SA/21720/2007 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 217 of 2007 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 ? ========================================================= KANTILAL BHUPATRAI RATHOD PRESIDENT, JETPUR GYMKHANA & 1 - Appellant(s) Versus THE STATE OF GUJARAT - Defendant(s) ========================================================= Appearance : MR RR TRIVEDI for Appellant(s) : 1 - 2.MR BHAVESH P TRIVEDI for Appellant(s) : 1 - 2. MS ASMITA PATEL, Assistant Government Pleader for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 11/12/2008 ORAL JUDGMENT 1. The appellants have filed this Second Appeal under Section 100 of the Civil Procedure Code SA/21720/2007 2/12 JUDGMENT challenging the judgment and decree dated 19.2.1994 passed by the learned Civil Judge (S.D.) Gondal in Special Civil Suit No.234 of 1984 and confirmed by the learned Presiding Officer 6th Fast Track Court, Camp at Jetpur in Regular Civil Appeal No.6 of 1995. 2. It is the case of the appellants – ori. plaintiffs that the appellants are the office bearers of the plaintiff Jetpur Gymkhana. They have filed Special Civil Suit No.234 of 1984 in the Court of learned Civil Judge (S.D.) Gondal for declaration and permanent injunction against the present respondent ori. defendant State of Gujarat on the premises that the plaintiff Gymkhana is in possession and owner of 27360.62 sq.mtrs. of land bearing Jetpur City Survey No.33. There was no facility of Maternity Hospital at Jetpur. One of the donors, therefore, expressed his willingness to donate certain amount to the Government for construction of SA/21720/2007 3/12 JUDGMENT Maternity Hospital at Jetpur. The State Government, therefore, made a request before the plaintiff Gymkhana to spare some land out of its land for construction of the hospital and accordingly they have acceded to the said request. The plaintiff Gymkhana has passed resolution on 28.8.1963 to donate land admeasuring 3333.00 sq.yards for the purpose of construction of Maternity Hospital. After acceptance of the gift of land the Maternity Home and Staff Quarters were constructed by the Government over the land gifted by the Gymkhana. 3. Subsequently, the State Government has constructed the new hospital building at Mahatma Gandhi road at Jetput and had decided to shift the Maternity Home in the new hospital and the newly constructed Maternity Home was not used. It is also the say of the appellants that the State Government transferred this land to P.W.D. Department SA/21720/2007 4/12 JUDGMENT without any permission or prior intimation to the plaintiff and hence the State Government has committed breach of expressed conditions of the gift and changed the usage of the land. 4. The plaintiff Gymkhana, therefore, issued notice on 23.8.1984 calling upon the State Government to hand over the disputed land to the Gymkhana. Despite this notice, the Government failed to hand over the land and, therefore, the suit was filed claiming declaration that the State Government has no right to use the Gymkhana's land for any purpose other than the purpose for which it was gifted and the direction be given to the State Government to deliver the possession of the super structure alongwith the gifted land to the plaintiff 5. After completion of evidence of the parties and after considering the arguments made by SA/21720/2007 5/12 JUDGMENT the respective counsels the learned Civil Judge (S.D.) Gondal vide his order dated 19.2.1994 decreed the suit and ordered that the defendant – State Government is not entitled to change permanently the use of the Maternity Hospital Building and Staff Quarters situated on the land in question. The learned Civil Judge (S.D.) Gonadal rejected the prayer of recovery of actual possession of the gifted land together with superstructure. 6. Being aggrieved and dissatisfied with the said order of the learned Civil Judge (S.D.) Gondal the ori. plaintiff had filed an Appeal under Section 96 and Order 41 of the Code of Civil Procedure before the learned Asstt. Judge, Gonadal. The said Appeal came to be dismissed on 11.4.2007 and hence the present Second Appeal is filed by the ori. plaintiff. 7. Mr. R.R.Trivedi, learned advocate appearing SA/21720/2007 6/12 JUDGMENT for the appellants, has submitted that both the authorities have committed error apparent on the face of the record and they have also committed an error of law in arriving at the conclusion that the present appellants are not entitled to claim back possession of the disputed land. He has further submitted that both the Courts below have materially erred regarding the evidence led by the appellants wherein it is specifically stated that the land was donated for the specific purpose and when the said purpose was not observed by the respondent, the respondent is duty bound to hand over back possession to the appellants. He has further submitted that the learned Appellate Judge has recorded certain findings, which are not based on pleadings of the respondent and no evidence to that effect was led. The specific findings are, therefore, erroneous and deserve to be quashed and set aside. He has further submitted that the learned Appellate SA/21720/2007 7/12 JUDGMENT Judge has also misinterpreted the provisions contained in Section 126 of the Transfer of Property Act and wrongly concluded that since no condition is laid down with regard to the vesting of land back to the Gymkhana in case the Government is not using the land or converting its use, the land cannot be given back to the Gymkhana. He has, therefore, submitted that the entire interpretation is absolutely illegal and erroneous. He has, therefore, submitted that both the Courts below committed material error in appreciating the fact that even today Maternity Home is not used and it is lying in dilapidated condition and since years together it is unused. He has, therefore, submitted that the land is required to be given back to the appellants. In any case the questions framed by the appellants are required to be considered by this Court and hence the Appeal is required to be admitted. SA/21720/2007 8/12 JUDGMENT 8. In support of this submission Mr.Trivedi has relied on the decision of the Hon'ble Supreme Court in the case of State of U.P. Vs. Bansi Dhar and others, reported in AIR 1974 SC 1084, wherein it is held that the transaction was not a gift simpliciter but was subject to the matching grant from Government, building having to be made with such augmented amount by the donor etc. Assuming substantial compliance as sufficient in law, the Government had no case that any of the conditions has been carried out, not even the equal contribution from the State exchequer without which the construction of the hospital would have been a half done project. Thus the conditions failing, the charity proved abortive, and the legal consequences was a resulting trust in favour of the donor. The State could not keep the money and the suit was liable to be decreed. 9. Mr.Trivedi further relied on the decision of SA/21720/2007 9/12 JUDGMENT the Hon'ble Supreme Court in the case of Kishor Kirtilal Mehta and others Vs. Lilavati Kirtilal Mehta Medical Trust and others, reported in (2007) 10 SC 21 in support of his submission that if there is no pleading no evidence can be believed and it is to be discarded. The Hon'ble Supreme Court has held that by and large, which part of the evidence is to be discarded as being outside the pleadings is something that the court considers when it discusses the evidence. There cannot be any doubt that no amount of evidence can be looked into on a plea never put forward. 10. Based on the aforesaid factual and legal position Mr.Trivedi submitted that the Appeal deserves to be admitted and substantial questions of law be framed for determination and consideration of this Court. 11. Ms.Asmita Patel, learned Assistant SA/21720/2007 10/12 JUDGMENT Government Pleader appearing for the respondent on the other hand supported the orders passed by the Courts below and submitted that since there is concurrent finding given by the Courts below no question of law, much less any substantial question of law arises from the orders of Courts below. The Appeal deserves to be dismissed at the threshold. 12. Having heard learned advocates appearing for the respective parties and having gone through the orders passed by the Courts below, the Court is of the view that the land was gifted in 1963, construction of Maternity Hospital was made and it was run for number of years. Thereafter, for some better facilities new building was constructed by the State Government and hospital was shifted. By virtue of this, the building which was used as Maternity Hospital was not required to be used and hence it was lying SA/21720/2007 11/12 JUDGMENT vacant. The learned Trial Judge has, therefore, rightly come to the conclusion that the building was not to be used for none other than the purpose for which it was given. At the same time, the learned Trial Judge has taken the view that there was no such condition in the deed of gift that the land should be given back to the donor if it is not used for the purpose of running Maternity Hospital. The learned Appellate Judge has threadbare discussed the entire issue and considering the relevant factual and legal position has come to the conclusion that the building may be used in future when it is required or in case when newly constructed hospital is not adequate to meet with the requirement of the patients. There is no substance in the contention that such a pleading was not made and still the learned Appellate Judge has considered. The whole issue before the Court was that there was no violation of the conditions and hence to SA/21720/2007 12/12 JUDGMENT justify this contention, the submission was made before the Appellate Court and it was considered accordingly. The Court is, therefore, of the view that both the Courts below have taken correct view in the matter and it does not require any interference by the Court by entertaining this Second Appeal under Section 100 of the Civil Procedure Code. The judgments relied on by the appellants' advocate would not render any assistance to the case of the appellants. The Court is of the view that no question of law, much less, substantial question of law arises out of the orders of the Courts below. 13. The Appeal is accordingly dismissed. (K. A. PUJ, J.) kks