BHARWAD VIRA GOVIND Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This second appeal is filed by the original plaintiff whose suit for a declaration that the suit land bearing S. No. 173 Paiki admeasuring 6A 14 which is in his possession lawfully cannot be taken possession of by the respondent State of Gujarat through its servants and agents and for a further declaration that the orders passed by the revenue authorities against him are illegal inoperative void and not binding on him has been dismissed by both the Courts below.

(2.) The facts leading to this second appeal are required to be stated elaborately 80 as to highlight the nature of controversy ranging between the parties. The plaintiff claims to be an occupant of 6A. 14G. out of 40 Acres of land comprised in revenue S. No. 173 located in the sim of village Mangadh Taluka Gariadhar District Bhavnagar. The plaintiff claims to be a Maldhari. His case is that during the regime of Old Saurashtra State he was allotted 6A. 14G. Out of 40A. of land known as Chomal Khancha by the then Saurashtra Government under the order of Special Mahalkari who functioned under the Old Saurashtra State Rehabilitation Scheme for Shephards. The plaintiffs further case is that the Special Mahalkari bad given sanction Vide No. 356/56 dated 31-8-1956 allotting this land to the plaintiff the plaintiff contends that he is in possession of the suit land since that date and he has made improvement upon the land. He claims to be a person belonging to backward class. His further case is that the revenue authorities of the respondent falsely alleged against him that he had committed trespass over the suit land and on the basis of the said allegation was launched an encroachment case No. 283/69-70 by the Mamlatdar Gariadhar and ultimately it was held by hire by his final order dated 2-7-71 that plaintiff had encroached upon the suit land. The plaintiff challenged the said order by filing an appeal to the Deputy Collector but his appeal was dismissed on 15-7-1971. Thereafter his appeal to the Collecter Bhavnagar came to be dismissed on 16-12-1971 and the order of the mamlatdar was upheld. The plaintiff then served a notice under sec. 843 C. P. C. to tie respondent on 15-1-1972 and thereafter plaintiff filed regular civil suit No. 172/72 on 104-1972 in the Court of the Civil Judge S. D. Bhavnagar for a declaration that the plaintiff was in possession of 6 14 of land out of S. No. 173 and that orders passed by the revenue authorities to the effect that the plaintiff committed encroach ment upon the suit land were null and void and against the right of the plaintiff. He also prayed for a permanent injunction restraining the respondent from disturbing his possession of the suit land.

(3.) This suit was contested by the respondent defendant by its written statement at Ex. 15. It was contended by the defendant that the plaintiff had no legal right over the suit land and that the suit was time barred. It was further contended that Special Mahalkari (Maldhari work) were appointed by the Government under the Rehabilitation scheme for Bharvads and the Mahalkaris had only to recommend to allot the land to the Bharvads. In the present case the Mahalkari allotted the land to the plaintiff Bharvad without obtaining any sanction of the higher authorities viz. the Collector. It was further contended that the Special Mahalkari (Maldhari work) had no power of allotment of agricultural land and these power were vested with the Dy. Collector under the provisions of the Land Revenue Code. It was further contended that no land was in fact allotted to the plaintiff by the alleged order dated 31-8-1956 but the order amounted to a recommendation for allotment of land to the plaintiff. It was also contended that no such sanction was given by the Deputy Collector to allot the land to the plaintiff but through mistake and without any authority the possession of the land in question was handed over to the plaintiff by the surveyor on 4-1-1957. The aforesaid unauthorised occupation of the plaintiff came to the notice of the Mahalkari Mahal Gariadhar and an injunction order was issued against the plaintiff on 30 restraining him from taking possession of the land and this order was served upon the plaintiff. The plaintiffs possession of the suit land therefore was unauthorised as no orders of allotment of the land were passed by the competent authority. Legal Proceedings were taken against the plaintiff under the provisions of the Bombay Land Revenue Code to remove the encroachment upon the Government land made by the plaintiff and the competent authorities ultimately ordered the plaintiff to vacate the land immediately. Under these circumstances it was contended that the suit as filed by the plaintiff was misconceived and liable to be dismissed.