SA/26520/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 265 of 2008 With CIVIL APPLICATION No. 13701 of 2008 In SECOND APPEAL No. 265 of 2008 With CIVIL APPLICATION No. 13702 of 2008 In SECOND APPEAL No. 265 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 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 ? ========================================================= FOJAJI FULAJI VANZARA & 137 - Appellant(s) Versus STATE OF GUJARAT THRO' CHIEF SECRETARY & 1 - Defendant(s) ========================================================= Appearance : MR PREMAL R JOSHI for Appellant(s) : 1 - 138. MS ASMITA PATEL, Assistant Government Pleader for Defendant(s) : 1, None for Defendant(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 04/12/2008 ORAL JUDGMENT SA/26520/2008 2/8 JUDGMENT 1. The appellants – ori. plaintiffs have filed this Second Appeal under Section 100 of Civil Procedure Code challenging the order passed by the learned Additional District Judge and Presiding Officer, 7th Fast Track Court on 21.7.2008 in Regular Civil Appeal No.47 of 2007 confirming the judgment and decree passed by the 7th Additional Senior Civil Judge, Nadiad on 30.4.2007 in Regular Civil Suit No.76 of 1992. The present Second Appeal is filed by 138 persons. They were all original plaintiffs in the suit. It is the case of the appellants that they are occupying the suit premises for the last more than 70 years. It is also the say of Mr.Premal Joshi, learned advocate appearing for the appellants that these very appellants have filed the suit before the Trial Court being Regular Civil Suit No.277 of 1987 wherein purshis have been filed by the appellants stating therein that the defendant, State Government, had agreed to SA/26520/2008 3/8 JUDGMENT provide some alternative arrangement to the plaintiffs in that suit and on that ground the suit was withdrawn on 8.6.1987. Despite the fact that an assurance was given to provide an alternative accommodation, without providing such alternative arrangement, notice was issued by the respondent on 10.2.1992 and hence the present appellants had filed suit before the Civil Court, Nadiad and interim injunction was granted in their favour, which was continued till the suit was finally disposed of in 2007. He has, therefore, submitted that both the Courts below have committed an error in passing and/or confirming the decree against the appellants. He has, therefore, submitted that the Appeal requires admission and following substantial questions of law arise out of the order of the Courts below. “(i) Whether on the facts and in the circumstances of the case, the lower Appellate Court is justified in dismissing the suit when SA/26520/2008 4/8 JUDGMENT the respondents herein have admittedly undertaken and assured to provide suitable alternative place before eviction from the suit premises in the earlier ? (ii) Whether on the facts and in the circumstances of the case, the lower Courts justified in dismissing the suit filed by the appellants who are staying since last more than 70 years on the land in question with their family ? (iii) Whether on the facts and in the circumstances of the case, the Courts below are justifying in dismissing the suit and negativating the contention of the appellants and committed an error in not appreciating the fact that the appellants acquired the tile by adverse possession ? 2. Mr.Premal Joshi, learned advocate appearing for the appellants has further submitted that the appellants are very poor and illiterate persons and they were staying in the suit premises for the last more than 70 years. He has further submitted that the necessary evidence could not be produced before the SA/26520/2008 5/8 JUDGMENT Trial Court and hence the appellants have preferred separate application seeking permission of this Court for production of the additional evidence. If these additional evidence were produced before the Court it can certainly be established that the appellants have been occupying the premises since long and there was assurance given by the State Government for providing an alternative arrangement. Certain light bills and other documents are also attached alongwith the application for production of additional evidence. He has, therefore, submitted that the sympathetic view is required to be taken in the matter as it is a question of their livelihood and if they are removed from the suit premises, they have no other shelter to stay. He has, therefore, submitted that this Second Appeal may be admitted and respondents may be restrained from evicting the appellants from the suit premises. SA/26520/2008 6/8 JUDGMENT 3. Ms.Asmita Patel, learned Assistant Government Pleader, appearing on the advance copy being served, has submitted that the appellants are the encroachers on the Government land. They have no documentary evidence showing ownership of property in question. They are neither paying any tax nor paying any rent. Both the Courts below have discussed this issue at great length and come to the conclusion that they are encroachers and hence this being finding of fact this Court should not entertain the Second Appeal, as no substantial question of law arises out of the order of the Courts below. 4. Having heard learned advocates appearing for the respective parties and having considered the orders passed by both the Courts below, this Court is of the view that no substantial question of law arises out of SA/26520/2008 7/8 JUDGMENT the orders of the Courts below. The appellants are encroachers and they have no right to reside on the Government land. There is nothing on record to show that any assurance was given by the State Government at the time of disposal of the earlier suit. The purshis which is shown to the Court also indicates that it was filed by the plaintiffs and that purshis has no counter endorsement from the advocate appearing on behalf of the State Government or there is no assurance in writing on behalf of the State Government. Hence, the Court is not inclined to take any cognizance of the additional evidence, which are sought to be produced by the appellants. In any case, the Court is not entertaining this Second Appeal. Hence, there is no question of granting any permission to produce additional evidence. Since there is concurrent finding of fact by both the Courts below, this Court is not inclined to entertain this Second Appeal. The Second SA/26520/2008 8/8 JUDGMENT Appeal is, therefore, dismissed. 5. Since the Appeal is dismissed, both the Civil Applications are also rejected. 6. It is, however, made clear that dismissal of this Second Appeal will not come in the way of appellants to make any representation before the State Government for reconsideration of their case on sympathetic or humanitarian ground. The authority will consider such representation as well as documents that may be attached therewith. (K. A. PUJ, J.) kks