[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellants herein - original plaintiffs claiming to be the Trustees of one Padamkuvarba Rajput Wadi, Rajpipla to quash and set aside the impugned judgment and decree dated 18.08.2011 passed by the learned Principal Senior Civil Judge, Narmada, at Rajpipla in Regular Civil Suit No.109 of 2007 as well as the impugned judgment and order dated 16.02.2012 passed by the learned Appellate Court - learned Principal District Judge, Narmada in Regular Civil Appeal No.38 of 2011 by which the learned Appellate Court has dismissed the said appeal preferred by the appellants herein confirming the judgment and decree passed by the learned trial Court dismissing the suit.
[2.0] That the appellants herein - original plaintiffs claiming to be the Trustees of the Padamkuvarba Rajput Wadi, Rajpipla instituted Regular Civil Suit No.109 of 2007 in the Court of learned Civil Judge, Senior Division, Rajpipla for a declaration and permanent injunction more particularly to declare that the Trust has become the owner of the suit property by adverse possession, contending inter-alia that they are in possession of the suit land since 1930 given to them by the then Maharaja of Rajpipla State. It is required to be noted that before that there were already proceedings under Section 37 of Bombay Land Revenue Code and the appellants herein - original plaintiffs lost till the Gujarat Revenue Tribunal and thereafter they preferred the aforesaid suit. The suit was resisted by the defendants by submitting that as such the plaintiffs / Trust is not in possession of the suit property. It was also submitted that the name of the Government was mutated in revenue record in the year 1966 (Exh.33) and thereafter the land was transferred to PWD, State of Gujarat in the year 1972 and since then the PWD of the State Government is in possession of the suit land. It was also contended on behalf of the defendants that even before instituting the suit, the appellants - original plaintiffs have not obtained the prior approval of the Charity Commissioner as required under Section 51 of the Bombay Public Trust Act. Thereafter, the learned trial Court framed the issues and on appreciation of evidence held that the plaintiffs have failed to prove that they are in possession of the suit property since 1930 as alleged and /or the same was given to them by the then Maharaja of Rajpipla State, the learned trial Court also considered the fact that in the year 1966, name of the Government was mutated in the revenue record and even the same has been transferred to the PWD in the year 1972 and thereafter the suit has been preferred in the year 2007 and consequently the learned trial Court dismissed the suit.
[2.1] Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court dismissing the suit, the appellants herein - original plaintiffs preferred Regular Civil Appeal No.38 of 2011 before the learned District Court, Narmada and learned Appellate Court by impugned judgment and order has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit.
[2.2] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by both the Courts below, the appellants herein - original plaintiffs have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure, 1908.
[3.0] Shri Parmar, learned advocate appearing on behalf of the appellants has vehemently submitted that as the Trust was in possession of the suit property since more than 60 years, the learned trial Court ought to have decreed the suit by declaring the Trust as owner by adverse possession. Therefore, it is requested to admit/allow the present Second Appeal.
[4.0] Heard Shri Parmar, learned advocate appearing on behalf of the appellants - original plaintiffs at length and considered the impugned judgment and order passed by both the Courts below as well as the orders passed by the Deputy Collector, Collector and Gujarat Revenue Tribunal under Section 37(2) of the Bombay Land Revenue Code.
[4.1] At the outset it is required to be noted that as such there are concurrent findings of fact given by both the Courts below and on appreciation of evidence held that the plaintiffs have failed to prove that they are in possession of the disputed land since 1930 as alleged and that too by the then Maharaja of Rajpipla State. The findings of fact given by both the Courts below are on appreciation of evidence which are not required to be interfered by this Court in exercise of powers under Section 100 of the CPC.
[4.2] It is also required to be noted that as such the name of the Government was mutated in the revenue record in the year 1966 (Exh.33) and even the suit land has been transferred to PWD, State of Gujarat in the year 1972 and thereafter the plaintiffs initiated the proceedings under Section 37(2) of the BLRC in the year 1991 and the Deputy Collector, Rajpipla by a detailed order dated 12.03.1992 has held the Government to be the owner and the same has been confirmed upto the Gujarat Revenue Tribunal. Apart from the fact that the plaintiffs have not challenged the order passed by the authorities under Section 37(2) of the BLRC, even no declaration has been sought that the said orders are not binding to the plaintiffs. Even otherwise as stated herein above, the plaintiffs have filed the suit for a declaration that they have become the owner by adverse possession and that on appreciation of evidence both the Courts below have specifically held that plaintiffs have failed to prove that they were in possession of the suit land in question since 1930 as alleged.
[4.3] Even otherwise it is required to be noted that the plaintiffs have instituted the suit as Trustees of Padamkuvarba Rajput Wadi, Rajpipla and claimed that the Trust has become the owner by adverse possession. It is also required to be noted that Trust registered under the Bombay Public Trust Act and before institution of the suit, a permission of the Charity Commissioner as required under Section 51 of the Bombay Public Trust Act has not been obtained.
[5.0] Considering the afroresaid facts and circumstances, more particularly, when the plaintiffs have failed to prove that Trust is in possession of the suit land since 1930 as owner and considering the fact that name of Government has been mutated in the revenue record in the year 1966 (Exh.33) and the land has been transferred to PWD, State of Gujarat in the year 1972 and since then the PWD is in possession of the suit land and suit has been preferred in the year 2007, no illegality has been committed by the learned trial Court in dismissing the suit and the same is rightly confirmed by the learned Appellate Court. No substantial question of law arises in the present Second Appeal. Hence, the present Second Appeal deserves to be dismissed and is, accordingly, dismissed.
Civil Application No.7646 of 2012 In view of dismissal of Second Appeal, Civil Application No.7646 of 2012 also deserves to be dismissed and is, accordingly, dismissed.
(M.R.
Shah, J.) menon Top