DUMALA VAGHPARA GRAM PANCHAYAT Vs. CHUNILAL TRIBHOVANDAS PATEL

JUDGEMENT

(1.) Chunilal Tribhovandas Patel - respondent No.1 in this Second Appeal claimed to be the owner of a piece of land situated in the village Dumal Vaghpara, taluka Jhagadia, District Bharuch, by operation of the Bombay Merged Territories & Abolition Act, 1953. The respondent No.1 claimed that it was a dumaldar property in his possession and he has become the owner of the same. The respondent No.1 asked permission from Dumala Vaghpara Gram Panchayat to erect structure upon the land under the Panchayat Act, which was granted to him earlier and accordingly he had erected construction upon the land. However, the said construction was demolished by the Panchayat on 2 5/09/1974. Therefore, the respondent No.1 filed a Civil Suit, being Regular Civil Suit No. 194 of 1974 for the damages, which was decreed and appeal filed against the decree was dismissed. Thereafter, respondent No.1 intended to erect construction again upon the land as per the previous permission and he intimated his intention to the Panchayat and since the Panchayat did not permit the respondent No.1, he filed present suit, being Regular Civil Suit No. 49 of 1986 in the court of Civil Judge, (JD), Jhagadia for a permanent injunction restraining Dumala Vaghpara Gram Panchayat from causing any obstruction in the construction to be carried out by the respondent No.1. In that suit, the respondent No.1 was the plaintiff, Dumala Vaghpara Gram Panchayat was defendant No.1, Taluka Panchayat, Jhagadia, and one Bashirbhai Ahmedbhai being Sarpanch of the Dumala Vaghpara Gram Panchayat were defendants No. 2 and 3 respectively. Suit was tried by the trial judge and trial judge dismissed the suit. Against which, a Civil Regular Appeal was filed by the plaintiff i.e. the present respondent No.1, in the court of District Judge at Bharuch, being Regular Civil Appeal No. 51 of 1993, in which the judgment and decree of dismissal of a suit passed by the trial court was reversed by the Appellate Court. The Second Joint District Judge, Bharuch, pronounced the decision on Appeal No. 51 of 1993 on 31st December, 1998 and hence Dumala Vaghpara Gram Panchayat has filed this Second Appeal in this Court.

(2.) Learned Advocate Mr. Mihir Joshi on behalf of the appellant and learned Advocate Ms. Mita S. Panchal on behalf of the respondent No.1 were heard.

(3.) The trial court dismissed the suit mainly on the ground that the plaintiff failed to establish the ownership on the land and since the construction work which was intended to be carried, was without permission as per Sec. 93 of the Gujarat Panchayats Act. The trial court framed as many as 18 issues and after recording the evidence, replied each issue.