Baghabhai Ugabhai Jalu vs State Of Gujarat
2022 Latest Caselaw 8564 Guj

     C/SA/505/2022                               ORDER DATED: 28/09/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/SECOND APPEAL NO. 505 of 2022

                               With
       CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
                In R/SECOND APPEAL NO. 505 of 2022
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                        BAGHABHAI UGABHAI JALU
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR AMAR D MITHANI(484) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2,3,4
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 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                             Date : 28/09/2022

                              ORAL ORDER

1. Being aggrieved and dissatisfied with the judgment and

order dated 7.1.2020 passed by the learned Principal District

Judge, Junagadh in Regular Civil Appeal No.33 of 2011

confirming the judgment and order dated 17.3.2011 passed by

the 5th learned Additional Senior Civil Judge, Junagadh in

R.C.S. No.618 of 1999, the appellant has filed the present

Appeal.

2. The short facts of the case are that it is the case of the

plaintiff that plaintiff has instituted Regular Civil Suit No. 618

of 1999 before the Civil Court, Junagadh praying for

C/SA/505/2022 ORDER DATED: 28/09/2022

declaration to the effect that the plaintiff ha a right to be

considered for regularized of his possession over the suit land,

the defendants be directed to regularize the plaintiff's

possession and the permanent injunction restraining the

defendants from dispossessing the plaintiff was prayed for.

2.2 It was the case of the plaintiff that land bearing

Survey No. 70 of Malanka is admeasuring 3797 Acres 02

Gunthas approximately, which is standing in the name of the

Government and numbers of parcels thereof, has been allotted

to others for cultivation. It was also pointed out that the area

admeasuring 363 Acres thereof, was allotted--designated as a

Forest Land. In the Plaint, it was pointed out that from the

land bearing Survey No. 70/paiki, the Collector, Junagadh has

also granted Non Agricultural Usage Permission to others.

Thus, the Plaint was filed in relation to land bearing Revenue

Survey No. 70 of Malanka. Thereafter, the Mamlatdar,

Mendarda has held that the plaintiff is in possession of the

land, since the year 1977, whereby, on 09.03.1998, the Order

of Removal of Encroachment was passed in Case No. 2/1997

and the penalty was imposed, which was paid up by the

plaintiff.

C/SA/505/2022 ORDER DATED: 28/09/2022

2.3 Then the plaintiff has submitted an application to the

Collector on 21.04.1998 for regularization of his possession,

which was rejected on 14.09.1999. The land possessed by the

plaintiff, does not belong to the Forest Department and the

Collector, Junagadh rejected the application without making

proper inquiries. On 30.10.1999, the Range Forest Officer,

Mendarda has issued the Notice (Exhibit 90, 91) to the

plaintiff in relation to land admeasuring 4 Acres 12 Gunthas,

stating that the same is an encroachment being the part of the

Reserved Forest Land admeasuring 327 Acres 02 Gunthas.

2.4 Before the Trial Court, the Learned Court Commissioner

has submitted his Site Inspection Report -- Rojkam vide

Exhibit 79, which reflects that on the subject matter land, the

agricultural equipment, bore, storage of agricultural produce

-- groundnuts, bullock cart, pipeline, cultivation of

Groundnut, wheat was found. It appears that in the suit, the

defendants have filed their written statements vide Exhibits

10, 12. The record of the Suit reflects that the area of 3797

Acres 02 Gunthas of Malanka, the Notification -- Gazette was

issued under Section 4 and 17 of the Forest Act, 1927.

C/SA/505/2022 ORDER DATED: 28/09/2022

Whereas, Exhibit 84, the Notification dated 10.01.1968,

issued U/s. 20 of the Forest Act, declaring the reserved forest,

the area of Malanka, land bearing Survey No. 70/paiki was

only 834 Acres (out of total 3797 Acres) and as per the

boundaries reflected therein, on the western side of the said

Reserved Forest, the residuary land of Survey No. 70 and

other survey numbers exists.

2.5 In light of the aforesaid, it is clear that initially the entire

land of Survey No. 70, Malanka was intended to be declared

as Reserved Forest, whereas, the final Notification dated

10.01.1968, actually had declared only 834 Acres as Reserved

Forest. It appears that thereafter, as per the defendants --

Exhibit 84, reflects that the Notification dated 08.01.1975 was

issued U/s. 29 of the Indian Forest Act, inter alia declaring

2327 Acres 02 Gunthas of Malanka as Reserved Forest.

2.6 It is submitted that the issues were framed vide Exhibit

47. The plaintiff was examined vide Exhibit 49, while on

behalf of the defendants, the oral deposition was recorded

vide Exhibit 82. The Village Form No. 6 produced vide Exhibit

68, reflects that as per Mutation Entry No. 360, the

Government Authority has granted part of the land to 27

C/SA/505/2022 ORDER DATED: 28/09/2022

different persons, being the part of the land bearing Survey

No. 70 of Malanka. Similarly, the documents vide Exhibit 70 -

Mutation Entry No. 405, reflects that out of land bearing

Survey Nos. 70/paiki, 71, 72 of Malanka, the allotment was

made in favour of private parties for cultivation of trees etc.

Exhibit 73 containing Mutation Entry No. 429, reflects that

part of the land bearing Survey No. 70 of Malanka, was sold

by the Government Authority to a private party.

2.7 The document produced vide Mark 66/12 being Mutaiton

Entry dated 24.09.1990, reflects that as per the Order of the

Collector, Junagadh, the land admeasuring H. 4-85-63 Sq.

Mtrs. of Survey No. 70 of Malanka, is identified as land which

can be allotted for the cultivation of fruit bearing trees and

other trees Government Land. After hearing the parties, the

Learned 5 Additional Senior Civil Judge, Junagadh on

17.03.2011, was pleased to dismiss the Suit. The original

plaintiff thereby, preferred Appeal U/s. 96 of the Code of Civil

Procedure before the Hon'ble District Court, Junagadh being

Regular Civil Appeal No. 33/2011, which was rejected by the

Judgment and Decree dated 07.01.2020. Hence, present

appeal.

C/SA/505/2022 ORDER DATED: 28/09/2022

3. Heard Mr. Amar D. Mithani, learned Counsel appearing

for the appellant.

4. At the outset, it is appropriate to have a glance to the

issues framed by the learned Appellate Court:

1. Whether the appellant is entitled to get permanently

disputed land of survey No.70 which is in possession and

he is entitled to regularised the same?

2. Whether the appellant proves that the order passed

by the 5th Additional Civil Judge in Regular Civil Suit No.

618/1999 dated 17.3.2011 is arbitrary, illegal against the

settled principles of law and without application of

mind?

3. What order?

5. The issues framed by the learned Appellate Court

referred to above came to be answered as under:-

1. In the Negative

2. in the Negative

3. As per final order.

6. In the decisions of this Court in case of Legal Heirs

C/SA/505/2022 ORDER DATED: 28/09/2022

and Representatives of late Chandrakantbhai

Maganbhai Patel Vs. Jitendrabhai Talshibhai Rai,

reported in 2018 LawSuit (Guj) 641 and Maganbhai

Babulal vs. Lilavatiben Naginbhai D/o Babulal

Bhanabhai reported in 2018 LawSuit(Guj) 798, the Court

dismissed the Appeal filed by the appellants on the ground of

concurred findings recorded by the two courts below, as there

is no substantial questions of law involved in the Appeal.

7. It appears from the record that upon concurrent findings

of two Courts below, the appellant is before this Court with

this Appeal under Section 100 of the C.P.C.

8. The following questions have been formulated as the

substantial questions of law in the memorandum of the

Appeal:-

1. Whether in the facts and circumstances of the case, the Courts below have properly considered and dealt with the prayers made in the suit?

2. Whether in the facts and circumstances of the case, the Courts below were not required to consider the evidence Ex.68 to 71, 73, 74, whereby from the same survey number of land, other individuals have been granted land, for cultivation?

C/SA/505/2022 ORDER DATED: 28/09/2022

3. Whether the Courts below have rightly appreciated as to whether the defendants have discharged the burden to prove the subject matter land as a Forest land?

4. Whether in the facts and circumstances of the case, the Courts below were not required to issue directions for consideration of the case, as has been done in other cases?

5. Whether in the facts and circumstances of the present case, the defendants were not required to give the similar treatment to the plaintiff?

6. Whether in the facts and circumstances of the present case, the decree to appropriately consider the plaintiff's case for the suit land/other land was not required to be issued, when the suit land is the source of livelihood, in possession since decades together?

7. Whether the judgment and decree of the Courts below are just, legal and proper in the facts and circumstances of the case?"

9. I have gone through the material available on record and

also considered the orders passed by both the Courts below. I

am of the view that none of the questions formulated in the

memorandum of the appeal could be termed as substantial

C/SA/505/2022 ORDER DATED: 28/09/2022

questions of law. The findings recorded by the two Court

below are very clear and the same are concurred findings of

both the Courts below.

10. In view of the categorical findings recorded by the lower

Appellate Court, I see no good reason to admit the present

Appeal.

11. At this stage it would be appropriate to take into account

the observations made by Hon'ble Apex Court in case of

Kirpa Ram (Deceased) Through Legal Representatives

and ors. vs. Surendra Deo Gaur and ors reported in

2020 LawSuit(SC) 707. the relevant part of the judgment

reads as under:-

[21] In view of the above, we find that the High Court did not commit any illegality in not framing any substantial question of law while dismissing the appeal filed by the appellants.

[22] The argument of Mr. Mehta is that substantial question of law is required to be framed by the High Court while deciding the second appeal. We don't find any merit in the argument. Section 100 of the Code reads as under:

"100. Second appeal.-(1) Save as otherwise expressly provided in the body of this Code or by any other law for

C/SA/505/2022 ORDER DATED: 28/09/2022

the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub- section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.

[23] Sub-Section (1) of Section 100 of the Code contemplates that an appeal shall lie to the High Court if it is satisfied that the case involves a substantial question of law. The substantial question of law is required to be precisely stated in the memorandum of appeal. If the High Court is satisfied that such substantial question of law is involved, it is required to

C/SA/505/2022 ORDER DATED: 28/09/2022

formulate that question. The appeal has to be heard on the question so formulated. However, the Court has the power to hear appeal on any other substantial question of law on satisfaction of the conditions laid down in the proviso of Section 100 of the Code. Therefore, if the substantial question of law framed by the appellants are found to be arising in the case, only then the High Court is required to formulate the same for consideration. If no such question arises, it is not necessary for the High Court to frame any substantial question of law. The formulation of substantial question of law or reformulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law. The High Court is not obliged to frame substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court."

12. In the overall view of the matter, I have reached to the

conclusion that no error, not to speak of any error of law could

be said to have been committed by the two Court below.

Therefore, there is no need to disturb the concurrent findings

recorded by the two Courts below.

13. Accordingly present Appeal is hereby dismissed at

admission stage.

C/SA/505/2022 ORDER DATED: 28/09/2022

ORDER IN CIVIL APPLICATION

In view of the order passed in the main Appeal, present

Civil Application does not survive and the same stands

disposed of accordingly.

(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI