Gujarat High Court
Mansukhbhai Ramjibhai Since Died ... vs State Of Gujarat on 30 June, 2025
NEUTRAL CITATION
C/SA/283/2009 ORDER DATED: 30/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 283 of 2009
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2009
In R/SECOND APPEAL NO. 283 of 2009
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MANSUKHBHAI RAMJIBHAI SINCE DIED THROUGH LHR & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS SNEHA A JOSHI(2156) for the Appellant(s) No.
3,3.1,3.2,3.3,3.4,3.5,4,4.1,4.2,4.3,4.4,4.5,5
MR BHARAT VYAS, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 30/06/2025
ORAL ORDER
1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (for short "the Code") challenging the judgement and decree passed by Additional District Judge and Presiding Officer, Fast Track Court, Dahod in Regular Civil Appeal No.92 of 2004, whereby the said appeal has been allowed and the judgement and decree passed by the Trial Court against defendant no.2 in Regular Civil Suit No.429 of 1989 is quashed and as defendant no.1 has not challenged the said judgement and decree of the Trial Court, Page 1 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:31:39 IST 2025 NEUTRAL CITATION C/SA/283/2009 ORDER DATED: 30/06/2025 undefined the judgement and decree passed against defendant no.1 was held, was upheld and confirmed.
2. For the sake of brevity and convenience, the parties are referred to at their original status as that in the suit.
3. The brief facts arising in the present appeal are that the appellants herein were the original plaintiffs in Regular Civil Suit No.429 of 1989. It was the case of plaintiffs before the Trial Court that land bearing Revenue Survey No.29 and 224/1 of Village Jamdhara, Taluka Limkheda, District Dahod is owned and possessed by them and that they are cultivating the same. It is also stated that the plaintiffs are paying land revenue for the suit land and the land was partitioned in the year 1976, therefore, the father of the defendant relinquished his share in favour of plaintiff nos.1 to 3 and father of plaintiff nos.4 and 5 and a mutation entry to that effect was entered in the revenue records on 21.08.1976 bearing no.394 and as that plaintiffs stated that the defendants were trying to take over the possession of the suit land from the plaintiffs, the plaintiffs Page 2 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:31:39 IST 2025 NEUTRAL CITATION C/SA/283/2009 ORDER DATED: 30/06/2025 undefined filed the suit for declaration and permanent injunction against the defendants to restrain them from disturbing the peaceful possession of the plaintiffs, after framing the following issues:
"1. Whether the plaintiffs prove that the suit lands are in their possession?
2. Whether the plaintiffs prove that defendant's father has relinquished his share in favour of the plaintiffs?
3. Whether the order passed by the defendant No.3 is illegal, unjust and/ or without jurisdiction?
4.Whether the suit without statutory notice is maintainable?
5. Whether the plaintiffs are entitled for any relief?
6. What order and decree?"
4. After considering the oral evidence and the documentary evidence, the Trial Court decreed the suit of the plaintiffs by an order dated 27.09.1996, aggrieved by the said judgement and decree dated 27.09.1996, the defendant no.2 filed appeal Page 3 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:31:39 IST 2025 NEUTRAL CITATION C/SA/283/2009 ORDER DATED: 30/06/2025 undefined before the First Appellate Court, the said appeal was allowed by judgement and decree dated 02.08.2005, the said appeal was challenged by the plaintiffs by filing Second Appeal no.73 of 2008 and by an order dated 29.09.2008, the Coordinate Bench of this Court quashed and set aside the said order passed in the Civil Appeal No.92 of 2004 and remanded the matter to the District Court Dahod to hear the same afresh after giving due notice to all the parties and affording them a proper opportunity of being heard. Thereafter, the First Appellate Court reappreciated the evidence and allowed the said appeal by an order dated 17.07.2009, hence the present second appeal.
5. At the time of admitting the Second Appeal, the following substantial questions of law were framed by an order dated 18.04.2011, which are as under and the present second appeal is heard on the said substantial questions of law:
"1. Whether the Lower Appellate Court has erred in law in holding that the suit of the appellants-
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having been filed without the service of notice under section 80 of the Civil Procedure Code ?
2. Whether the suit of the plaintiffs was barred by the provisions contained in Section 135(H) (3) of the Bombay Land Revenue Code, 1879 ?"
6. Learned advocate for the plaintiff has mainly argued that the judgment and decree passed by the First Appellate Court is contrary to law and against the provisions of statute. Learned advocate for the plaintiff has stated that the plaintiff is in possession of the suit property since many years and there were documentary evidence to show that the plaintiffs have been paying the revenue tax. The names of the plaintiffs have been stated in the revenue records and after the partition that took place on 21.08.1976, the plaintiffs have been cultivating the suit land openly and without obstruction. Learned advocate for the plaintiff has also stated that entry no.394 muted in the revenue record is after the statements have been recorded of the concerned parties and in view of provision of Section 135D and Section 135J of the Bombay land revenue code, Page 5 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:31:39 IST 2025 NEUTRAL CITATION C/SA/283/2009 ORDER DATED: 30/06/2025 undefined 1879, the presumption of correctness of the entry shall always be in the favour of the plaintiffs and the plaintiff's suit could not have been dismissed by the First Appellate Court as the plaintiff has sought for protection of the plaintiff's possession in the suit property. Moreover, it is the case of the plaintiffs that the evidence produced by the plaintiffs has not been challenged by the defendant no.1 in view of the fact that the defendants have not led any oral as well as documentary evidence in support of their pleadings. The plaintiff has in his deposition at exhibit-62 clearly stated that the plaintiff is in possession of the suit land for many years and it is the case of the plaintiffs that in view of the partition, the plaintiffs are in possession and occupation and cultivate the land and no notice has been served by the revenue department and in that view of the matter, the First Appellate Court could not have quashed and set aside the judgement and decree passed by the Trial Court. To substantiate his argument, learned advocate for the plaintiffs has relied on Section 5B of the Bombay Revenue Jurisdiction Act, 1876. Learned advocate for the plaintiffs has Page 6 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:31:39 IST 2025 NEUTRAL CITATION C/SA/283/2009 ORDER DATED: 30/06/2025 undefined also relied upon the judgment reported in AIR 1985 NOC 144 in the case of Kureshi Hussainbhai Motibhai Vs. Saiyad Sidar Kesharbhai and Others,, in the case of Jaswantbhai Patel Vs. Kantibhai Patel, 2024 (0)AIJEL-HC 249905.
7. With respect to the contention of the provisions of Section 80 of the Code, it is the case of the plaintiffs that before filing the suit, the plaintiffs had already sought leave of the Court to institute the suit without serving any notice as required under Subsection 1 of Section 80 of the Code and the Court had granted the permission and therefore there was no question that the plaint was barred under the provisions of Section 80 of the Code and in view of the said fact it has been argued that the present second appeal is required to be allowed.
8. Per contra, learned AGP Mr.Bharat Vyas has mainly argued that the judgement and decree passed by the Appellate Court is just and proper and does not required to be interfered. Learned AGP Mr.Bharat Vyas appearing for the State has also argued that if the exhibit 76 i.e. the entry no.34 is perused it can be Page 7 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:31:39 IST 2025 NEUTRAL CITATION C/SA/283/2009 ORDER DATED: 30/06/2025 undefined clearly established that the concerned authority has followed the procedure laid down in Section 135D of the Bombay Land Revenue Code and the entry no.394 reveals that the notice to the concerned persons was served as per Section 135D of the Bombay Land Revenue Code and after obtaining statements from the concerned persons and the panchas the entry has been certified and in view of Section 135J of the Bombay Land Revenue Code when the said entry was made after compliance of the provisions of Section 135D of the Bombay Land Revenue Code, there is a presumption of correctness of the entries of record of rights and register of mutation. The Appellate Court, in view of the fact that the defendant no.1 did not challenge the judgment and decree of the Trial Court, the judgment and decree passed by the defendant has been upheld and it is only the judgment and decree passed by the Trial Court against defendant no.2 i.e. State which has been set aside. It is also been argued by the learned AGP that the revenue entries having become final and having not been challenged under the provisions of Section 11 of the Bombay Page 8 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:31:39 IST 2025 NEUTRAL CITATION C/SA/283/2009 ORDER DATED: 30/06/2025 undefined Revenue Jurisdiction Act, 1876, before the competent authority the plaintiffs could not have sought for reliefs against the defendant no.2 declaring the order passed by the defendant no.2 vide exhibit 77 to be illegal and without jurisdiction.
9. Having heard learned advocates for the respective parties and having considered the order that has been passed by the Trial Court and the First Appellate Court, the fact remains that the judgment and decree qua the defendant no.1 has been upheld and the only challenge that is there is with respect to the challenge against dismissal of the suit qua defendant no.2. If the reliefs that has been claimed in the plaint are perused the plaintiffs have sought for a relief to declare the order that has been passed on 26.04.1989 to be illegal, not binding and without jurisdiction. If the said order produced vide exhibit 77 is considered the said order has been passed under Rule 108 /6 of the Gujarat Land Revenue Rules and in view of the fact that nothing adverse has come on record to prove the fact that by way of the revenue entry no.394, the name of original Page 9 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:31:39 IST 2025 NEUTRAL CITATION C/SA/283/2009 ORDER DATED: 30/06/2025 undefined plaintiffs came on record on 21.08.1976. The said order was challenged by the son of defendant no.1 and by an order dated 20.01.1983 the Assistant Collector had rejected the said appeal, a revision was filed against the said order on 31.01.1983 and the said revision has also been rejected and defendant no.1 had challenged the same by filing appeal under Section 203 of the Gujarat Land Revenue Code, and thereafter by an order dated 21.04.1989 the said revision application was allowed and the order passed by the Assistant Collector dated 20.01.1983 was confirmed and the order passed on 31.01.1984 by the Collector Shri, Panchmahal was quashed and set aside. In view of the said fact, the entry has been cancelled. Learned advocate for the plaintiff has mainly relied on Section 5B of the Bombay Revenue Jurisdiction Act, 1876, and it is the case of the plaintiff that if there is any dispute with the entry in record of rights the same can be decided by the Civil Court and the entry in record of rights in view of Section 135H only has presumptive value and it does not decide the rights of the parties finally, when there is a dispute regarding the right the Page 10 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:31:39 IST 2025 NEUTRAL CITATION C/SA/283/2009 ORDER DATED: 30/06/2025 undefined same has to be decided by the Civil Court. The fact that the present defendant no.1, has not challenged the judgment and decree passed by the Trial Court itself gives a reason that defendant no.1 has agreed to the finding of the Trial Court. The Trial Court in the said finding has come to the conclusion that the father of the defendant no.1 has relinquished his share in favour of the plaintiff the said finding having not been challenged by the defendant no.1 and defendant no.2-State only challenging the said appeal on the ground that the Trial Court could not have passed the order produced vide exhibit 77 and the said order is illegal and without jurisdiction.
10. The findings with respect to substantial questions of law:
(1) Whether the Lower Appellate Court has erred in law in holding that the suit of the appellants-original plaintiffs was not maintainable the same having been filed without the service of notice under section 80 of the Civil Procedure Code ?
-The fact that the plaintiff has along with the plaint sought Page 11 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:31:39 IST 2025 NEUTRAL CITATION C/SA/283/2009 ORDER DATED: 30/06/2025 undefined leave of the Court and the same is taken into consideration and by an order dated 21.07.1989, the Trial Court has given permission to the plaintiffs to file the suit and gave leave to the plaintiffs to institute the suit without issuing notice under Section 80, the question of plaint being barred under the provisions of Section 80 does not arise. Section 80 of the Code of Civil Procedure, 1908 reads as under:-
"(1) [Save as otherwise provided in sub-section (2), no suit shall be instituted ] [Substituted by the Code of Civil Procedure (Amendment) Act, 1976, Section 27, for " No suit shall be instituted" (w.e.f. 1.2.1977).][against the Government (including the Government of the State of Jammu and Kashmir)] [Substituted by Act 26 of 1963, Section 3, for certain words (w.e.f. 5.6.1964).] or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been [delivered to, or left at the office] [Substituted by A.O. 1937, for " in the case of the Secretary of State in Council, delivered to, or left at the office of a Secretary to the L.G. or the Collector of the district" .] of-
(a) in the case of a suit against the Central Government, [except where it relates to a railway] [Inserted by Act 6 of 1948, Section 2.], a Secretary to that Government;
(b) [Inserted as Clause (aa) by Act 6 of 1948, Section 2.] [in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway;] [Inserted as Clause (aa) by Act 6 of 1948, Section 2.] Page 12 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:31:39 IST 2025 NEUTRAL CITATION C/SA/283/2009 ORDER DATED: 30/06/2025 undefined [* * *] [Former Clause (b) omitted by A.O. 1948.] (bb) [ in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;] [Inserted by Act 26 of 1963, Section 3 (w.e.f. 5.6.1964).]
(c) in the case of a suit against [any other State Government] [Substituted by Act 26 of 1963, Section 3, for "
a State Government" (w.e.f. 5.6.1964).], a Secretary to that Government or the Collector of the district; [* * *] [The word " and" and Clause (d) omitted by A.O. 1948.] [* * *] [The word " and" and Clause (d) omitted by A.O. 1948.] and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) [ A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be Page 13 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:31:39 IST 2025 NEUTRAL CITATION C/SA/283/2009 ORDER DATED: 30/06/2025 undefined granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).
(3)No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice-
(a)the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.]"
11. With respect to the 2nd Substantial question of law that has been raised which is as under:
(2) Whether the suit of the plaintiffs was barred by the provisions contained in Section 135(H)(3) of the Bombay Land Revenue Code, 1879 ?
12. The facts of the present case are that the plaintiffs have sought relief against defendant no.1 with respect to the suit property and along with the same, the plaintiffs have also challenged the order that has been passed by the defendant no.2 which is Page 14 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:31:39 IST 2025 NEUTRAL CITATION C/SA/283/2009 ORDER DATED: 30/06/2025 undefined produced vide exhibit 77 and the Trial Court while deciding the suit has come to a finding that defendant no.1's father had already relinquished his right with respect to the suit property and the said order having not been challenged by defendant no.1, the said finding of the Trial Court becomes final and therefore in view of the said fact that the suit is filed by the plaintiffs for claiming assertive right in the suit property and challenging the order passed by defendant no.2, it cannot be said that the suit filed by the plaintiffs was barred by the provisions contained in Section 135(H)(3) of the Bombay Land Revenue Code, 1879.
13. In view of the said fact the order passed by the Appellate Court is required to be quashed and set aside and the judgment and decree passed by the Trial Court is confirmed. In view of the same, the present Second Appeal is accordingly allowed. In view of the disposal of the main matter, the connected civil application is accordingly disposed of.
(SANJEEV J.THAKER,J) URIL RANA Page 15 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:31:39 IST 2025