1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants-
original defendants to quash and set aside the impugned judgment and decree passed by the learned 3rd Civil Judge (Junior Division), Modasa dated 13/04/2000 in Regular Civil Suit No. 225/1993 as well as the impugned judgment and order passed by the learned appellate Court-learned Extra Assistant Judge, Sabarkantha Camp at Modasa dated 12/10/2004 in Civil Appeal No. 22/2000 by which the learned appellate Court has dismissed the said appeal preferred by the appellants-original defendants and has confirmed the judgment and decree passed by the learned trial Court decreeing the suit.
2. The respondent-original plaintiff-Bhudasan Gram Panchayat, who was handed over the possession of the suit property by the State Government for management, gave the land to the appellants-original defendants from 1977 to 1978 under public auction for plantation and subsequently when the period under which the land was given to the appellants- original defendants had expired, despite notice the appellants- original defendants did not handover possession of the suit property to the respondent-original plaintiff from whom the possession was taken by them, the respondent-original plaintiff-Gram Panchayat instituted Regular Civil Suit No. 225/1993 against the appellants-original defendants in the Court of learned Civil Judge (Junior Division), Modasa for recovery of possession of the suit land. It is required to be noted that till the evidence of the respondent-original plaintiff was recorded the appellants-original defendants did not file the written statement, which came to be filed subsequently at a belated stage at Exh. 53. The suit was resisted by the appellants-original defendants by filing the written statement at Exh. 53 mainly on the ground that the suit is barred by the law of limitation; the suit is bad for non-joinder of proper parties (State Government) and also on the ground that as such they are the owners of the suit property. The learned trial Court framed the issues. Both the sides led the evidence, oral as well as documentary. On behalf of the respondent-original plaintiff, the order passed by the State Government to handover possession to the Panchayat for management and plantation came to be produced. On behalf of the respondent- original plaintiff notice was served upon the appellants-original defendants to vacate the suit premises and even the auction proceedings under which possession was given to the appellants-original defendants were also produced on record. On behalf of the appellants-original defendants documentary evidence at Exhs. 75 to 83 were produced, inclusive of the order dated 10/11/1947 by Dabha Thakore as well as the office order dated 25/11/1947 by Dabha Thkore to allot/give the land bearing Survey Nos. 460 and 482 to Somaji, the father original defendants nos. 2 and 3. On appreciation of evidence, the learned trial Court held all the issues against the appellants- original defendants and in favour of the respondent-original plaintiff and consequently decreed the suit for possession as well as for mesne profit. On appreciation of evidence, the learned trial Court held that the appellants-original defendants have failed to prove that their father had become the owner of the land bearing Survey Nos. 460 and 482 on the basis of the order issued by Dabha Thakore. Consequently the learned trial Court decreed the suit. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court- learned 3rd Civil Judge (Junior Division), Modasa dated 13/04/2000 in Regular Civil Suit No. 225/1993, the appellants- original defendants preferred Regular Civil Appeal No. 22/2000 before the learned Assistant Judge, Sabarkantha and the learned appellate Court by impugned judgment and order dated 12/10/2004 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court decreeing the suit. Being aggrieved and dissatisfied with the impugned judgment and orders passed by both the Courts below the appellants-original defendants have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3. Shri Jay Thakar, learned advocate appearing on behalf of the appellants-original defendants has vehemently submitted that both the Courts below have materially erred in solely relying upon the record of rights and decreed the suit in favour of the Panchayat holding that the Panchayat is the owner of the suit land. Relying upon the decision of this Court in the case of Sankalchand Jaychandbhai Patel & Ors VS. Vithalbhai Jaychandbhai & Ors. reported in 1997 (2) GLR 1041 it is submitted that both the Courts below have materially erred in relying upon the revenue record only. It is further submitted by Shri Jay Thakar, learned advocate appearing on behalf of the appellants-original defendants that even according to the Panchayat the State Government was the owner of the suit land in question and there was no documentary evidence on record to show that the land in question was given to the Panchayat by the State Government and when the State Government was not joined as party defendant in the suit the learned trial Court ought not to have dismissed the suit by holding that the suit is bad for non-joinder of necessary party.
3.1. It is further submitted that as such both the Courts below have not disputed the documents produced at Exhs. 75 and 76 issued by the then Dabha Thakore under which the lands in question were given to the father of original defendants nos. 2 and 3 in the form of 'nazrana' and, therefore, the learned trial Court ought not to have decreed the suit when the original defendants were the owners of the land in question. Making the above submissions and relying upon the above decision, it is requested to admit/allow the present Second Appeal.
4. Heard Shri Jay Thakar, learned advocate appearing on behalf of the appellants-original defendants and considered the impugned judgment and orders passed by both the Courts below as well as the evidence on record from the Record and Proceedings available from the learned trial Court. At the outset, it is required to be noted that while admitting the present Second Appeal, the learned Single Judge has framed the following substantial question of law;
“Whether the Courts below erred in not adjudicating on the question as to the suit being bad for non-joinder of necessary parties” and “whether the Courts below erred in holding that the suit was not time-barred.”
4.1. Being a Second Appeal under Section 100 of the Code of Civil Procedure this Court is required to consider the substantial question of law framed while admitting the Second Appeal and, therefore, as such, this Court is required to consider the aforesaid substantial question of law only.
4.2. From the documentary evidence on record, it appears that the suit lands in question were given to the appellants-
original defendants and/or alloted to them under public auction in which they participated and being the highest offerer they were given the lands for plantation under the State Government Scheme and the management of which was given to the Panchayat. Number of documentary evidences are on record to show that all the appellants-original defendants participated in the auction proceedings and even the auction proceedings bear their signatures. It is to be noted that the lands in question were given to the appellants-original defendants right from 1977 to 1978 under public auction, which came to be renewed from time to time on fresh public auctions. At no point of time the appellants-original defendants claimed that their father was the owner of the suit land pursuant to the orders issued by the then Dabha Thakore. On the contrary all throughout the Government is considered to be the owner and the management of the suit land has been given to the Panchayat for plantation under the State Government scheme and the respondent-original plaintiff- Bhudasan Gram Panchayat allotted the suit land in question after holding public auction in which the appellants-original defendants participated and they being the highest offerer they were given the lands for plantation under the State Government Scheme and the period for which the suit lands were given for plantation had expired. If the appellants- original defendants/their father were the owners of the suit land, in that case, they would have objected to the public auction at the relevant time and would have claimed the ownership. The appellants-original defendants did not claim any right of ownership and accepted the land from the Panchayat for plantation under the State Government Scheme. Now so far as the substantial question of law that whether the suit was barred for non-joinder is concerned, it appears that it is the case on behalf of the appellants-original defendants that as the State Government is the owner of the suit property and as the State Government was not joined as defendant, the suit is required to be dismissed for non-joinder of necessary parties. The aforesaid has no substance. It is required to be noted that it was the respondent-original plaintiff-Panchayat, who allotted the suit land to the appellants-original defendants for plantation under the State Government Scheme by holding public auction and when after the period under which the appellants-original defendants were handed over possession for plantation had expired and the appellants did not handover possession to the Panchayat, the Panchayat was justified in initiating the proceedings and filing the suit for possession and, therefore, merely because the State Government was not joined as defendant the suit is not required to be dismissed on the ground of non-joinder of necessary parties.
4.3. Now so far as the second substantial question of law with respect to whether the suit was barred by the law of limitation is concerned, at the outset, it is required to be noted that as such the learned advocate appearing on behalf of the appellants-original defendants has not made any submission on the same. Even otherwise, considering the facts and circumstances of the case and considering the fact that the appellants-original defendants instituted Regular Civil Suit No. 140/1985 and obtained the ex-parte interim injunction, which came to be withdrawn and again one another suit came to be filed, being Regular Civil Suit No. 194/1985, which came to be dismissed and thereafter, one another suit came to be filed, being Regular Civil Suit No. 23/1986, which also came to be dismissed for non-prosecution on 23/08/1992 and the interim injunction granted earlier came to be vacated and despite the same the appellants-original defendants continued with the possession and/or did not handover the possession and thereafter when in the year 1993 the suit has been filed, it cannot be said that the suit is barred by the law of limitation.
5. In view of the above and for the reasons stated hereinabove, the present Second Appeal fails and the same deserves to be dismissed and is accordingly dismissed. No cost.
(M.R. SHAH, J.) siji