SECRETARY OF STATE FOR INDIA Vs. CHIMANLAL JAMNADAS

JUDGEMENT

(1.) THIS appeal arises in a suit for a declaration that the suit property consisting of land with buildings thereon was of the absolute ownership of the plaintiffs and defendant No.2, and for an injunction restraining defendant No.1, the Government represented by the Secretary of State for India in Council, from taking vacant possession of the land after removal of the superstructures. An alternative relief was also prayed that if it be held that the plaintiffs and defendant No.2 were in possession of the land under a lease of ninety-nine years, the Government should fix a reasonable amount for rent after the expiry of the lease but not take forcible possession of the same.

(2.) THE land in suit is situated in a prominent locality in the city of Ahmed-abad. Its present survey number is 4663 corresponding to old city survey Nos. 123 and 235 of L. Tikka No.3 in the Raikhad ward of Ahmedabad city. Its area is 642 square yards. THE plaintiffs' case in substance was that this land was taken possession of by their ancestor Jethabhai, who was the head of the family, since the time of the Company's Government more than seventy-five years before the date of the suit, that he erected buildings thereon, and their family had remained in continuous possession and enjoyment of the same. It is stated that the land was open fallow land, that it was not of anyone's ownership or in anyone's possession, that therefore, Jethabhai took it into his possession more than seventy-five years ago and having built houses thereon made it habitable, that the possession of the land and the buildings remained with the family, and that the buildings were let to several persons from time to time. THE Government, however, contended some time before the present suit was filed that the land was not of the absolute ownership of the plantiffs but that it was granted to two persons on a lease for ninety-nine years which lease had expired by the end of March, 1930. A notice was given to remove the buildings erected on the land and to put the Government in vacant possession thereof. THE plaintiffs had, therefore, to file the present suit after giving notice under Section 80 of the Civil Procedure Code. THE plaint then proceeds to state that as the land was of their private ownership, any lease which might have been given to any persons by the Government was not binding on them, that in any case the plaintiffs were in adverse possession of the land for the full period, i.e. of sixty years as against the Government, and their title to the land had, therefore, become complete. For the alternative relief it was alleged that if it be held that the land was granted by the Government on lease for ninety-nine years, the Government were not even then entitled to legal possession of the property, and that the plaintiffs were entitled to remain on the land on payment of a reasonable amount as rent. It was lastly stated that even if the land was given on lease to two Parsi gentlemen, viz. Fardunji Santokji and Fardunji Nawroji, in the year 1831 as stated in the notice, still the plaintiffs came into possession of the land in their own right and that they had acquired title by adverse possession against whoever the real owner was. THE cause of action was stated to have arisen at the time when the plaintiffs were alleged to be leaseholders by the Government in the year 1931.

(3.) ON these pleadings the learned trial Judge framed several issues. Issues Nos. 1, 2 and 3 were preliminary issues under Section 80 of the Civil Procedure Code as well as Section 11 of the Revenue Jurisdiction Act and Articles 14 and 120 of the Indian Limitation Act. Issues Nos. 4 and 5 dealt with the merits of the case. They were whether the plaintiffs had proved their alleged ownership of the suit land either by title or by adverse possession, and whether the suit land was held from Government under a lease for ninety-nine years, whether the lease had expired and whether the lease was or was not binding on the plaintiffs. The findings on these issues were that the notice given by the plaintiffs under Section 80 of the Civil Procedure Code was proper and sufficient and the suit was not barred under that section. It was also not barred under Section 11 of the Revenue Jurisdiction Act as well as under the Indian Limitation Act. ON the merits, the learned Judge's findings are that the plaintiffs' title was not proved, but their long possession otherwise than under the alleged lease was proved. The finding on the lease was that there was no lease as alleged by the Government, nor any lease whatever in regard to the suit land, that the plaintiffs were in possession independently of any lease, and that being so, the other parts of the fifth issue did not arise. The sixth issue was whether the plaintiffs had the right to compel the Government to renew the lease or to sell the occupancy rights to them for such price as may be iked by the Court. The learned Judge did not make any finding on that issue as in his opinion it did not survive in view of the findings on the fourth and the fifth issues. There was an issue with regard to the court-fees, and the learned Judge held that no additional court-fees were necessary for the alternative relief. He held that defendant No.2 was a necessary party, and that the plaintiffs were entitled to the reliefs awarded in the order. The reliefs given by the learned Judge were a declaration in favour of the plaintiffs that they were not the lessees of the suit land as alleged by the Government and that they were entitled to continue in possession and enjoyment of it without being liable to make any payment in regard to it either as rent or otherwise, and an injunction that the Government were permanently restrained from dispossessing the plaintiffs of the suit land or from interfering with or obstructing in any manner whatever their possession and enjoyment of the same.