Gujarat High Court
Rangaben vs Barot on 30 January, 2010
Author: Harsha Devani
Bench: Harsha Devani
SA/84/2011 19/ 19 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 84 of 2011 ========================================= RANGABEN W/O MANA MELA & 3 - Appellant(s) Versus BAROT CHHGANJI PRAHLADJI & 4 - Defendant(s) ========================================= Appearance : MR MIHIR H PATHAK for Appellant(s) : 1.3.1, 1.3.2,1.3.3 - 4. MR RR MARSHAL, SR. ADVOCATE with MR ADIL R MIRZA for Respondents ========================================= CORAM : HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 19/01/2012 ORAL ORDER
This appeal under section 100 of the Code of Civil Procedure, 1908 (the Code), the appellants-original plaintiffs have challenged the judgement and decree dated 30.1.2010 passed by the learned Additional District Judge & Presiding Officer, Fourth Fast Track Court, Banaskantha District, at Deesa in Regular Civil Appeal No.26 of 2004, whereby he has dismissed the appeal preferred by the appellants-plaintiffs and confirmed the judgement and decree dated 31.8.2004 passed by the learned Joint Civil Judge (J.D.), at Deesa in Regular Civil Suit No.296 of 1994.
The appellants-original plaintiffs instituted a suit in the Court of the learned Civil Judge (J.D.), at Deesa claiming to the owners of land admeasuring 21 acres and 31 gunthas of survey No.57/1, situated in the sim of Village Satmala, Taluka Deesa, District Sabarkantha, known as "Garodivalu field" (hereinafter referred to as "the suit land"). According to the plaintiffs, the suit land was an ancestral property of the plaintiffs and was running in the names of their ancestors Bhil Melabhai Methabhai and Bhil Parkhabhai Methabhai since 19.4.1958 and that their names were reflected in the village form 7/12 records and that from the times of their ancestors, the land was standing in their names as owners. It was the further case of the plaintiffs that the defendants No.1 to 3 being Jagirdars, in collusion with the Talati, in 1987, grabbed the suit lands from the plaintiffs in respect of which, they had made an application dated 18.7.1987 before the Mamlatdar. Pursuant to the said application, the Mamlatdar had held that the possession of the suit lands was with the defendants and had informed the plaintiffs to approach the civil court for restitution of their possession. It was the further case of the plaintiffs that the defendants No.1 to 3 had sold land admeasuring 5 acres and 30 gunthas to the defendant No.4 on 10.5.1979 for a consideration of Rs.8,000/- and 5 acres and 30 gunthas of land bearing survey No.57/1 to the defendant No.5 on 10.5.1979 for a consideration of Rs.8,000/-. Thus, 11 acres and 20 gunthas of land had been sold by the defendants and that they came to know of the sale of the above land one year prior to the institution of the suit and that they had obtained copies of the deeds and had produced the same. It was the further case of the plaintiffs that the defendants No.1 to 3 had 10 acres and 11 gunthas of land remaining with them, and 11 acres and 20 gunthas of land had been sold by them to the defendants No.4 and
5. According to the plaintiffs, they being Bhil Adivasis, the provision of section 73A of the Bombay Land Revenue Code was applicable to survey No.571 and that they had made an application before the revenue authority for insertion of section 73A in the revenue records. It was the further case of the plaintiffs that the defendants No.1 to 3 had got revenue entry No.12 and entry No.107 made in the record of rights, for cancellation of which they had filed an appeal before the Deputy Collector. That the plaintiffs being ignorant and poor tribal persons, the defendants had wrongly grabbed their lands and as such, they had instituted the suit for restoration of possession of the suit lands. The plaintiffs, accordingly, prayed that they be declared to be in occupation of and owners of the suit lands. It was further prayed that the sale deeds executed by the defendants No.1 to 3 in favour of the defendants No.4 and 5 be cancelled and that the defendants No.1 to 4 and defendants No.4 and 5 be directed to hand over the possession of the land admeasuring 10 acres and 11 gunthas and land admeasuring 11 acres and 20 gunthas, respectively to the plaintiffs. It was further prayed that the names of the plaintiffs be entered in the revenue record in relation to land admeasuring 21 acres and 31 gunthas of survey No.57/1 and that the entries made whereby the defendants' names came to be entered in the revenue record be deleted.
In response to the summons issued by the court, the defendants No.1 to 3 filed a written statement at exhibit-20, denying the contents of the plaint. It was the case of the defendants that the land bearing survey No.57 originally was of the ownership of Jagirdars and that approximately 11 acres of land on the northern side of survey No.57 was being cultivated by the ancestors of the plaintiffs in respect of which, entry No.54 had been made in the record of rights and that they were cultivating the land bearing survey No.57/2, whereas the lands on the southern side admeasuring 21 acres and 31 gunthas had come to the share of the defendants No.1 to 3. Thus, the defendants were independent owners and in occupation of land admeasuring 21 acres and 31 gunthas of survey No.57/1. Out of the land bearing survey No.57/1, land admeasuring 5 acres and 30 gunthas had been sold to the defendant No.4 and land admeasuring 5 acres and 30 gunthas was sold to the defendant No.5, whereas the remaining land admeasuring 10 acres and 11 gunthas was held by the defendants. It was the case of the defendants that the surveyor while carrying out the measurement had wrongly shown the lands held by the plaintiffs to be on the northern side, whereas the land bearing survey No.57/2 which was in the possession of the defendant No.1, was shown to be in the southern side. That the plaintiffs were trying to take advantage of the mistake committed in the record and wanted to grab the entire survey No.57. It was the further case of the defendants that the suit was barred by limitation as it was the case of the plaintiffs that for a period of twelve years, they or their ancestors had not cultivated the lands.
The trial court, upon appreciation of the evidence on record, found that the plaintiffs had not established that they were owners of the suit lands. It was also found that the suit was barred by limitation as the plaintiffs were aware that the sale deed had been executed in favour of the defendants No.4 and 5 in the year 1979 and that even according to the plaintiffs, the possession had been taken over by the defendants in the year 1987 and as such, the suit instituted in the year 1994 was time barred. The trial court, accordingly, dismissed the suit. Being aggrieved, the appellants-plaintiffs preferred an appeal before the learned Additional District Judge & Presiding Officer, Fourth Fast Track Court, Banaskantha District, at Deesa being Regular Civil Appeal No.26 of 2004. The lower appellate court, after re-appreciating the evidence on record, concurred with the findings recorded by the trial court and found that the plaintiffs have not established that they were the owners of the suit land and accordingly, dismissed the appeal and confirmed the judgement and decree passed by the trial court. Being aggrieved, the appellants have preferred the present appeal, by proposing the following questions, stated to be substantial questions of law:
"[A] In the facts, circumstances and legal points of the case, whether the courts below have committed a substantial error of law in holding that the plaintiffs are owner of the suit land and they hold the possession of the said land?
[B] Whether the courts below have committed a substantial error of law in dismissing the suit of the plaintiffs on the grounds the 7/12 village form No.6 and maps and survey made by the surveyors of the disputed land favouring the possession and ownership of the plaintiffs and wrongly believed in favour of defendant without any documentary proofs?
[C] Whether the Hon'ble Court tried to see that the due process of the law was performed in changing the names of defendants for their title?
[D] Whether the Hon'ble Courts have seen properly that the disputed land cannot be sold without clear title of the defendants and without necessary permission and due process to defendant No.4 in Exh.47 to defendant No.5 by Exh.47?
[E] Whether the plaintiffs made it clear before the Hon'ble Court the said land is new tenure restricted land to sell without previous permission of the Hon'ble Collector u/s 73AA of the Bombay Land Revenue Code?
[F] Whether the Hon'ble Courts tried to see the real thing that the plaintiffs belong to scheduled tribes Bhil community and the defendants belong to Barot community, Jagirdar, hence due to their influence, they possessed the said disputed land and became owners of the said land and they sold illegally the said disputed land to the Rabari defendants. Hence, the plaintiffs challenged the said sale deed of the Barots to the Rabaris by filing Civil Suits in the court of Deesa, those suit are pending before the courts.
[G] Hon'ble Courts did not pay any proper attention for the documents Exh.83 and Exh.84 maps of the disputed land submitted by the plaintiffs.
[H] Hon'ble Courts failed to see that the disputed land of the plaintiffs Acres 5 & 31 Gunthas are encroached by the defendants hence the plaintiffs submitted the application to the Mamlatdar of Deesa, who has passed the order in favour of the plaintiffs.
[I] Hon'ble Court failed to appreciate orders of the Mamlatdar, Dy. Collector, Collector and Special Secretary of Revenue Department in favour of the plaintiffs and against the defendants for the interest of justice.
[J] Hon'ble Court did not see properly the entries of Hak Patrak 7/12 Pani Patrak and important documents showing the possession & ownership of the disputed land of the plaintiff in this matter.
[K] In Exh.45 Revenue Survey No.57/1 - 21 Acres 31 Gunthas land are on the Entry No.48 on the name of Bhil Mala Metha and Parkha Metha from forefathers of plaintiffs. Entry No.128, Entry No.704 and other entries show the disputed land is on the name of plaintiffs and they are in possession of the said land from the period of forefathers.
[L] Wrongly importance is given to entry No.12 to favour the defendants.
[M] Hon'ble Court wrongly believed that as per Indian Evidence Act, section 110 the plaintiffs proved his possession and ownership of the disputed land. Hon'ble Court did not appreciate properly and legally section 82 and 83 of Evidence Act?"
Mr. Mihir Pathak, learned advocate for the appellants assailed the impugned judgement and decree passed by the lower appellate court by submitting that both the courts below have failed to appreciate the evidence on record in proper perspective. It was submitted that the plaintiffs had produced documentary evidence in the nature of extracts of the village form No.7/12 records, extracts of prati-book as well as orders passed by the revenue authorities. However, the courts below have not construed the documentary evidence produced by the plaintiffs in proper perspective. According to the learned advocate, the extracts of village form No.7/12 clearly indicate the possession of the plaintiffs from the year 1957. Before this court, the learned advocate submitted that it was the case of the plaintiffs that 11 acres and 20 gunthas of land sold to the defendants No.4 and 5 belonged to the plaintiffs. According to the learned advocate, the plaintiffs were holding possession of 16 acres and 31 gunthas of land out of the land admeasuring 21 acres and 31 gunthas and that the dispute involved in the suit was only in respect of 5 acres of land. It was submitted that the relief claimed in the suit does not properly reflect the relief actually claimed by the plaintiffs, and that the plaintiffs being ignorant, illiterate tribals, could not explain the facts properly to the learned advocate representing them at the relevant time and that, it was not the case of the plaintiffs that they were not in possession of the land bearing survey No.57/1. It was, accordingly, submitted that the dispute pertains only to 5 acres and 32 gunthas of land. It was further submitted that it is only land bearing survey No.57/1 which belongs to the plaintiffs, and that the plaintiffs do not claim any right, title or interest over survey No.57/2. Reliance was placed upon the order dated 6.7.1999 passed by the Deputy Collector (Exhibit-73) whereby, the Deputy Collector has ordered the name of the plaintiffs to be entered into the revenue record by holding that the plaintiffs are in possession of and are cultivating 16 acres and 31 gunthas of land bearing survey No.57/1 and that the remaining 5 acres of land are in possession of Rabari Jorabhai Ratnabhai and Rabari Vahjibhai Ratnabhai. It was submitted that thus, the revenue authorities have upon examining the actual position of the suit land, found that the plaintiffs are in possession of 16 acres and 31 gunthas of land bearing survey No.57/1 and that the courts below were not justified in ignoring the said relevant documentary evidence. It was argued that considering the overwhelming documentary evidence produced on record by the plaintiffs, the courts below were not justified in holding that the plaintiffs had not established title over the suit land. It was further submitted that mere production of a mortgage deed by the defendants indicating that the plaintiffs had mortgaged part of land bearing survey No.57/2 would not be proof of the plaintiffs' ownership of the said land. It was, accordingly, urged that the impugned judgement and decree passed by the lower appellate court being based upon mis-appreciation of the evidence on record, does give rise to substantial questions of law, as proposed, or as may be formulated by the court and that the appeal deserves to be admitted.
Vehemently opposing the admission of the appeal, Mr. R. R. Marshal, learned Senior Advocate with Mr. Adil Mirza, learned advocate for the respondents submitted that the appeal does not give rise to any substantial questions of law so as to warrant interference. Inviting attention to the findings recorded by the trial court as well as by the lower appellate court, it was pointed out that both the courts below have recorded concurrent findings of fact to the effect that the plaintiffs have not established their title over the suit land, and that they have not led any evidence in respect of their claim that they are owners of the suit land. It was submitted that the plaintiffs' claim is entirely based upon the revenue records and that it is settled legal position that the revenue records are no evidence of title. In support of his submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of State of Himachal Pradesh v. Keshav Ram and others, AIR 1997 SC 2181, wherein the court had held that entries in revenue records by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs. In the facts of the said case it was held that the courts below had committed serious error of law in declaring the plaintiffs' title on the basis of the order of correction made by the Assistant Settlement Officer and the consequential entry in the revenue record. It was, accordingly, urged that the entries in revenue record cannot form the basis of declaration of title and as such, both the courts have rightly held that the plaintiffs have not established that they were owners of the suit land. Inviting attention to the judgement and decree passed by the trial court, it was pointed out that the plaintiffs had solely placed reliance upon the revenue record whereas, the defendants had produced evidence by way of a mortgage deed at exhibit-100 which indicated that the plaintiffs had mortgaged the land admeasuring 8 acres and 20 gunthas to one Jivrajbhai Hansrajbhai for Rs.10,000/-. The defendants had also produced other documentary evidence in support of their say that the plaintiffs were owners of survey No.57/2 and that it was the defendants who were owners of survey No.57/1. It was, accordingly, submitted that the appeal does not give rise to any question of law, much less, a substantial question of law and as such, the appeal deserves to be dismissed at the threshold.
This court has considered the submissions advanced by the learned advocates for the respective parties and also perused the judgement and decree passed by the lower appellate court as well as by the trial court.
A perusal of the judgement and decree passed by the trial court shows that before the trial court, by way of documentary evidence the plaintiffs had produced pratibook (Exh.45) and Khetiwadi Patrak (Exh.48), measurement maps made by Surveyor Exhibits 83 and 84). The trial court has observed that a perusal of the khetiwadi patrak (Exh.48) shows that survey No.57 is in two parts, in the first part at present the plaintiffs name is reflected and in the second part the name of the defendant No.1. The trial court observed that in the entire khetiwadi patrck there was nothing to who as to when the names of the plaintiff and the defendant No.1 were entered as occupiers. As regard the document Exh.45 the trial court found that the same mentioned survey No.57/1 and 2 and against column No.1 the name of the plaintiff was mentioned whereas against column No.2 the name of the defendant No.1 was shown. Both the said documents were based on revenue entries and have been prepared on the basis of possession. The trial court observed that revenue entries are not conclusive of tile and that the plaintiffs' claim of title over the suit land on the basis of the said entries does not merit acceptance. The trial court observed that the plaintiff in his oral evidence had stated that the defendant No.1 to 3 had taken over the possession of the suit land in the year 1987, hence, it was for the plaintiff to establish by leading cogent evidence that the defendants did not have any ownership rights over the suit land.
The trial court further found that for the purpose of proving their title over the suit land the plaintiffs had placed reliance upon the maps (Exhibits 83 and 84) and has submitted that as per the measurement carried out by the surveyor the possession of the suit land is of the plaintiffs. In this regard on behalf of the defendants it had been contended that the surveyor had made a mistake in stating the survey numbers and that the map prepared by the surveyor is not proof of title. It as further contended on behalf of the defendants that there was no presumption that the map prepared by the surveyor is correct and that though the same was exhibited the contents thereof were required to be proved by examining the surveyor. The trial court observed that the maps under the provisions of section 83 of the Indian Evidence Act, 1872, maps and plans purporting to be made by the authority of the Central Government or any State Government shall be presumed to have been so made, and are accurate, but the plans made for the purposes of any cause must be proved to be accurate, hence, as the maps in question fall within the second part namely made for the purposes of any cause, are required to be proved to be accurate by leading evidence in that regard. The trial court held that the plaintiffs having not examined the surveyor, the contents of the said maps cannot be accepted as accurate. Before the trial court on behalf of the plaintiff it had been contended that the defendants in collusion with the Talati had got the name on the plaintiffs had made an application before the Deputy Collector who had passed an order (Exh.73) directing to enter the name of the plaintiffs in respect of survey No.57/1 and that the defendants had failed in their appeal against the said order. Whereas on behalf of the defendants it had been submitted that the plaintiffs had obtained the order (Exh.73) in collusion with the Deputy Collector and that they had preferred further appeal before the Special Secretary, copies whereof were produced at Exhibits 107 an 108. The trial court on a perusal of the extracts in respect of survey No.57/1 and 57/2 found that the name of the plaintiff was shown as occupier but held that the said document was only for the purpose of revenue assessment and was not proof of title. The trial court further observed that the order padded by the Deputy Collector (Exh.73) was dated 6.7.1999 which was after the institution of the suit. The trial court was of the view that it cannot be presumed on the basis of the order passed by the Deputy Collector during the pendency of suit proceedings that the title of the plaintiff was established.
The trial court further observed that the defendant had in support of his case that the plaintiff was the owner of survey No. 57/2 produced documentary evidence by way of a possession-mortgage deed (Exh.100) which shows that Manabhai Melabhai had mortgaged 8 acres and 20 gunthas of land bearing survey No.57/2 to one Jivrajbhai Hansrajbhai for a sum of Rs.10,000/-. The trial court was of the view that on the basis of the said document as well as the affidavit made in Suit No.82/86 it can be believed that the plaintiff is the owner of survey No.57/2. The trial court has further observed that the plaintiff in his cross examination has admitted the contents of the said documents. The court has further observed that apart from the aforesaid evidence, the plaintiff through his advocate Shri M.S. Hemchandani has issued notice for redemption of mortgage. The trial court accordingly found that the aforesaid documents clearly proved the ownership of the plaintiff of survey No.57/2, and was accordingly of the opinion that the say of the plaintiff that he was the owner of survey No.57/1 cannot be accepted. The trial court also noted that the defendant had produced extract of the record of rights (Exh.125) wherein the Hakk Choksi (ascertainment of rights) entry in respect of village Somtala has been made, wherein by way of entry No.290 it has been recorded that the plaintiff has mortgaged 8 acres and 20 gunthas of survey No.57/2 and the said document also shows that land bearing survey No.57/2 is with the plaintiff.
The trial court further observed that the plaintiff has claimed relief to declare sale of land admeasuring 5 acres and 30 gunthas of survey No.57/1 made in favour of the defendant No.4 on 10.5.79 and sale of land admeasuring 5 acres and 10 gunthas of survey No.57/1 to defendant No.5 to be illegal. The trial court found that the plaintiff has not established his ownership in respect of the suit land. From the deposition of the plaintiff it has come out that from the time the defendants No.4 and 5 have purchased the suit land in the year 1979 they are cultivating the same and have also dug up a well and obtained electricity connection. Thus, the plaintiff was aware in the year 1979 that the suit land had been sold to the defendants No.4 and 5 and was required to challenge the same within a period of three years thereof. The trial court further observed that it is the case of the plaintiff that the defendants No.1 to 3 have grabbed the possession of the suit land in the year 1987, thus at least from 1987 the plaintiff could be said to be aware of the sale deed and accordingly within a period of three years thereof, viz., the year 1990 the plaintiff was required to institute the suit. However, the present suit which has been instituted in the year 1994 against the defendants No.4 and 5, and as such the suit is barred by limitation.
The trial court has observed that it is the case of the plaintiffs that the defendants have sold 11 acres and 20 gunthas of land to the defendants No.4 and 5 whereas, the plaintiff, in his examination in-chief, has stated that he is in possession of land admeasuring 16 acres. The trial court, accordingly, observed that in that case, the plaintiffs would be having 27 acres and 20 gunthas of land which is contrary to the claim of the plaintiffs, namely, that they are owners of land admeasuring 21 acres and 31 gunthas of land bearing survey No.57/1. The trial court has observed that the claims of the plaintiffs are, thus, contradictory. The trial court further noted that the plaintiff in his deposition has stated that the defendant has encroached upon 5 acres and 30 gunthas of land whereas in his cross examination it has been admitted that the suit has been instituted in respect of 10 acres of land and that out of the same 5 acres and 30 gunthas remains to be taken and that they are in possession of 16 acres of survey No.57/1. The trial court was of the view that there were apparent contradictions in the oral evidence and the pleading viz. in the suit the plaintiff has prayed to possession of 11 acres 20 gunthas and 10 acres 11 gunthas, in all 21 acres and 31 gunthas of land however, now the plaintiff accepts that they are in possession of 16 acres of land.
The lower appellate court upon re-appreciation of the evidence on record, was of the view that the revenue records cannot be made the sole basis for claim of title; that the plaintiffs have not been able to indicate as to when and how they came in possession of the land bearing survey No.57/1; that the plaintiffs have admitted that they were not in a position to produce revenue records of land bearing survey No.57/1 and that the land admeasuring 11 acres bearing survey No.57/2 was running in his name since 1978. In the light of the aforesaid findings recorded by the lower appellate court, the appeal came to be dismissed.
From the facts and contentions noted hereinabove, it is apparent that it is now for the first time contended before this court that the claim of the plaintiffs is restricted only qua the land admeasuring 5 acres out of the land sold to the defendants No.4 and 5. In the plaint, the claim of the plaintiffs is that the defendants have taken over possession of land admeasuring 21 acres and 31 gunthas, out of which land admeasuring 11 acres and 20 gunthas have been sold to the defendants No.4 and 5. The plaint also indicates that it is the case of the plaintiffs that land bearing survey No.57/2 also belongs to the plaintiffs. Insofar as the extracts of the revenue record, namely village form No.7/12 produced by the plaintiffs vide Exhibits 70, 71, 80, 81 and 82 are concerned, the same cannot be said to form proof of ownership. The Supreme Court in the case of State of Himachal Pradesh v. Keshav Ram and others, AIR 1997 SC 2181, has held that entries in revenue records by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs. In the facts of the said case it was held that the courts below had committed serious error of law in declaring the plaintiffs' title on the basis of the order of correction made by the Assistant Settlement Officer and the consequential entry in the revenue record. The aforesaid decision would be directly applicable to the facts of the present case. Under the circumstances the courts below were justified in holding that the revenue entries did not establish title of the plaintiffs in respect of the suit land. The plaintiffs have not led any other cogent and convincing evidence to establish ownership over the suit lands. The defendants, on the other hand, have produced copy of a mortgage deed whereby the plaintiffs had mortgaged the land admeasuring 8 acres and 20 gunthas of land bearing survey No.57/2 to one Jivrajbhai Hansrajbhai in support of their say that the plaintiffs were owners of land bearing survey No.57/2 and not land bearing survey No.57/1. The plaintiffs have not been able to rebut the aforesaid documentary evidence, in the context of which corresponding entry is also reflected in the record of rights.
It is settled legal position that when a plaintiff comes to a court of law claiming a relief of title and possession in respect of any land or property, it is for the plaintiff to establish his title and possession over the said land. In the facts of the present case, from the evidence on record, it is apparent that the plaintiffs have not been able to establish their ownership over the suit lands inasmuch as, the entire evidence produced on record is in the nature of revenue entries being extracts of the village form No.7/12 record which are not evidence of ownership. In the circumstances, in the light of the evidence which has come on record, both the courts below were justified in holding that the plaintiffs have not established title and ownership over the suit lands.
Thus, the lower appellate court has, after appreciating the evidence on record, recorded concurrent findings of fact and has based its conclusions thereon. On behalf of the appellants, the learned advocate is not in a position to show that the lower appellate court has placed reliance upon any irrelevant material or that any relevant material has been ignored so as to dislodge the findings recorded by the lower appellate court. From the concurrent findings of fact recorded by it, it is not possible for this court to state that the conclusion arrived at by the lower appellate court is in any manner unreasonable or perverse, so as to give rise to any substantial question of law.
In the light of the aforesaid discussion, there being no legal infirmity in the impugned judgement and decree passed by the lower appellate court, the appeal is dismissed.
[HARSHA DEVANI, J.] parmar*