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
undefined
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
==========================================================
MANSUKHBHAI RAMJIBHAI SINCE DIED THROUGH LHR & ORS.
Versus
STATE OF GUJARAT & ANR.
==========================================================
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
==========================================================
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,
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
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
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-
NEUTRAL CITATION
C/SA/283/2009 ORDER DATED: 30/06/2025
undefined
original plaintiffs was not maintainable the same
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,
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
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
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
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
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
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
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.]
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
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
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
