HASEENABIBI SARIYAKHAN PATAHN Vs. ESTATE OFFICER

JUDGEMENT

(1.) Both these second appeals are filed under Sec. 100 of the Code of Civil Procedure, 1908 ('CPC' for short) by the original plaintiff. Second Appeal No.257 of 2023 is arising from Regular Civil Appeal No.31 of 2004 arising from Regular Civil Suit No.186 of 1993, whereas Second Appeal No.258 of 2023 is arising from Regular Civil Appeal No.30 of 2004 arising from Regular Civil Suit No.266 of 1996. The common order passed in both the Regular Civil Suits dtd. 1/5/2004 by the learned Second Joint Civil Judge, Ahmedabad Rural and the common order passed in both the Regular Civil Appeals dtd. 20/4/2023 passed by the learned First Appellate Court i.e. 8 th Additional District Court, Ahmedabad Rural are challenged by way of these second appeals, by raising the following substantial questions of law:

(2.) As the common judgment and order passed by the learned first appellate court and the learned trial court is under challenge in these second appeals, the facts are same, arguments advanced are same, they are being heard together and decided by this common judgment.

(3.) The brief facts, as stated in the memo of the appeals, are such that the case of the plaintiff in Regular Civil Suit No.186 of 1993 was that a plot admeasuring 45 x 60 feet i.e. 2700 sq.ft. From the land bearing survey no.65/1616 (referred to as 'the suit property' hereinafter) situated in the cantonment area under the Ahmedabad Cantonment Board was leased to the plaintiff on 24/4/1949 by the defendant and the plaintiff was regularly paying rent thereof; that the lease was renewed from time to time and thus, she is in possession thereof since last more than 43 years; that the certificate under Shops and Establishment Act, 1948 was also issued by the defendant Board; that receipts too were issued by the defendant Board; that since years plaintiff separated from her husband and hence she was engaged in selling firewood for earning her livelihood and had no other source of income; that the defendant issued show cause notice dtd. 2/4/1979 asking as to why possession of the suit property be not taken back from her; that on 6/4/1979, she visited the office of the defendant and she was asked to file reply after which hearing was to be afforded before taking any decision thereon; however, before she could file any reply, the ex-parte order dtd. 13/4/1979 was passed under the provisions of Sec. 5(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as Act of 1971) terming her possession as unauthorized and she was ordered to be vacated; against the said order, the plaintiff filed appeal under Sec. 9 of the Act of 1971 before the District Court which was dismissed and hence she filed Special Civil Application No.1906 of 1979, wherein the defendant appeared on service of notice and on 28/7/1979 showed readiness to allot alternate plot in survey no.65/686 admeasuring 30 x 30 feet i.e. 900 sq.feet (hereinafter referred to as the alternate site); the said petition came up for hearing in the year 1988 and vide order dtd. 26/8/1988, the plaintiff was directed to deposit Rs.3,000.00 with the defendant board and the board was supposed to decide her representation for grant of aforesaid alternate site; that the defendant did nothing and therefore again in the year 1991, the plaintiff made a representation to the defendant whereupon the defendant Board vide letter dtd. 9/3/1991 asked plaintiff to produce necessary proofs/documents which she furnished in person, however, after a period of two years, on 10/2/1993, without providing any alternate site, passed an ex-parte order directing the plaintiff to hand over the possession of the suit property. 3.1 It is further averred in the appeals that therefore the plaintiff filed Regular Civil Suit No.186 of 1993 seeking permanent injunction restraining the defendant from taking possession of the suit property till alternate site is allotted. It is averred that the defendant filed written statement in the said suit denying all the contentions and stated that the suit property was allotted to the defendant for a limited period i.e. upto 31/3/1979 by lease and licence and thereafter the permission was not extended and therefore, after the said date, the possession of the plaintiff was declared unauthorized.