1. This appeal under Section 100 of the Code of Civil Procedure is at the instance of the original plaintiff who had filed Regular Civil Suit No.307 of 1979 for declaration that the suit land, bearing Block No.190, is alluvial land and the plaintiff is entitled to get the suit land being adjacent owner under Sections 63 and 64 of the Land Revenue Code and also for declaration that grant of the suit land to defendant No.2 is illegal, unauthorized and void and also for further declaration that defendant Nos.1 and 2 have got no right to use the suit land in any manner so as to damage the land of Block No.207 belonging to the plaintiff and the plaintiff also prayed for permanent injunction restraining defendant No.1 from entrusting the suit land to any other party and also restraining defendant Nos.1 and 2 from carrying on any activity on the suit land.
2. The suit was resisted by defendant No.1- State of Gujarat by filing written statement at Exh.24, stating therein that the suit land was not alluvial land and the land was of the ownership of the Government and was initially vested with Limbodara Gram Panchayat for grazing cattle but the Gram Panchayat surrendered the said land and thereafter, the said land was granted to defendant No.2 as a member of Ex-military Personnel. It was further stated that possession of the land was also handed over to defendant No.2 on 8.5.1979. The suit is filed by the plaintiff in collusion with his brothers. The suit was also resisted by defendant No.2 at Exh.26, stating that possession of the suit land was legally handed over to defendant No.2 and the plaintiff being adjacent owner of Block No.207 wanted to any how have control over the suit land and the suit land being not alluvial land, the plaintiff cannot have any right over such land being an adjacent owner. It was further stated that the possession of the suit land was already handed over to defendant No.2 by defendant No.1 on 8.5.1979 in presence of panchas.
3. Learned Trial Judge after framing the issues and on the basis of appreciation of evidence led before him came to the conclusion that the suit land was of the ownership of the Government and it was initially vested with Gram Panchayat and the Gram Panchayat having surrendered the suit land, the same was granted to defendant No.2 as he was Ex-military Personnel and therefore, the suit land cannot be said to be alluvial land and the plaintiff cannot claim any right to such land under Section 63 and 64 of the Bombay Land Revenue Code. Learned Trial Judge thus dismissed the suit on the above-said findings by judgment and decree dated 14.12.1993.
4. The appellant unsuccessfully carried the matter before the first Appellate Court by filing Regular Civil Appeal No.42 of 1994. Learned Appellate Judge on independent appreciation of oral as also documentary evidence came to the conclusion that the State Government was owner of the land bearing Block No.190 and the said land was initially vested with Limbodara Gram Panchayat for grazing of cattle and since the Gram Panchayat was no longer in need of the said land, it surrendered the said land to the Government and thereafter, the land was granted to defendant No.2 as defendant No.2 was entitled to grant of such land as ex-military personnel. Learned Appellate Judge also recorded finding to the effect that possession of the said land was already handed over to defendant No.2 on 8.5.1979 in presence of panchas and the plaintiff. Learned Appellate Judge also recorded finding of fact to the effect that the suit land was also not of the ownership of the ancestor of the plaintiff as the plaintiff has miserably failed to prove that ancestor of the plaintiff Shri Tribhovandas Hargovandas had purchased the suit land in public auction. On such findings of fact, learned Appellate Judge dismissed the appeal by judgment and decree dated 1.1.1996. It is this judgment and decree which is under challenge before this Court in this Second Appeal.
4.1. During the course of hearing of this appeal, learned advocate for the appellant has also stated before the Court that the appellant does not claim ownership right to the suit land being Block No.190 but his claim is on the basis of Sections 63 and 64 of the Bombay Land Revenue Code on the ground that the land bearing Block No.190 is alluvial land and therefore, the appellant being owner of the adjacent land is entitled to get the suit land as and when the suit land re-merges from the river.
5. This appeal was admitted on following substantial question of law by order dated 13.8.1996:-
“Whether on the facts and circumstances of the case the judgment and decree of the trial court, as confirmed by the appellate court, dismissing the suit of the plaintiff, are correct and sustainable in law ?
In my view, the above question framed at the time of admission of the appeal cannot be substantial question of law. However, learned advocate Mr. Vin for the appellant has submitted that the real question raised before the Courts below was that the suit land was alluvial land and the appellant, being owner of the adjacent land, was only person entitled to get land bearing Block No.190. He submitted that in the context of Sections 63 and 64 of the Land Revenue Code, the Courts below were required to address the said question on the basis of the admitted evidence available on record but the Courts below have failed to address such important question. He, therefore, submitted that this Court at this stage may also raise substantial question of law to the effect that if the land being Block No.190 is alluvial land, the appellant being owner of the adjacent land, could be made entitled to get such land as and when it re-merges from the river.
6. I have heard learned advocates for the parties.
6.1. Learned advocate Shri Vin for the appellant submitted that though the claim in the suit in respect of the land bearing Block No.190 was about ownership of the said land, but the plaintiff had also put up a claim of getting the said land as and when the same is emerged from river as the same land could be considered as alluvial land. He submitted that by virtue of the provisions of Sections 63 and 64 of the Bombay Land Revenue Code, only the owners of the adjacent land to such alluvial land are entitled to get the land for cultivation. He submitted that defendant No.2 was wrongly granted such alluvial land by the State Government. He submitted that if the land was not of private ownership and it had earlier vested with the Panchayat and if such land would emerge from river, the same could be allowed to be cultivated or used by the owners of the adjacent land. He thus submitted that both the Courts below have not considered the question about the right to alluvial land in the context of the provisions of the Bombay Land Revenue Code. In support of his submission, Shri Vin has relied on the decision of this Court in the case of STATE OF GUJARAT v. JESINGBHAI CHHITABHAI AND ANR.
reported in 1978 (XIX)GLR 876 as also in the case of SECRETARY OF STATE FOR INDIA IN COUNCIL v. RAJA OF VIZIANAGARAM AND ANOTHER reported in 1921 (XLIX) INDIAN APPEALS 67. From the said decisions, Shri Vin pointed out that any sub-merged land when emerged from the river, would be alluvial land and in the present case, since the land was of the ownership of the State Government and since it had sub-merged in the river, the suit land would definitely be termed as ‘alluvian land’ and therefore, defendant No.1 was not authorized to grant such land in favour of defendant No.2. In view of the above-said decisions, Shri Vin submitted that if this Court differs with the view taken in the aforesaid decisions, the matter may be referred to the larger bench.
6.2. From the judgment and decree passed by both the Courts below as also from the record, I find that the suit land was rightly held to be the land of the Government, which was initially vested with the Gram Panchayat and then came to be granted in favour of defendant No.2. The suit land was not creation of accumulation of sand from the river. The Appellate Court has considered the old revenue records for the year 1978- 1979 and also for a period between 1960 and 1972, wherein the name of ancestor of the plaintiff was mutated as owner of Block No.207, which is adjacent to Block No.190. The Appellate Court has further considered that so far as Block No.190 is concerned, it is an independent Block and in the revenue record, the name of the Government was entered into. The Appellate Court has also considered that in the column for ‘Cultivator’, land being Block No.190 is shown to be ‘Gaucher’(‘Grazing’) land. The Appellate Court has further considered that the plaintiff has not proved that the land of Block No.190 was of the ownership of his ancestor. Therefore, as stated above, rightly Shri Vin has not made any grievance as regards the ownership claim of the plaintiff in respect of the suit land.
6.3. Learned Assistant Government Pleader Shri Utkarsh Sharma has rightly drawn the attention of the Court to the prayer clause in the plaint and pointed out that the plaintiff having sought declaration about the ownership right to the land bearing Block No.190 cannot seek declaration that the suit land is alluvial land. By drawing attention to the prayer clause, learned Assistant Government Pleader has pointed out that the first prayer made by the appellant in the suit would in fact destroy the case of the appellant for the prayer for declaration of the suit land as alluvial land. Learned Assistant Government Pleader has further pointed out that the appellant having failed to establish his ownership right to the suit land, cannot be permitted to take plea about the suit land being alluvial land. He also pointed out that even otherwise the Appellate Court below has on appreciation of the evidence available before it, rightly come to the conclusion that the suit land is not alluvial land and such being finding of fact, this Court may not interfere in this appeal as no substantial question of law has arisen as suggested by learned Assistant Government Pleader.
6.4. Learned advocate Shri Dharmesh Shah for respondent No.2 while adopting the arguments of learned Assistant Government Pleader, submitted that the land was given to defendant No.2 as the same was surrendered by the Panchayat. The fact that the land was having actual measurement and was given by drawing the panchnama in presence of the panchas, such land could be said to be a land of the Government’s ownership and cannot be said to be a land formed by process of accretion by the river. He, therefore, submitted that the Appellate Court below has on correct appreciation of evidence reached to the conclusion that the suit land is not alluvial land and this Court may not interfere in the findings recorded by the Appellate Court below.
6.5. At this stage, reference to the observations made by the Hon’ble Division Bench of this Court in the case of State of Gujarat (supra) in para 6, is required to be made, which reads as under:-
“6. In Aiyer’s Law Terms and Phrases, 1973 Edition, the connotation of the expression “alluvion” has been stated as “an imperceptible addition when anything is so gradually and secretly added that we cannot perceive by our senses the quantity which at each moment of time is detached from the land of another person and added to others.” In other words, ‘alluvion’ is an imperceptible increase. A land is said to be acquired by alluvion when it is required so gradually that one cannot say how much was added at a particular time. However, if the accretion is sudden, it is called dereliction. It is, therefore, clear that where there is “gradual, slow and imperceptible” accretion of land, it is alluvion or alluvial land. However, if there is a sudden emergence of some land either on account of flood or on account of river changing its course or on account of other natural of physical forces, it is dereliction or Bet Bhatha land.”
6.6. The claim of the plaintiff could be accepted for the land bearing Block No.190 only when the said land is found to be alluvial land. Having gone through the admitted evidence of revenue record, I find that the suit land was already in existence and the same was recorded in the revenue record in the ownership of the Government and shown as ‘Gaucher Land’. Land bearing Block No.190 is not found to have been formed by any increase by gradual collection of the sand/soil from adjacent land of the plaintiff. There is a clear measurement of the land bearing Block No.190 and therefore, it cannot be believed that the land being Block No.190 was a result of accretion gradually made by river. The Appellate Court has considered the above-aspect of the matter and has found that though the land bearing Block No.190 is adjacent to the land bearing Block No.207 of the appellant, the same cannot be considered to be alluvial land. The Appellate Court has also considered the panchnama for giving possession of suit land to defendant No.2 on 8.5.1979. The suit land was clearly available for grant in favour of defendant No.2. I have therefore, no reason to doubt that the land bearing Block No.190 was of the ownership of the Government. The existence of suit land was not as a result of accretion of the land by gradual process of the river. Learned advocate Shri Vin has failed to point out that the finding of fact reached by the Courts below about the land being not alluvial land is on either misreading of the evidence or on the basis of consideration of the irrelevant material or by ignoring the relevant material on record. Therefore, I do not find that any substantial question of law has arisen for consideration of this Court.
6.7. When the Appellate Court below has reached to the finding that the land bearing Block No.190 cannot be said to be alluvial land and when also I concur with such finding on the basis of the evidence available on record, the judgments cited by learned advocate Shri Vin would not have any application. The facts in the cases cited by learned advocate for the appellant were totally different than the facts of the present case. In the case of Jesingbhai (supra), the claim of the plaintiff was purely on the basis that there was accretion of the land adjacent to the land of the plaintiff. The claim was not in respect of any property of the ownership of the Government or of the private property. In the case of Secretary of State (supra), the claim was in respect of island in Godavari, which was also stated to be formed by accretion of land and was not in respect of any existing property of the Government or of private party. In both the above-referred cases, though the issue of alluvial land was considered and meaning of alluvial land was explained, however, the same was in the facts of those two cases. Whereas, in the present case, as discussed above, the land bearing Block No.190 cannot be said to be in any manner alluvial land. The suit land having not been found to be alluvial land, there is no question of considering the provisions of Sections 63 and 64 of the Land Revenue Code as the cases of the appellant would not fall under the said provisions.
7. In view of the above, this appeal is required to be dismissed. Hence, the same is dismissed.
8. Record and proceedings be sent to the concerned Trial Court forthwith.
omkar Sd/-
(C.L. SONI, J.)