STATE OF GUJARAT Vs. BHAGWANBHAI KABHAI

JUDGEMENT

(1.) STATE of Gujarat and the Assistant Collector, Rajpipla, are before this Court being aggrieved by the judgement and decree dated 28th July 1980 passed by the learned District Judge, Bharuch in Regular Civil Appeal No. 13 of 1979. Regular Civil Appeal No. 13 of 1979 was filed against the judgement and decree passed in favour of the respondent-plaintiff in Regular Civil Suit No. 601 of 1973 by the Court of the learned Civil Judge (SD), Bharuch. The learned Civil Judge (SD) was pleased to decree the suit of the plaintiff on 26th February 1979.

(2.) THE plaintiff had filed suit against the defendants for permanent injunction to restrain the defendants from recovering possession of the land bearing Survey No. 15, admeasuring about acres 3 and 29 gunthas and Survey No. 16, admeasuring about acres 4 and 29 gunthas, which are situated in Village Kuvarpara, Taluka Jhagadia, District Bharuch. The case of the plaintiff was that defendant no. 3-Nagjibhai Gordan is the owner of the suit land and that the plaintiff is cultivating the suit land since 1952-53 on crop share basis and that he has become deemed purchaser of the suit land, that defendant no. 3 was in need of money and that on 22nd April 1971 he took Rs. 2010/- from the plaintiff, that defendant executed an agreement to sell in favour of the plaintiff. Thereafter, the defendant took a further sum from him and executed another agreement to sell on 23rd January 1972. It is the case of the plaintiff that he is in possession of the suit land and is cultivating the suit land and taking the crop from the suit lands every year, that defendant no. 3 had agreed to execute sale deed after obtaining permission from the Prant Officer. The plaintiff alleged that survey settlement has been effected in Village Kuvarpara, Taluka Jhagadia, District Bharuch. The plaintiff has also alleged that on 09. 08. 1973 the Prant Officer, Rajpipla issued notice to him to hand over possession of the suit land and he has also started proceedings to recover possession of the suit lands from the plaintiff. It is the case of the plaintiff that as he is deemed purchaser of the suit lands, hence no permission under section 73 of the Bombay Land Revenue code was necessary. The plaintiff contended that the notice issued by the Prant Officer was illegal, that defendant no. 1 has no right to evict the plaintiff form the suit lands.

(3.) THE matter was contested by the parties by leading evidence and the learned Trial Judge was pleased to raise issues as set out in para 5. The learned Trial Judge was pleased to hold that the plaintiff is able to prove his title and possession of the suit lands. That the learned Trial Judge was pleased to hold that notification under section 73 (A) of the Bombay Land Revenue Code is not applicable to the suit lands. The learned First Appellate Judge has considered matter in detail and set out reasons for dismissal of appeal in para 10 onwards. The learned First Appellate Judge relied upon decision of the Hon'ble Division Bench of this court in the matter of State of Gujarat Vs. Ibrahim Akbar Ali, reported in XIV GLR 1973 page 761, wherein the Hon'ble Division Bench was pleased to observe in para 54 as under: "mr. Nanavaty in reply has contended that survey settlement contemplated by the Bombay Land Revenue Code must be one under the Code itself and he has relied in that behalf upon the definition of "survey settlement" given in subsec. (3) of sec. 3 of the Bombay Land Revenue Code. The definition is in the following terms. "survey settlement" includes a settlement made under the provisions of Chapter VIIIA. " the definition of "survey settlement" is an inclusive definition. It does not define the expression "survey settlement" as meaning one and one only carried out under the provisions of the Bombay Land Revenue code. This inclusive definition of the expression "survey settlement" fortifies us in placing upon the language of subsec. (2) of sec. 216 the construction which we have placed. In our opinion, therefore, if a survey settlement was carried out by some other authority not under the provisions of the Bombay land Revenue Code and if it was accepted and acted upon by the State Government, it became one under the Bombay Land Revenue Code itself. " the learned First Appellate Judge also relied upon decision of the Hon'ble the Apex Court in the matter of Thakoreshi Naharasinghji Dolatsinghji Vs. State of Gujarat, reported in A. I. R. 1980 SC 59. The learned First Appellate Judge was pleased to consider an unreported decision of this Court in Special Civil Application No. 1191 of 1974 of this Court (Coram: N. H. Bhatt, J.) decided on 02. 02. 1978. The learned First Appellate Judge also considered the decision as set out in para 18 of the judgement.