Date : 13/04/2012 1.00. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellants - original plaintiffs to quash and et aside the impugned judgement and decree passed by the learned Assistant Judge, Banaskantha dtd.22/11/2000 in Regular Civil Appeal No. 20 of 1994 as well as judgement and decree passed by the learned Civil Judge (S.D.), Palanpur in Regular Civil Suit No.95 of 1979 dtd.28/4/1994, by which the learned trial court has dismissed the said suit preferred by the appellants – original plaintiffs which has been confirmed by the learned appellate court by the impugned judgement and order. 2.00. That the appellants – original plaintiffs filed Regular Civil Suit No.95 of 1979 in the court of learned Civil Judge (S.D.), Palanpur for declaration and permanent injunction on the ground that the land in question was the Jagir land and the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 (hereinafter referred to “the Jagir Abolition Act” for short) came into force w.e.f. 1/8/1954. Prior to that they were cultivating the land in question as “Chobla Bodu” by virtue of the writing by Jagirdar and that they are still in possession and cultivating the land. However, the Government has acquired the land under section 8 of the Act as Waste land, which is illegal. It was the contention on behalf of the plaintiffs that they are permanent holder and occupants of the land in question under the Act. They sought declaration that they are occupants of the land under the Act, more particularly under section 5(1) (6) of the Act. That the said suit was resisted by the respondents – original defendants by submitting that the suit is clearly barred by law of limitation; the plaintiffs are not in possession and occupation of the land in question; that prior to the filing of the suit, proceedings were initiated before the competent authority by way of Jagir Case No.2 of 1973 which was decided on 20/7/1974 and the plaintiffs were not considered to be permanent holder of the land. It was further the case on behalf of the defendants that after the decision by the competent authority in Jagir Case No.2 of 1973, the disputed land is granted to the defendant No.2 (Cooperative Society) by the Assistant Collector, Palanpur, by his order dtd.21/5/1975 for cultivation on Eksali Basis. That the learned trial court on appreciation of evidence held that the plaintiffs are not in occupation and possession of the suit land in question and they have failed to prove that they are occupants of the land bearing Survey Nos.602 and 607 on the basis of deed executed by the erstwhile Jagirdar and that the plaintiffs have failed to prove that they have become occupants and/or permanent holders under the provisions of the Jagir Abolition Act. That the learned trial court also held that the suit is barred by law of limitation, consequently the learned trial court dismissed the suit.
2.01. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned Civil Judge (S.D.), Palanpur dtd.28/4/1994 in Regular Civil Suit 95 of 1979 in dismissing the said suit, appellants – original plaintiffs preferred Regular Civil Appeal No. 20 of 1994 before the District Court, Palanpur and the learned Assistant Judge, Banaskantha at Palanpur by the impugned Judgement and Order dtd.22/11/2000 dismissed the said appeal confirming the judgement and decree passed by the learned trial court dismissing the suit.
Being aggrieved by and dissatisfied with the Judgement and Order passed by both the courts below in dismissing the suit, appellants herein – original plaintiffs have preferred the present Second Appeal under section 100 of the Code of Civil Procedure.
3.00. Mr.Ketan Shah, learned advocate appearing on behalf of the appellants – original plaintiffs has vehemently submitted that as the plaintiffs were cultivating the disputed land in question, both the courts below have materially erred in considering Section 8 of the Jagir Abolition Act and holding that the land is that of the Government. It is submitted that both the courts below have materially erred in holding the land as Waste Land and applying section 8 of the Jagir Abolition Act. It is submitted that the Gujarat Revenue Tribunal in a case arising out of the Jagir Case No.2 of 1973 and appropriate authority in the proceedings under section 37(2) of the Bombay Land Revenue Code, have materially erred in holding the Government as a owner of the land, considering section 8 of the Jagir Abolition Act. It is further submitted that even the learned trial court has materially erred in holding that the suit is barred by law of limitation. It is submitted that as the order passed by the competent authority under section under section 37(2) of the Bombay Land Revenue Code was challenged before the Gujarat Revenue Tribunal and after the Gujarat Revenue Tribunal dismissed the Revision Application preferred by the plaintiffs, thereafter immediately the present suit has been preferred and therefore, both the courts below have materially erred in holding that the suit is barred by law of limitation.
3.01. Mr.Ketan Shah, learned advocate appearing on behalf of the appellants – plaintiffs has further submitted that both the courts below have materially erred in not granting declaration that the plaintiffs have become occupants and/or permanent holders of the land in question under the provisions of the Jagir Abolition Act. No other submissions have been made.
By making above submissions it is requested to allow the present Second Appeal.
4.00. Present appeal is opposed by Mr.Kabir Hathi, learned Assistant Government Pleader appearing on behalf of the State and Mr.Premal Nanavati learned advocate appearing on behalf of the respondent No.2 herein – original defendant No.2.
4.01. It is submitted by Mr.Hathi, learned Assistant Government Pleader that there are concurrent fundings of facts given by both the courts below that the plaintiffs are not in possession and occupation of the disputed land in question and they have failed to prove that they are in occupation and possession of the suit land in question and they have failed to prove that they are occupants and/or permanent holders of the land in question under the provision of the Jagir Abolition Act. It is submitted that as such in the proceedings which had arisen under the Jagir Abolition Act, competent authority in Jagir Case No.2 of 1973 has specifically observed and held that the plaintiffs are not occupants and permanent holders of the suit land under the Jagir Abolition Act. It is submitted that the said order has been confirmed by the Gujarat Revenue Tribunal. It is, therefore, submitted that when the authorities under the Jagir Abolition Act has specifically held that the plaintiffs are not occupants and permanent holders of the suit land under the Jagir Abolition Act, the learned trial court has rightly held that the plaintiffs have failed to prove that they are not occupants and permanent holders of the suit land under the Jagir Abolition Act. Therefore, it is requested to dismiss the present Second Appeal.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length.
6.00. At the outset, it is required to be noted that the plaintiffs instituted the suit for declaration and permanent injunction to declare that they are occupants and permanent holders of the suit land under the Jagir Abolition Act and that the order passed by the Gujarat Revenue Tribunal is illegal. However, it is required to be noted that the competent authority under the Jagir Abolition Act in Jagir Case No.2 of 1973 has specifically held that the plaintiffs are not occupants and permanent holders of the suit land under Jagir Abolition Act. The said order has been confirmed by the Gujarat Revenue Tribunal in a Revision Application. Therefore, when the competent authority under the Act has specifically held that the plaintiffs are not occupants and permanent holders of the suit land under the Jagir Abolition Act, as such the Civil Court could not have gone beyond the finding given by the authority under the Jagir Abolition Act. Even considering the provisions of the Revenue Jurisdiction Act, unless and until all the remedies under the Jagir Abolition Act were exhausted even such a suit to quash and set aside the order passed by the Gujarat Revenue Tribunal was not maintainable. In any case, on appreciation of evidence, the learned trial court has specifically held that the plaintiffs have failed to appreciate that they are in possession of the suit land by virtue of the writing executed by the Ex-Jagirdar and that they are occupants and permanent holders of the suit land under the Jagir Abolition Act and when consequently the learned trial court has dismissed the said suit refusing to grant declaration as prayed for and when the learned appellate court has dismissed the said appeal confirming the judgement and decree passed by the learned trial court, it cannot be said that both the courts below have committed any illegality and/or error in dismissing the suit. This Court has considered the judgement and order passed by both the courts below as well as the entire evidence on record and this Court is satisfied that the learned trial court has not committed any error and/or illegality in dismissing the suit. Considering the order passed by the competent authority under the Jagir Abolition Act in Jagir Case No.2 of 1973 specifically holding that the plaintiffs are not occupants and permanent holders of the suit land under the Jagir Abolition Act and the said order has been confirmed by the Gujarat Revenue Tribunal, it cannot be said that the learned trial court has committed any error and/or illegality in refusing to grant the declaration, as prayed for. It is also required to be noted that as such subsequently the competent authority has already alloted / granted the land in question in favour of the defendant No.2 (Cooperative Society) for cultivation.
7.00. In view of the above and for the reasons stated above, present Second Appeal fails and the same deserves to be dismissed and is accordingly dismissed. No costs.
rafik [M.R. SHAH, J.]