STATE OF GUJARAT Vs. BABUBEN

JUDGEMENT

(1.) The present respondents-original plaintiffs filed the suit before the City Civil Court at Ahmedabad contending that as they were in possession of the suit land bearing Survey No.1261 Gomptipur, Taluka, City and District Ahmedabad, since long and as they are residing with their family members in the said property by making construction over it, they are in legal possession of the suit land. However, the City Survey Mamlatdar issued notice to get possession of the said land without issuing eviction notice. Hence, by filing the suit, the plaintiffs prayed that the order passed by the Government authority for eviction from the said land is without jurisdiction, illegal, ultra vires and null and void. They also prayed for restraining the defendants from taking possession of the suit land. It was also prayed that as plaintiffs were in possession of the suit land received from their predecessors since long, they are owners of the same. By way of adverse possession also, the plaintiffs became owners of the suit land and so also, the defendants have no right to evict them. The main contention in the suit was that after the Public Premises (Eviction of Unauthorized Occupants) Act, 1972 ("the Public Premises Act" for short) came into force, the provisions of Sec.202 of the Bombay Land Revenue Code ("the Code" for short) cannot be resorted to, in view of Section 19 of the Public Premises Act having been repealed and hence, the plaintiffs cannot be evicted without following procedure as laid down under the Public Premises Act.

(2.) The defendants filed the written statement contending inter alia that within 5-6 years, the plaintiffs made encroachment on the land. It was also contended that it is not true that the plaintiffs were in possession since long. As plaintiffs made encroachment on the suit land, notices dated 10-6-1977 and 1-8-1977 were issued against the original plaintiffs for removing the encroachment. It was also contended that the respondent-original plaintiff No.9 also made application on 21-9-1977 by which, he requested the Government authority to allot this land through sale deed as he is ready to pay price of the said land fixed by the Government. It was further contended that notice given by the City Deputy Collector dated 16-12-1977 under Sec.202 of the Code is legal as plaintiffs have made encroachment over the land and in spite of serving the notice, they did not remove the encroachment. It is also contended that the suit land bearing Survey No.1261 Gomptipur, Taluka, City and District Ahmedabad is a Government land and in the record of rights also, it is in the name of the Government. Inquiry register is also produced along with the written statement. It was therefore prayed that the suit be dismissed.

(3.) Following issues were framed by the court below: