IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 181 of 1981 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= Whether Reporters of Local Papers may be allowed
1 to see the judgment ? YES
2 To be referred to the Reporter or not ? NO Whether their Lordships wish to see the fair
3 copy of the judgment ? NO Whether this case involves a substantial question of law as to the interpretation of the
4 constitution of India, 1950 or any order made thereunder ? NO Whether it is to be circulated to the civil
5 judge ? NO ========================================================= PATEL MANJIBHAI PANCHANBHAI - Appellant(s) Versus ANJNA RASANGHBHAI DANABHAI & 5 - Defendant(s) ========================================================= Appearance :
MS JIRGA D JHAVERI for Appellant(s) : 1, DELETED for Defendant(s) : 1, NOTICE SERVED for Defendant(s) : 2 - 3, 5, MR SP MAJMUDAR for Defendant(s) : 4, 6, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 18/06/2012
ORAL JUDGMENT
1.00. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the original defendant - now heirs and legal representatives of the original appellant to quash and set aside the impugned Judgement and Order passed by the learned appellate court in Regular Civil Appeal No. 23 of 1978 by which the learned appellate court has confirmed the judgement and decree passed by the learned trial court and allowed the Cross-Objections filed by the original plaintiff with respect to mesne profit.
2.00. That the respondents herein – original plaintiffs instituted Regular Civil Suit No.341 of 1973 against the original defendant - appellant herein in the court of learned Civil Judge (J.D.), Banaskantha at Palanpur for possession of the suit land as well as claiming damages / mesne profit at the rate of Rs.1000/- per year towards the income of the suit land contending inter-alia that they are owners of the disputed land in question on the basis of the Parwana issued by the Palanpur State and that the defendant has illegally mutated his name in the revenue record and has taken the possession. That the suit was resisted by the defendants by filing Written Statement at Ex.12 denying the allegations in the suit. It was the case on behalf of the defendant that he is the owner of the suit land in question and for that he relied upon Mutation Entry in the revenue record and his possession. That the learned trial court framed the issues at Ex.15 and that on behalf of the plaintiffs, Shamalbhai Rajsangbhai came to be examined at Ex.40; Hirabhai Dalabhai came to be examined at Ex.68 and Jaimalsing Sursing came to be examined at Ex.69. That on behalf of the defendant, Jethalal Urgabhai Parmar came to be examined at Ex.81; Ramanpuri Ganpatpuri Swami came to be examined at Ex.85; Manji Panchan came to be examined at Ex.91; Premji Jita came to be examined at Ex.93; Jivram Chelaram came to be examined at Ex.94 and Ratanjibhai Mulji came to be examined at Ex.95.
2.01. That documentary evidences were also produced inclusive of the Parwana issued by the Palanpur State dtd.23/2/1938 and that on appreciation of evidence and replying upon the Parwana Ex.43 dtd.23/2/1928, the learned trial court held that the plaintiffs are the owners of suit land in question and therefore, they are entitled to possession and ultimately decreed the suit and with respect to the damages / mesne profit, the claim of the plaintiffs at the rate of Rs.1000/- per year, the learned trial court held that as there is no clear evidence about the income derived by the defendant for cultivating the suit land in last 3 years and hence the inquiry be held with respect to the amount of mesne profit which the plaintiffs would be entitled to get for a period of 3 years from the date of filing of the suit and till the plaintiffs get the possession of the suit land. Consequently the learned trial court decreed the suit by the judgement and decree dtd.17/4/1978.
2.02. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned Civil Judge (J.D.), Banaskantha at Palanpur in Regular Civil Suit No.341 of 1973 dtd.17/4/1978, appellants herein – original defendant preferred Regular Civil Appeal No. 23 of 1978. The original plaintiffs also filed Cross-Objections against the judgement and decree passed by the learned trial court in so far as not granting mesne profit for last 3 years at the rate of Rs.1000/- per year. That by the impugned Judgement and Order the learned appellate court has dismissed the appeal preferred by the appellant – original defendant confirming the judgement and decree passed by the learned trial court and allowed the Cross-Objections filed by the plaintiff directing the original defendant to pay mesne profit at the rate of Rs.1000/- per year for 3 years from the date of filing of the suit.
2.03. Being aggrieved by and dissatisfied with the Judgement and Order passed by the learned appellate court, the appellant – original defendant has preferred present Second Appeal under section 100 of the Code of Civil Procedure.
2.04. As stated above, during the pendency of the appeal, appellant – original defendant has died and therefore, his heirs are brought on record.
2.05. Ms.Jirga Jhaveri, learned advocate appearing on behalf of the appellant – original defendant has vehemently submitted that both the courts below have materially erred in not deciding the dispute with respect to title over the suit land on the basis of Parwana issued by the Palanpur State as against the occupancy rights recorded with respect to suit land in favour of Hirabhai Panachand and Manabhai Panachand. It is submitted that both the courts below have materially erred in holding the plaintiffs to be owners of the suit land in question on the basis of the Parwana. It is submitted that when the defendant was found to be in possession and his name was mutated in the revenue record as owner and when he was found to be in possession since many years, the learned trial court ought not to have passed decree in favour of the plaintiffs holding that the plaintiffs are owners of the land in question.
2.06. Ms.Jhaveri, learned advocate appearing on behalf of the defendant has further submitted that in any case, the learned appellate court has materially erred in allowing the Cross-Objections and directing the defendants to pay mesne profit at the rate of Rs.1000/- per year more particularly when there was no evidence led with respect to actual income derived by the defendant by cultivating the suit land in question. It is submitted that the order passed by the learned trial court on the mesne profit was not required to be interfered with by the learned appellate court.
By making above submissions, it is requested to allow the present Second Appeal.
3.00. Present Second Appeal is opposed by Mr.S.P. Majmudar, learned advocate appearing on behalf of the contesting respondent. It is submitted that as such there are concurrent finding of facts given by both the courts below holding the plaintiffs to be owner of the suit land in question and therefore, the same are on appreciation of evidence more particularly considering the Parwana issued by the Palanpur State dtd.23/2/1938 Ex.43. It is further submitted that the defendant has solely relied upon the Mutation Entry in the revenue record and the plaintiffs are claiming ownership on the basis of the Parwana issued by the Palanpur State giving land to the plaintiffs and therefore, the plaintiffs have better title than the defendant. It is submitted that as per the settled proposition of law, mere Mutation Entry in the revenue record does not confer ownership and/or any right title and/or interest. However, Mr.Majmudar, learned advocate appearing on behalf of the original plaintiffs is not in a position to justify the impugned Judgement and Order passed by the learned appellate court in so far as awarding mesne profit at the rate of Rs.1000/- per year for last 3 years from the date of filing of the suit and till the possession is handed over to the plaintiff, is concerned. He is also not in a position to point out any evidence on record to show that the actual income derived by the defendant from cultivation of the suit land in question.
4.00. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned Judgement and Order passed by both the courts below in detail, documentary as well as oral while admitting the present Second Appeal.
5.00. At the outset, it is required to be noted that as such there are concurrent findings of fact given by both the courts below holding the original plaintiffs to be owners of suit field and the said findings of fact are on appreciation of evidence which are not required to be interfered with by this Court in exercise of powers under section 100 of the Code of Civil Procedure. Even otherwise, considering the evidence on record, more particularly the Parwana issued by Palanpur State dtd.23/2/1938 Ex.43, it cannot be said that the courts below have committed an error and/or illegality in holding the plaintiffs to be the owners of the suit land.
5.01. Ms.Jhaveri, learned advocate appearing on behalf of the appellant – defendant is not in a position to point out that the finding of facts given by both the courts below holding the plaintiffs to be owner, is perverse and/or contrary to the evidence on record. It appears that the original defendant claimed ownership on the basis of his name being mutated in the revenue record and showing him to be in possession. On the other hand, the original plaintiffs are claiming ownership on the basis of Parwana issued by the Palanpur State dtd.23/2/1938 Ex.43. It cannot be disputed that as per the settled proposition of law, solely on the basis of mutation entry in the revenue record, the person whose name is mutated in the revenue record cannot claim ownership and/or right, title or interest in the property / land and the Mutation Entry in the revenue record is for fiscal purpose for collection of revenue. As against that the Parwana issued by the Palanpur State can be said to be a document having better title. Under the circumstances, certainly the Parwana issued by the Palanpur State would have higher evidential value to prove ownership as against Mutation Entry in the revenue record.
5.02. Even it is also required to be noted and it has come on record that while mutating the name of the defendant in the revenue record, no notice as required under section 135(D) of the Bombay Land Revenue Code was issued.
5.03. Considering the facts and circumstances of the case, as such it cannot be said that both the courts below have erred in holding the plaintiffs to be the owners of the suit filed in question and rejecting the claim of the defendant as owner. Under the circumstances, the Judgement and Orders passed by both the courts below are not required to be interfered with by this Court in so far as holding the plaintiffs to be owners of the suit field in question and consequently decreeing the suit for possession.
5.04. Now so far as the impugned Judgement and Order passed by the learned appellate court on the Cross-Objection filed by the original plaintiffs and granting mesne profit to the plaintiffs at the rate of Rs.1000/- per year is concerned, it appears that the learned appellate court has committed an error in granting mesne profit to the plaintiffs at the rate of Rs.1000/- per year, as in fact, no evidence has been led by the plaintiffs to prove the actual income derived by the defendant by cultivating the suit field in question. Unless and until evidence is led with respect to actual income derived by cultivating the suit field in question, no mesne profit could have been granted to the plaintiffs. Under the circumstances, as such the learned trial court was justified in directing to hold an inquiry with respect to mesne profit. It appears that the learned appellate court has awarded mesne profit on surmises, conjectures and presumption, which is not permissible. While awarding mesne profit, Court is required to consider evidence on record with respect to damage/loss caused by the plaintiffs and for that the plaintiffs were required to lead evidence to show the benefit derived by the other party during the pendency of the suit. Under the circumstances, the impugned Judgement and Order passed by the learned appellate court in allowing the Cross-Objections filed by the plaintiff and awarding mesne profit to the plaintiffs at the rate of Rs.1000/- per year, cannot be sustained and the same deserves to be quashed and set aside and the judgement and decree passed by the learned trial court with respect to the mesne profit is required to be restored.
5.05. In view of the above and for the reasons stated above, present Second Appeal succeeds in part. The judgement and decree passed by the learned trial court confirmed by the learned appellate court holding the plaintiffs to be owners of the suit land in question and consequently passing decree for possession is hereby confirmed. However, the impugned judgement and order / decree passed by the learned appellate court allowing the Cross-Objection and directing the defendant to pay mesne profit at the rate of Rs.1000/- per year to the plaintiffs is hereby quashed and set aside and the judgement and decree passed by the learned trial court to hold an inquiry with respect to mesne profit is hereby restored, meaning thereby the judgement and order / decree passed by the learned appellate court – learned District Judge, Banaskantha at Palanpur in Regular Civil Appeal No. 23 of 1978 is hereby restored. No costs.
[M.R. SHAH, J.] rafik