SHAH HARIVADAN MAGANLAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal under Section 100 of the Code of Civil Procedure is at the instance of the original plaintiff who had filed Regular Civil Suit No.307 of 1979 for declaration that the suit land, bearing Block No.190, is alluvial land and the plaintiff is entitled to get the suit land being adjacent owner under Sections 63 and 64 of the Land Revenue Code and also for declaration that grant of the suit land to defendant No.2 is illegal, unauthorized and void and also for further declaration that defendant Nos.1 and 2 have got no right to use the suit land in any manner so as to damage the land of Block No.207 belonging to the plaintiff and the plaintiff also prayed for permanent injunction restraining defendant No.1 from entrusting the suit land to any other party and also restraining defendant Nos.1 and 2 from carrying on any activity on the suit land.

(2.) THE suit was resisted by defendant No.1- State of Gujarat by filing written statement at Exh.24, stating therein that the suit land was not alluvial land and the land was of the ownership of the Government and was initially vested with Limbodara Gram Panchayat for grazing cattle but the Gram Panchayat surrendered the said land and thereafter, the said land was granted to defendant No.2 as a member of Ex-military Personnel. It was further stated that possession of the land was also handed over to defendant No.2 on 8.5.1979. The suit is filed by the plaintiff in collusion with his brothers. The suit was also resisted by defendant No.2 at Exh.26, stating that possession of the suit land was legally handed over to defendant No.2 and the plaintiff being adjacent owner of Block No.207 wanted to any how have control over the suit land and the suit land being not alluvial land, the plaintiff cannot have any right over such land being an adjacent owner. It was further stated that the possession of the suit land was already handed over to defendant No.2 by defendant No.1 on 8.5.1979 in presence of panchas.

(3.) THE appellant unsuccessfully carried the matter before the first Appellate Court by filing Regular Civil Appeal No.42 of 1994. Learned Appellate Judge on independent appreciation of oral as also documentary evidence came to the conclusion that the State Government was owner of the land bearing Block No.190 and the said land was initially vested with Limbodara Gram Panchayat for grazing of cattle and since the Gram Panchayat was no longer in need of the said land, it surrendered the said land to the Government and thereafter, the land was granted to defendant No.2 as defendant No.2 was entitled to grant of such land as ex-military personnel. Learned Appellate Judge also recorded finding to the effect that possession of the said land was already handed over to defendant No.2 on 8.5.1979 in presence of panchas and the plaintiff. Learned Appellate Judge also recorded finding of fact to the effect that the suit land was also not of the ownership of the ancestor of the plaintiff as the plaintiff has miserably failed to prove that ancestor of the plaintiff Shri Tribhovandas Hargovandas had purchased the suit land in public auction. On such findings of fact, learned Appellate Judge dismissed the appeal by judgment and decree dated 1.1.1996. It is this judgment and decree which is under challenge before this Court in this Second Appeal.