All the four appeals captioned above have similar facts and identical issues involved in them. Therefore, they were heard together at the admission stage and are being disposed of by this common judgment. 2. Second Appeal No.223 of 2012 corresponds to judgment and decree/order in Regular Civil Appeal No.35 of 2010 which arose from judgment and decree in Regular Civil Suit No.284 of 1999. Similarly, Second Appeal No.224 of 2012 relates to Regular Civil Appeal No.37 of 2010, judgment and decree/order in which was from Regular Civil Suit No.286 of 1999. Second Appeal Nos.225 of 2012 and 226 of 2012, arises from judgment and decree/order in Regular Civil Appeal No.36 of 2010 and Regular Civil Appeal No.38 of 2010 respectively, which in turn arose from Regular Civil Suit No.285 of 1999 and Regular Civil Suit No.287 of 1999 respectively. In all cases, the judgment and decree/order dismissing the respective suits was passed by learned Principal Senior Civil Judge, Jamnagar on 25th February, 2010. The respective appeals came to be dismissed by learned Principal District Judge, Jamnagar in all cases on 17th March, 2012.
3. The facts of Regular Civil Suit No.284 of 1999 corresponding to Regular Civil Appeal No.35 of 2010 from which Second Appeal No.223 of 2012 arises may be set-out as representative. Plaintiff-Harjibhai Jivabhai Harijan of the said suit put-forth his case that land bearing surey No.373 Paiki admesuring 5 Acre 5 Gunthas situated in Village Kanalus, Taluka Lalpur, District Jamnagar was of his ownership and under his possession since last 16 years. It was his case that the said land was granted to him by Collector by virtue of order dated 19th March, 1983. It was his case that the land was granted in Santhani. It was his further case that he was cultivating the land. He stated that the defendants were trying to defeat his rights over the land and it was being handed over to defendant No.1 company and the procedure was undertaken behind his back. For the cause of action to institute the suit, it was stated that since 16 years the plaintiff was holding land as owner and occupier, but recently the authorities were trying to defeat his rights, which had given him the cause to institute the suit.
3.1 The suit prayers were for the relief of declaration and injunction. It was prayed that it be declared that the procedure undertaken by defendant Nos.2 to 5 in respect of the suit land was illegal and against rules. A further declaration was asked for that the defendants were not entitled to hand over the suit land to defendant No.1 company without adopting proper procedure. A permanent injunction was also prayed for to restrain the defendants from interfering with the plaintiff's possession and cultivation.
3.2 The defendant No.1 company filed its written statement at Exhibit 24 and denied the suit of the plaintiff. It was contended that the suit land was entered in the record as government waste land since years and it was not true that plaintiff was in possession thereof since 16 years as alleged. Village Form No.7/12 for the years 1980-81 to 1998-99 were produced to showed that the land stood in the name of government. It was also stated that the company had applied on 16th May, 1996 to the Collector for grant of land for utilising it for the purpose of its refinery projects and incidental use. It was further contended that on the measurement being undertaken by District Inspector for Land Records as well as, as per the Gram Panchayat Resolution passed on 11th April, 1997, the land was treated to be Government waste land. The company stated that as per order dated 09th July, 1999, it had paid amount of Rs.02,07,00,000/- being the price determined for allotment of land which was paid on 15th July, 1999.
3.3 The defendant-State Government also filed its written statement at Exhibit 28 to contend that the plaintiff was never put into possession of the land. The land was never entered in his name. It was asserted that the land was with the government.
3.4 The suit land involved in Regular Civil Suit No.286 of 1999 was survey No.376 admesuring 3 Acre 13 Gunthas situated in the same village. Similarly, in the Civil Suit No.285 of 1999 land bearing survey No.373 Paiki Part B with survey No.395 admesuring 2 Acre 34 Gunthas. In Civil Suit No.287 of 1999 survey No.258 admesuring 4 Acre 23 Gunthas was the subject matter. The suits were instituted on similar averments and contentions.
3.5 It appears that upon application (Exh.33) an order dated 16th September, 1999 was passed by the Trial Court to carry out Panchnama. The Panchnama was carried out by the Court Commissioner. It may be further noted that this Court while issuing Notice, passed an order on 20th February, 2013 requiring appointment of Court Commissioner and directed the Court Commissioner to measure the land, prepare Panchnama and submit a report. The Court Commissioner submitted a report along with map which were placed on record. The record and proceedings were also called for by this Court.
3.6 The Trial Court framed issues at Exhibit 40. The respective suits were dismissed. The Trial Court found that the plaintiff in each suits were not in possession. The first appellate court concurred with the findings and conclusions recorded by the Trial Court and dismissed the respective appeals. Accordingly the original plaintiffs have approached this Court by preferring Second Appeals invoking powers under Section 100 of the Code of Civil Procedure, 1908.
4. Heard learned advocate Mr.P.M. Lakhani for the appellant in each of the appeals and learned senior counsel Mr.K.S. Nanavati assisted by learned advocate Mr.Keyur Gandhi for Nanavati Associates for respondent No.1 company, and learned Assistant Government Pleader for respondent Nos.2 to 4.
4.1 Learned advocate for the appellant submitted that the land was granted to the plaintiff in Santhani by an order competently passed. He emphasised that the said order was never cancelled. He submitted that without cancellation of the order, forfeiture was not permissible. He further submitted that even if the respondent government authorities wanted to resume the land, it ought to have been only by following the due process of law. He further submitted that the plaintiff was in possession and he also cultivating the land, for which, he relied on the report of the Court Commissioner (Exh. 53). He next submitted that it was during the pendency of the suit instituted by the plaintiff, that the Collector allotted the land to respondent No.1 Company.
4.2 On the other hand, learned senior counsel supported the judgments of the courts below on the ground that concurrent findings were recorded. He further submitted that the plaintiff could not establish semblance of right, much less a factum of possession in respect of the suit land. He submitted that the land was granted to the company for industrial purpose on payment of price therefor, that the same was in use for that purposed and was part of the precincts of the refinery of the company. He further submitted that the suit praying only a declaratory relief without consequent relief was not maintainable under Section 34 of the Specific Relief Act. He next submitted that the concurrent findings were recorded by both the Courts below on the basisof cogent and convincing evidence.
4.3 Before proceeding to consider the contentions, surveying briefly the relevant evidence before the Courts below, they included order of grant of land to the plaintiff (Exh.40), Panchnama drawn by Court Commissioner (Exh.53), evidence of Court Commissioner (Exh.57), Resolution of the Gram Panchayat (Exh.66), order dated 22nd February, 1999 whereby the land came to be allotted to respondent No.1 (Exh.67), order of the Collector indicating the price fixed in respect of the lands allotted (Exh.68), receipt of payment of price by respondent No.1 company (Exh.69), possession receipt dated 21st September, 1999 (Exh.71) as well as the copies of the revenue records (Exh.74 and 75), plaintiff of Civil Suit No.284 of 1999 gave his evidence at Exhibit 45, whereas the other oral evidence included Exhibit 61 being the evidence of witness of defendant No.1 and Exhibit 76 being the evidence of Mamlatdar.
5. This Court considered the facts of the case, material on record, and went through to the judgments of the Courts below. The order dated 19th March, 1983 on which the plaintiff based his suit and the relief was an order whereunder the Collector at the relevant point of time granted different lands to different persons named in the order in Santhani, which was subject to the conditions mentioned in the order itself required to be fulfilled. Categorical finding arrived at by both the Courts below was that the conditions of the order of grant were never complied with. It was recorded that plaintiff was not in possession, which was shown from plaintiff’s own evidence (Exh.45). In paragraph 10 of the judgment, the Trial Court extracted the relevant part of the said evidence. Therefrom, it was seen that there was a clear admission on part of the plaintiff that he did not obtain Rajachitthi. One of the conditions of the order of the grant of land dated 19th March, 1983 (Exh.40) was that the grantee would be entitled to enter upon the possession of the land only after Rajachitthi is granted by the Mamlatdar. The other conditions of the order of the grant included that land would be liable to be forfeited if it remained uncultivated for three consecutive years, that the land was required to be cultivated within two years.
5.1 Besides the admission that no Rajachitthi was ever obtained, it was also accepted by the plaintiff that Sanad was not available. Furthermore, no evidence could be produced by the plaintiff such as bill of purchase of seeds, fertilizer, agricultural equipments or anything to support the case of cultivation of land. Nothing was produced to show that any corps was raised in the land. In absence of Rajachitthi and Sanad issued, and non observance of the conditions of the grant, the possession of the plaintiff was not established. It was inescapable conclusion that the plaintiff was not in possession and on his own showing he never entered into possession pursuant to the grant. The revenue record showed name of the Government in respect of the land in question. It was for the first time in the year 1978-79 that plaintiff wanted to get his name mutated in the revenue record.
5.2 It was further recorded by both the Courts below that Panchnama of the Court Commissioner did not show that the land was cultivated. Nor it showed anything about plaintiff’s possession of the land. Incidentally report of the Court Commissioner produced on record pursuant to order passed by this Court mentioned hereinabove also did not bring out anything to help establish plea of the plaintiff that he was in possession of the land. On the contrary position shown on evidence was otherwise. Thus there was no evidence worth the name produced by the plaintiff or on record which could establish the case of the plaintiff about his possession and cultivation of the suit land.
6. The order of grant passed in 1983 (Exh.40) was found to be never acted upon. In that view the contention of learned advocate for the appellant that right of the plaintiff survived over the land because order dated 19th March, 1983 was not cancelled, was without any substance and was of no avail. The finding recorded by the Trial Court and confirmed by the first appellate court that the plaintiff was never in possession of the suit land and he did not cultivate it were the findings eminently emanating from the evidence and material on record. The plaintiff could not establish any right in respect of the suit land much less ownership right. In his suit he did not challenge the order of allotment of the land to defendant No.1 company who came to be allotted the land upon fixation of price which was paid by it and a Kabja Chitthi was issued. In view of the position revealed from record that the plaintiff was not in possession of the land as sought to be claimed by him, the contention of the learned senior counsel for the respondent No.1 that the suit was not maintainable in view of Section 34 of the Specific Relief Act when only declaratory relief was claimed without praying consequential prayer for possession, could not be brushed aside and merited acceptance.
7. The evidence in each case proceeded similarly and the findings were recorded and the conclusions were reached by both the Courts below in all cases resulting into dismissal of the respective Suits and the Regular Civil Appeals. As the evidence was similar in all cases, it was not necessary to discuss it separately and accordingly the evidence from the record of First Appeal No.223 of 2012 has been highlighted hereinabove. In view of commonality of facts, pleadings, case of the parties, issues and findings, as well as the conclusions reached in all cases, what is held herein shall apply to all cases and all the appeals shall be governed by this common oral judgment.
8. It is well settled that the finding on the issue of possession is in its nature, a finding of fact. Honourable the Supreme Court in Mohan Lal Vs Nihal Singh [AIR 2001 Supreme Court 2942], while reiterating the principle that in Second Appeal under Section 100 of the Code of Civil Procedure, 1908 interference with the concurrent findings of fact would not be justified, observed that the question of possession of suit land is essentially one of fact.
8.1 In the present case in recording the concurrent findings, the Courts below neither ignored any material evidence, nor drawn any wrong inference from any proved fact or recorded any finding which is unsupported by any evidence. In view of above, no question of law much less any substantial question of law arises in the present Second Appeals. No case is made out for interference in the impugned judgment and order.
9. As a result, impugned judgment and decree passed by the first appellate court confirming the judgment/decree of the Trial Court is upheld. The present Second Appeals are liable to be dismissed and they are hereby dismissed. Notices are discharged in each of the Appeals.
The Registry shall send back the record and proceedings.
(N.V.ANJARIA, J.) Anup