Dismissed

Union of India (Bharat Sangh), General Manager v. Dineshbhai Chandubhai Maleshiya

Gujarat HC25 Jul 2018SA/178/2018

Case brief

AI extract

What is this about?

Second appeal by Railway regarding land ownership. Court held no substantial question of law existed as lower courts correctly relied on plaintiff evidence (state grants, tax records) over illegible railway maps. Appeal dismissed.

What did the court decide?

Second appeal dismissed as no substantial question of law was involved and findings of courts below were not perverse.

Union of India (Bharat Sangh), General Manager Vs… — Property and Title | Gujarat HC (2018)

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C/SA/178/2018 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SECOND APPEAL NO. 178 of 2018

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UNION OF INDIA (BHARAT SANGH), GENERAL MANAGER

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Versus

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DINESHBHAI CHANDUBHAI MALESHIYA

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Appearance:

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MS ARCHANA U AMIN(2462) for the PETITIONER(s) No. 1,2,3,4 for the RESPONDENT(s) No. 1,2,3,4

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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Date : 25/07/2018

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ORAL ORDER

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This second appeal under section 100 of the CPC is at the instance of the original defendants and is directed against the judgment and order dated 31^st January, 2018 passed by the Principal District Judge, Sabarkantha at Himmatnagar in the Regular Civil Appeal No.20 of 2018 arising from the judgment and decree dated 28^th March, 2008 passed by the 5^th Addl. Senior Civil Judge, Himmatnagar in the Regular Civil Suit No.184 of 2003.

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For the sake of convenience, the appellants herein shall be referred to as the original defendants and the respondents herein shall be referred to as the original plaintiffs.

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The plaintiffs preferred a Regular Civil Suit for declaration and injunction. They prayed for a declaration that they are the lawful owners of the Plot Nos.121 and 150 respectively, situated at Motipura, District: Himmatnagar.

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Page 1 of 11

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C/SA/178/2018 ORDER

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According to the case of the plaintiffs, they purchased the two plots by way of a registered sale deed dated 16^th October, 1989 executed by Suthar Mulshankar Ranchhoddas, Panchal Maganlal and Shamaldas Revabhai. It appears that the sale deed was executed by Suthar Mulshankar Ranchhoddas in his personal capacity and also as a power of attorney holder of the other two co-owners named above. The case of the plaintiffs has been stated in detail in para-5 of the judgment and order passed by the lower appellate court. Para-5 is extracted hereunder;

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‘5) On the other hand, it is submitted on behalf of the plaintiffs that the suit property, Plot No.121 and 150 were originally owned by the State of Idar and same were given to the predecessor in title of the plaintiffs, i.e, (I) Suthar Mulshankar Ranchhoddas (ii) Panchal Maganlal Motilal and (iii) Patel Shamaldas Revabhai by Parvana No.491/48-49, dated 09.03.1949 and Parvana No.251 dated 11.05.1948. Thereafter Suthar Mulshankar Ranchhoddas, the power of attorney of the aforesaid three persons has sold the land of both the plots were vide registered sale deed No.1802 dated 25.09.1989 to plaintiff No.1 for Rs.50,000/- and some portion of the plot No.150 sold to plaintiff No.2 vide registered sale deed dated 24.01.2000 and some portion of the said plot No.150 sold to ancestor of the plaintiff No.3 Uderam Bhuidarji Shah by registered sale deed No.1870 dated 16.10.1989 and same is acquired by the plaintiff No.3 through will of the said Uderam Bhudarji Shah and since then the said property is owned by the plaintiffs and also in their possession. The said property is also in the name of the plaintiffs in revenue record as well as record of the municipality of Himmatnagar and except those plots and other unsold plots of Free Gunj were acquired by the Collector, Himmatnagar for Railway in the year of 1965. But the plots purchased by the plaintiffs are not acquired by the Railway through Collector. Therefore, the suit property is not anyway owned or possessed by the Railway, even though the Railway has raised dispute regarding the ownership and possession of the said plot. Therefore, the plaintiffs had filed Regular Civil Suit for

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Page 2 of 11

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C/SA/178/2018 ORDER

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declaration and perpetual injunction against the defendants. The plaintiffs have produced oral as well as documentary evidence to prove their case and defendants have also produced certain documentary evidence, but there is no any document regarding acquisition of the suit plots by the Railway. Therefore, after appreciating the evidence on record learned Senior Civil Judge, Himmatnagar has decreed the suit filed by the plaintiffs and said judgment and decree of the learned Senior Civil Judge, Himmatnagar is based on the evidence on record. Therefore, there is no substance in the appeal filed by the defendants and same is liable to be dismissed with costs. Therefore, the learned advocate for the plaintiffs has prayed to dismiss the appeal with costs.”

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On the other hand, the case of the appellants hereinoriginal defendants has been clearly stated in para-4 of the judgment and order of the lower appellate court. Para-4 is extracted hereunder;

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“4) It is submitted on behalf of the defendants that the suit property of mauje Motipura, Plot Nos.121 and 157 is disputed property and as per the record of the Railway, it is owned and possessed by the Railway, but the plaintiffs have illegally purchased the said properties in the year of 1989 and thereafter filed the suit against Railway for declaration and perpetual injunction. During the trial defendants have produced several documentary evidence including plan of the Railway of 1960 to show that the said property is owned by railway and also in possession of the Railway, but the learned Senior Civil Judge has not appreciated the evidence led by the defendants and erroneously held that the suit property is owned by the plaintiffs. The defendants have also produced several documentary evidence to show that the disputed property has been acquired by the Railway since long, but the learned Senior Civil Judge has not appreciated and considered that evidence properly or in appropriate manner and erroneously held that the suit property is not acquired by the Railway and it is not owned by the Railway. Therefore, the impugned judgment and decree passed by the learned Senior Civil

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Page 3 of 11

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C/SA/178/2018 ORDER

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Judge is perverse, illegal and erroneous. So, learned advocate for defendants has prayed to set aside the impugned judgment and decree passed by the learned Senior Civil Judge against the defendants by allowing appeal and to dismiss the suit filed by the plaintiffs with costs. “

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The Trial Court framed the following issues by Exh.69.

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“1) Whether the plaintiffs prove that they are the owners and occupiers of the Plots bearing Nos.121 and 150, out of the plots of Free Gunj Parvana, situated at Mauje Motipura, Himmatnagar?

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2) Whether the plaintiffs prove that they are having the rights over the public road (Nadiya) situated on the North side of their Plot Nos.121 and 150 and on the West side of their Plot No.121?

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3) Whether the plaintiffs are entitled to the reliefs as prayed for?

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4) What order? and what decree?”

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The issues framed by the Trail Court, referred to above, came to be answered as under;

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“1) In the Affirmative

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2) In the Affirmative

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3) Party in the Affirmative 4) As per the final order and decree.”

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The Trial Court, on appreciation of the oral as well as the documentary evidence, partly allowed the suit of the plaintiffs. It was declared that the plaintiffs are the lawful owners of the Plot Nos.121 and 150 respectively. The plaintiffs were also held to be in possession of the two plots. The injunction, prayed for by the plaintiffs against the defendants, was also granted. The appellants herein-original defendants, being dissatisfied with the judgment and decree passed by the Trial

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Page 4 of 11

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C/SA/178/2018 ORDER

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Court preferred Regular Civil Appeal in the District Court of the Himmatnagar. The lower appellate court, after due examination of the entire matter, thought fit to affirm the judgment and decree passed by the Trial Court and thereby dismissed the appeal. Being dissatisfied with the judgment and order passed by the first appellate court, the appellantsoriginal defendants are here before this Court with this second appeal under section 100 of the CPC.

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8. The following questions have been formulated as the substantial questions of law in the memorandum of the second appeal;

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“(i) Whether the Courts below were justified in drawing adverse inference of possession and acquisition of and by the Railway in absence of old documents of more than 30 years?

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(ii) Whether the Courts below were justified in passing both the judgments clearly ignoring the certified maps showing falling of the disputed plots with the land acquired by the Railway way back in 1968?

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(iii) Whether the Courts below were justified in overlooking the fact that the appellants being the Government would not do any illegal thing contrary to law?”

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Ms. Amin, the learned counsel appearing for the appellants-original defendants vehemently submitted that the two courts below committed a serious error in declaring the plaintiffs as the true and lawful owners of the plots in question. According to Ms. Amin, godowns were constructed on the two plots and those godowns were being used by the Railways. Ms. Amin submitted that the two plots in question were acquired by the Railways. She further submitted that the

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C/SA/178/2018 ORDER

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plaintiffs encroached upon the two plots. They have no right, title or interest over the two plots.

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Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether any substantial question of law is involved in the present second appeal.

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The suit filed by the plaintiffs is for declaration and injunction on the strength of title. Obviously, the burden is on the plaintiffs to establish that title. No doubt, in appreciating the case of title set up by the plaintiffs, the Court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiffs to a decree. There cannot be any demur to these propositions.

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I inquired with the learned counsel appearing for the appellants as to on what basis the Railways claim to be the true and lawful owners of the two plots in question. The reply of the learned counsel is that all that is on record to indicate the ownership of the Railways of the two plots is in the form of three maps Exhibits-127, 128 and 129. The learned counsel fairly submitted that besides the three maps, there is no other documentary evidence to establish the ownership. With regard to the three maps, relied upon by the Railways, the findings recorded by the appellate court is that out of three maps, two maps are absolutely illegible and one map is nothing but a black paper. Let me look into the findings

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Page 6 of 11

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C/SA/178/2018 ORDER

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recorded by the appellate court;

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“12) While going through the oral as well as documentary evidence produced by the parties, in the light of pleadings and issues for the purpose of determination of Suit as well as appeal, it can be said that the Suit property is owned by the plaintiffs and there is no evidence worth the name to hold that the said property is owned by the defendants, the Railway, because the plaintiffs have produced more than sufficient evidence including documentary evidence as per their pleadings. They have also brought on record the Parvana issued by the Idar State regarding the Suit properties which are of 1948-1949 (vide Exh.80 and 81). The said documents are duly supporting the case of the plaintiffs. The plaintiffs have also produced the sale deed executed in their favour by the Power of Attorney of the original Parvana holder (vide exh.85 and Exh.97). Said documents are also supporting to the case of the plaintiffs. The plaintiffs have also produced the documentary evidence from the record of Nagar Panchayat and Nagarpalika, Himmatnagar regarding the payment of Property tax of Suit properties (vide Exh.84 and 88). While going through the said documentary evidence, it can be said that in the record of Nagar Panchayat and Nagarpalika, Himmatnagar, the names of plaintiffs and their predecessor in title are mentioned as holders of the property and also the payment was made by the plaintiffs regarding the Property-tax of the Suit property to the Himmatnagar Nagarpalika. Therefore also, the case of the plaintiffs is trustworthy and believable. The plaintiffs have also produced the Village Form No.6 (Exh.6), Village Form No.7/12 of the Suit property (Exh.87) wherein also the Suit Property is mentioned in the name of the plaintiffs and their predecessor in title. The plaintiffs have also produced the permission of construction granted by the Himmatnagar Nagarpalika (Exh.89) which is also regarding the Suit Property and in the name of the plaintiff Dineshbhai Chandubhai Maleshiya which is dated 27.08.1990 wherein it is also mentioned that before starting the actual work of construction, necessary No Objection Certificate should be obtained. The plaintiffs have also produced a notice given by the Railway (vide Exh.92) wherein the Railway officials have mentioned

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Page 7 of 11

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C/SA/178/2018 ORDER

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that the plaintiff Dineshbhai Chandubhai Maleshiya is encroaching on the land of the Railway. The said notice was dated 01.11.2003. So as per the said notice, it can be said that at that time, the Railway had not stated that the Suit property is owned by the Railway, but it is only stated that the plaintiff is encroaching on the Railway property. The plaintiffs have also produced the map prepared by the Talati, Himmatnagar (vide Exh.94). While going through the said map, it appears that the said map is regarding Suit property as well as adjoining property including the Railway land and Railway track wherein also, the land of the Railway is mentioned which is other than the Suit property and wherein it is also stated that the property is of Parvana No.491 dated 03.09.1949 and plot No.50 is of Parvana No.251 dated 12.05.1948 of Idar State. The plaintiffs have also produced a reply given by the Special Land Acquisition Officer dated 02.07.2007 (vide Exh.101) wherein it is stated that no acquisition proceeding is being in progress regarding the plot No.121 and 150 of mauje Motipura, Rajendra Free Gunj and there is also no any record regarding the acquisition of the said plot during the period of Idar State. Therefore, the plaintiffs have also brought on record that the Suit property has not been acquired by the Government for the Railway also and there is also no any record regarding the acquisition of the said property during the period of State.

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13. Therefore, it was duty of the defendants, Railway to bring on record the necessary and sufficient evidence to show that the Suit properties are acquired by the Railway through State Government or through any other Central acquiring body or by the Railway directly during the period of State or subsequent to it and burden of proof to prove the said fact or contention was also on defendants, Railway, but they have not brought on record any documentary evidence to show that the said property has been acquired by the Railway and it is owned by the Railway. The defendant No.1 to 4 have produced three maps of Railway (vide Exh.127 to 129), but while going through the said maps, it can be said that the said maps are not so legible and out of them one map is completely black. Therefore, on the basis of the said maps, one cannot come to the conclusion that the Suit property is owned by the Railway and it was acquired by or on behalf of the Railway. In the absence

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Page 8 of 11

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C/SA/178/2018 ORDER

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of the documentary evidence regarding the actual acquisition of the land including Suit property for Railway, only on the basis of the maps prepared by the Railway, behind the back of the plaintiffs or their predecessor in title, it cannot be said certainly that the Suit property is owned by the defendants, the Railway and said property was acquired by Railway previously at any time. Therefore, in the absence of such type of documentary evidence, it can be said that the defendant Railway was failed to discharge the burden of proof to prove that the title and ownership of the Suit property is of Railway.

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14. Therefore, considering the documentary evidence as well as oral evidence produced by both the sides, it can certainly be said that the plaintiffs have proved their case by bring on record sufficient and reliable oral as well as documentary evidence. Therefore, the contention raised by the appellants, the original defendants, Railway that the impugned judgment and decree passed by the learned 5^th Additional Senior Civil Judge is perverse, erroneous and illegal, cannot be accepted. On the contrary, the learned 5^th Additional Senior Civil Judge has rightly appreciated the oral as well as documentary evidence produced by the parties on record and on that basis, has rightly come to the conclusion that the suit property is owned by the plaintiffs and is not owned by the Railway.

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15. During the argument, the learned advocate for the defendant No.1 to 4 Mr. R.B. Bhatt submitted that there is no any documentary evidence to show that the Suit property is acquired by the Railway or for Railway at any time. Therefore also, it can be said that the finding of the learned 5^th Additional Senior Civil Judge regarding the ownership of plaintiffs cannot be said as erroneous or illegal or perverse. So the contention raised by the defendant No.1 to 4, the Railway by filing this appeal against the impugned judgment and decree passed by the learned 5^th Additional Senior Civil Judge, cannot be accepted and there is no merit and substance in the appeal of defendant No.1 to 4, the Railway. Hence, the appeal filed by appellants, original defendant No.1 to 4, is liable to be dismissed with cost. So I answer point No.1 to 5 in negative and for point No.6, I pass following order.”

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C/SA/178/2018 ORDER

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Having regard to the findings recorded by the Trial Court as well as by the first appellate court, I am of the view that the appellants herein-defendants have not been able to establish anything with regard to their ownership over the two plots in question. They did not even question the sale deed which was executed in favour of the plaintiffs by the predecessor in title so far as the two plots are concerned. Besides the same, nothing has been shown to this Court as to how and at which point of time the two plots were acquired by the Railways.

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The title over a property is not decided by a revenue map or survey records alone. A revenue map or records-of-right is not a document of title. It merely raises a presumption in regard to possession. It is beyond any doubt or dispute that such a presumption is rebuttable.

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One of the substantial questions of law formulated in the memorandum of the second appeal is quite funny. It reads as under;

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“ Whether the Courts below were justified in overlooking the fact that the appellants being the Government would not do any illegal thing contrary to law?”

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16. I wonder what prompted the Railways to frame such a question. This question depicts nothing but a sorry state of affairs of the Indian Railways. I wish that what has been stated in the question, referred to above, would come true one day.

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In my view, none of the questions formulated in the

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C/SA/178/2018 ORDER

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memorandum of the second appeal could be termed as substantial questions of law. They are all questions of fact. The findings recorded by the two courts below cannot be termed as perverse. There is no jurisdictional infirmity in the two judgments, warranting any interference in this second appeal under section 100 of the CPC. In such circumstances, this appeal fails and is hereby dismissed.

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(J.B.PARDIWALA, J)

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Vahid

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Union of India (Bharat Sangh), General Manager v. Dineshbhai Chandubhai Maleshiya

Case brief

What is this about?

What did the court decide?

Union of India (Bharat Sangh), General Manager v. Dineshbhai Chandubhai Maleshiya

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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