Gujarat High Court
Dahiben Chakulal Bhavsar & vs Taluka Panchayat Bhiloda & on 9 January, 2013
Author: C.L. Soni
Bench: C.L. Soni
DAHIBEN CHAKULAL BHAVSARV/STALUKA PANCHAYAT BHILODA C/SA/7/2011 JUDGEMNT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL NO. 7 of 2011 With CIVIL APPLICATION NO. 11108 of 2011 In SECOND APPEAL NO. 7 of 2011 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE C.L. SONI Sd/- ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ================================================================ DAHIBEN CHAKULAL BHAVSAR & 2 Versus TALUKA PANCHAYAT BHILODA & 4 ================================================================ Appearance: MS NISHA PARIKH for MR ARVIND A BAROT for the Appellants MR ASHISH M DAGLI, ADVOCATE for the Respondents ================================================================ CORAM: HONOURABLE MR.JUSTICE C.L. SONI Date : 09/01/2013 ORAL JUDGMENT
1. Draft amendment is allowed.
This appeal under Section 100 of the Code of Civil Procedure is by the original plaintiffs who filed Regular Civil Suit No.180 of 2002 for declaration and permanent injunction.
It is the case of the plaintiffs that the plaintiffs are owners of plot No.2B with open plot in front of the said plot. The plaintiffs purchased the said plot by registered sale deed dated 30.12.1968. It is further case of the plaintiffs that originally, the plot was described as plot No.2B but after plan was revised, it was given plot No.3 and the plaintiffs have been in use of the original plot purchased by them with open plot in front of the said plot. The plaintiffs have further averred that the plaintiffs are entitled to use open plot in front of plot No.2B by virtue of the sale deed executed by the original owners in their favour. It is further case of the plaintiffs that in 1991, the original owners again submitted revised plan for their entire land and the said plan was sanctioned by respondent Nos.1 and 2 by order dated 16.2.1991 and by virtue of such revised plan, the open plot, in front of the plot purchased by the plaintiffs, is now earmarked as common plot and therefore, the plaintiffs have been deprived of their right to use such open plot exclusively though under the sale deed, the plaintiffs are entitled to make use of such open plot. The plaintiffs have thus prayed to declare that the plaintiffs are entitled to use open plot in front of their plot No.2B (plot No.3) and to further declare that the revised plan sanctioned by respondent No.1 is not binding to the plaintiffs. The plaintiffs have also prayed for permanent injunction restraining the respondents from causing any obstruction in plaintiffs using open plot in front of plot No.2B (plot No.3).
The suit of the plaintiffs was resisted by defendant Nos.3 to 5 by filing written statement at Exh.23 by stating that the plaintiffs were never sold open plot in front of plot No.2B and the plaintiffs are not entitled to make use of the open plot for their exclusive use. It is further stated that the plaintiffs have placed cabins and covered the open plot and started business though the plaintiffs were just to make use of open plot as and by way of permissive use as per the recital in the sale deed. It is further stated in the written statement that the plaintiffs were never conferred any ownership right in respect of the open plot in front of the plot No.2B. Defendant Nos.3 to 5, being original owners, were entitled to get plan revised for the entire land and defendant Nos.1 and 2, being competent authorities to sanction the plan, have legally sanctioned such plan, by virtue of which, the open plot, in front of the plot of the plaintiffs, is now earmarked as common plot for all plot holders. It is also case of the defendants that the plaintiffs have paid consideration only for plot No.2B (plot No.3) and therefore, the plaintiffs cannot claim any ownership right to the open plot in front of their plot.
On appreciation of the evidence, learned Trial Judge found that the plaintiffs became owners of plot No.2B (plot No.3) by virtue of the sale deed and the plaintiffs also paid consideration for that plot only and not for the open plot in front of their plot. Learned Trial Judge also found that though the plaintiffs were required to make use of such plot as open plot, still the plaintiffs have placed two cabins and covered the entire plot and started making use of the open plot for the purpose of doing business. The plaintiffs were not entitled to make use of such open plot by placing cabins and by doing business thereon. Learned Trial Judge also found that on getting the plan revised by the original owners, the plaintiffs entitlement to make use of the open plot would no longer subsist and now such open plot is earmarked as common plot for the use of all plot holders. There is no illegality found in the revised plan, which is sanctioned by the competent authority. Learned Trial Judge thus dismissed the suit of the plaintiffs.
The plaintiffs being aggrieved by the judgment and decree passed by the learned Trial Judge, preferred Regular Civil Appeal No.53 of 2007. Learned Appellate Judge on independent appreciation of the evidence also found that the plaintiffs became owners of only plot No.2B and open plot admeasuring 238 Sq. Yds. in front of the plot of the plaintiffs was to be used as open plot by the plaintiffs. Learned Appellate Judge also found that the plaintiffs paid consideration only for the plot purchased by the plaintiffs, i.e. plot No.2B. Learned Appellate Judge thus came to the conclusion that the plaintiffs cannot be said to have become owners of the open plot in front of their plot No.2B. Learned Appellate Judge also recorded that the plaintiffs have made illegal use of the open plot in front of their plot No.2B though, as per the sale deed, the plaintiffs were entitled to use such plot as open plot without making any change in its physical situation. Learned Appellate Judge also found that the original owners legally got plan revised, as per which, the plot will now be required to be kept open for common use for all. Learned Appellate Judge thus concurred with the findings and reasoning given by learned Trial Judge and dismissed the appeal by judgment and decree dated 11.11.2008. It is this judgment and decree which is under challenge before this Court in this appeal.
I have heard learned advocates for the parties.
Learned advocate Ms. Nisha Parikh, appearing for Mr. Arvind A. Barot submitted that the sale deed clearly recites that the plaintiffs were conferred exclusive right to make use of the open plot in front of plot No.2B and therefore, it was not open to the original owners to get the plan revised and sanctioned by the competent authority. She submitted that by getting the plan revised, the right conferred to the plaintiffs under the sale deed was taken away and therefore, the plaintiffs were justified in putting forth their claim in the suit on the basis of the sale deed under which, the plaintiffs were permitted to use open plot in front of plot No.2B. She submitted that when the sale deed clearly recites about exclusive use of the open plot by the plaintiffs, the Courts below were not justified to consider any other evidence put forth by the defendants so as to defeat the right of the plaintiffs. She submitted that even if the plaintiffs are not taken to be owners of the open plot in front of their plot, fact that the original owners by sale deed conferred exclusive right to use open plot in question, such right could be taken as right of licencee of such plot and no revised plan could have been got sanctioned subsequently by the original owners so as to take away such right of the plaintiffs. Therefore, she submitted that the Courts below have committed material error in not properly construing the sale deed under which the plaintiffs have acquired exclusive right in respect of the open plot in front of their plot No.2B (plot No.3). She thus urged to entertain this appeal on the substantial questions of law formulated in the appeal.
As against the above arguments, learned advocate Mr. Ashish Dagli appearing for the respondents submitted that the plaintiffs cannot claim any ownership right to the open plot in front of their plot No.2B. He submitted that the plaintiffs have in fact paid consideration only for plot No.2B and the plaintiffs were granted only permissive use for the open plot by the original owners in the sale deed and such ownership right could be withdrawn at any time by the original owners. He submitted that the owners were entitled to get the plan revised when such necessity had arisen for the original owners. Learned advocate Mr. Dagli submitted that the Courts below have recorded finding of fact that the plaintiffs are not owner of the open plot in front of their plot No.2B and therefore, such finding of fact may not be interfered with by this Court while exercising the powers under Section 100 of the Code of Civil Procedure. He thus urged to dismiss the appeal.
Having heard learned advocates for the parties and having perused the judgment and decree passed by the Courts below with document supplied by learned advocate for the appellants, it appears that the claim of the plaintiffs in the suit to the open plot in front of their plot No.2B is on the basis of the sale deed executed by the original owners. When the sale deed is perused, it clearly appears that the plaintiffs were sold plot No.2B which admeasured 133 Sq. Yds. and consideration for the same was fixed at Rs.1500/-. The sale deed clearly records that the plaintiffs were sold only the above portion of the land of plot No.2B, which was subsequently given plot No.3 on revision of the plan in the year 1969. Though this very sale deed recites that the plaintiffs were permitted to use open plot in front of their plot No.2B but that by itself is no ground to believe that the plaintiffs became entitled to make use of such open plot in front of their plot exclusively because no exclusive right was ever conferred by the original owners in favour of the plaintiffs in respect of the open plot. It is also required to be noted that though under the sale deed, the plaintiffs were entitled to make use of the plot in question only as open plot, still the plaintiffs have placed two cabins on such plot covered by iron sheet and also placed iron roof so as to cover the entire plot. Report of the Court Commissioner also goes to strongly suggest that the plaintiffs have in fact made use of the open plot for their business and two different kinds of business were being carried on by the plaintiff Nos.2 and 3. Thus, the plaintiffs after purchasing plot No.2B under the sale deed not only used the open plot for business but totally acted against the wish of the original owners though under the sale deed, it is clearly provided that the plaintiffs were only entitled to make use of plot as open plot. The Courts below have on appreciation of the evidence as also on the basis of the panchnama of the Commissioner came to the conclusion that the plaintiffs have covered the open plot by placing two cabins and by covering the entire plot with iron-sheet. Since the plaintiffs have not been conferred with any exclusive right for the plot in question as per the sale deed, it was always open to the original owners to get plan revised in respect of their lands. Since no ownership rights were ever conferred by the original owners in respect of the open plot in favour of the plaintiffs, the original owners were always justified in getting plan revised in respect of such open plot. As a matter of fact, it is found by the Courts below that the competent authorities, i.e. respondent Nos.1 and 2, have legally sanctioned the revised plan, as per which, the open plot in question is earmarked for common use for all. In view of the above, it cannot be said that the plaintiffs have exclusive right to use open plot in front of their plot No.2B. Since the Courts below have found that the plaintiffs have failed to prove that the plaintiffs were entitled to use the open plot exclusively, I do not find that any substantial question of law as suggested by learned advocate for the appellants by draft amendment has arisen for consideration of this Court. Hence, the appeal is required to be dismissed.
In the result, the appeal is dismissed.
Since the main Second Appeal is dismissed, Civil Application does not survive and the same is disposed of accordingly.
Sd/-
(C.L. SONI, J.) omkar Page 7 of 7