2000 Supreme(Guj) 257

Gujarat High Court
Judgename :D.C.Srivastava, H.K.RATHOD
MUNICIPAL CORPORATION, RAJKOT - Appellant
Versus
LAVJIBHAI M.PATEL - Respondent
First Appeal93 of 1997
Decided On : 04/06/2000

Headnote:(a) Urban Land (Ceiling & Regulation) Act, 1976 (Central Act 33 of 1976) and Repeal Act - Secs. 6, 10 and 34 - Suit for declaration - Portion of disputed land sold by defendant - Trial Court decreed the suit based on documentary evidence produced in support of title - Ownership claimed by defendants on basis of adverse possession - Ownership of plaintiff not challenged - Findings of Trial Court not challenged - Held, defendant-appellant failed to establish his case - Even documents produced by defendant confirm the ownership of plaintiff-respondent - Appeal dismissed - Trial Court justified in passing decree in favour of plaintiff - Appellant give time to challenge the order for appropriate remedy before Apex Court.

       To sum up therefore it can be said that the plaintiff succeeded in establishing that he is owner of Survey No. 479, area 4 Acres - 7 gunthas. He further succeeded in establishing that neither the State Government nor the Rajkot Municipal Corporation is owner of this land. The plaintiff also succeeded in establishing that the Appellant made encroachment over portion of Survey No. 479 by raising wire fencing. He further succeeded in establishing that a portion of his land was sold by the defendant No. 1 to defendant No. 3. Of course the sale was conducted under mistake of boundary. As such the Trial Court was justified in refusing to pass order for demolition of multistoreyed building constructed by the Income-tax Department represented by the respondent No. 3. The plaintiff has further succeeded in establishing that he was entitled to receive compensation for unauthorised sale of his land. On these established facts the trial Court was justified in granting decree in favour of the plaintiff, against the defendant Nos. 1 & 3. The Trial Court was further justified in dismissing the Suit against the defendant Nos. 2 and 4 because it was established that no portion of land belonging to the plaintiff was sold to these defendants. The Trial Court was further justified in dismissing the Suit against the defendant No. 5. The decree passed by the Trial Court, therefore, requires no interference. In Courts opinion the Appeal is without merit and is bound to fail.

       The Appeal is hereby dismissed with no order as to costs.

       The appellant requests for eight weeks time to approach the Apex Court. Court, however, finds that no stay order was passed in the Appeal at any stage. However, on 23.6.1998 learned Counsel Shri H.P. Raval for the respondent No. 1 made a statement befores this Court that the respondent No. 1 shall not execute the Decree challenged in all the Appeals till the disposal of the Appeal. Shri Raval now agrees that his statement may be continued for a period of two months from today to enable the appellant to approach the Apex Court for appropriate relief and the words - till the disposal of the Appeal made in his statement under order dated 23.6.1998 be read as for a period of two months from today.

       (b) Urban Land (Ceiling & Regulation) Act, 1976 (Central Act 33 of 1976) and Repeal Act - Secs. 6, 10 and 34 - Notional vesting of vacant land in State Government - Ownership by adverse possession - Held, claim by continuous possession exceeding 12 years has to be established to perfect the title - When claim is based on title the continuous possession exceeding 12 years is not required to be established - Notional vesting of land in State Government will render the State Government to be owner of the excess land under the provisions of Sec. 10 (3) and Sec. 10 (6) of ULC Act unless State Govt. or any authorised person has taken the possession - Adverse possession of tress-passers cannot be considered the adverse possession of appellant-claimant.

       If excess land has been declared by the competent Authority which has been confirmed in Appeal, but possession of vacant land was not taken over by the State Government or any person duly authorised by the State Government in this behalf then under the aforesaid provision the State Government cannot be treated as owner of the excess land. It is only where the possession is taken over by the State Government under Sec. 10 (3) of the Act that the provisions of the Repeal Act shall not affect the right and title of the State Government.

       The appellant did not claim that the hutment dwellers were persons through whom the appellant was claiming adverse possession. On the other hand even according to the appellant the hutment dwellers were tres-passers who made encroachment upon the land under the management and control of the appellant. Consequently, the alleged possession of the hutment dwellers tres-passers cannot be considered to be adverse possession of the appellant as against the plaintiff. Thus, even on the basis of adverse possession the appellant cannot be said to have become owner of the disputed land nor the State Government can be said to have become owner of the disputed land by adverse possession.

       (c) Notices - Service of - Held, where suit is brought under ULC Act the provisions regarding notices contained in BPMC Act will not apply - When defendants State Govt. is impleaded during pendency of suit on objection by defendant-1 the notice under Sec. 80 Code of Civil Procedure is not required to be served - Where relief is not a summary relief of recovery of possession but is through regular suit the provisions of Specific Relief Act, Sec. 6 are not attracted.