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2018 DIGILAW 1140 (GUJ)

Dahyabhai Mathurbhai Patel v. State of Gujarat

2018-09-28

PARESH UPADHYAY

body2018
JUDGMENT Paresh Upadhyay, J. Challenge in this Second Appeal is made by the original plaintiffs to the concurrent findings of both the Courts below. The Trial Court (the 2nd Joint Civil Judge, (S.D.) Vadodara) dismissed the Regular Civil Suit Nos. 1246 of 1999 and 1599 of 1999 vide common judgment and decree dated 10.08.2001, which is confirmed by the Appellate Court below (the Joint District Judge, Vadodara) in Regular Civil Appeal No.136 of 2001 vide judgment and decree dated 20.03.2004. 2. Heard learned advocates. 3…. 3.1 Mr. D.C. Dave, learned senior advocate with Mr.Vyas, learned advocate for the appellants has submitted that both the Courts below fell in error and substantial questions of law arise in this appeal. It is submitted that the Trial Court so also the Appellate Court below fell in error by not properly appreciating the documentary evidence on record. It is noted that, learned senior advocate for the appellants has extensively taken this Court through the material on record, various provisions of the Urban Land (Ceiling and Regulation) Act, 1976 and the judgments in that regard to contend that, this appeal needs to be allowed. 3.2 Learned senior advocate for the appellant has submitted that, according to the appellants, the following substantial questions of law arise for consideration of this Court and the same be considered by this Court. "1. Whether an order dated 14.08.1989 at Exh.91 can be construed as notice under Section 10(6) of the Urban Land (Ceiling and Regulation) Act, 1976 which is sine qua non when the possession was not voluntarily handed over pursuant to notice under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976. 2. Whether Courts below were justified in recording a finding against the appellant on the aspect of possession to the effect that the same was taken from the Appellants before coming into force of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 particularly when there is nothing on the record to support such a finding on the basis of an action under Section 10(6) of the Urban Land (Ceiling and Regulation) Act, 1976." 3.3 In support of his submissions, learned senior advocate has relied on the following authorities. (i) State of Uttar Pradesh Vs. Hari Ram, (2013) 4 SCC 280 . (ii) Decision of this Court in the case of Ramchandra Shamjibhai Raniga Vs. State of Gujarat, (2000) 4 GLR 2777 . (i) State of Uttar Pradesh Vs. Hari Ram, (2013) 4 SCC 280 . (ii) Decision of this Court in the case of Ramchandra Shamjibhai Raniga Vs. State of Gujarat, (2000) 4 GLR 2777 . (iii) Decision of this Court recorded on Special Civil Application No.706 of 1995 dated 22.07.1999. 4. On the other hand Mr.Tattvam K. Patel, learned advocate for the contesting respondent original defendants has submitted that, no question of law arises from the judgment and decree of the Courts below and this appeal be dismissed. It is submitted that both the Courts below have rightly come to the conclusion that the plaintiffs were not entitled to any relief. It is submitted that the said conclusion was recorded by the Courts below on the basis of the material on record and the same be not interfered by this Court. Learned advocate for the contesting respondents has extensively taken this Court through the material on record, including the issues framed by the Trial Court, findings qua each of them and the unchallenged part thereof. It is submitted that this appeal be dismissed. 5. Mr.Swapneshwar Goutam, learned Assistant Government Pleader for the State Authorities has stood by the stand of the State as reflected in the judgments of the Courts below. 6. This Appeal was admitted by this Court on 02.11.2004. While admitting the appeal, five questions of law were framed which are mentioned in the order dated 02.11.2004. However, now it is requested on behalf of the appellants themselves that instead of considering the questions recorded in the order dated 02.11.2004, this appeal be allowed considering the two questions, as noted in para : 3.2 above. This appeal is therefore considered accordingly, at the request made on behalf of the appellants. 7. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds as under. 7.1 The plaintiffs had filed suit for declaration and permanent injunction. 7.2 The Trial Court had, on the basis of the pleadings before it, framed the following issues and on the basis of the evidence on record, answered them as under. "1. Whether the plaintiff proves that they are the owners of the suit land? (In the negative) 2. Whether the plaintiff proves that the Govt. 7.2 The Trial Court had, on the basis of the pleadings before it, framed the following issues and on the basis of the evidence on record, answered them as under. "1. Whether the plaintiff proves that they are the owners of the suit land? (In the negative) 2. Whether the plaintiff proves that the Govt. and U.L.C. Competent authority has not taken the suit land from plaintiff and plaintiff is in possession of the suit land on the date of U.L.C. Repeal Act? (In the negative) 3. Whether the plaintiff proves that the U.L.C. Competent Authority has not passed/observed any legal procedure for taking away the possession of the suit land as provided under U.L.C. Act? (In the negative) 4. Whether defendant Govt. proves that suit is barred for want of statutory notice u/s.80 of C.P.C.? (In the affirmative) 5. Whether the defendant Govt. Proves that, they have taken over the possession of suit land after the land was declared as an excess land under the provisions of Urban Land Ceiling Act? (In the affirmative) 6. Whether defendant society proves that they have purchased the land from Govt. u/s.23 of the U.L.C. Act and paid the consideration of the said land? (In the affirmative) 7. Whether defendant society proves that Govt. has given possession of the suit land to the society and defendant society is in possession of the suit land on the date of filing of the suit? (In the affirmative) 8. Whether the plaintiff is entitled to the relief of injunction and declaration as prayed for. (In the negative)." 7.3 With the above findings on each issue, the Trial Court dismissed the suits filed by the plaintiffs vide common judgment and decree dated 10.08.2001. 7.4 The above common judgment and decree of the Trial Court was challenged by the plaintiffs before the District Court, Vadodara by filing one Regular Civil Appeal No.136 of 2001. 7.5 The Appellate Court below, on the basis of the pleadings on record found that, not only the above referred issues, but three more issues were also required to be framed and answered by the Trial Court. Those issues were - (i) whether the plaintiffs had paid sufficient court fees, (ii) whether the said court had jurisdiction to hear the suits and (iii) whether the suits were barred by limitation. Those issues were - (i) whether the plaintiffs had paid sufficient court fees, (ii) whether the said court had jurisdiction to hear the suits and (iii) whether the suits were barred by limitation. The Appellate Court below passed order to this effect on 15.06.2002 (Exh.27) and remanded the suits to the Trial Court for its judgment on those three issues. 7.6 The Trial Court undertook that exercise and on the basis of the pleadings and material before it, answered all three issues against the plaintiffs vide judgment and order dated 31.03.2003. The judgment and the answers to the above issues, as reflected in the operative part of the order of the Trial Court dated 31.03.2003 reads as under. "It is hereby declared that in both the suits, the plaintiffs have not paid the deficit Court fees of Rs. 9470/-. This Court has no jurisdiction to hear both the suits. That both the suits are barred by law of limitation. That the R. and P. of both the suits along with the judgment and order be sent to the Hon'ble District Court to decide the Regular Civil Appeal No.136 of 2001 finally." 7.7 Thereafter the said appeal is decided by the Appellate Court. This Court has considered the judgment of the Appellate Court below. Para:11 of the said judgment inter alia refers to one very important aspect. It is to the effect that, the judgment and order of the Trial Court dated 31.03.2003, on three additional issues noted in para: 7.6 above, was not under challenge before the District Court and had thus attained finality against the original plaintiffs. The Appellate Court below has dismissed the appeal, inter alia on this ground. It is undisputed that, the declaration by the Trial Court dated 31.03.2003 as quoted in para : 7.6 above has attained finality against the plaintiffs. That was not under challenge before the District Court. The appeal before the District Court was thus, arising from the judgment of the Trial Court, in the suits, which were admittedly barred by limitation. This Court finds that, the Appellate Court below can not be said to have committed any error by rejecting the Appeal, on this ground. This appeal therefore needs to be dismissed, on this count alone. The appeal before the District Court was thus, arising from the judgment of the Trial Court, in the suits, which were admittedly barred by limitation. This Court finds that, the Appellate Court below can not be said to have committed any error by rejecting the Appeal, on this ground. This appeal therefore needs to be dismissed, on this count alone. This Court finds that the Appellate Court below was also justified to hold that no useful purpose would be served by examining that appeal before it. 8. There is an additional factor against the appellants. Even if the two substantial questions of law, as pressed into service by the appellants, as noted in para : 3.2 above, were to be examined by this Court, in substance, both of them are more questions of fact, and not of law, much-less substantial questions of law to be gone into in this Second Appeal. Further, from record it transpires that, the findings recorded by the Courts below do not suffer from any perversity, there is no non-reading or misreading of evidence on record. This Second Appeal, therefore needs to be dismissed. The Authorities relied by learned senior advocate for the appellants would not take the case of the appellants any further, on the face of the findings as noted above. 9. For the reasons recorded above, this appeal is dismissed.