IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 6/2000, 7/2000 with FIRST APPEAL No 551/2000 with CIVIL APPLICATION No 2133 of 2002 in CIVIL REVISION APPLICATION No 222 of 2002 with CIVIL REVISION APPLICATION No 222 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ VASHRAMBHAI ALAJIBHAI VAGHELA DECD. THRO' HEIRS SHANTABEN Versus GOVINDBHAI J CHUNVALIYA -------------------------------------------------------------- Appearance: 1. First Appeal No. 6/2000 & 7/2000 MR Y.S.LAKHANI with MR.A.M.DAGLI for Appellants No. 1-3/5 MR GOVINDBHAI CHUNVALIYA - party-in-person for Respondents. 2. First Appeal No.551/2000 MR GOVINDBHAI CHUNVALIYA party-in-person for Appellant. MR Y.S.LAKHANI with MR A.M.DAGLI for Respondents. 3. CIVIL REVISION APPLICATION No.222 of 2002 MR MJ SHELAT for Petitioners. MR GOVINDBHAI CHUNVALIYA party-in-person for Respondent. 4. CIVIL APPLICATION No.2133 of 2002 in CRA 222/2002 MR GOVINDBHAI CHUNVALIYA for Applicant MR MJ SHELAT for Respondents. -------------------------------------------------------------- CORAM : MR.JUSTICE K.M.MEHTA Date of decision: 11/07/2002 COMMON C.A.V. JUDGEMENT 1. Vaghela Vashrambhai Alajibhai since deceased through his heirs and legal representatives appellants (original defendants) have filed these appeals under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 30th November, 1999, passed by the learned Judge, City Civil Court No.24, Ahmedabad, in Regular Civil Suit No. 2500 of 1993. It may be noted that the said appellants have also filed First Appeal No.7 of 2000 against the said judgment wherein the learned Judge has passed a common order alongwith Regular Civil Suit No.2500/93 & Regular Civil Suit No.5393 of 1993 also. By the impugned judgment the learned Judge was pleased to allow Regular Civil Suit No.2500/93 in favour of the plaintiff - opponent herein and directed the defendants and persons claiming through them were perpetually restrained from making any construction in the suit land i.e. Final Plot No.68/1/B. The learned Judge further held that the defendants to remove the encroachment made by them on the land of Final Plot No.68/1/B and to hand over vacant and peaceful possession of the land by removing all the encroachments made thereon within three months from the date of judgment. The learned Judge, by the said judgment, so far as Regular Civil Suit No.5393/93 is concerned, directed that defendant No.1 has only acquired right of collecting rent in respect of suit land and, therefore, as such the plaintiff is not entitled to get the relief of declaration that the sale deed Exh.116 dated 13th April, 1992, is illegal, null and void. 2. It may be noted that so far decree passed against Govindbhai J.Chuvaliya - plaintiff in the suit has also filed First Appeal No.551 of 2000 before this Court against the same judgment and decree. 3. I have referred the appellant as original defendant and the respondents as original plaintiff in this behalf for the sake of convenience. 4. The relevant facts giving rise to these appeals are as under:- 4.1 There is a land situated at District Ahmedabad, at Geeta Mandir Road, Moje Rajpur Hirpur Sim, Survey No.405 in Jamalpur Town Planning Scheme No.1, Final Plot No.68 Paiki ad-measuring 4695 sq.yds. It may be noted that after the Final Plot No.68 has been sanctioned there is further division of Final Plot No.68/1/B of 950 sq.yds. the same is the subject matter of the present appeals. (hereinafter referred to as `the suit land'). 4.1(A) It may be noted that the plaintiff had taken the following lands on lease for the period of 979 years from one Jaysinh Chhotalal Sanghavi who happens to be the partner of M/s.Sulpani & Company. --------------------------------------------------------- Plot No. Ad-measuring Area --------------------------------------------------------- 68/1/B 950 sq.yards (suit land in question). 69/B/2 950 sq.yards 69/B/1 1140 sq.yards -------------------------------------------------------- and writing to that effect also came to be registered in the office of Sub-Registrar, Ahmedabad No.166/88, 9185/68, 1744/68 dated 1.11.1968 respectively. 4.2 The respondent No.1-original plaintiff is the Chairman of Balmukund Co-operative Housing Society Ltd.( hereinafter referred to as `the society'). The said society was registered on 10.3.1967. The said society is now represented by Govindbhai J.Chunvaliya - Chairman of the said society. 4.3 From the record, it appears that, originally Bai Jekor Patel daughter of Motilal Dalpatram was the owner of the said suit land. Bai Jekor had given the said suit land on lease on 15.10.1934 to one Mr.Gajjar Ramanlal Gordhandas. The said lease was registered in this behalf. ThereaftAer said Shri Gajjar Ramanlal Gordhandas and others had given the said land on lease to one Marwadi Narsaji Chenaji. The said lease deed was registered on 13.2.1946. 4.4 As regards aforesaid land, Shri Narsaji Chenaji was in occupation and possession of the said suit land. Shri Narsaji Chenaji thereafter given the suit land on lease to one Bai Subhadra Patel daughter of Chandulal Gulabchand on 25.4.1947. The yearly rent of the said land was Rs.2,225/- and the said lease deed was also registered in this behalf. It has also come on record that as far as the said land viz. Final Plot No.68/1/B ad-measuring 950 Sq.yards concerned Bai Subhadra has executed an agreement of lease on 29.3.66 in favour of M/s.Sulphanie & Company. CIVIL SUIT NO.1627 OF 1984 : 4.5 It has been stated by the plaintiff-society that an agreement of lease was executed on 28th December, 1967, between society through their Chairman Manharbhai Patel on one hand, second party Bai Subhadraben and the confirming party Sulpanie & Company. By the said agreement it was decided that the land of district Ahmedabad situated at Geeta Mandir Road of Rajpur Hirpur Sim of Survey No.405, Jamalpur Town Planning Scheme No.1, Final Plot No.68 paiki 4695 sq.yds was of the leasehold rights of Subhdaraben. Out of that it was decided that Final Plot No.68/1/B ad-measuring 950 sq.yds was given on lease by Bai Subhadraben to the society at the annual rent of Rs.325/- for 977 years. The said land was given on lease to the society by the aforesaid lease deed dated 28th December, 1967. The society also paid consideration for the year 1967 to 1968 and also paid Rs.812.50/- by way of deposit. It was decided that if society failed and neglect to make the payment of the lease then Subhadraben is entitled for possession of the land. It is the case of the society that by virtue of the said lease deed the society became the lessee of the said land in question. The total consideration of Rs.38,000/- was given and the details has been given in the said lease deed. In the said lease deed earlier lease deeds dated 15.10.1934, 13.2.1946, 25.4.1947 and 29.3.1966 were also referred to in this behalf. 4.6 It was a case of the plaintiff that plaintiff had taken the land on lease bearing Final Plot No.68/1/B (suit land), also Final Plot No. 69/B/1 and 69/B/2 of Jamalpur T.P.Scheme No.1 ad-measuring 2660 yards from Keshrimal Chunilal and assignment deed of lease right in respect of 2/3 land i.e. 1334 sq.yds of Final Plot No.69/B had also taken place on 28.2.67 and had also taken land ad-measuring 4695 sq.yds of Survey No.405 of Sim land of village Rajpur - Hirpur by assignment deed on 28.12.67 from one Subhadraben Chandulal Gulabchand and thus the plaintiff was in possession of the land of Survey No.405 and land of Final Plot No.68/1/B, 69/B/1 and 69/B/2 and the boundary of the property of plaintiff extends upto public road towards east. 4.7 It is the case of the plaintiff that somewhere on 2nd December, 1983, Bai Lakhu Motibhai - defendant No.1, Dungarshi Motibhai since deceased through his heirs and legal representatives - defendant no.2 and Vasantbhai Alajibhai Vaghela since deceased through his heirs and legal representatives - defendant No.3 (hereinafter referred to as `the defendants') in the said suit have encroached the land of the plaintiff's society by constructing kuchcha hut ad-measuring 10' x 10' and also made pan cabin. It was contention of the plaintiff that defendants are not the tenants or licencee of the plaintiff and nor they have any right, title or interest in the said land. 4.8 It was the case of the plaintiff that defendants (in the said suit) by committing trespass constructed pucca ordi and started flour-mill in the land of Final Plot No.68/1/B and the defendants have not paid any heed to remove the encroachment caused and therefore with no option the aforesaid suit was filed for removal of encroachment and for obtaining the possession of the land in question. 4.9 In the said suit the defendants have resisted the suit of the plaintiff by filing reply at Exh.18 wherein they have contended that the suit of the plaintiff is not true and it is not admitted by them. It was the case of the defendants that they are not parties to the deeds on which the plaintiff has based its case and therefore it is not binding to them. It was their case that they are in possession of the land since 1967 and became owner of the land by adverse possession and therefore also the plaintiff has no right to take possession of the land in question. The defendants also denied that they are trespassers of the suit land in this behalf. 4.10 The learned City Civil Judge thereafter considered the evidence on record and ultimately by his judgment and decree dated 6th May, 1999, arrived at the following findings: (1) The plaintiff proved that defendants encroached upon the land belonging to the plaintiff society. (2) The plaintiff proved that the pan-cabin and hut of defendants stand on the land of the society. (3) The plaintiff proved that the defendants have illegally made pucca ordi and started flour-mill in the land of Final Plot No.68/1/B. (4) The defendants failed to prove that they became owners of the disputed land by adverse possession. 4.11 Ultimately the learned City Civil Judge by his impugned judgment and decree dated 28.1.99 allowed the suit and directed that the defendants are ordered to remove pan-cabin, small hut as well as pucca ordi wherein they run flour-mill and do hand over vacant and peaceful possession of the land encroached to the plaintiff within four weeks from the date of the order. 5. Facts regarding Civil Suit No.2500 of 1993. 5.1 It may be noted that when the aforesaid suit was pending before the City Civil Court somewhere in 1993 originally the society had also filed suit against Vashrambhai Alajibhai since deceases through his heirs and legal representatives - defendant No.1, Vaghela Laxmiben Alajibhai - defendant No.2 and Vaghela Shantaben Vashrambhai - defendant No.3 in the said suit. In the said suit plaintiff contended that the society was registered on 17th March, 1967 and from 1967 the society had constructed about 66 flats on the said land and about 400 members are staying in the said society. In the said suit it was contended that the defendants are trying to encroach upon the land of the society and, therefore, the plaintiff filed a suit for injunction against the defendants regarding Final Plot No.68/1/B, 69/B/1, 69/B/2 that defendants may not construct anything on the said land and they may not prevent the society members to carry out construction in the suit land. The said suit was filed on 1.6.93. 5.2 It may be noted that originally suit was filed through administrator but ultimately society was represented by Chairman afterwards. In the said suit the plaintiff filed various documents particularly 7/12 of the suit land to show that the society had a possession of the suit land in question and the lease deed which was executed between the parties, City Survey Hissa Form and others documents in this behalf. 5.3 In the Civil Suit No.2500/93 the defendants filed written statement at Ex.17. In the said written statement the defendants took up the contentions that they became owner and lessee of the suit land by the documents which was executed on 13.4.92 by the heirs of Subhadraben in their favour. It was contended that as per the documents dated 28.12.67 the society was not in possession and as society failed and neglect to make the payment and by virtue of document dated 13.4.92 they became the lessee of the land in question. They had also referred interim order dated 3.9.84 passed in Civil Suit No.1627/84. The said written statement was filed on 4.6.93. Thereafter the defendants produced document dated 13.4.92 also in this behalf. They have by separate list also produced notice dated 6.10.83 addressed by Bai Subhadraben to the society in which it has been stated that the society failed and neglect to make the payment and they desire to terminate the lease deed of the land in question. According to them they have not encroached the land of 950 sq.yds of Final Plot No.68/1/B in this behalf. 5.3(A) The plaintiff filed rejoinder at Ex.24 in this behalf. The plaintiff also produced various documents to show that plaintiff has exclusively possession of the suit land in question at Exh.100. At Exh.114 plaintiff has also produced certain documents in this behalf. 6. Special Civil Suit No.5393 of 1993: 6.1 It may be noted that originally administrator but thereafter the society filed another Civil Suit No.5393/93 against the heirs of Vashrambhai Alajibhai, Laxmiben Alajibhai (Bai Lakhu) and heirs of deceased Subhadraben. The plaintiff filed said suit for declaration that the lease deed dated 13.4.92 which has been stated earlier in the suit be declared as illegal, null and void in this behalf. The said suit was filed on 5.10.1993. In the said suit the plaintiff alleged that since 1967 the plaintiff's society had constructed about 66 flats and about 400 peoples are staying in the society. It was alleged that for some time in the year 1989 the management of the society was not properly administered and one Ramanbhai Mithabhai Rathod was acting contrary to the interest of the society as the Chairman of the society and therefore society has also made a complaint and ultimately on 9.3.93 present administrator has been appointed. After the administrator was appointed he has tried to administer the society in question and also making proper arrangement for water and drainage and some repairing work in this behalf. As the defendants have tried to obstruct the said work, the plaintiff filed Civil Suit No.2500/93 before the City Civil Court for which I have already made reference in this behalf. 6.2 In the said suit it was one of the case that by document dated 13.4.92 they have taken on lease from the heirs of Subhadraben. It was their case that by playing fraud and collusion by defendant No.4 the then Chairman of the society Shri Ramanbhai Mithabhai Rathod, the defendants have transferred the leasehold right in question. The society's members and managing committee were not aware about the same and therefore the said lease deed dated 13.4.92 has been executed by playing fraud in this behalf and, therefore, the same be declared void and same is not binding on the society. After the administrator terms over the Chairman of the society has ultimately replaced in the said suit. In the said suit the plaintiff filed list at Exh.3 and produced voluminous documentary evidence on record to show that the said suit land belongs to the plaintiff's society in question. They have also referred to the lease deed dated 28.12.67 and other documents to show that the plaintiff had exclusively possession of the suit land in this behalf. It was also contended that as regards Civil Suit No.2500/93, the City Civil Court by its order dated 25.4.93 also granted injunction in favour of the society. 6.3 Being aggrieved by the said order the defendants filed Appeal From Order No.256/93 before this Court and the said Appeal From Order was also dismissed on 5.7.93 by this Court and in view of the same the interim order which was granted by the City Civil Court on 23.4.84 in Civil Suit No.1627/84 still continued in this behalf. 6.4 In the said suit the defendants filed written statement at Exh.21 and also reply to notice of motion at Exh.20. They have ultimately denied the case of the plaintiff in this behalf. They have reiterated what is stated in the earlier suit also in this behalf. They have relied upon the document dated 13.4.92. According to them as the society failed and neglect to make the payment to Subhadraben, she was entitled to the termination of lease deed. The defendants also produced certain documents in this behalf. 6.5 In the said suit the plaintiff filed rejoinder at Exh.26. The plaintiff produced certain affidavits of their society members at Exh.27 to show that all the members are staying in the said society since several years in this behalf. There are about 25 affidavits were filed by the society members in this behalf. The plaintiff also produced list at Exh.61. According to them they have obtained Clear Title Certificate from one H.Desai & Company dated 14.7.78. They have also obtained permission of the Corporation to construct the flats. They have also obtained permission from the Corporation for constructing flat and also compound wall. They have also produced receipt of payment to show that the society had possession of the land in question. 6.6 Before the said suit on behalf of the society at Exh.76 Govindbhai J.Chunvaliya - Chairman of the society was examined to show that the plaintiff had possession of the land in question. The plaintiff also produced original village Form No.7/12 document at Exh.80 and also further documents at Exh.90. They have also produced original plan approved by the Corporation for construction of flat in this behalf at Exh.96 and 97. They have also filed application at Exh.99 production of various documents that the land in question was registered with the Corporation in this behalf. 6.7 On behalf of plaintiff at Exh.102 one Harshadbhai Chhotalal Bhatt the then administrator was also examined. The plaintiff further produced documents at Exh.103 and 104. The plaintiff also produced oral evidence of one Mr.Manish Verma, District Inspector of Land Records at Exh.106 who has produced the Map in question on 21.10.78. 6.8 On behalf of the defendants Laxmiben Aalajibhai was examined at Exh.108. The defendants also filed application at Exh.109 for examining relevant officers of the Corporation in this behalf. One Solanki Mohanbhai Dungarbhai neighbour of defendants is also examined at Exh.118. The defendants also filed application at Exh.112 for examining the relevant officers of the Corporation in this behalf. On behalf of the defendant One Mahendrabhai Shankerbhai Patel is examined at Exh.117 City Engineer of the Corporation. In fact he has supported the case of the plaintiff's society in this behalf. The plaintiff filed written arguments at Exh.120 in this behalf. 6.9 Before the judgment in the Civil Suits No.2500/93 & 5393/93 was pronounced the City Civil Court as I have indicated earlier given the judgment in Civil Suit No.1627/84 by judgment and decree dated 28.1.99. The findings of the learned City Civil Judge I have already recorded in this behalf. High Court Proceedings: 6.10 Being aggrieved and dissatisfied with the said judgment and decree dated 28.1.99 passed in Civil Suit No.1627/84, when the aforesaid two suits pending for judgment, Bai Lakhu and others have filed First Appeal No.1307/99 before this Court. The said matter came up before this Court (Coram: M.S.Shah, J.) it was contended that the learned Judge ought to have given judgments of all the three suit instead of giving judgment in Civil Suit No.1627/84. Ultimately the learned Single Judge by judgment and order dated 6.5.99 held that the trial court has not decided the question about title to the land in question. As the said judgment was given without waiting the judgment of the aforesaid suits the learned Single Judge directed that the learned City Civil Judge will hear and decide the Civil Suits No.2500/93 and 5393/93 as expeditiously as possible by 31.12.1999. It was further held that both the plaintiff as well as defendants shall maintain status-quo as of today regarding the disputed property on the land in question. 6.11 Being aggrieved and dissatisfied with the aforesaid judgment and order of the learned Single Judge, the defendants preferred Letters Patent Appeal being LPA No.,849/99 before this Court. 6.12 The Division Bench of this Court (Coram: M.R.Calla & R.R.Tripathi, JJ.) by its judgment and decree dated 19.9.2000 pleased to dismiss the appeal. The Division Bench also agreed that the findings of the learned Judge that other Suits No.2500/93 & 5393/93 ought to have been disposed by the learned trial Judge in this behalf. 6.13 Being aggrieved and dissatisfied with the said order the defendants filed Special Leave Petition under Article 136 of the Constitution of India before the Hon'ble Supreme Court of India. The Hon'ble Supreme Court after gathering necessary facts of the case by its judgment and order dated 10.9.2002 pleased to observe as under: "We are not inclined to interfere with the order under challenge. However, we observe in the facts and circumstances of the case, the High Court may consider the appeal expeditiously preferably within a period of three months from today. The Special Leave Petition is dismissed." Present Proceedings: 6.14 Meanwhile the learned City Civil Judge heard both the Civil Suits No.2500/93 & 5393/93 and delivered a judgment and decree on 30.11.99. The learned Judge by his impugned judgment held that plaintiff proved that it is in possession of land of Final Plot No.68/1/B ad-measuring 950 sq.yds in this behalf. It was further held that plaintiff proved that defendants have encroached on the land of Final Plot No.68/1/B. It was further held that the defendants failed and neglect to prove that they are owners of the land of Final Plot No.68/1/B. The plaintiff is entitled to permanent injunction as prayed for. The plaintiff is also entitled to vacant and peaceful possession of land of Final Plot No.68/1/B or the land encroached as prayed for. As regards other suit the learned Judge further held that the plaintiff failed to prove that sale deed dated 13.4.92 alleged to have been executed by heirs of Subhadraben in favour of defendant No.2 is illegal, null and void. However the learned Judge has held that by the said document right of collection of rent is transferred and further held that in view of the relief granted in Civil Suit No.2500/93 no further relief is required to be granted in the said suit. 6.15 Being aggrieved and dissatisfied with the said judgment and decree, the defendants filed First Appeals No.6/2000 & 7/2000 before this Court. As regards judgment and decree which was passed against the plaintiff, the plaintiff filed First Appeal No.551/2000 before this Court. 7. Mr.Y.S.Lakhani, learned advocate appeared on behalf of the appellants - original defendants and Govindbhai J.Chunvaliya appeared as party-in-person Chairman on behalf of the society. 8. Learned advocate for the appellants original defendants has relied upon the oral evidence of Laxmiben Alajibhai at Exh.108 in support of their contention. From the said evidence he has stated that the contention of the plaintiff that the document dated 13th April, 1992, was executed fraudulently in collusion with the original owner is not right. He has also relied upon the evidence of Solanki Mohanbhai Dungarbhai at Exh.111 who also happened to be relative of Laxmiben. 8.1 Mr. Lakhani, learned advocate for the defendants has submitted that the plaintiff's society entered into the lease deed of suit land Nos.68/1/B, 69/1/B/2 & 69/B/1 for 967 years somewhere in December 1967 from Bai Subhadraben C.Patel confirming party Sulpani & Co. The said lease deed was executed on 28.12.1967. 8.1(A) It was submitted that the said lease deed provides inter-alia