1.0. As common question of law and facts arise in both these appeals, they are being disposed of by this common judgment and order.
2.0. Both these appeals under Section 100 of the Code of Civil Procedure have been preferred by the appellants herein-original plaintiffs to quash and set aside the impugned common judgment and order passed by the learned Appellate Court -learned 6th Ad-hoc Additional District Judge, Junagadh dated 16.9.2011 passed in Regular Civil Appeal Nos. 126 of 1996 and 127 of 1996, by which the learned Appellate Court has allowed the said appeal preferred by the respondents no.1 to 3 herein -original defendant nos. 1 to 3 by quashing and setting aside the judgment and decree passed by the learned trail Court -learned Civil Judge (S.D.), Junagadh dated 21.10.1995 passed in Regular Civil Suit Nos. 894 of 1984 and 212 of 1986 and consequently dismissed the said suit preferred by the appellants herein -original plaintiffs.
3.0. The facts leading to the present Second Appeals in nutshell are as under:
3.1. That the respondent no.4 herein -original defendant no.4. was the owner of the certain parcels of agriculture lands which were subjected to provisions of the Gujarat Agriculture Land Ceiling Act (hereinafter referred to as "the Act"). That the proceedings were initiated by competent authority under the Act and the proceedings under the Act came to be finalized by the Mamlatdar by passing order in Land Ceiling Case No.15 of 1987 and the competent authority-Mamlatdar declared the land admeasuring 165.01 acres as surplus in the holding of the original defendant no.4, by order dated 25.10.1983. That the original defendant no.4 filed Land Ceiling Appeal No.4 of 1984, which also came to be dismissed, against which further revision application was preferred before the Gujarat Revenue Tribunal, which also came to be dismissed. Thus, the order passed by the competent authority declaring 165.01 acres of land as surplus in the holding of the original defendant no.4 came to be confirmed upto the Gujarat Revenue Tribunal. It is the case of the plaintiffs that for the suit lands for which the order has been passed by the competent authority to take possession as a surplus land the same was agreed to be sold in favour of the plaintiffs by the original owners -original defendant no.4 by oral agreement prior to the Gujarat Agriculture Land Ceiling Act came into force and that they were in possession of the suit lands which is declared as surplus land from the holding of the original defendant no.4 and therefore, the orders passed by the competent authority as well as Appellate Authority declaring suit lands as surplus lands are illegal as the same are passed without giving an opportunity to the plaintiffs and the said orders are not binding to them. It was the case on behalf of the plaintiffs that as the plaintiffs were in possession of land which are declared as surplus at the time of passing of the order under Sections 20 and 21 of the Act, the authorities were required to hear the plaintiffs and therefore, the plaintiffs instituted the aforesaid suit for declaration that the orders dated 25.10.1983 passed by the competent authority as well as order passed by the Deputy Collector -Appellate Authority dated 12.6.1984 are not binding to the plaintiffs and also prayed for permanent injunction restraining the defendant no.1 to 4 from disturbing the possession of the plaintiffs of the suit lands.
3.2. That both the suits were resisted by defendant nos. 1 to 3 as well as by the original defendant no.4 -owner of the suit lands. The State authority filed written statement at Exh.49 specifically denying that the plaintiffs are in possession of the disputed land. It was specifically contended that original defendant no.4 was in possession of the disputed lands. It was contended on behalf of defendant nos.1 to 3 that the disputed land in question is declared as surplus under the provisions of the Act and thereafter even the notice under Section 22 of the Act has already been published. It was also contended on behalf of defendant nos. 1 to 3 that Mamlatdar has already taken the possession of the surplus land after considering the choice given by the original defendant no.4.
3.3. That the suit was resisted by the original defendant no.4 -original owner also by filing written statement at Exh.55 in Regular Civil Suit No.894 of 1984. It was also denied that the possession of the suit lands was with the plaintiffs. It was also contended on behalf of the defendant no.4 that the plaintiffs have no right, title and interest in the disputed suit lands in question. That defendant no.4 also denied any agreement to sell in favour of the plaintiffs.
3.4. That the learned trial Court consolidated both the suits i.e. Regular Civil Suit No.894 of 1984 as well as Regular Civil Suit No.212 of 1986. The learned trial Court framed the issue at Exh.81 in Regular Civil Suit No.894 of 1984 and at Exh.51 in Regular Civil Suit No.212 of 1986. That the respective authorities adduced the evidence oral as well as documentary and on appreciation of the learned trial Court has partly allowed the aforesaid suits by declaring that the orders under challenge in both the suits are unjust, ultra vires and not binding to the plaintiffs so far as it related to the declaration of surplus lands which were found to be in the possession of the plaintiffs, as the same are passed without giving any opportunity to the plaintiffs and the learned trial Court directed the competent authority under the Act to give opportunity under Sections 20 and 21 of the Act to the plaintiffs as well as owners and decide regarding surplus land of the defendant no.4. The learned trial Court also passed an order that in case the authority comes to the conclusion that land under the possession of the plaintiffs is required to be declared as surplus then to consider the case of the plaintiffs to regularize the said land that the possession of the plaintiffs as trespasser upon the government land, after declaration of the surplus land vested with the government, while dispossessing the land owner under Section 20 of the Act on payment of occupancy price by the plaintiffs.
3.5. Feeling aggrieved and dissatisfied with the common judgment and decree passed by the learned Civil Judge (S.D.), Junagadh dated 21.10.1995 passed in Regular Civil Suit Nos. 894 of 1984 and 212 of 1986, the appellants -original defendant nos. 1 to 3 preferred Regular Civil Appeal No. 126 of 1996 and 127 of 1996 and learned Appellate Court by impugned common judgment and order has allowed the said appeals by quashing and setting aside the judgment and decree passed by the learned trail Court and consequently dismissing the suits by holding that as at the relevant time the original defendant no.4 was the sole owner of the suit land in question and the plaintiffs had no title over the suit land in question, the plaintiffs were not required to be heard while passing order under Sections 20 and 21 of the Act. The learned Appellate Court also held that learned trial Court has committed serious error in holding that plaintiffs are in possession of the suit land in question.
3.6. Being aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Appellate Court, the appellants herein-original plaintiffs preferred present Second Appeals under Section 100 of the Code of Civil Procedure.
4.0. Shri Dhaval Vyas, learned advocate for the respective appellants has stated at the bar that as such the plaintiffs are not questioning the orders passed by the competent authority passed under the provisions of the Act confirmed the appellate authority declaring 165.01 acres of land as excess vacant land from the holding of the original defendant no.4 -original owner. However, has submitted that the possession of the surplus land is first required to be taken from the retainable land held by original defendant no.4 and only thereafter the possession of the remaining land can be taken over from the plaintiffs. It is the case of the plaintiffs that while passing the order under Sections 20 and 21 of the Act, the plaintiffs were required to be heard as the plaintiffs were in possession of the suit lands which is declared as surplus land, on the basis of the oral agreement to sell by the original defendant no.4 which was prior to the Act came into force. It is submitted by Shri Vyas, learned advocate for the respective appellants
-original plaintiffs that the learned Appellate Court has materially erred in holding that the plaintiffs were not required to be heard at the time of passing of the order under Sections 20 and 21 of the Act and the learned Appellate Court has materially erred in holding that the plaintiffs were not in possession of the suit lands which has been declared as surplus land. No other submissions have been made. By making above submissions, it is requested to allow the present Second Appeals and modify the judgment and order passed by the learned Appellate Court to the aforesaid extent.
5.0. Both these appeals are opposed by Shri Dave, learned AGP appearing on behalf of the respondent nos. 1 to 3 herein original defendant nos. 1 to 3 as well as Shri Mithani, learned advocate for the original defendant no.4-original owner. It is submitted that admittedly the plaintiffs have no title over suit land in question which is declared as surplus land as even the plaintiffs claim that they were in possession of the suit land which has been declared as surplus land, pursuant to oral agreement to sell by the original defendant no.4
-original owner. It is submitted that it has been found that the plaintiffs were not in possession of the suit land in question which has been declared as surplus land from the holding of the defendant no.4. It is submitted that at the relevant time when the Act came into force the original defendant no.4 -original owner was the owner of the suit land which has been declared as surplus land for which the order has been passed by the competent authority and as the plaintiffs who had no title over the land they were not required to be heard while passing the order under Sections 20 and 21 of the Act. Therefore, it is submitted that learned Appellate Court has rightly quashed and set aside the judgment and decree passed by the learned Trial Court holding that as the plaintiffs were not required to be heard at the time of passing the orders by the competent authority passed under Sections 20 and 21 of the Act and holding the plaintiffs not to be in possession. Therefore, it is requested to dismiss the present Second Appeals.
5.0. Heard the learned advocates for the respective parties at length and considered the impugned judgment and orders passed by both the Courts below as well as evidence on record. At the outset, it is required to be noted that the competent authority under the Act has passed an order declaring 165.01 acres of land as surplus from the holding of the original defendant no.4 -original owner and the order passed by the competent authority -Mamlatdar declaring 165.01 acres of land as surplus has been confirmed by the Appellate Authority-original defendant no.2 and the same has attained the finality. It is also required to be noted at this stage that at the relevant time when the order was passed by the competent authority declaring 165.01 acres of land as surplus land from the holding of the original defendant no.4, the original defendant no.4 alone was the owner of the land which is declared surplus. It is required to be noted that plaintiffs were claiming to be in possession merely on the basis of oral agreement to sell by the original defendant no.4-original owner. Thus, admittedly at the relevant time when Act came into force the plaintiffs were not owner of the land which is declared as surplus land. It is also required to be noted that the plaintiffs had never prayed for any specific performance of even the oral agreement to sell alleged to have been executed by the original defendant no. 4-original owner. Thus, when the original plaintiffs were not the owner of the land which is declared as surplus land at the time when the Agriculture Land Ceiling Act came into force and when the orders came to be passed by the competent authority the plaintiffs were not required to be heard under Sections 20 and 21 of the Act as contended by the plaintiffs and as observed by the learned trial Court. As stated above, even Shri Vyas, learned advocate for the respective appellants has also declared and stated at the bar that plaintiffs are not questioning the orders passed by the competent authority confirmed by the appellate authority declaring 165.01 acres of land as surplus land from the holding of original defendant no.4-original owner. However, the contention on behalf of the plaintiffs that the possession of the surplus land must be first taken from the retainable land which is in possession of the original defendant no.4-original owner and only thereafter the possession of the remaining land can be taken from the land which is in possession of the plaintiffs pursuant to oral agreement to sell executed by defendant no.4-original owner. The aforesaid cannot be accepted and granted. The aforesaid can be granted only when it is proved by the plaintiffs that they have legal and valid title over the land in question. As stated above, the plaintiffs claimed to be in possession of the suit land on the basis of the oral agreement to sell and as per the settled proposition of law the agreement to sell does not confer any right, title and interest. At this stage, it is also required to be noted that even plaintiffs have failed to prove any oral agreement to sell executed by defendant no.4 -original owner and handing over the possession by the original defendant no.4 to the plaintiffs. The original defendant no.4 had specifically denied the execution of any agreement to sell in favour of the plaintiffs and even handing over the possession to the plaintiffs. It is required to be noted that even the competent authority had already taken over the possession of the surplus land from the original defendant no.4 -original owner after giving choice to retain the possession of the retainable land and the original defendant no.4-original owner has already handed over the possession of the surplus land to the State Government.
5.1. The contention on behalf of the plaintiffs that as they were in possession of the suit land which has been declared as surplus land and even if they can be said to be trespassers and / or unauthorized occupation, it can be said that the plaintiffs are encumbrance and therefore, they were required to be heard before taking the possession and / or passing order under the Act, the aforesaid cannot be accepted. As observed by the Hon'ble Supreme Court in the case of Mangeram vs. Financial Commissioner and Others reported in (2003) 2 SCC 1 'encumbrance' has to be understood in the sense of legal encumbrance such as a lease or mortgage. It is to be noted that in the present case as such the plaintiffs have failed to prove that original defendant no.4 handed over the possession to them and they were in possession of the suit land which has been declared as surplus land.
5.2. Considering the aforesaid facts and circumstances of the case when plaintiffs had not title and / or they were not owners of the suit land which has been declared as surplus land at the time when the Act came into force, they were not required to be heard while passing order under Sections 20 and 21 of the Act and therefore, the learned Appellate Court has rightly allowed the appeals preferred by original defendant nos.1 to 3 herein and has rightly quashed and set aside the judgment and decree passed by the learned trial Court holding the orders declaring 165.01 acres of land as surplus from the holding of the original defendant no.4 -original owners. At the cost of repetition again it is observed and as stated above, the learned advocate for the appellants herein -original plaintiffs has categorically stated at the bar that plaintiffs are not questioning the order passed by the competent authority confirmed by the appellate authority declaring 165.01 acres of land as surplus land from the holding of the original defendant no.4-original owner. Under the circumstances, the learned Appellate Court has rightly quashed and set aside the judgment and decree passed by the learned trial Court and the orders passed by the competent authority under the Act would unjust and not binding to the plaintiffs and consequently the learned trial Court has rightly dismissed the suit preferred by the plaintiffs.
6.0. In view of the above and for the reasons stated above, both the appeals fail and they deserves to be dismissed and are accordingly dismissed. In view of dismissal of the Second Appeals, no order in Civil Applications Nos. 13576 of 2011 and 13759 of 2011 and are accordingly dismissed. No costs.
sd/-
( M. R. Shah, J. ) "kaushik"
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