1. This appeal under Section 100 of the Code of Civil Procedure is at the instance of the original plaintiff who had filed Civil Suit No.122 of 2002 for declaration and permanent injunction.
2. Case of the plaintiff in his suit is that the ancestors of the plaintiff had left the ancestral property, being Block No.1759 (old Survey No.701) and property, being Tika No.1892 in the Town of Kadi as well as Block No.1760 (old Survey No.702), part of the gaucher land. It is further case of the plaintiff that since the part of the gaucher land from Block No.1760, described as suit land, being ancestral land, is in possession of the plaintiff, the plaintiff is required to be declared as owner of the said land and the defendants may be permanent restrained from interfering with the possession of the said land of the plaintiff.
3. The suit of the plaintiff was resisted by defendant No.1, being Sarpanch of Unava Gram Panchayat. On the basis of the evidence on record, learned Trial Judge found that the plaintiff has failed to establish his title to the suit land and the suit land is a gaucher land. Learned Trial Judge also came to the conclusion that the plaintiff has failed to prove his possession over the suit land. On such finding of fact and conclusion, learned Trial Judge ultimately dismissed the suit of the plaintiff by judgment and decree dated 30.9.2006.
4. The plaintiff unsuccessfully carried the matter before the first Appellate Court by filing Regular Civil Appeal No.77 of 2006. Learned Appellate Judge has also on appreciation of the evidence found that the suit land was never of the ownership of the ancestors of the plaintiff and the suit land, being gaucher land, the plaintiff had no right to such gaucher land. Learned Appellate Judge also came to the conclusion that the plaintiff has failed to prove his possession to the gaucher land and possession of such gaucher land is of Unava Gram Panchayat. Learned Appellate Judge thus concurred with the findings and conclusion recorded by the learned Trial Judge and ultimately, dismissed the appeal by judgment and decree dated 17.7.2012. It is this judgment and decree which is under challenge before this Court in this Second Appeal.
5. I have heard learned advocate Ms. Archana Patel for the appellant.
6. Learned Advocate Ms. Patel submitted that the plaintiff had already produced documentary evidence in the form of revenue record, which was maintained at the relevant time in the year 1906- 07, wherein the name of the grandfather of the plaintiff was recorded against the suit land. She submitted that simply because word ‘gaucher’ was found recorded in the said revenue record at the relevant time, that would never take away the right of the plaintiff to enjoy the ancestral property of his grandfather. She submitted that the plaintiff was in fact given compensation by the ONGC when the land in question was sought to be taken away by ONGC for temporary period. She submitted that there is no dispute about the fact that the grandfather of the plaintiff was already owner of the land bearing Block No.1759 and of Tika No.1892 and the suit land is also found to be in possession of his grandfather along with two above stated lands. She submitted that if the grandfather of the plaintiff has been in continuous possession from 1906 and subsequently, the plaintiff has continued possession of the suit land, it cannot be said that the plaintiff has got no right to the land in question. She thus submitted that both the Courts below have misdirected themselves by holding that the plaintiff is not owner of the suit land.
7. Having heard learned advocate for the appellant and having perused the judgment and decree passed by both the Courts below, it appears that the grandfather of the plaintiff had held two other parcels of land but whether he was owner of such land or not is not of any relevance. So far as the suit land is concerned, the plaintiff has not adduced any evidence to prove ownership of his grandfather for the said land and even the plaintiff has failed to establish by any evidence about the possession of such suit land. The Courts below on appreciation of the evidence found that the suit land has been recorded as ‘gaucher land’ in the revenue record. It appears that the plaintiff has tried to claim ownership and possessory right to such land on the ground that his grandfather was holding the suit land along with two other lands. However, to prove the ownership and possession of the suit land, the plaintiff was required to adduce cogent evidence, which the plaintiff has failed to adduce. As against the above assertion of the plaintiff that he is owner of the suit land, Panchayat has adduced documentary evidence in the form of revenue record fromwhere it was found by the Courts below that the land was vested with the Panchayat as a gaucher land. It is found by the Courts below that the Panchayat had in fact given notice under Section 270 of the Gujarat Panchayat Act to the plaintiff for the purpose of removal of encroachment from the gaucher land. In spite of the notice, the plaintiff did not vacate the suit land and it appears that to claim ownership of the land, the plaintiff has filed the suit. However, since the Courts below have found that the plaintiff has failed to establish his ownership right and possessory right to the suit land, such finding of fact is not required to be interfered with by this Court unless it is pointed out that finding of fact is reached either on misreading of the evidence or by taking into consideration any irrelevant material. Learned advocate for the appellant has failed to point out that the findings of fact recorded by the Courts below is either on misreading of evidence or taking into consideration irrelevant material and ignoring the relevant material.
8. In view of the above, I do not find that any substantial question of law has arisen for consideration of this Court. Hence, this appeal is required to be dismissed. Accordingly, the same is dismissed.
9. In view of the order passed in the Second Appeal, no order is required to be passed on the Civil Application. The Civil Application is accordingly disposed of.
omkar Sd/-
(C.L. SONI, J.)