Koli Rava Alias Ravji Arjan Decd. Thro ... vs State Of Gujarat on 11 May, 2018

[Cites 9, Cited by 1]

Gujarat High Court

Koli Rava Alias Ravji Arjan Decd. Thro ... vs State Of Gujarat on 11 May, 2018

Bench: Bela M. Trivedi

         C/SA/76/1996                                         CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/SECOND APPEAL NO. 76 of 1996


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS.JUSTICE BELA M. TRIVEDI

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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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            KOLI RAVA ALIAS RAVJI ARJAN DECD. THRO HEIRS
                               Versus
                          STATE OF GUJARAT
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Appearance:
DECEASED LITIGANT(100) for the PETITIONER(s) No. 1
MR H.J.KARATHIYA FOR MR SP MAJMUDAR(3456) for the PETITIONER(s)
No. 1.1,1.2,1.3,1.4,1.5,1.6,1.7
MR TIRTHRAJ PANDYA, AGP (1) for the RESPONDENT(s) No. 1
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    CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI

                                Date : 11/05/2018

                                CAV JUDGMENT

1. The appellantoriginal plaintiff has preferred the present appeal under Section 100 of the Code of Civil Procedure challenging the judgement and decree dated 11.03.1996 passed by the Joint District Page 1 of 12 C/SA/76/1996 CAV JUDGMENT Judge, Surendranagar (hereinafter referred to as 'the Appellate Court') in Regular Civil Appeal No. 41 of 1992, whereby the Appellate Court while allowing the appeal filed by the respondentState has set aside the judgement and decree dated 13.07.1992 passed by the Second Joint Civil Judge (Senior Division), Surendranagar (hereinafter referred to as 'the Trial Court') in Civil Suit No 75 of 1986.

2. The short facts giving rise to the present appeal are that the appellantplaintiff had filed the suit seeking declaration that the orders passed by the Revenue Authorities in respect of the entry No. 520 made on 19.02.1981 mutating the name of the Government in respect of the bid land bearing survey No. 193 admeasuring 9 Acres 8 Gunthas, were without any authority of law and liable to be set aside, and for restraining the respondentdefendant from dispossessing the appellantplaintiff from the land in question. As per the case of the appellantplaintiff, he was an adopted son of one Madha Khima, who was in possession of the agricultural land admeasuring 20 Acres 2 Gunthas and the bid land admeasuring 9 acres 8 Gunthas situated at Bamanbor village, Chotila. According to the plaintiff, the said Madha Khima was an agriculturist and one Nanbhai Hathiya was the Girasdar. The said Madha Khima became the occupier with occupancy rights under the Girasdar Land Reforms Act with effect from 18.11.1954. The State of Saurashtra having carried out survey in respect of Agricultural Lands Act, the survey of bid land was not carried out , nor the said bid land belonged to the Girasdar. The said Madha Khima was allotted 40 Acres 4 Gunthas with two parcels of land, and the said parcels were given survey no, 91 admeasuring 13 acres 25 Gunthas and the other one was given survey no. 92 admeasuring 26 Acres 20 Gunthas at Piparvav. According to the plaintiff, there was no survey made in respect of the bid land admeasuring 9 Acres 8 Gunthas however, the said land was given survey no. 193 and mutated in the name of the Government in the Page 2 of 12 C/SA/76/1996 CAV JUDGMENT year 1969, though the said Madha Khima was in possession of the said land. Entry No. 260 in respect of the said survey no. 193 was made in favour of the Government on 17.03.1972. The said Madha Khima expired in the year 1978 and his wife expired in the year 1981, and the plaintiff being their adopted son possessed the said land in question since then. According to the plaintiff, in the year 1981, the Deputy Mamlatdar on the application made by the plaintiff with regard to his possession of the said land, had also made Entry No. 520 in the revenue records. However, the Deputy Mamlatdar in revision, set aside the said Entry No. 520 vide order dated 08.05.1981. The Plaintiff therefore had challenged the said order before the Collector by filing an appeal being R.R.T. Appeal No. 6/81 82, which appeal was partly allowed by the Collector vide order dated 31.05.1982 and the matter was remanded to the Mamlatdar, Chotila for making an inquiry under Section 37(2) of the Bombay Land Revenue Code (hereinafter referred to as 'the said Code'). After the remand, the Mamlatdar passed an order dated 14.03.1983 holding that the said land belonged to the Government. The Plaintiff therefore challenged the said order before the Revenue Tribunal by filing an appeal being No. TEN/AA/120/1983. The said appeal was also dismissed by the Tribunal vide order dated 28.05.1985 and hence, the plaintiff had filed the suit.

3. The respondentdefendant State of Gujarat having been served with the summons in the suit had filed the written statement at Exh. 14, contending inter alia that the land in question bearing survey no. 193 admeasuring 9 Acres and 8 Gunthas was Kharaba land running in the name of Government since the year 1969 as per Entry No. 260, and that the said Madha Khima through whom the plaintiff was claiming possession of the said land had never challenged the said entry during his lifetime. The plaintiff claiming to be the adopted son of the said Madha Khima had no right over the said land and the Page 3 of 12 C/SA/76/1996 CAV JUDGMENT proceedings conducted under Section 37(2) of the Code were legal and proper. The suit being barred by the law of delay and latches deserved to be dismissed.

4. From the pleadings of the parties the Trial Court had framed the issues at Exh. 15. The Trial Court thereafter vide the judgement and decree dated 13.07.1992 decreed the suit of the plaintiff holding that the order dated 31.05.1982 passed by the Collector, order dated 14.03.1983 passed by the Mamlatdar,Chotila under Section 37(2) of the Code and the order dated 28.05.1985 passed by the Revenue Tribunal were without jurisdiction and illegal. The Trial Court also held that the appellantplaintiff was entitled to the injunction as prayed for against the respondentState of Gujarat. Being aggrieved by the said judgement and decree passed by the Trial Court, the respondentdefendants had filed the appeal before the Appellate Court which came to be allowed by the impugned judgment and decree passed by the Appellate Court.

5. This Court wile admitting the appeal on 10.01.1997 had framed the following substantial question of law:

"Whether on the facts and circumstances of the case the judgment and decree of the lower appellate court is in accordance with law?

6. The learned Advocate Mr. S.P. Majmudar appearing for the appellant vehemently submitted that the Appellate Court had traveled beyond the scope of the appeal by reversing the judgement and decree passed by the Trial Court by holding that the appellant was not the adopted son of the deceased Madha Khima, though no such issue was raised by the respondentState before the Trial Court. According to him, the Appellate Court had also committed grave error in misinterpreting the provisions contained in Section 37(2) of the said Page 4 of 12 C/SA/76/1996 CAV JUDGMENT Code and also of the Bombay Revenue Jurisdiction Act, to hold that the Trial Court did not have the jurisdiction to entertain the suit. Mr.Majmudar taking the court to the record of the case submitted that the appellants had produced overwhelming evidence to show that the said Madha Khima was in possession of the land in question which was Kharaba land and no survey having been ever conducted in respect of the said land, the said Madha Khima had continued to be in possession of the said land till his death, and after his death the appellant being his adopted son continued to remain in possession. The Mamlatdar also after verifying the actual possession of the appellant, had made the Entry No. 260, which was wrongly set aside by the revenue authorities. Mr Majmudar has also relied upon the provisions contained in Saurashta Land Reforms Act to submit that Madha Khima being an agriculturist was in possession of land bearing Survey No. 91 and 92 and also the Kharaba land which was subsequently given Survey No. 193 and that the said Madha Khima had become the legal occupier of all the said lands under the Saurashtra Land Reforms Act, 1951. Learned Advocate Mr. Majmudar had also relied upon various decisions of this Court to submit that the revenue entries are made only for fiscal purposes and the Civil Court has jurisdiction to decide the civil rights of the parties in respect of the land in question. Mr. Majmudar has also relied upon decision of Division Bench of this Court in case of Dallumiya Lalmiya Malek Versus State of Gujarat reported in (1971) GLR 668 in support of his submissions that the appellant was required to file the suit after exhausting remedies under the Code. He also relied upon the decisions of this Court to submit that the Revenue authorities cannot cancel the entries on the assumption that there was violation of some other enactment.

7. Learned AGP Mr. Tirthraj Pandya however submitted that the appellant having failed in all the revenue proceedings had filed the Page 5 of 12 C/SA/76/1996 CAV JUDGMENT suit which was not maintainable in the eyes of law. Even otherwise it was not duly proved that the appellant was the adopted son of the deceased Madha Khima, who was allegedly in possession of the land in question. He also submitted that from the record it was established that the said Madha Khima had sold out the lands bearing survey nos. 91 and 92 in favour of the appellant and his son, and therefore the story of the appellant that he was the son of the said Madha Khima was not believable. Mr Pandya drew the attention of the Court to the fact that the said Madha Khima during his lifetime had never challenged the entry made in favour of the Government and the appellant after illegally taking over the possession of the said land, had got his name entered in the revenue record, which entry was rightly canceled by the Deputy Collector. Mr. Pandya also submitted that there being no substantial question of law involved in the Second Appeal, the same deserves to be dismissed.

8. Having regard to the submissions made by the learned Advocates appearing for the parties and to the judgments and decrees passed by the Courts below, as also the record of the case, it transpires that the appellantplaintiff, by way of the suit filed before the Trial Court had challenged the order dated 31.05.1982 passed by the Collector in R.R.T. Appeal No. 6/8182 remanding the case to the Mamlatdar for deciding the dispute under Section 37(2) of the Code, after the appellantplaintiff lost in the proceedings under Section 37(2) in the Court of Mamlatdar and also before the Gujarat Revenue Tribunal. Apart from the fact that the said order of Collector was already accepted by the appellant and had participated in the proceedings before the Mamlatdar, Chotila under Section 37(2) of the Code, the appellant could not have challenged the said order of Mamlatdar dated 14.03.1983 passed in the Choksi Case No. 2/8283 in the proceedings under Section 37(2) of the Code, when he had already challenged the said order before the Gujarat Revenue Page 6 of 12 C/SA/76/1996 CAV JUDGMENT Tribunal. It was only after the appeal was dismissed by the Gujarat Revenue Tribunal, the suit was filed challenging all the said orders of the Collector, Mamlatdar and the Tribunal. This was nothing but the misuse and abuse of process of law at the instance of the appellant. Though, it was sought to be submitted by the learned Advocate Mr. Majmudar appearing for the appellant that the appellant was entitled to file the suit challenging the order of the Mamlatdar as per sub section 3 of Section 37 of the Code, the said submission cannot be accepted in view of the fact that the appellant had already challenged the order of the Mamlatdar before the Gujarat Revenue Tribunal by filing the appeal and the said appeal having been dismissed, the only remedy available to the appellant to challenge the order of the Tribunal was to file petition under Article 227 of the Constitution of India, and not the suit before the trial Court. There could not be any disagreement to the proposition that the mutation entries are made in the revenue record only for fiscal purposes and the civil rights pertaining to the title of the property have to be decided by the Civil Courts. However, in the instant case after the remand by the Collector, an inquiry under Section 37(2) of the Code was conducted by the Mamlatdar and the order of the Mamlatdar was challenged by the appellant before the Revenue Tribunal. Hence after exhausting all remedies under the Code, the appellant could not have again challenged the said orders of the Collector and the Mamlatdar by filing the suit. It is pertinent to note that the appellant had not sought any declaration with regard to the title of the said land. The Court therefore is of the opinion that the trial Court had committed grave error in entertaining and decreeing the suit, setting aside the orders passed by the Revenue authorities.

9. So far as the merits of the case are concerned, it is true that there was no specific issue framed by the trial Court as to whether the appellant plaintiff had proved that he was the adopted son of the Page 7 of 12 C/SA/76/1996 CAV JUDGMENT deceased Madha Khima and his wife, however the said issue was very much raised in the proceedings under Section 37(2) as also in the appeal before the Revenue Tribunal. Even otherwise, except the bare submission of the appellant plaintiff in the pleadings, there was no documentary evidence whatsoever produced by the appellantplaintiff to show that he was the adopted son of the said Madha Khima. The sale deeds executed by the said Madha Khima in his favour and in favour of his son, which are on record at Exhibit 31 and 30 respectively, also make the case of the appellant doubtful that he was the adopted son of Madha Khima. If the appellant was already adopted as son by the said Madha Khima, there was no question of selling the lands to him and to his son in the year 1967 and 1972 respectively. Even if it is believed that the appellant was adopted by the said Madha Khima, it is pertinent to note that the land in question bearing survey no. 193 was entered in the village form No. 6 vide entry no. 260 as Kharaba Land on 17.03.1972. The said Madha Khima expired in the year 1978. Admittedly the said Madha Khima had not challenged the said entry during his lifetime. Hence, since the year 1972 till 1981, the name of Government remained in the revenue record in respect of the said land, however in the year 1981 all of a sudden the name of the appellant was entered by the Mamlatdar vide entry no. 520 showing the possession of the appellantplaintiff as per Exhibit 41. The said entry was taken in review and canceled by the Deputy Collector vide order dated 10.09.1981 at Exhibti 41. The Plaintiff having preferred the appeal before the Collector, the Collector remanded the matter to the Mamlatdar for initiating proceedings under Section 37(2) of the Code vide order dated 31.05.1982, produced at Exhibit 21. As stated hereinabove, the Mamlatdar also in the proceedings under Section 37(2) held that the land bearing survey No. 193 belonged to the Government vide order dated 14.03.1983 at Exhibit 87. The Revenue Tribunal also dismissed the appeal filed by the Plaintiff challenging the said order of the Mamlatdar, by passing Page 8 of 12 C/SA/76/1996 CAV JUDGMENT the order dated 28.02.1985 at Exhibit 22. The Revenue Tribunal held that though the appellant had established that he had purchased the land bearing survey No. 91 and 92 from Madha Khima, he had failed to establish his right in respect of the disputed land being survey No. 193, more particularly when the said Madha Khima himself had not raised any dispute during his lifetime with regard to the said land, after the survey and measurement was carried out.

10. In the opinion of this Court, the Trial Court had thoroughly misdirected itself by relying upon the entry no. 520 made in the year 1981 at the instance of the appellant in his own favour, to hold that the appellant was in possession of the said land, ignoring the fact that the appellant had failed to produce any document to show that he or Madha Khima was ever in possession of the said land prior to 1981 and more particularly, after the survey and measurement were carried out by the government in the year 1969. Though it was sought to be submitted by learned Advocate Mr. Majmudar that the said Madha Khima being an agriculturist had acquired the occupancy rights over the land in question as per the provisions contained in the Saurashtra Land Reforms Act, there was nothing on record to suggest that the said Madha Khima had any occupancy rights or was in possession of the said land which was subsequently numbered as Survey No. 193, or that the appellant was in possession of the said land after the death of Madha Khima. It is true that in absence of proof of better title, the peaceful possession itself would be the evidence of title, as the law presumes the possession to go with the title unless rebutted, however, it is equally true that the person who is not found to be in legal possession, could not be protected against the true owner of the property. The test of determining whether the person is in settled legal possession or not has been laid down by the Supreme Court in the case of Rame Gowda (D) by L.R.s versus M. Vardappa Naidu (D) by L.R.s and another reported in AIR 2004 SC 4609, which reads as Page 9 of 12 C/SA/76/1996 CAV JUDGMENT under:

""9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. 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. Illustratively, we may refer to Munshi Ram and Ors. Vs. Delhi Administration (1968) 2 SCR 455, Puran Singh and Ors. Vs. The State of Punjab (1975) 4 SCC 518 and Ram Rattan and Ors. Vs. State of Uttar Pradesh (1977) 1 SCC 188. The authorities need not be multiplied. In Munshi Ram & Ors.'s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re enter and re instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase 'settled possession' does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of 'settled possession' :

i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;

Page 10 of 12 C/SA/76/1996 CAV JUDGMENT

ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;

iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and

iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession."

11. In the instant case, the appellantPlaintiff had failed to pass the said test by producing cogent evidence that he was in settled legal possession when the entry No. 520 was sought to be made in his favour. The said entry was immediately taken into review by the Deputy Collector and set aside on the ground that the said land was running in the name of Government. The appellant having failed to file any suit seeking declaration about his title over the suit land, and having failed to prove his settled legal possession, in the opinion of the Court, the Trial Court had committed gross illegality in granting injunction in favour of the appellantPlaintiff merely on the basis of the said entry No.520 without any material on record. The appellate court therefore, had rightly set aside the said decree passed by the Trial Court. The Court does not find any illegality or infirmity in the impugned judgment and decree passed by the appellate Court and therefore answers the question of law framed in the appeal in the affirmative.

Page 11 of 12 C/SA/76/1996 CAV JUDGMENT

12. In that view of the matter the Second Appeal being devoid of merits is dismissed.

(BELA M. TRIVEDI, J) SINDHU NAIR Page 12 of 12

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