SA/176/2008 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 176 of 2008 with CIVIL APPLICATION No.9044 of 2008 For Approval and Signature: HON'BLE SMT.JUSTICE ABHILASHA KUMARI ========================================================= 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 ? ========================================================= CHAUHAN CHELSING NATHUSING & 3 - Appellant(s) Versus RABARI KARMSHIBHAI KARSHANBHAI & 14 - Defendant(s) ========================================================= Appearance : MR MAHESH BHAVSAR for Appellants ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 23/09/2008 ORAL JUDGMENT 1. This appeal has been filed by the appellants who are the original plaintiffs SA/176/2008 2/22 JUDGMENT assailing the judgment and decree dated 29.04.2008 passed by the learned Additional District Judge and Presiding Officer (3 rd Fast Track Court), Mehsana, in Regular Civil Appeal No.52 of 2006, whereby the judgment and decree dated 11.05.2006 passed by the learned Principal Civil Judge, Kheralu in Regular Civil Suit No.43 of 2001, has been upheld. 2. Briefly stated, the case of the appellants is that they are the residents of village Dharoi, Taluka Satlasana, where they own land bearing revenue Survey No.49 admeasuring 89 Acres and 7 Gunthas and Survey No.50 admeasuring 168 Acres and 00 Gunthas. It is the case of the appellants/plaintiffs before the trial Court that the said land is owned and possessed jointly by them and they are carrying on agricultural activities thereupon. The revenue records reflect their names and no other person has any right over the suit land. The SA/176/2008 3/22 JUDGMENT respondents/defendants are headstrong persons who are trying to encroach upon the land of the appellants by using force and threats and are grazing their cattle on the suit land and, therefore, the appellants/ plaintiffs were constrained to file the suit against the respondents/defendants praying for a declaration and permanent injunction to the effect that the respondents/defendants do not have any right upon the suit land and may be restrained from entering upon the said land. 3. The respondents/defendants contested the suit by filing a written statement at Exh.44 wherein the averments made in the plaint are denied, except those specifically admitted. It is stated that the appellants/plaintiffs were the former landlords of Dharoi Village and their `Jagirdari' rights were abolished on coming into force of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953. It SA/176/2008 4/22 JUDGMENT is stated by the respondents/ defendants in the written statement that in respect of the suit land, an inquiry under the provisions of Section 37(2) of the Bombay Land Revenue Code (“the Code” for short), was conducted by the Mamlatdar and by order dated 27.2.1960, it was held that the appellants are the owners of the land in question but the village people have the right to graze their cattle upon the said land. It is also asserted that the order dated 27.2.1960 of the Mamlatdar has been upheld by various revenue courts, upto the Gujarat Revenue Tribunal and, as the respondents have grazing rights upon the suit land, the suit be dismissed. 4. The trial Court, after hearing the parties and taking into consideration the evidence on record, framed as many as six issues. On the basis of oral and documentary evidence on record, the trial Court found that although the suit land was of the ownership of the appellants, however, the village SA/176/2008 5/22 JUDGMENT people had been given grazing rights thereupon by an order dated 27.2.1960, passed by the Mamlatdar after holding an inquiry under the provisions of Section 37(2) of the Code, and this order has been upheld right upto the Revenue Tribunal. Therefore, although the land is owned by the appellants, the respondents have got a right to graze their cattle thereupon as such grazing rights have been conferred upon the respondents by the said order. The suit of the appellants was partly decreed to the above extent. 5. Aggrieved by the judgment and decree rendered by the trial Court, the appellants filed Regular Civil Appeal No.52 of 2006 wherein by judgment and decree dated 29.5.2008, the appeal has been dismissed and the judgment and decree of the trial Court has been confirmed. 6. I have heard Mr.Mahesh Bhavsar, learned counsel for the appellants at length. He SA/176/2008 6/22 JUDGMENT has made the following submissions: That along with the suit, the appellants had filed an application under Ex.5 for the grant of interim injunction. The trial Court had dismissed the said application. However, in appeal, the appellate Court had set aside the order of the trial Court and granted injunction. When the appeal came to be finally decided, the appellate Court has fallen in error while upholding the order of the trial Court by which the suit of the appellants was only partly decreed and whereby it was found that the respondents have been conferred grazing rights by an order of the revenue Court. The order of the Mamlatdar dated 27.2.1960, passed under the provisions of Section 37(2) of the Code is a nullity and, therefore, could not have been taken into consideration by the Courts below. The appellants are carrying on agricultural activities upon the land in question and if SA/176/2008 7/22 JUDGMENT the respondents are permitted to graze their cattle on the said land, then it will harm the crops and the appellants will suffer losses as the crops will be destroyed. It is forcefully argued by the learned counsel for the appellants that in a suit filed by the appellants, no relief could have been given to the respondents as they have not filed any counter-claim and the trial Court has fallen into error in arriving at the finding that the respondents have been conferred the right of grazing their cattle on the suit land, as well as the right of gathering fire- wood, grass, stones, and mud therefrom. Referring to the provisions of Section 37(2) of the Code, it is submitted by learned advocate Mr.Mahesh Bhavsar that the inquiry under the said provisions can only be conducted with regard to lands which belong to the Government but as the suit land belong to the appellants, such an inquiry could not have been conducted and, SA/176/2008 8/22 JUDGMENT therefore, the order passed by the Mamlatdar under the provisions of Section 37(2) of the Code being a nullity, there was no need for the appellants to challenge the same and if any rights have been given under the order, the same are not in consonance with law. In support of the above contentions, reliance has been placed upon (i) The State of Gujarat v. Patel Ada Megha, since decd. By his heirs Patel Bhikha Ada and Another - 1983 GLH (UJ) 40, (ii) BPL Ltd. and Others v. R.Sudhakar and Others – (2004) 7 SCC 219, (iii) M.V.Janardhan Reddy v. Vijaya Bank and Others – (2008) 7 SCC 738. It is submitted by the learned counsel for the appellants that not only has the trial Court arrived at erroneous findings, but the said findings have also been erroneously confirmed by the first appellate Court and, therefore, both the judgments and decrees of the courts below SA/176/2008 9/22 JUDGMENT deserve to be quashed and set aside and the appeal may be allowed. 7. After having heard Mr.Mahesh Bhavsar, learned counsel for the appellants at considerable length and after going through the memorandum of the appeal as well as the judgments and decrees of both the courts below and other material on record, I am of the considered view that the appeal cannot be accepted, for the reasons stated hereinbelow. 8. It is not in dispute that the appellants were the former Jagirdars and the suit land was the subject matter of revenue proceedings after coming into force of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953. An inquiry under the provisions of Section 37(2) of the Code was conducted by the Mamlatdar under the provisions of Section 37 of the Code, which reads as under: “37. All public roads, etc., and all lands SA/176/2008 10/22 JUDGMENT which are not the property of others belong to the Government-- (1) All public roads, lanes and paths, the bridges, ditches, dikes and fences, on or beside, the same, the bed of the sea and of harbours and creeks below high water-mark, and of rivers, streams, nallas, lakes and tanks, and all canals, and water-courses, and all standing and flowing water and all lands wherever situated, which are not the property of individuals, or of aggregates of persons legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force are and are hereby declared to be, with all rights, in or over the same, or appertaining thereto, the property of the Government and it shall be lawful for the Collector subject to the orders of the State Government, to dispose of them in such manner as he may deem fit, or as may be authorized by general rules sanctioned by the Government concerned, subject always to the rights of away, and all other rights of the public or of individuals legally subsisting. Explanation – In this section “high-water mark” means the highest point reached by SA/176/2008 11/22 JUDGMENT ordinary spring-tides at any seasons of the year. (2) Where any property or any right in or over any properties is claimed by or on behalf of the Government or by any person as against the Government, it shall be lawful for the Collector or a survey officer, after formal inquiry of which due notice has been given, to pass an order deciding the claim. (3) Any suit instituted in any Civil Court after the expiration of one year from the date of any order passed under sub-section (1) or sub-section (2), or, if one or more appeals have been made against such order within the period of limitation, then from the date of any order passed by the final appellate authority, as determined according to section 204, shall be dismissed (although limitation has not been set up as a defence) if the suit is brought to set aside such order or if the relief claimed is inconsistent with such order, provided that in the case of an order under sub-section (2) the plaintiff has had due notice of such order. (4) Any person shall be deemed to have had due notice of an inquiry or order under this section if notice thereof has been SA/176/2008 12/22 JUDGMENT given in accordance with rules made in this behalf by the State Government.” By order dated 27.2.1960, after holding the inquiry as contemplated in Section 37(2) of the Code, it was held by the Mamlatdar that although the land belonged to the appellants, the people of the village had grazing rights thereupon and they also had a right to collect fire-wood, mud, stones and a right of way to pass through the jungle. It is relevant to note that the above-mentioned order of the Mamlatdar was subjected to protracted litigation and challenged before the Prant Officer, thereafter before the Collector and also the Revenue Tribunal, which has ultimately upheld the said order. It has been held by the revenue Court that there are over 400 families in Dharoi village who are traditionally dependant upon raising livestock and cattle and the people of the village have grazing rights over the suit SA/176/2008 13/22 JUDGMENT land from time immemorial and have been grazing their cattle on the suit land for generations. The revenue records in respect of Survey Nos.49 and 50 of village Dharoi (the suit land) also bear entries to this effect and, therefore the rights of the people of Dharoi village over the suit land such as collecting fire-wood, stones, and mud and for having a right of way through the suit land, were kept intact by the revenue authorities, although the ownership of the appellants is not disputed. 9. In the light of the above facts and circumstances, the argument of the learned counsel for the appellants that relief could not have been granted to the respondents by the trial Court without there being a counter-claim, is untenable and cannot be accepted, as the trial Court has not granted any relief to the respondents, but has merely taken into consideration the orders passed by the revenue courts, upholding the rights of the SA/176/2008 14/22 JUDGMENT village people over the suit land. The order of the Mamlatdar has now merged into the order of the Gujarat Revenue Tribunal and has attained finality. 10.It has been urged by the learned counsel for the appellants that the order dated 27.2.1960 passed by the Mamlatdar under the provisions of Section 37(2) of the Code is a nullity. This submission is not well- founded as the said order is not the subject matter of challenge in the civil suit. As has been discussed earlier, the order of the Mamlatdar, as upheld by the Gujarat Revenue Tribunal, has attained finality. The judgments relied upon by the learned counsel for the appellants are not helpful in advancing the case of the appellants. In The State of Gujarat v. Patel Ada Megha, since decd. By his heirs Patel Bhikha Ada and Another (supra), it is held that the exercise of power under the provisions of Section 37(2) of the Land Revenue Code is without authority of law SA/176/2008 15/22 JUDGMENT and ultra-vires if the said land, in respect of which the power has been exercised, is shown to be prima-facie the property of an individual. That was a case where the order under Section 37(2) of the Code was under challenge. There can be no dispute regarding the proposition of law which has been enunciated in the facts obtaining in that case. However, this judgment is not applicable to the case of the appellants as the order of the Mamlatdar under Section 37(2) of the Code has become final after its confirmation by the Gujarat Revenue Tribunal and there is no further challenge to it. The judgment in BPL Ltd. and Others v. R.Sudhakar and Others (supra) relied upon by the learned counsel for the appellants is also not relevant to the facts of the matter in hand. Reliance has been placed by the learned counsel for the appellants on Head Note-F of the reported judgment wherein it has been held that in case of SA/176/2008 16/22 JUDGMENT any ambiguity, the interim order should be understood in the light of the prayer made in the interim relief. This was a case under the Industrial Disputes Act, 1947. The Supreme Court held that under Articles 226, 32, and 136 of the Constitution of India, in case of some ambiguity or difficulty in understanding an interim order, one has to understand the interim order looking to the prayer made for interim relief, facts of a given case and terms of the interim order. There can be no doubt regarding this proposition of law, but the same is not applicable in the present case, which is an appeal preferred under the provisions of Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree passed by the first appellate Court, confirming the judgment and decree rendered by the trial Court. There is, in my view, no ambiguity in the judgments of both the courts below so as to attract, even remotely, the provisions of SA/176/2008 17/22 JUDGMENT law enunciated in the above-quoted judgments. The learned counsel for the appellants has also relied on M.V.Janardhan Reddy v. Vijaya Bank and Others (supra), (especially Head-note B) wherein it has been held that an order passed without any authority of law is ultra-vires and does not create any right in favour of a party for whom such order is made nor imposes any obligation on the opposite party against whom it was passed. This is, no doubt, by now a settled position of law, but is not applicable in the case in hand. As has already been discussed hereinabove, the order passed by the Mamlatdar under the provisions of Section 37(2) of the Code has been the subject-matter of challenge before various revenue courts and has ultimately been confirmed by the Gujarat Revenue Tribunal. It cannot, therefore, be said that the said order is a nullity. Moreover, by virtue of the said order, the appellants SA/176/2008 18/22 JUDGMENT have not been divested of the ownership of the suit land although the rights of the villagers for grazing their cattle, collecting fire-wood, stones, mud and for having a right of way through the suit land have been upheld. 11.The trial Court, after consideration of the oral and documentary evidence on record, has arrived at the finding that although the appellants are the owners of the suit land, however, the grazing and other rights, as mentioned above, have been conferred upon the villagers and as such, the respondents have a right to graze their cattle on the suit land. The documentary evidence such as the revenue record, relevant revenue entries and the depositions of the witnesses have been carefully considered by the trial Court. It is relevant to notice that the respondents/ defendants did not lead any oral or documentary evidence but have only cross- examined the appellants No.1 and 2. The SA/176/2008 19/22 JUDGMENT respondents/ defendants have admitted the ownership of the appellants over the suit land in the written statement filed by them before the trial Court but have asserted that they have been conferred grazing rights upon the said land. On a scrutiny of the revenue records and orders of the revenue authorities, the trial Court has found that the grazing and other rights such as collection of fire-wood, stones and mud from the suit land have been conferred upon the people of Dharoi village and such rights are being exercised by the villagers from generations. The suit land appears to be forested land (described as jungle in the revenue records) and the right of way is also given through the jungle. 12.The first appellate Court, while confirming the findings of the trial Court, has taken note of the deposition of appellant No.2 wherein he has stated in cross-examination that most of Survey No.49 and 50 (the suit land) is not fit for SA/176/2008 20/22 JUDGMENT agricultural activities and most of it is also hilly and that during that year no crops were grown on Survey Nos.49 and 50. The appellant No.2 has also admitted in his deposition that the respondents have been grazing their cattle on the suit land much before the suit was filed but earlier, no complaint was made in this regard or any suit was filed. On the basis of the above- mentioned evidence, the 1 st appallate Court confirmed the findings of the trial Court to the effect that the suit land is owned by the appellants but at the same time, after abolition of Jagirs and by virtue of order dated 27.2.1960 of the Mamlatdar, as upheld by the Gujarat Revenue Tribunal, the right to graze cattle, collect fire-wood, stones and mud and the right of way through the suit land vests in the people of Dharoi village, who are exercising these rights since time immemorial. 13.The submission of the learned counsel for the appellants that after the first SA/176/2008 21/22 JUDGMENT appellate Court had granted an injunction in favour of the appellants, it fell into error while passing the judgment and decree, by recognizing the rights of the respondents cannot be accepted, as all interim orders merge into the final order and have no existence after passing of the final judgment and decree. There is no infirmity in the judgments and decrees of the 1st appellate Court or the trial Court, which are based on evidence on record. 14.No other point has been urged before me. 15.From a perusal of the memorandum of the appeal as well as the questions formulated, in my view, no question of law, leave alone any substantial question of law, within the meaning of Section 100 of the Code of Civil Procedure, 1908, arises for the consideration of this Court. There are concurrent findings of fact of both the courts below which are based on cogent evidence and at the stage of Second Appeal, SA/176/2008 22/22 JUDGMENT this Court may not interfere with the said findings of fact unless the same are illegal or perverse, which is not the case in the present appeal. 16.As a result of the aforesaid discussion, the appeal must fail, and stands dismissed. 17.As the appeal has been dismissed, the application for interim relief does not survive, and is disposed of. (Smt.Abhilasha Kumari, J.) (sunil)