Decided on September 16,2008

Rameshchandra Kantilal Patel Appellant


- (1.) THE appellant has filed the present Appeal being aggrieved and dissatisfied by the judgment and decree dated 8.8.2008 rendered by the learned Presiding Officer, 2nd Fast Track Court, Nadiad, in Regular Civil Appeal No.23 of 2006, whereby, the judgment and decree dated 21.1.2006 passed by the learned 5th Additional Senior Civil Judge, Nadiad, in Regular Civil Suit No.37 of 2002, has been confirmed.
(2.) THE brief facts leading to the filing of the Appeal are as follows: The appellant was the plaintiff before the trial Court and for the sake of convenience, the parties will be referred to as they appear in the present Appeal. The appellant is a resident of Kapadwanj and is carrying on the business activities at that place. The respondent No.1 is the City Survey Superintendent and the respondent No.2 is the Kapadwanj Nagarpalika. The case of the appellant before the trial Court was that the respondent No.2 had passed a Resolution dated 26.9.1953 whereby a piece of land had been allotted to Nyalchand Rochiram Sindhi in the year 1953 -54 as a refugee. The said Resolution had been sent to the local District Authority for permission and accordingly, the respondent No.2 had decided to recover 4 (Four) Annas per sq.ft. from the allottee. Thereafter, the respondent No.2 had started recovering rent and special tax from Nyalchand Rochiram Sindhi. It was the case of the appellant that the respondent No.2 had allotted plots to refugees, in City Survey No.6232 or alternatively 6223 Paiki, outside the compound of Mukhya Kumar Shala at Sarkhaliya Darwaja, and the appellant is in possession of a plot which was occupied by Nyalchand Rochiram Sindhi, at the relevant point of time. Said Nyalchand Rochiram Sindhi was holding the plot upto 1985, and was carrying on his business of Hotel thereupon. According to the appellant, the said piece of land has been allotted by the respondent No.2 to the plaintiff after accepting transfer fee and the plaintiff is doing business of printing press at that place in the name of Ambika Printing Press and Stationary and is in possession of the suit property and is using the land as Nyalchand Rochiram Sindhi was using it. The case of the appellant was that he is paying rent and taxes to the respondent No.2 and the respondent No.2 is also issuing receipts. The term of licence has been extended by the respondent No.2 from the initial period of seven years, for a period of ten years and thereafter has been renewed from time to time. The case of the appellant before the trial Court was that the respondent No.1 has no concern with the suit property, as the said property is situated in the city of Kapadwanj, about 25 to 30 feet away from the main public road. The respondent No.1 issued a notice for eviction dated 15.1.2002, under the provisions of Section 61 of the Bombay Land Revenue Code, 1879 (hereinafter referred to as "the Code") which, according to the appellant, is vague and not in accordance with law and, therefore, the appellant filed the above -mentioned suit, praying for the relief of restraining the respondent No.1 from interfering, in any manner, with the use and occupation of the suit property by the appellant.
(3.) THE suit was contested by the respondent No.1 on behalf of the State Government, by filing a written statement at Ex.24 wherein the averments made in the plaint were denied. It was contended that the suit property is not situated on the land acquired by the respondent No.2 (Nagarpalika) but is situated on the land of respondent No.1 (State Government). It was contended that the appellant has not produced any letter of permission from the respondent No.1 in favour of the respondent No.2 to allow the appellant to occupy the said land. It was contended in the written statement that the respondent No.1 has not allotted the suit property to the appellant by way of licence or lease and the respondent No.2 has no right to allot the suit property to the appellant by lease or licence, without the prior permission of the State Government. It was also stated that the notice dated 15.1.2002 issued by the respondent No.1 is in conformity with the provisions of the statute and there is no violation of law. The respondent No.1 alleged that the appellant had encroached upon the land belonging to the State Government and, therefore, the suit may be dismissed. A written statement was also filed by the respondent No.2, at Ex.20, wherein it was contended that no letter of sanction of the local authority is found on the record, and as per the Resolution dated 26.9.1953, the suit land is part of the main road and has been allotted to the appellant. It was also stated that no survey number of the suit property has been entered in the City Survey records, but due to a mistake on the part of an employee of the Kapadwanj Nagarpalika, a survey number of the property has been wrongly mentioned in the receipt. The respondent No.2 has categorically denied that any permission for construction on the suit land had been granted to the appellant. It was further stated that, at the time of allotting the land to the appellant, the respondent No.2 had not asked the appellant to vacate the suit land as it was not obstructing the main road. It was further stated that the respondent No.2 has not given any notice to the appellant and the suit may be dismissed.;

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