1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants-original plaintiffs to quash and set aside the impugned judgment and decree dated 30/08/2011 passed by the learned trial Court-learned 9th Additional Senior Civil Judge, Vadodara in Regular Civil Suit No. 803/1998 by which the learned trial Court has dismissed the said suit preferred by the appellants-original plaintiffs as well as the impugned judgment and order passed by the learned appellate Court-learned 3rd Additional District Judge, Vadodara dated 13/03/2012 in Regular Civil Appeal No. 111/2011 by which the learned appellate Court has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit.
2. The appellants-original plaintiffs instituted Regular Civil Suit No. 803/1998 before the learned trial Court against the respondents-original defendants for declaration and permanent injunction to declare that the respondents-original defendants have no authority and/or jurisdiction to remove the construction/houses constructed by the applicant-original plaintiffs, being house no. 136 and 137 situated at Survey No. 141 at Khanpur, treating the same as encroachment. It appears that as such the Panchayat issued notice under Section 105 of the Gujarat Panchayat Act to remove the construction and the encroachment on the disputed property/land in question submitting that the appellants-original plaintiffs have put up illegal construction and they have encroached upon the Panchayat land. Having served with the notice the appellants-original plaintiffs instituted the aforesaid suit for the reliefs submitting that the notice dated 25/06/1998 issued by the Panchayat is not legal and valid. The suit was resisted by the respondents-original defendants by filing the written statement submitting that the suit instituted by the appellants-original plaintiffs, without issuing notice under Section 270 of the Gujarat Panchayat Act, is not maintainable. It was also submitted that as such the appellants-original plaintiffs have put up construction illegally and they have encroached upon the land belonging to the Panchayat and, therefore, it was requested to dismiss the suit. The learned trial Court, after framing the issues and considering the evidence on record, dismissed the suit vide judgment and decree dated 30/08/2011 on merits by holding that the suit instituted by the appellants-original plaintiffs, without serving the statutory notice under Section 270 of the Gujarat Panchayat Act, is not maintainable. Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned 9th Additional Senior Civil Judge, Vaodara dated 30/08/2011 in Regular Civil Suit No. 803/1998 in dismissing the suit the appellants-original plaintiffs preferred Regular Civil Appeal No. 111/2011 and the learned appellate Court vide impugned judgment and order dated 13/03/2012 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit. Being aggrieved and dissatisfied with the impugned judgment and orders passed by both the Courts below the appellants-original plaintiffs have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3. Shri Manish Kaushik, learned advocate appearing on behalf of the appellants-original plaintiffs has heavily relied upon the decision of the learned Single Judge in the case of Arvindbhai Nanjibhai Nagrecha Vs. Virpur Gram Panchayat reported in 1998 (1) GLR 342 by submitting that as held by the learned Single Judge the suit, without serving the statutory notice, as required under the provisions of the Gujarat Panchayat Act would be maintainable and there is no bar of notice in instituting the suit and, therefore, it is submitted that both the Courts below have materially erred in dismissing the suit/appeal on the ground that in absence of statutory notice under Section 270 of the Gujarat PanchayatsAct the suit filed by the appellants-original plaintiffs was not maintainable. It is further submitted that when the Panchayat was disputing the ownership of the appellants-original plaintiffs contending that the Panchayat was the owner, in fact it was for the Panchayat to initiate the proceedings under Section 37(2) of the Bombay Land Revenue Code and both the Courts below have materially erred in shifting the burden upon the appellants-original plaintiffs to initiate the proceedings under Section 37(2) of the Bombay Land Revenue Code to establish the ownership. Making the above submission and relying upon the above decision, it is requested to admit/allow the present Second Appeal.
4. Heard Shri Kaushik, learned advocate appearing on behalf of the appellants-original plaintiffs at length and considered the impugned judgment and orders passed by both the Courts below. At the outset it is required to be noted that as such there are concurrent finding of fact given by both the Courts below holding that the appellants-original plaintiffs are not entitled to any relief for declaration and permanent injunction as prayed for and they have failed to prove their ownership over the disputed land/property. The finding of fact given by both the Courts below are on appreciation of evidence. It is also required to be noted that as such the learned trial Court dismissed the suit on the ground that the appellants-original plaintiffs have not served statutory notice upon the Panchayat as required under Section 270 of the Gujarat Panchayat Act before instituting the suit against the Panchayat. However, relying upon the decision of the learned Single Judge of this Court in the case of Arvindbhai Nanjibhai Nagrecha (Supra) the learned advocate appearing on behalf of the appellants-original plaintiffs has tried to submit that the institution of the suit before the notice would be maintainable. However, considering the aforesaid decision, the same would not be applicable to the facts of the present case. In the aforesaid decision, the learned Single Judge has relied upon the decision of the Hon'ble Supreme Court in the case of J.N. Ganatra Vs. Morvi Municipality reported in AIR 1996 SC 2520 and in the case before the Hon'ble Supreme Court it was found by the Hon'ble Supreme Court that if the action of the Panchayat is illegal on the face of it, it cannot be said to be an act under the Act or purported to be under the Act. To that the Hon'ble Supreme Court had observed and held that the bar of limitation or notice cannot operate against the appellants-original plaintiffs in such a case. However, in the present case, the Panchayat had instituted the notice under Section 105 of the Gujarat Panchayat Act upon the appellants-original plaintiffs to remove the illegal and unauthorised construction/encroachment made by appellants-original plaintiffs and, therefore, such an action cannot be said to be illegal on the face of it or beyond the act. Under the circumstances, when having served with the notice under Section 105 of the Gujarat Panchyat Act to remove the encroachment and illegal construction, when the appellants-original plaintiffs instituted the suit contending that the said notice is illegal before instituting the suit for the reliefs claimed in the suit the appellants-original plaintiffs were required to serve the statutory notice under Section 105 of the Gujarat Panchayat Act. Having failed to do so the suit was not maintainable and, therefore, the learned trial Court has rightly dismissed the suit for want of statutory notice as required under Section 105 of the Gujarat Panchayat Act and the same is rightly confirmed by the learned appellate court. Now so far as the contention on behalf of the appellants-original plaintiffs that it was for the Panchayat to initiate the proceedings under Section 37(2) of the Bombay Land Revenue Code to establish the ownership is concerned, the aforesaid cannot be accepted. It is required to be noted that as such the appellants-original plaintiffs claim that the construction put up by them on the disputed property is legal and they are the owners, in that case, it is for them to initiate the proceeding under Section 37(2) of the Bombay Land Revenue Code. In any case, as stated hereinabove, the suit is required to be dismissed for want of statutory notice as required under Section 270 of the Gujarat Panchayat Act.
5. In view of the above and for the reasons stated hereinabove, there is no substance in the present Second Appeal, which deserves to be dismissed and is accordingly dismissed.
CIVIIL APPLICATION No. 7364/2012 In view of dismissal of the Second Appeal, the Civil Application also stands dismissed.
(M.R.
SHAH, J.) siji Top