[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been preferred by the appellants herein – heirs and legal representatives of original plaintiff challenging the impugned judgment and order dated 07.07.2007 passed by the learned Appellate Court – learned Additional District Judge, Dhrangadra in Regular Civil Appeal No.5 of 2000 by which the learned Appellate Court has allowed the said appeal preferred by the respondent herein – defendant – Gram Panchayat and has quashed and set aside the judgment and decree dated 30.10.1998 passed by the learned Civil Judge (Junior Division), Patdi in Regular Civil Suit No.78 of 1993 by which the learned trial Court has decreed the said suit preferred by the original plaintiff granting permanent injunction as prayed for restraining the respondent herein – original defendant, its agents and servants from removing and/or demolishing the suit property and disturbing the possession of the plaintiff. [2.0] That it appears that the respondent Panchayat passed a resolution dated 28.10.1975 to give on lease the disputed land admeasuring 10 x 10 feet to the original plaintiff initially upto 31.03.1977 at the monthly rent of Rs.5/ and consequently the original plaintiff was put in possession who put his cabin. It appears that the said lease came to be extended from time to time till 1990 when the then Sarpanch served a notice upon the original plaintiff calling upon the plaintiff to remove the encroachment and/or unauthorized occupation or if the plaintiff is interested in getting his possession regularized by purchasing the same then to inform the Panchayat in writing. It appears that the original plaintiff replied to the same by reply dated 15.09.1990 submitting that he cannot be said to be in unauthorized occupation and/or it cannot be said that he has encroached upon the suit land. It appears that despite the same, the plaintiff was apprehending that the Panchayat will remove him and/or disturb his possession and therefore, plaintiff instituted Regular Civil Suit No.78 of 1993 in the Court of Civil Judge (Junior Division), Patdi for permanent injunction and the learned Civil Judge (Junior Division), Patdi by judgment and decree dated 30.10.1998 allowed / decreed the said suit and granted permanent injunction as prayed for.
[2.1] Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court, the respondent herein – original defendant preferred Regular Civil Appeal No.5 of 2000 before the learned District Court, Surendranagar which came to be heard by the learned Additional District Judge, Dhrangadra and by impugned judgment and order dated 07.07.2007, the learned Appellate Court has allowed the said Appeal and has quashed and set aside the judgment and decree passed by the learned trial Court mainly on the ground that the lease in favour of the plaintiff was illegal and that the Panchayat had no right to allot the land to any individual person on rent or any other means against the public interest.
[2.2] Feeling aggrieved and dissatisfied by the judgment and order passed by the learned Appellate Court in allowing the said Appeal and quashing and setting aside the judgment and decree passed by the learned trial Court, the appellant herein – heirs and legal representatives of the original plaintiff have preferred the present Second Appeal under Section 100 of the CPC.
[3.0] Ms. Laxmi Nainani, learned advocate appearing on behalf of the appellants has vehemently submitted that the learned Appellate Court has materially erred in allowing the Appeal and quashing and setting aside the judgment and decree passed by the learned trial Court. It is submitted that the learned Appellate Court has materially erred in allowing the Appeal on the ground that the Panchayat had no authority / right to allot the land and/or give on rent to the original plaintiff. It is submitted that as such the action of the Panchayat to give on lease the suit land was not the subject matter of suit and even that was not issue and therefore, the learned Appellate Court has gone beyond the issues involved in the suit.
[3.1] It is submitted that as such the original plaintiff was in possession of the disputed land in question on which the cabin was put by the plaintiff since 1975 at the monthly of Rs.5/ on the basis of the resolution passed by the Panchayat and therefore, the plaintiff cannot be said to be in illegal and/or unauthorized occupation of the suit premises. Therefore, it is submitted that even if the plaintiff and/or the appellants are to be removed, the Panchayat was required to follow the procedure as required under the provisions of the Gujarat Panchayat Act or under the provisions of Gujarat Public Premises Eviction of Unauthorized Occupants Act. Therefore, it is requested to allow the present Second Appeal and restore the judgment and decree passed by the learned trial Court.
[4.0] Shri M.S. Rao, learned advocate has appeared on behalf of the respondent Panchayat and has tried to oppose the present Second Appeal. However, is not in a position to dispute that the suit land in question was given on lease to the original plaintiff at the monthly rent of Rs.5/ pursuant to the resolution passed by the Panchayat. He is also not in a position to dispute that the original plaintiff was in possession of the suit land on lease since 1975. However, has submitted that judgment and decree passed by the learned trial Court permanently restraining the Panchayat from taking possession of the suit land from the appellants – original plaintiff cannot be sustained. It is submitted that after following due procedure as required either under the provisions of the Gujarat Panchayat Act or under the provisions of Gujarat Public Premises Eviction of Unauthorized Occupants Act, if the lease is terminated and/or not extended, the plaintiff can be removed.
[5.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted that the original plaintiff is in possession of the suit land admeasuirng 10 x 10 feet as a lessee at monthly rent of Rs.5/ pursuant to the resolution passed by the respondent dated 28.10.1975 and thereafter the lease in favour of the plaintiff has been extended from time to time till notice dated 15.09.1990 issued by the Sarpanch of the Panchayat was served upon the plaintiff. Therefore, as such it cannot be said that the original plaintiff had encroached upon the suit land and/or was in unauthorized occupation of the suit land. Therefore, even if the plaintiff was required to be removed either on expiry of the lease period and/or on terminating the tenancy and/or on any other ground, before evicting the plaintiffs (now the appellants) as such the Panchayat is required to follow the procedure as required under the provisions of the Gujarat Panchayat Act or under the provisions of Gujarat Public Premises Eviction of Unauthorized Occupants Act. However, the plaintiffs (now the appellants) cannot be removed by the Panchayat without following any due procedure as required. It is true that the learned trial Court has granted the permanent injunction permanently restraining the Panchayat from taking possession of the suit land from the plaintiff, which also cannot be sustained and the Panchayat shall be at liberty to take possession from the appellants after following due procedure as required under the provisions of the Gujarat Panchayat Act or under the provisions of Gujarat Public Premises Eviction of Unauthorized Occupants Act and to that extent judgment and decree passed by the learned trial Court deserves to be modified. However, the judgment and order passed by the learned Appellate Court also cannot be sustained.
[6.0] In view of the above and for the reasons stated above, present Second Appeal succeeds in part. Impugned judgment and decree dated 30.10.1998 passed by the learned Civil Judge (Junior Division), Patdi in Regular Civil Suit No.78 of 1993 as well as the judgment and order dated 07.07.2007 passed by the learned Appellate Court – learned Additional District Judge, Dhrangadra in Regular Civil Appeal No.5 of 2000 are hereby modified to the extent that the respondent Panchayat is restrained from removing the appellants and/or taking possession from the appellants without following any procedure of law either under the provisions of the Gujarat Panchayat Act or under the provisions of Gujarat Public Premises Eviction of Unauthorized Occupants Act either on the ground that lease has not been extended or on the ground that the tenancy has been terminated or on other ground and it will be open for the Panchayat to take back the possession from the appellants after following due procedure as required either under the provisions of the Gujarat Panchayat Act or under the provisions of Gujarat Public Premises Eviction of Unauthorized Occupants Act and as and when such proceedings are initiated, the same shall be considered in accordance with law and on merits. Present Second Appeal is allowed to the aforesaid extent. No costs.
CIVIL APPLICATION NO.2772 OF 2008 In view of disposal of main Second Appeal, no order in Civil Application No.2772 of 2008.
(M.R. Shah, J.) menon