IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 93 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE D.C.SRIVASTAVA sd/- and Hon'ble MR.JUSTICE H.K.RATHOD sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? Yes : 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? No 5. Whether it is to be circulated to the Civil Judge?No : -------------------------------------------------------------- RAJKOT MUNICIPAL CORP. Versus LAVJIBHAI M PATEL THRO'HIS P.O.A.HOLDER RAJESH J DOSHI -------------------------------------------------------------- Appearance: 1. First Appeal No. 93 of 1997 MR AK CLERK for Petitioner MR HARIN P RAVAL for Respondent No. 1 SERVED BY RPAD - (N) for Respondent No. 2 NOTICE SERVED for Respondent No. 3 MR RC JANI for Respondent No. 4 GOVERNMENT PLEADER for Respondent No. 5 2. First AppealNo 5036 of 1996 MR AK CLERK for Petitioner MR HARIN P RAVAL for Respondent No. 1 SERVED BY RPAD - (N) for Respondent No. 2 NOTICE SERVED for Respondent No. 3 MR RC JANI for Respondent No. 4 GOVERNMENT PLEADER for Respondent No. 5 -------------------------------------------------------------- CORAM : MR.JUSTICE D.C.SRIVASTAVA and MR.JUSTICE H.K.RATHOD Date of decision: 06/04/2000 C.A.V. JUDGEMENT 1. Rajkot Municipal Corporation - defendant No.1 has filed this Appeal against the Judgment and Decree dated 14.10.1996 of 2nd Joint Civil Judge (SD), Rajkot. 2. Brief facts giving rise to this Appeal are as under : Plaintiff - Lavjibhai Mandanbhai Patel, respondent No.2, filed Special Civil Suit No.35 of 1992 in the Court below for declaration, permanent injunction and mandatory injunction against the defendants. He also claimed mesne profits and compensation from the defendants. The plaintiff claimed to be owner of the agricultural land of Survey No.479 measuring 4 Acres - 7 Gunthas in Rajkot City, Race Course Road. It was acquired by the father of the plaintiff Mandan Jaga and is in the ownership of the plaintiff and his father since more than 100 years. Madan Jaga obtained this land from erstwhile Ruler of Rajkot city through a grant contained in Lekh No.78 dated 16.4.1946. Entries were made in the Revenue Records as well as village form No. VI, VII and VIII. After the death of Mandan Jaga there was partition between the plaintiff and his brothers which was noted in village Form No.6, 7, 7/12. Again partition took place amongst brothers of the present plaintiff and this land was received by the present plaintiff in partition. Entries in the revenue records were accordingly made vide entry No.3057 which was affirmed by the Deputy Collector. In this way the plaintiff claimed to be the owner of the land of Survey No.479 Area 4 Acres - 7 Gunthas, which approximately comes to 16900 sq.mtrs. It was alleged that the defendant No.1 made fencing around the open land and had wrongfully sold 4355 sq.mtrs. from the remaining land to the defendants No.3 & 4. This land measuring 4355 sq.mtrs. was alleged to have been encroached upon by the defendant No.1 and it is shown in light blue colour in the map annexed with the plaint. This land, according to the plaintiff, is situate in Rajkot city. Upon enforcement of the Urban Land (Ceiling & Regulation) Act, 1976, the plaintiff filled in form No.1 under Section 6 of the ULC Act before the competent Authority wherein also plot No.479 was shown to be belonging to the plaintiff. The Government has recently remanded the case in respect of that land so that the scheme under Section 21 of the Act can be applied for the said land. According to the plaintiff, Survey No.478, Area 1 Acre 9 gunthas belongs to one Rameshchandra Jasani whereas Survey No.479, area 4 Acres - 7 Gunthas belongs to the plaintiff and Survey No.626 belongs to Rajkot Municipal Corporation having an area of 10998 sq.mtrs. According to the plaintiff the defendant No.1 is entitled to hold, enjoy and manage Survey No.626 only. The defendant No.1 had sold to the defendant No.3 the land admeasuring 7654.50 sq.mtrs. which is shown in black colour in the map annexed with the plaint. The defendant No.4 also purchased land measuring 4925.84 sq.mtrs. from the defendant No.1 which is shown by brown colour in the map annexed with the plaint. According to the plaintiff the defendant No.1 is entitled to manage only 10998 sq.mtrs. of land whereas this defendant has used 15353.47 sq.mtrs. land. In this way the defendant No.1uses 4355 sq.mtrs. more land than coming to its part. The plaintiff alleged that the defendant No.1 had sold the land to the defendant No.3 which inter-alia includes 627 sq.mtrs. land belonging to the plaintiff shown with black cross lines between brown and red line in the map. It was also alleged that the defendant No.1 made wire fencing in an unauthorised manner on the remaining land of Survey No.479. It was further alleged that the defendant No.3 started raising constructions on the land purchased from the defendant No.1. Upon inquiry the plaintiff found that by mistake the plaintiff's land of Survey No.479 was also sold by the defendant No.1 to the defendant No.3. It was pleaded that the defendant No.3 had no right to raise constructions over the land belonging to the plaintiff. Likewise the plaintiff alleged that the defendant No.4 who is also purchaser from the defendant No.1 intended to make constructions over the plaintiff's land. On 21.10.1991 the plaintiff came to know that the defendant No.1 erected fencing over his land. The plaintiff requested through letter to the defendatn No.1 to remove the fencing and cancel the Sale Deed of the portion of the land belonging to the plaintiff and sold to the defendants No.3 & 4, but no reply was given. Reminders and personal representations were also made by the plaintiff to the defendant No.1, but with no effect. Accordingly the plaintiff prayed for injunction and asked for restoration of possession of his land and further prayed for cancellation of the Sale Deed in favour of defendants No.3 & 4. Compensation was also claimed by the plaintiff from the Municipal Corporation - appellant. 3. The Suit was resisted by the appellant. No written statement was filed by the defendants No.2 & 4. The defendant No.5 was subsequently impleaded. The defendant No.3 however filed written statement and contested the Suit. 4. The defendant No.1 pleaded in its written statement that the Suit is not maintainable and that it is further not maintainable for want of notice under Sec. 478 of the B.P.M.C. Act. It was also pleaded that the Suit is time barred and the Suit filed by the Power of Attorney holder is not maintainable because the said power of Attorney is not genuine. Title of the plaintiff in the disputed land was denied. It was pleaded that the wire fencing was raised over the land belonging to the appellant - defendant No.1. It was alleged that the land of Survey No.479 was declared as excess land by the competent Authority under the ULC Act. There were 88 huts on the land of Survey No.479 and the ccupants of the huts were in adverse possession of the land against the plaintiff since long. It was also pleaded that the appellant was entitled to get 20 % of the surplus land declared excess by the competent Authority under the ULC Act. 88 hut owners were removed by the defendant No.1 and were allotted alternative site. It was also pleaded that 88 hut owners became owners of the land by adverse possession against the plaintiff and the defendant No.1 also became owner of the disputed land by adverse possession. According to the appellant, against the order of the competent Authority declaring surplus land, appeal was preferred by the plaintiff before the Urban Land Ceiliing Tribunal which was dismissed. Thereafter Special Civil Application was preferred by the plaintiff against the order of the Tribunal which was also dismiisised. Letter Patent Appeal was also filed by the plaintiff against the order in Special Civil Application which was subsequently unconditionally withdrawn. Thereafter the plaintiff's son Vinod moved an applicatiion to the State Government under Section 34 of the ULC Act for review of the decision of the competent Authrity. The Government, according to the appellant, wrongly reviewed the case and remanded the same to the competent Authority. The order of the State Government is said to be without jurisdiction null and void. According to the defendant No.1 land was sold to the defendant No.3 after making due publication in news paper, but no objection was raised by the plaintiff. It was also pleaded that the land sold to the defendants No.3 & 4 is part of land of survey No.626. With these pleadings the appellant pleaded that the Suit be dismissed. 5. The defendant No.3 in its written statement took the plea that this defendant is bonafide purchaser of the land for value without notice of any defect in the title of the defendant No.1 or dispute of title between the plaintiff and the defendant No.1. Plea of multiferiousness was also taken by this defendant so also the plea of under valuation. It was also pleaded that the Suit is bad for non-joinder of necessary parties and that it is also bad for want of service of statutory notice. It was also pleaded that the ownership and possession of the plaintiff over the land for Suit is disputed. 6. On the application of the defendant No.1 the State of Gujarat - defendant No.5 was impleaded in the Suit. The State Government - defendant No.5 took the plea that the suit is bad for want of notice under Section 80 of the Code of Civil Procedure. It was the stand of the State of Gujarat that the proceedings conducted by the State Government and the Subordinate officers under the ULC Act were in accordance with law and the orders passed by them are perfectly legal and within their jurisdiction. It was also pleaded that the plaintiff was allowed to prepare scheme under Sec. 21 of the ULC Act for people belonging to the weaker section. 7. The trial Court framed 19 issues arising out of the pleadings of the parties. The trial Court found that the plaintiff is the owner of Survey No.479, Area 4 Acres - 7 Gunthas and that the boundries of Survey Nos.478, 479 and 626 were duly established by the plaintiff and that its measurements were also established by the plaintiff. The trial Court further found that no portion of land of Survey No.479 was sold by the defendant No.1 to the defendants No.2 and 4, but portion of land of Survey No.479 was sold by the defendant No.1 to the defendant No.3 by mistake. Accordingly, compensation of Rs.25,08,000/was ordered to be paid by the appellant to the plaintiff - respondent No.1. It also found that the defendant No.1 had no right to make fencing over the land belonging to the plaintiff. It further found that the defendant No.1 failed to prove that it has become owner of the land in Suit by adverse possession. The trial Court negatived the plea of the defendant No.1 that the order of the Government regarding review of ULC proceedings is void abinitio. It further found that the Suit was not bad for mis-joinder or non-joinder of parties nor itis bad for non-service of notice under Section 487 of the B.P.M.C. Act and that the Suit was maintainable. It was further held that the Civil Court has jurisdiction to try such Suit and the plaintiff was entitled to the reliefs sought. Plea of multiferiousness of causes of action was also answered in negative. The trial court found that the defendant No.1 encroached upon the land belonging to the plaintiff. It further found that the plaintiff is the owner of Survey No.479 and no land of this Survey number was declared as surplus. It further found that the order of the State Government granting review was not null and void and that the Suit is not barred by any provision of the Transfer of Property Act. It further found that there is no effect of constructions raised by the defendant No.3 over the plaintiff's land except that the plaintiff was entitled to receive compensatiion. In the last it held that there is no effect of non-service of statutory notice on the defendant No.3. 8. Shri B.P.Tanna, learned Senior Advocate for the appellant, Shri K.C.Shah, learned A.G.P. for the respondent No.5, Shri Harin P. Raval for respondent No.1 and Shri Pranav G. Desai for the respondent No.3 were heard at length and in detail and the records were examined. The respondents No.2 & 4 did not appear. 9. This First Appeal No.93 of 1997 has been filed by the defendant No.1 - Rajkot Municipal Corporation whereas the First Appeal No.1500 of 1997 was filed by State of Gujarat and the First Appeal No.5036 of 1996 was filed by the defendant No.3 - respondent No.3 - Income-tax Commissioner. The contentions raised by Shri K.C.Shah, learned A.G.P. and Shri P.G.Desai, learned Counsel for the respondent No.3 will be seperately considered in First Appeal Nos.1500/97 and First Appeal No.5036/96 respectively. In the present Appeal contentions raised by learned Senior Advocate Shri B.P.Tanna for the appellant and Shri H.P.Raval for the respondent No.1 will be considered. 10. Shri Tanna, learned Counsel for the appellant did not challenge the findings recorded by the trial Court on Issues No.6,7,8,9,10,13 & 17. 11. It is pertinent to mention that no decree was passed by the trial Court against the State of Gujarat defendant No.5. Shri P.G.Desai for the defendant No.3 respondent No.3 challenged the findings recorded by the trial Court on Issues No.4,18 and 19. 12. The first point for determination in this Appeal is whether the plaintiff is the owner of Survey No.479, area 4 Acres - 7 Gunthas. In Paras : 1 & 2 of the plaint. The plaintiff's power of attrney holder has given history as to how the plaintiff became owner of Survey No.479, area 4 Acres - 7 gunthas. The said power of attorney holder Shri S.B.Patel was examined in the Court below. He producted village form Nos.6,7, 7/12 and 8/A in respect of Survey No.479 where the name of the plaintiff is recorded vide Ex.130,131 and 132. Ex.129 is the Lekh (deed) issued by the erstwhile ruler of Rajkot wherein the name of Mandan Jaga ancestor of the plaintiff is mentioned. It is through this document that the plaintiff is tracing the ownership as well as possession. The name of Lavji Mandan, father of the plaintiff was mutated in village form No.6 as well as form No.7/12. From form No.7/.12, 8/A and 8 it seems that the plaintiff was owner of Survey No.479. It is not the case of the defendant No.1 that the plaintiff is not the owner of Survey No.479. On the other hand the contest is that the plaintiff is not the owner of the disputed land. It is not the case of the defendant No.1 that the Municipal Corporation is the owner of Survey No.479. The real dispute is as to whether the disputed land is portion of Survey No.479 or not. For this in addition to the oral and documentary evidence filed by the plaintiff the documentary evidence of the defendant No.1 also supports that the plaintiff is the owner of Survey No.479. For this Ex.221 report of the then Commissioner of Rajkot Municipal Corporation made in June 19, 1990, to the State Gvernment can be referred. In Para : 14 of this note it was admitted by the Commissioner of Rajkot Municipal Corporation that the plaintiff is owner of Survey No.479 area 4 Acres - 7 gunthas. Admission of responsible officer, namely, Commissioner of the Rajkot Municipal Corporation, defendant No.3 is the best evidence in favour of the plaintiff and it could not be proved that this note of the Commissioner of Rajkot Municipal Corporatiooon was prepared under some mistake nor it was explained in evidence that it was mistaken note which could be resiled. Thus, this letter of 19.6.1990 of the Commissioner of Rajkot Municipal Corporation supports the case of the plaintiff. 12(a) When Urban Land Ceiling Act came into force the plaintiff filled in form No.1 under Sec.6 of the ULC Act before the Competent Authority and he had shown this land to be in his ownership and possession though as karta of the joint Hindu family. The order of the competent Authority as well as of the Appellate Authority also does not show that the form No.1, u/s.6, was filled wrongly by the plaintiff treating himself as the owner of this land. As against the order of declaration of surplus land by the competent Authority, an Appeal was filed which was dismissed. Thus, the competent Authority as well as the Appellate Authority under the ULC Act treated the plaintiff as owner of plot No.479. Even in review, the Government of Gujarat while setting aside the order of the Appellate Authority remanded the matter to the competent Authority and in that order Ex.142 it was no where mentioned that the plaintiff is not the owner of the Survey No.479. Thus, right from the beginning when the 'Lekh' was granted by the erstwhile ruler of Rajkot in favour of the plaintiff's ancestor till the latest entry in the revenue record the plaintiiff was shown as owner of the disputed Survey No.479, area 4 Acres - 7 gunthas., Lekh from the erstwhile state of Rajkot was of the year 1946-47. Its genuinness could not be successfully challenged by the learned Counsel for the appellant. Therefore, through this lekh Mandan Jaga, father of the plaintiff, became owner of survey No.479, Area 4 Acres 7 gunthas. Ex.129 was duly proved by P.W.1 Savjibhai. 13. Another evidence in favour of the plaintiff is the written statement of the State Government defendant No.5 wherein it is admitted in para : 4 that the land admeasuring 4 Acres - 7 gunthas of Survey No.479 is of the ownership of the plaintiff. It is further admitted in Para : 7 of the written statement of the State Government that application under Sec.21 of the ULC Act was granted on 12.10.1991 by the Deputy Secretary, Revenue Department in favour of the plaintiff. Thus, the State Government also admitted in the written statement that Survey No.479 area 4 Acres - 7 gunthas was owned by the plantiff. 14. From Ex.181 and 182, Tippan of Survey Nos.479 and 478 plantiff's ownership in Survey No.479 is prima facie established. 15. So far as oral evidence is concerned Vallabhbhai Sidhpara, witness of defendant No.1 admitted in Para : 3 of his statement that the ownership of Survey No.479 is of Lavji Mandan. In Ex.232 which confidential note by Rajkot Municipal Corporation to the Additional Collector, ULC, dated 18.2.1992 it is admitted that Survey No.479 was of the holder and of the ownership of Lavji Mandan. 16. Thus, from the above evidence plaintiff succeeded in establishing his title of survey No.479, area 4 Acres - 7 gunthas and none of the defendants could by any reliable evidence demolish the above evidence adduced by the plaintiff. The trial Court was therefore justified in holding that the plaintiff is the owner of Survey No.479, area 4 Acres - 7 gunthas. 16. The next point for consideration is whether inspite of this finding recorded by the trial Court, the State Government - defendant No.5 can be said to have become owner of this land in persuance of the order passed by the competent Authority and the Appellate Authority under the ULC Act, 1976. If this point is answered in affirmative then at present the plaintiff cannot be said to be the owner of the aforesaid survey Number. 16. It is clear from the evidence on record that on 15.9.1984 the Competent Authority under the ULC Act declared 40000 sq.mtrs. of surplus land from the holding of the respondent No.1. The respondent No.1 herein preferred Appeal under Section 33 of the ULC Act against this order of the competent Authority, which was dismissed on 8.8.1988. The respondent No.1 herein thereafter preferred Special Civil Application No.8674 of 1989 which was dismissed on 16.11.1990. Thereafter Letters Patent Appeal No.287 of 1990 was filed by the respondent No.1 herein against the order of the learned Single Judge in the aforesaid Special Civil Application, but it was withdrawn unconditionally on 17.9.1994. Vinod, son of the respondent No.1 approached the State Government to take up the matter in revision under Section 34 of the ULC Act on 29.8.1991. The Government exercised the powers under Section 34 of the ULC Act and remanded the matter to the competent Authority for fresh disposal after affording an opportunity of hearing to Vinod. Thereafter the competent Authority under order dated 8.5.1992 passed consequential order in compliance of the order of the State Government in revision. Shri B.P.Tanna, learned Counsel for the appellant has urged that the order of the State Government under Section 34 is totally without jurisdiction and illegal for various reasons. Firstly, according to him, when the Letters Patent Appeal was withdrawn unconditionally by the father of Vinod, Vinod could not have reagitated the matter inasmuch as no form under Sec.6 of the ULC Act was filed by him and his name was shown in the form under sec.6 filed by his father as member of the joint Hindu Family and the frather filled in the form as Karta of the joint family. Consequentally son was bound by the declaration of surplus land by the Competent Authority which attained finality not only in Appeal, but also in Special Civil Application and Letters Patent Appeal filed before this Court. His further contention was that the State Government could not have re-written the Judgment of this Court in Special Civil Application passed by the learned Single Judge, more particularly when the Letters Patent Appeal was withdrawn by the father of Vinod unconditionally. He also contended that the principle anologus to resjudicata will apply even to these proceedings and after all some finality to the litigation has to be attached at some stage and not that in intervals one or other coparceners should be permitted to re-agitate the matter again and again. He further contended that since Vinod was claiming under the same title, namely, as coparcener and since form under Sec.6 was filed by his father as Karta of the family, declaration of surplus land by the competent Authority, which was ultimately up-held, is binding upon Vinod also. The case of Bhagvandas T. Tandel v/s. S.N.Sinha, 1996 (1) G.L.H. 433 cited by Shri Tanna, to our mind, is distinguishable on facts. In this case it was held that the doctrine of resjudicata or constructive resjudicata or principles anologus to them simpliciter can not apply in case of order of withdrawal simpliciter. For applicability of principles under Sec.11 of the Code of Civil Procedure or anologus principle the matter must have been heard and finally decided on merit. Since Letters Patent Appeal was not decided on merit it cannot be said that withdrawal of Letters Patent Appeal amounts to constructive resjudicata. Of course the order of learned Single Judge in Special Civil Application attained finality after withdrawal of Letters Patent Appeal. The case of Natvar Textile v/s. Union of India, reported in 1990(1) G.L.R. 338 is likewise distinguishable. All that is laid down is that principles anologus to Order : 23 Rule : 1 C.P.C. are applicable to proceedings under Article 226/227 of the Constitution of India. It was held that it is true that there would be no bar of resjudicata, but on the ground of public policy the second petition on the same cause of action cannot be permitted to be filed. In the case before us there was no attempt to file