Ghanshyam Dyechem Through ... vs State Of Gujarat
2021 Latest Caselaw 6357 Guj

        C/SA/77/2021                               ORDER DATED: 18/06/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                     R/SECOND APPEAL NO. 77 of 2021
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       GHANSHYAM DYECHEM THROUGH PROPRIETOR USHABEN
                    BANSIDHAR KACHORIYA
                           Versus
                 STATE OF GUJARAT & 2 other(s)
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Appearance:
MR.D K.PUJ(3836) for the Appellant(s) No. 1
for the Respondent(s) No. 2,3
MS. NIDHI VYAS, ASSISTANT GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

                              Date : 18/06/2021

                               ORAL ORDER

Heard learned advocate Mr. Dhanvin Puj for the appellant and learned Assistant Government Pleader Ms. Nidhi Vyas for the respondent State and its authorities, on service of copy of the appeal, in advance.

2. This Second Appeal is directed against judgment and order dated 25.1.2021 passed by learned second Additional District Judge, Morbi, whereby the said lower appellate court allowed Regular Civil Appeal No. 70 of 2005 preferred by the State and Collector, Rajkot, in turn reversing the judgment and decree passed by learned Civil Judge, Senior Division, in Regular Civil Suit No. 12 of 1992.

3. The suit of the plaintiff - the appellant herein was for declaratory and consequential relief. It was prayed to declare that the order of the Collector, Rajkot passed in the Revision Application No. 2 of 1991 dated 31.12.1991 was bad in law. Further declaration was sought that suit land

C/SA/77/2021 ORDER DATED: 18/06/2021

was of the ownership of the plaintiff. Relief of permanent injunction was prayed for to restrain the defendants, their agents and servants from causing any hindrance in use and possession of the plaintiff of the suit land.

3.1 The case of the plaintiff stated in nutshell was that he had purchased the suit land being plot No.6 admeasuring 2623 sq. ft. by registered sale deed dated 23.5.1986 from defendant No.3. Defendant No.3 vendor purchased the same in the year 1984 also by registered sale deed from its predecessor owner.

3.2 It is the case of the plaintiff that thereafter the sanad was also issued by the authorities in respect of the land. Construction in the nature of residential houses was put up on the plot and the same exists as on date. The plaintiff has also been residing there. The plaintiff has also been paying property tax etc.. The Trial Court decreed the suit. The decree was reversed by the lower appellate court.

4. In the facts of the case, the Appeal deserves to be admitted. The following substantial questions of law arise, on which the Appeal is admitted.

(i) Whether the lower appellate court could have ignored the fact that sanad was issued in favour of the appellant - the plaintiff by the state government under section 133 of the Bombay Land Revenue Code etc. ? Whether the lower appellate court failed to consider the effect in law of the Sanad of the ownership of the plaintiff in respect of the suit land ?

C/SA/77/2021 ORDER DATED: 18/06/2021

(ii) Whether in the facts and circumstances of the case, the lower appellant court could have ignored the aspect that the appellant plaintiff had purchased the suit land in the year 1989 by registered sale deed from the previous owner, who had in turn purchased the same in the year 1984 also by registered sale deed from the predecessor-in-title ?

(iii) Whether in the facts and circumstances of the case, the appellate court was right in law in holding that the Collector, Rajkot while exercising suo motu powers u/s. 211 of the Bombay Land Revenue Code undertaking formal inquiry u/s. 37 of the Bombay Land Revenue Code though sanad u/s. 133 of the Bombay Land Revenue Code is already issued in faovur of the appellants by the State Government ?

(iv) Whether in the facts and circumstances of the case, the lower appellate court ought to have confirmed the decree passed by the by the trial court ?

(N.V.ANJARIA, J) C.M. JOSHI