SA/97/2001 1/44 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 97 of 2001 With SECOND APPEAL No. 155 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE R.H.SHUKLA ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus BABIBEN W/O BABABHAI JIVABHAI PATEL & 38 - Defendant(s) ========================================================= Appearance : MR SUNIT SHAH, GOVERNMENT PLEADER, with MR MAULIK G. NANAVATI, AGP, for Appellant(s) : 1, None for Defendant(s) : 1 - 2, 17, MR JV JAPEE for Defendant(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4,3 - 14,16 - 17, 17.2.2,17.2.3 UNSERVED-EXPIRED (R) for Defendant(s) : 15, MR JB PARDIWALA with MR MAULIK N SHAH for Defendant(s) : 18, MR RS SANJANWALA for Defendant(s) : 19 - 39. ========================================================= CORAM : HONOURABLE MR.JUSTICE R.H.SHUKLA Date : /05/2008 SA/97/2001 2/44 JUDGMENT CAV JUDGMENT The present second appeals arise out of the common judgment passed by the learned 3rd Extra Assistant Judge, Sabarkantha at Himmatnagar in Regular Civil Appeal Nos. 50/95, 52/95, 76/95 and 77/95. Second Appeal No. 155 of 1999 arise out of the judgment and order passed in Regular Civil Appeal No. 76/95 and Second Appeal No. 97 of 2001 arise out of the judgment and order passed in Regular Civil Appeal No. 50/95. 2. The facts of the case, briefly summarised, are as follows: 2.1 Original plaintiffs Nos. 1-17 filed Regular Civil Suit No. 2/92 in the Court of Civil Judge (S.D.), Himmatnagar on the ground that they apprehended that they may be forcibly dispossessed by the agents and servants of the defendant government, though the land in question admeasuring about 15 acres and 22 gunthas is owned and possessed by them. After the bi-party hearing, ultimately, the said suit came to be allowed by the judgment and decree passed by the 3rd Jt. Civil Judge (S.D.), Himmatnagar dated 29.4.1995. 2.2 Maharaja Mahendrasinhji, the erstwhile king of the Idar State, filed an application Exh. 27 to be impleaded as a party and, therefore, he was joined as defendant No. 2. SA/97/2001 3/44 JUDGMENT 2.3 The said suit came to be decreed by the Third Jt. Civil Judge (S.D.) at Himmatnagar by the judgment and order dated 29.4.1995. Therefore, the said judgment and order was challenged by original defendant No. 2, Maharaja Rajendrasinhji, the king of Idar State, by way of Regular Civil Appeal No. 50/95 on the ground that he is the owner and occupier of the disputed land. The State Government also filed Regular Civil Appeal No. 75/95 against the plaintiff as well as defendant No. 2 asking for a declaration that the Government is the owner of the disputed land and it is the waste land for the public purpose. 2.4 The disputed land in question is of 15 acres and 22 gunthas are situated at Village Kanknol, Taluka Himmatnagar, District Sabarkantha, which is known as aerodrome land. The entries in the revenue record are also made to that effect that it is for a public purpose of aerodrome and is shown as waste land. The entries also include about one order passed by the Collector dated 19.10.1966 that under the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955 (hereinafter referred to as 'the Abolition Act') the land in question belonged to the erstwhile ruler of Idar State, that is, ancestors of defendant No. 2. However, subsequently, there is another entry made on the basis of which it is claimed that under the provisions of the Bombay Land Revenue Code, 1879 (hereinafter referred to as 'the Code'), this land is a waste land belonging to the SA/97/2001 4/44 JUDGMENT State Government since 1952 and since it was earmarked for the public purpose of aerodrome, it belonged to the government. Emphasis has been given by the government on its revenue record on the basis of which the claim has been made by the State that it is no longer a private property of the erstwhile ruler of Idar but it is a government waste land and the order has been passed under the Code. On the other hand, defendant No. 2 has claimed that the land in question is a private property of the erstwhile ruler of Idar, i.e., his ancestors, and all throughout it has been shown in the record in the name of the ruler of Idar. The order passed by the Collector, which is produced at Exh. 197 has been relied upon in support of his contention and it has been contended that even the Government of India, as per the provisions of the Abolition Act, had accepted that this land was a private property of the erstwhile ruler of Idar and thereafter the order has been passed by the Collector (Exh. 197) and therefore the right, title and interest in the land absolutely vests in the erstwhile ruler of Idar State. It is on the basis of that, the erstwhile ruler had executed a banakhat dated 12.5.1956 in favour of the original plaintiffs and they have been making claim that they have purchased the land and, therefore, they have right, title and interest in the property and the land does not belong to the government and the suit had been filed for injunction against any apprehended dispossession. SA/97/2001 5/44 JUDGMENT 2.5 All the Regular Civil Appeals came to be heard and disposed of by the common judgment and order by the 3rd Jt. Civil Judge (S.D.), Himmatnagar, by his common judgment and order dated 29.4.1995. It is against this common judgment and order that the present two second appeals have been filed by the State of Gujarat. Second Appeal No. 155 of 1999 is filed being aggrieved by the judgment and order passed in Regular Civil Appeal No. 76/95 and Second Appeal No. 97 of 2001 is filed by the State being aggrieved by the judgment and order passed in Regular Civil Appeal No. 50/95. 3. Second Appeal No. 97 of 2001 was admitted by an order dated 15.7.2002, wherein the following substantial questions of law were posed: 1) Whether the respondent No. 18 has become an owner by mere possession, especially when the land is vested in government since 1922? 2) Whether inquiry under section 37(2) of the Bombay Land Revenue Code is required or not especially when from 1922 the land in question was in the name of the Government Padtar i.e. one which was not cultivated? 3) In absence of any proceedings at the instance of respondent No. 18, whether any relief can be granted in favour of respondent No. 18? SA/97/2001 6/44 JUDGMENT Second Appeal No. 155 of 2001 was ordered to be heard with Second Appeal No. 97 of 2001 by an order dated 22.10.2002. However, the substantial questions of law which are posed at the time of hearing of the appeals by learned AGP Mr. Nanavati are, (1) Whether the jurisdiction of the Civil Court was barred in light of specific provision of Sc. 37(2) of the Code? (2) Whether the plaintiffs and respondent no. 18-the erstwhile ruler H.H. the Maharaja of Idar had any right, title, interest and whether the land was vested in the Government or it was a land belonging to the erstwhile ruler of Idar as his private property? (3) Whether the relief as prayed for regarding declaration in favour of respondent No. 18 could have been granted or not? 4. It was, therefore, submitted that the first contention or the question of law raised is as to whether the suit was maintainable in light of the provisions of sec. 37(2) of the Code and also the provisions of Bombay Revenue Jurisdiction Act, 1876 (hereinafter referred to as 'the Jurisdiction Act'). Learned AGP Mr. Nanavati, therefore, referred to the provisions of Sec. 37(2) of the Code and emphasized that where any right, title or interest over the property of the government is claimed, the Collector or the revenue authorities would make an inquiry and pass the order deciding the claim. Further, any SA/97/2001 7/44 JUDGMENT person aggrieved by this has to move the appellate authority, and as provided in sub-sec. (3) of sec. 37 of the Code, the suit could be instituted within the prescribed period of limitation. Therefore, learned AGP Mr. Nanavati strenuously submitted that the civil suit is barred unless all the remedies provided under the Code are exhausted, meaning thereby first an application under Sec. 37(2) of the Code is required to be made by any person claiming right, tile and interest in the government property and after the said claim is decided, the party aggrieved may move the higher authority or the appellate forum under the Code itself and thereafter only a civil suit could be filed. He also referred to sec. 11 of the Jurisdiction Act and strenuously submitted that as provided in this section also, no suit could be entertained by the civil court and the provisions of sec. 11 of the Jurisdiction Act clearly puts an embargo that no civil court shall entertain any suit against the government unless the plaintiff or the person aggrieved has preferred appeals as provided in the Code within the stipulated period. Therefore, it was contended that the civil suit itself was not maintainable and, therefore, the judgment and decree passed by the lower court as well as of the appellate court were without jurisdiction and, therefore, a nullity. 5. Learned AGP Mr. Maulik Nanavati for the State, referring to the factual background, has submitted that originally the land was acquired by the SA/97/2001 8/44 JUDGMENT erstwhile ruler of Idar State from private farmers and the land was owned by the Maharaja of Idar as his private property for the purpose of aerodrome and hangar. However, out of this land about 15 acres and 22 gunthas (disputed land) came to be shown as the government land under the heading “sarvajanik hetu mate thayeli jamin” (land earmarked for public purpose). Learned AGP Mr. Nanavati contended that in the revenue record this land has been shown as government waste land and, therefore, if any person who claims any right, tile or interest in the land, it was incumbent upon him to make an application under Sec. 37(2) of the Code before the Collector, and on the basis of any decision further recourse could have been made to the higher authorities under the Code and only thereafter a civil suit could have been filed. Learned AGP Mr. Nanavati strenuously submitted that the provisions of sec. 37(2) of the Code are mandatory in nature and in compliance thereof, an application has to be made to the Collector to decide the claim and if aggrieved, further recourse before the appellate authority under the Code could have been taken. Only thereafter the civil suit could be filed. As there is no such application moved under Sec. 37(2) of the Code for deciding the claim under the Code, the mandatory provisions of the Code have not been complied with and, therefore, both the courts below have erred in appreciating the provisions of law. Therefore, learned AGP Mr. Nanavati submitted that the suit filed by the plaintiffs, who are purchasers of the SA/97/2001 9/44 JUDGMENT land in question from the erstwhile ruler of Idar, was not maintainable at all. 6. In support of his submission, learned AGP Mr. Nanavati has referred to and relied upon the judgment of this Court in the case of Dallumiya Lalmiya Malek v. State of Gujarat reported in 1971(12) GLR 668 and has emphasized the observations made in paras 3 and 5. Learned AGP Mr. Nanavati has pointedly referred to the observations in para 3 to emphasize the contention raised by him and to support the contention that an application under sec. 37(2) of the Code is required to be made by any person who claims any right, title or interest in the government property and after the claim is decided by the Collector, further remedy before the higher forum as provided under the Code is required to be exhausted and only thereafter a suit could be filed if at all. Referring to sec. 11 of the Jurisdiction Act the learned AGP pointedly referred to the observations made in para 3 of the judgment which reads as under: “No Civil Court shall entertain any suit against the Government on account of any act or omission of any revenue officer unless the plaintiff first proves that previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force as, within the period of limitation allowed for bringing such suit, it was possible to present.” SA/97/2001 10/44 JUDGMENT 7. Learned AGP Mr. Nanavati has also referred to and relied upon the judgment of this Court in the case of Rajkot Municipal Corporation v. State of Gujarat & Ors. reported in 1997(2) GLR 1281 again emphasising the provisions of sec. 37(2) of the Code and submitted that the claim against the government has to be decided by an authority under the Code and it cannot be decided in a collateral proceedings. 8. Learned AGP Mr. Nanavati has also referred and relied upon the judgment of this Court in the case of Thakor Jamasherkhanji Tajkhanji & anr. v. Rajgor G.V decd. by Heirs Vinodrai Ganpatram Rajgor & ors., 1998(3) GLR 1966 and referring to Head Note B he emphasized that the combined effect of the provisions of sec. 37(2) of the Code r/w sec. 11 of the Jurisdiction Act has been considered and it has been observed that the combined effect is that a civil suit cannot be filed against the order of a revenue officer unless all the remedies of appeal, etc. are exhausted and the suit is filed within one year of the last order. This Court has observed in para 11 as under: “This shows that Sec. 11 of the Bombay Revenue Jurisdiction Act makes it clear that a suit before the civil Court is certainly premature and cannot be filed unless all the remedies provided in the Bombay Land Revenue Code and Bombay Revenue Jurisdiction Act are exhausted. The suit can be filed within a period of one year after exhausting finally all the remedies under the aforesaid statute. The view of the trial court that the suit was not premature is, SA/97/2001 11/44 JUDGMENT therefore, erroneous and the view taken by the lower appellate court that the suit is premature is perfectly legal and justified. If this is so then the question of law is answered in the way that on the facts and circumstances of the case the third party had right in the lower appellate court to file First Appeal and the first appellate court was justified in holding that the suit of the plaintiffs-appellant was premature. If the suit was premature it was rightly dismissed.” 9. Learned advocate Mr. Nanavati has strenuously submitted that in light of the provisions of sec. 37(2) of the Code r/w sec. 11 of the Jurisdiction Act, the suit would not be maintainable and, therefore, both the courts below have committed an error and hence the government has filed the present appeals. 10. Another facet of the submissions made by learned AGP Mr. Nanavati is that as defendant No. 2, erstwhile ruler of Idar, had not filed any substantive suit or proceedings, the declaration could not have been made in his favour as, without any substantive suit or proceedings, merely on the basis of some counter claim made in the suit filed by the plaintiff, declaration could not have been made by the court below and, therefore, both the courts below have committed a grave error. 11. Learned AGP Mr. Nanavati finally submitted that both the courts below have also committed an error of law in not appreciating the evidence in the form of SA/97/2001 12/44 JUDGMENT revenue entry in the revenue record and they have decided the matter completely contrary to the documentary evidence produced in the form of revenue entries by the State Government, which goes to the root of the matter. He emphasized that it should have been appreciated that the entries in the revenue record prima facie suggested about the right, title and interest and the nature of the property. He referred to the R&P and the material evidence on record in detail and also produced xerox copies of some of the record referring to the entires made in the revenue record which has been brought by the officials, who were directed to remain present. Learned AGP Mr. Nanavati referred to the original entries of the year 1922 and submitted that the original entry numbers were 622, 623, 625 and 626 which were given survey numbers again as 774, 775, 777 and 778 to the disputed land and it is shown as 'padtar' (waste land). Thereafter another entry is made on 28.12.1935 wherein it is shown as aeroplane compound referring to the same land. He also referred to certified copies of the extract of register maintained by the revenue authorities in the year 1925 at page 72 and referring to the survey numbers as stated above, which have been renumbered as 774-778, it has been referred to as a 'padtar' (waste land). He referred to the orders dated 26.2.1959 (Exh. 197), 18.10.1960 (Exh. 192) and 19.10.1966 (Exh. 191) passed by the Collector. Referring to all these documents, the learned AGP stated that as per the order passed by the Collector SA/97/2001 13/44 JUDGMENT dated 26.2.1959 (Exh. 197) r/w the order passed by the Collector dated 18.10.1960 (Exh. 192), it transpires that at the time of merger of Idar State, the land in question were recognized as a private property of His Highness the Maharaja of Idar. However, whether such land could be treated as an alienation covered under the provisions of the Abolition Act, the revenue authorities had, for the purpose of exemption from the Code, made an assessment on the entries in all these years when no claim was made. Ultimately, as per the order dated 19.10.1966 (Exh. 191) after hearing the erstwhile ruler, defendant No. 2, the order came to be passed. Learned AGP Mr. Nanavati therefore submitted that this order is required to be considered with regard to the rival claims and he pointedly referred to the order that as a kabjedar pursuant to the Abolition Act, the entry was made showing the erstwhile ruler of Idar as the kabjedar, but the land was a padtar or waste land. Learned AGP Mr. Nanavati, therefore, submitted that if these entries are properly appreciated, it would show that it had ceased to be a private property and after it was acquired by the erstwhile ruler of Idar from the farmers, it was for a public purpose and then, ultimately, it has been shown as a waste land in the government record. 12. Learned AGP Mr. Nanavati also referred to the record in detail which was brought by the officers. It was submitted with emphasis, referring to the record beginning right from the year 1924/1948, that SA/97/2001 14/44 JUDGMENT the land in question has been referred to as padtar/jirayat and, therefore, it was emphasized that as per the provision of law, the land of which the ownership or the title is not claimed, shall vest in the government. Therefore, he emphasized that the lands which have been shown as padtar/jirayat even during the regime of the erstwhile ruler, it was the land belonging to the State and could not have been claimed as a private property. After the merger of the states, pursuant to the independence when the Constitution has been brought into force, such lands are vested with the government and, therefore, no right or title could be claimed by the erstwhile ruler of Idar. 13. Learned AGP Mr. Nanavati also referred to Exh. 197, order dated 26.2.1959 passed by the Collector of Sabarkantha and submitted that though reliance has been placed on this document/order, the genuineness of this is not examined by the courts below as it is neither original nor a certified copy and, therefore, it could not have been exhibited. The learned AGP also conceded that it has been produced on record by the government before the courts below at the trial. However, he submitted that it could not have been exhibited when it is not proved as per the Evidence Act. Therefore, it was submitted strenuously that as the main document, which is the order dated 26.2.1959 Exh. 197 is not shown to be the original or genuine, no reliance could be placed and the findings based thereon are erroneous. SA/97/2001 15/44 JUDGMENT 14. He also referred to this very document, Exh. 197, and at the right side of the first page where the nature of lands before the utilization of the aerodrome is given, he referred to the nature of land and tried to submit that there is mention that some land was government land or the occupied land. 15. Learned AGP Mr. Nanavati has submitted that the question of title cannot be decided on the basis of inference or on the basis of any other collateral proceedings. He emphasized that in the absence of authentic order like the order of the Govt. of India passed at the time of merger of the states under the Abolition Act and Exh. 197, order of the Collector dated 26.2.1959, ought not to have been exhibited. It was submitted that in view of the provisions of the Evidence Act, as the original order is not produced or Government of India's order under the Abolition Act is not produced, it could not have been exhibited. Further, it was strenuously submitted that since the question or the dispute raised is with regard to the title or ownership of the land, it cannot be decided by the court on inference. In support of this contention, he has referred to and relied upon the judgment in the case of Rajkot Municipal Corporation (supra). 16. On the other hand, learned advocate Mr. Pardiwala for respondent No. 18-original defendant No. 2-submitted that the court is required to SA/97/2001 16/44 JUDGMENT consider whether inquiry as contemplated under sec. 37(2) of the Code is a condition precedent before the institution of a suit. Learned advocate Mr. Pardiwala submitted that this aspect is no longer res integra in light of the judgments of this Court. While considering the analogous provision in the Gujarat Panchayats Act, 1993, learned advocate Mr. Pardiwala submitted that the provisions of sec. 37(2) of the Code is analogous to the provisions of sec. 113 of the Gujarat Panchayats Act, 1993 and sec. 101 of the Gujarat Panchayats Act, 1961. He submitted that it has been interpreted and considered by this Court in a judgment in the case of Khusad Gram Panchayat v. Managing Trustees of Mutawallis of Masjid of Khusad Village, 1981 GLH 124. Referring to the provisions of sec. 101 of the Gujarat Panchayats Act, 1961, which is analogous to sec. 37(2) of the Code - and the same issue has been decided in this judgment - wherein it has been specifically observed that it is merely an enabling provision. For that purpose he also pointedly referred to the provisions of sec. 101 of the Gujarat Panchayats Act, 1961 and sec. 37(2) of the Code and submitted that after considering this provision, similar contention that the jurisdiction of the civil court is taken away or barred was not accepted and it has been specifically observed that while making it lawful for the Collector to pass an order, nowhere it has been shown that it is incumbent upon the parties to approach the Collector. He strenuously submitted that the Court has