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2015 DIGILAW 652 (GUJ)

Shah Krushnachandra Kantilal v. State of Gujarat

2015-06-30

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT K.S. Jhaveri, J. 1. By way of this appeal, the appellants-original plaintiffs have challenged the judgment and order dated 1-10-2005 passed by the learned Principal Senior Civil Judge, Mahesana, in Special Civil Suit No. 125 of 2004 whereby the suit filed by the plaintiffs was dismissed. 2. The trial court has framed following issues in para 4 of the judgment which read as under: "(1) Whether plaintiff proves that he is power of attorney holder of other co-plaintiffs. (2) Whether plaintiff proves that defendant has took over possession of 3900 sq.meters excessive land. (3) Whether defendant proves that this suit is time barred. (4) Whether defendant proves that ONGC become owner of disputed land by adverse possession. (5) Whether plaintiffs are entitled to decree as prayed for. (6) What order and decree." The trial court after appreciating the oral as well as documentary evidence has decided both the issue Nos. 3 and 4 in affirmative and dismissed the suit filed by the plaintiffs on the grounds of limitation and adverse possession. 3. Learned advocate for the appellants, Mr. Bhargav Karia, submitted that the trial court has committed an error in coming to the conclusion against the plaintiffs inspite of the fact that excess land was taken over by ONGC. 3.1 He also submitted that the trial court has committed an error to read and/or misread the material oral and documentary evidence on record particularly certificates issued by the ONGC at Exs. 40, 41, 42, 43, 45 and 61 showing that the defendant No. 2 is in possession of the excess land. 3.2 He also submitted that the trial court failed to appreciate that it is undisputed fact that the Government acquired the land admeasuring 1 Hectre 55 Are 38 Sq.Mtrs. of Survey No. 1985 of the ownership of plaintiffs as per the provisions of Land Acquisition Act and as per the joint survey made by Surveyor and in view of report and map Ex.65, the defendant No. 2 is in excess possession of 3900 sq.mtrs. of excess land, which is duly supported by the certificates issued by ONGC itself at Exs. 40, 41, 42, 43, 45 and 61. 3.3 He also submitted that the trial court has erred in law and facts in appreciating that the Government acquired and allotted the land admeasuring 1 Hectre 55 Are 38 Sq.Mtrs. of excess land, which is duly supported by the certificates issued by ONGC itself at Exs. 40, 41, 42, 43, 45 and 61. 3.3 He also submitted that the trial court has erred in law and facts in appreciating that the Government acquired and allotted the land admeasuring 1 Hectre 55 Are 38 Sq.Mtrs. of Survey No. 1985 in exercise of power under the Land Acquisition Act and as such remaining excess land to the aforesaid acquired land would be of no ownership of ONGC and excess land admeasuring 3900 sq.mtrs. would obviously be of ownership of the plaintiffs, which was unlawfully occupied and possessed by the defendant No. 2 without payment of any compensation and as such, the said land belonging to the plaintiffs should be held to be in possession of ONGC in excess. 3.4 He also submitted that the trial court has erred in law and facts in confusing the land acquisition proceeding of Land Reference Case No. 9 of 1969 in as much as from the award at Ex.20/1, it is crystal clear that the area of total land acquired for and allotted to ONGC is as per the award rendered in Land Reference Case No. 29 of 1977. 3.5 He also submitted that the trial court erred in law and facts in interpretation and in application of provisions of Order 7 Rules 1 and 3 of the Code of Civil Procedure and further erred in holding that the pleadings of the plaintiffs are vague and ambiguous. 4. We have heard learned advocate, Mr. Karia for the appellants, learned AGP, Mr. Jayswal for the respondent No. 1 and learned Senior Advocate, Mr. Marshall, for the respondent No. 2. 5. Learned Senior Counsel, Mr. Marshall for the respondent No. 2 contended that the trial court has rightly dismissed the suit of the plaintiffs on two major issues by holding that the suit is barred by limitation and also that ONGC has become owner of disputed land by adverse possession. 6. It appears that the trial court has decided both the issue Nos. 3 and 4 on the grounds that proceedings were initiated in the year 1977 and were concluded in the year 1995 whereas the suit was filed on 3-3-2003 i.e. after almost 26 years of the initiation of proceedings and 18 years of the conclusion of proceedings. 6. It appears that the trial court has decided both the issue Nos. 3 and 4 on the grounds that proceedings were initiated in the year 1977 and were concluded in the year 1995 whereas the suit was filed on 3-3-2003 i.e. after almost 26 years of the initiation of proceedings and 18 years of the conclusion of proceedings. The trial court while considering the issues of limitation as well as adverse possession has held in paras 11, 12, 13 and 14 as under: "[11] To establish this fact the plaintiffs are required to prove that what was the exact area of the land bearing Survey No. 1985 when it was acquired in the year 1977. The plaintiffs are failed to state the exact area of the land bearing Survey No. 1985 in plaint, simply. The plaintiffs have produced the abstract of Revenue Records. Only by submitting and relying upon Revenue Records, the exact measurement of the land on the spot cannot be ascertained because it is undisputed fact that from this land, some portion of land has been alienated by the owners of the land to some other person which has been shown in map Exh.65 at the eastern and south side corner. The plaintiffs have not stated how much land has been alienated to the other person. Not only that certain land of land bearing Survey No. 1985 has been also taken in the expansion of highway road and interior road. The plaintiffs are failed to establish the actual and exact measurement of this land and under the circumstances, it is very difficult to ascertain the exact area of the land of Survey No. 1985 when it was acquired by the competent authority of the Government for the defendant No. 2. In absence of this fact, it cannot be said that the defendant No. 2 has encroached the certain piece of land as alleged by the plaintiffs. [12] There are also one other land acquisition proceeding of land bearing Survey No. 1985 vide LAQ Case No. 9/1969 which was finalised on 31.07.1972 and an award has been produced at Exh.20/1, the said acquisition proceedings were made before the consolidation of the land bearing Survey No. 1980, 1981 and 1982 into land bearing Survey No. 1985. The plaintiffs have shown their ignorance in respect of this land acquisition proceeding bearing LAQ Case No. 9/1969 dated 31.07.1972. The plaintiffs have shown their ignorance in respect of this land acquisition proceeding bearing LAQ Case No. 9/1969 dated 31.07.1972. Calculating the said land acquisition proceeding of LAQ Case No. 9/1969 dated 31.07.1972 and LAQ Case No. 29/1977 dated 05.02.1979, there would not be excess land in possession of the defendant No. 2, then the acquired land by the Government. The plaintiffs have based his case alone on acquisition of LAQ Case No. 29/1977 dated 05.02.1979, but the plaintiffs have not taken into consideration the adverse effect of previous acquisition of LAQ Case No. 9/1969 and hence in view of this fact the defendant No. 2 is not in excess piece of land as claim by the plaintiffs admeasuring 3330 sq.mtrs. [13] The averments made by the plaintiffs in plaint are vague and ambiguous. No particular of acquisition of particular in respect of measurement of area has not been stated in the plaint. Not only that the particulars of immovable property as required under the provision of order 7 Rule 3 in respect of description of property which may sufficient to identify has not been also specifically stated in the plaint. Plaint is vague and ambiguous. The plaint has been filed by the plaintiffs in such a way that the court should find out the excess land as per the allegation of the plaintiffs and it should be handed over to the plaintiffs. Such kind of relief cannot be decreed. The plaintiffs must say each and every circumstances, in sequences and with detail that as and when there is a acquisition of immovable property and the description of property which may sufficient to identify to pass a decree. It is undisputed fact that large area of land is in possession of the defendant No. 2 of acquired land of different survey numbers. The acquired land which is in possession includes the land of other survey numbers which were not belonging to the plaintiffs, hence, it is impossible to find out the exact excess of land or portion as per the allegation of the plaintiffs. In view of this vagueness and uncertainty the plaintiffs claim cannot be allowed. The relief seeks in para-9 of the plaint also does not disclose the portion of the land which the plaintiffs want to recover from the defendant No. 2. In view of this vagueness and uncertainty the plaintiffs claim cannot be allowed. The relief seeks in para-9 of the plaint also does not disclose the portion of the land which the plaintiffs want to recover from the defendant No. 2. Such kind of vague, containing uncertain and ambiguous reliefs is not maintainable at all under the provision of Order 7 Rule 1 of the Code of Civil Procedure. Not only that the cause of action stated in para-4 of the plaint also does not disclose the fact that as and when and on what day and time cause of action has been arisen as required under the provision of Order 7 Rule 1(e) of CPC. In view of this vagueness in cause of action stated in para-4 of the plaint the suit deserves to be dismissed. [14] It is an undisputed fact that the defendant No. 2 ONGC is in possession of the suit land since the year 1977 by due process of law. Hence, the defendant No. 2 is in possession of the suit land since the period of more than last 24 to 25 years up to the date of filing the suit in the year 2003. Under the provision of Section 64 of the Limitation Act, if the suit for recovery of possession is required to be filed on the ground of previous possession it must be filed within a period of 12 years from the dispossession of the property. Here in the present case, it is undisputed fact that the plaintiffs are dispossessed from the suit land since the year 1977. Under the provision of Article 64 of the Limitation Act, the plaintiffs were required to file a suit in the year about 1989, if the plaintiffs wants to make a base of his claim on the ground of possession of the property. Under the provisions of Article 65 of the Limitation Act, if the suit is required to be filed for recovery of immovable property on the basis of title, the limitation of the said suit is also 12 years and the started point of limitation is from the date when the possession of the defendant become adverse to the plaintiffs. Under the provisions of Article 65 of the Limitation Act, if the suit is required to be filed for recovery of immovable property on the basis of title, the limitation of the said suit is also 12 years and the started point of limitation is from the date when the possession of the defendant become adverse to the plaintiffs. Here in present case before me the possession of the defendant No. 2 has been adverse since the year 1977 and the plaintiffs were aware of the fact that their land has been acquired and if according to them some excess land has been covered up by the defendant No. 2 under the guise of acquisition of acquired land, plaintiffs were required to file a suit land about in the year 1989. Hence, in view of this fact the suit filed by the plaintiffs in the year 2003, after the lapse of about 25 years, obviously, it is time barred under the Article of 65 of the Limitation Act. There are numbers of instances, just like in the proceedings of LAR Case to believe that the fact of possession was in knowledge of plaintiff, since the date of dispossession and thereafter and the plaintiffs are permanently resident of Mahesana city and I have reason to believe that due to their day to day experience about the property. Hence, I have reason to believe that the possession of the defendant No. 2 has been adverse to the defendants since 1977 and I agree with the arguments advanced by the learned advocate of the defendant No. 2 that if any portion of land, in excess to acquire land by the defendant No. 2, defendant No. 2 becomes the owners of the said excess land under the principle of adverse possession under the provision of Section 65 of the Limitation Act. I am in complete agreement with the alternative arguments of the defendant No. 2." 7. We are in agreement with the view taken by the trial court. Apart from that, inspite of the fact that possession was taken long back, appellants have not made any objection to the same. In that view of the matter, we see no reason to interfere with the findings arrived at by the trial court. We are of the opinion that the trial court has not committed any error. Apart from that, inspite of the fact that possession was taken long back, appellants have not made any objection to the same. In that view of the matter, we see no reason to interfere with the findings arrived at by the trial court. We are of the opinion that the trial court has not committed any error. Hence, this appeal being devoid of merits is required to be dismissed and is accordingly dismissed. No order as to costs. 8. Registry is directed to send back the record and proceedings to the trial court forthwith.