(1.) By way of present Second Appeal preferred under Section 100 of the Code of Civil Procedure, the appellant, who is original plaintiff, challenges the judgment and order dated 23.5.2011 passed by the
learned Additional District Judge, Porbandar, (hereinafter referred to as the "Appellate Court") in
Regular Civil Appeal No.9 of 2011, confirming the judgment and decree dated 28.2.2005 passed by
the learned Civil Judge, (S.D.), Porbandar, (hereinafter referred to as the "Trial Court") in Regular
Civil Suit No.262 of 1985, whereby the learned trial Judge has dismissed the suit filed by the
appellant herein - original plaintiff. (The parties of the present matter are referred as per their
original status before the lower Court).
(2.) The facts of the present case are as under:
The appellant herein is a statutory body constituted under the Electricity Supply Act, 1848. The land admeasuring about 4500 to 4600 Sq. Yrd. known as Ravaliya in Porbandar City near Hanuman Chawk and on this land, admeasuring 259 Sq. Mtr. a sub station was constructed by the Porbandar State in the year 1935, which was originally owned by Mr. Memon Haji Moti Haji Isaq Ravaliya and on upper its part, a "Musafir Khana" was constructed, remaining land was kept open. It is also the case of the appellant herein that later on, this open land was plotted and there was sub station on one of the plot No. "D" since year 1935, which is called as "Fuvara Sub Station" and till today, the possession and enjoyment of the said plot is kept with the appellant since than 70 years and by this way, the appellant became owner of the said plot by way of adverse possession. It is also the case of the appellant that the respondent Nos.1 to 3 have the ownership of the said plot and the respondent No.5 has no any right to pass any order, but the revenue authority has transferred the tile of this plot of respondent No.7 and respondent No.6 issued him the construction permission. Thus, the respondent Nos.7 to 9 have started illegal construction on the plot. Therefore, the appellant has filed Regular Civil Suit No. 262 of 1985 for declaration and permanent injunction, wherein the lower Court has framed the following issues at Exhibit 61:
1. Whether the plaintiff, the electricity Board process that the suit land Plot No.269 -00 -00 Sq. Yrd. is of exclusive and absolute ownership of the plaintiff as a successor in title of the erstwhile State of Porbandar and United State of Saurashtra as alleged in plaint para 5,6 and 10?
2. Whether the plaintiff proves that since, A.D., 1935, the suit land is in possession of the plaintiff openly as of right as an owner without interruption and so plaintiff has become its owner and the principle of prescription as alleged ?
3. Whether the plaintiff proves that the order dated 11.0.68 of the City Survey officer, confirmed by the superior authorities, is nullity as alleged?
4. Whether, the plaintiff proves that the defendant No.1 to 3 and 10 have lost right of ownership in the suit land by being out of possession since A.D. 1935 and the principle of prescription as alleged?
5. Whether the plaintiff proves that transfer of the suit land in favour of defendant Nos.7, 8 and 9 is invalid as alleged ?
6. Whether the defendant No.7 to 9 prove that they are bonafide purchasers or value without notice of the suit land as alleged in written statement para 9, Exh.54?
7. Whether the defendant No.7 to 9 prove that the suit is barred by estople of as alleged in para 12 and 17 of the written statement Exh.54?
8. Whether it is proved that the decision dated 11.10.86 given by the City Survey Officer and confirmed by superior authority, about ownership of the suit land of defendant No.1,2, 3 and 10, barred the trial of this suit by this Court on principle res -judicata as alleged ?
9. Whether it is proved that the suit barred by limitation as per articles 58, 110, 113 of the Limitation Act as alleged in the written statement para 9 of Exh.54?
10. Whether the defendant No.10 proves that the suit land originally belongs to his ancestors as alleged?
11. Whether the defendant No.10 proves that as successor in title of erstwhile State of Porbandar the plaintiff is only a licencee of the suit land ?
12. Whether the plaintiff proves that it will suffer legal injury if defendants make construction work on the suit land as alleged?
13. Whether the plaintiff proves that it is entitled to get relief of declaration and permanent and mandatory injunction as prayed for ?
14. Whether the suit against defendant No.6 is filed wrongly ? If yes, whether the defendant No.6 is entitled to get compensatory costs? If yes, what amount ?
15. Whether the defendant No.4 and 5 prove that the suit against them is not legal maintainable?
16. Whether the defendant No.4 and 5 prove that the suit of the plaintiff is premature ?
17. What order and decree ?
Thereafter, the trial Court after recording documentary evidence and oral evidence and hearing both the parties, dismissed the suit of the appellant on 28.2.2005. Against the said order, the appellant preferred Regular Civil Appeal No.9 of 2011 before the District Court, Porbandar, and same is also dismissed by learned Additional District Judge, Porbandar, by judgment and order dated 23.5.2011. Therefore, the appellant challenges the orders of the Courts below by way of present Second Appeal.
(3.) This Court vide order dated 10.5.2012, admitted the appeal on the basis of following substantial questions of law:
1. Whether in the facts and circumstances of the case both the Courts below were right in law in holding that the appellant was only a licensee of lands admeasuring 269 sq.mtrs. with the standing building of Sub Station on the land?
2. Whether in the facts and circumstances of the case both the Courts below were right in law in overlooking the fact that the alleged license was an irrevocable license? ;