPEAL/86/2014 26/06/2015 02:02:56 AM