GUJARAT HIGH COURT
S.G. Shah, J.
Manubhai Bhaichanddas Patel
and Anr. —Petitioners
versus
State of Gujarat and Ors. —Respondents
Second Appeal No.54 of 2000 with Civil Application Nos.5303 and 5304 of 2002 in Civil Application No.7098 of 2000 with Misc. Civil Application No.949 of 2002
Decided on 7.4.2017

Headnote:Civil Procedure Code, 1908—Section 100—Second Appeal—Plaintiff-appellants were allotted suit land on lease by collection for carrying excavation—Defendant Forest Department raised objections in excavation on ground that excavation was being carried in land falling in Forest area—Trial Court decreed suit—Lower Appellate Court set aside the decree—Second appeal—Prima facie material on record that Appellate Court arriving at conclusion of allowing appeal relied upon documentary evidence which was not proved—Impugned judgment was liable to be set aside and in view of issues raised and for final determination of dispute matter remanded.

       Held: Therefore, matter is argued at length by both the sides on all issues including consideration of above referred additional questions of law though it is mixed question of law and facts. However, the fact remains that now it is quite clear from record that the Appellate Court has though maps at Exh.154 and map which is referred in Exh.165 are not properly proved on record, concluded to allow the appeal. When it is fairly correct that Appellate Court has relied upon documents which are not proved on record, then by all means, the impugned order in appeal needs to be interfered with.

       Therefore, now, the only option remains is to decide the appeal on its own merits. In that case, as already discussed hereinabove, there is primafacie, evidence on record i.e. impugned order that the Appellate Court has, for arriving at the conclusion of allowing the appeal, relied upon the documentary evidence which was either not proved at all or not properly proved and though it was not properly provided, it was accepted on record and relied upon.

       Thereby, there is a situation where on factual aspects, both the Courts’ below i.e. Civil Court as well as Appellate Court have arrived at different conclusion. Therefore, at present, there is no case of concurrent findings of facts by both the Courts’ below which may results into an absolute ban of jurisdiction in Second Appeal so as to disturb the impugned judgment, when it is primafacie proved on record that documentary evidence which was not properly proved is relied upon by the Appellate Court.

       In view of above facts and circumstances, the appeal needs to be allowed by quashing and setting aside the impugned judgment in Regular Civil Appeal No.62 of 1999 by the Assistant Judge, Banaskantha @ Palanpur. Once appeal is allowed, the judgment of Civil Court would automatically stand restored. However, considering the facts and circumstances emerging from the record, it seems that execution of such judgment would not be easy and may raise certain more issues. Therefore, considering the fact that practically the dispute needs to be resolved and not the litigation only, appropriate determination is required to be see that there may not be multi litigation or frustration of legal right of the either party.

       The overall evidence and record certainly confirms that there is a dispute between two departments of the government viz; Collector on one hand and Forest Department on the other hand, however, for such internal dispute between two departments, appellants lease holders cannot be saddled with a situation where their properties was seized and they were restrained from executing the activity as per lease agreement executed by the Collector himself. In such situation, it is for the government to resolve their internal dispute between their different departments and if at all it is found that someone has acted beyond his jurisdiction then government should initiate appropriate proceedings against that Officer. However, in that case government has to make give the position of the third party being present appellants by appropriate orders or atleast by payment of compensation and revision of rent of the leased land.

       Though long time has passed from the date of lease and from the date of impugned judgment and thereby though remanding back the Regular Civil Appeal may not be advisable considering the fact that if appeal is allowed because it was decided on documents which are not proved then it would result into decree in favour of the Plaintiffs as per judgment of Civil Court dated 31.7.1999. However, one of the direction of such decree regarding an order below Exh.38 has already been dropped by the Plaintiffs in this appeal and, therefore, allowing appeal would result into restoring all the directions by the judgment of the trial Court dated 31.7.1999. But in any case, considering the over all development till date, at present, it would be difficult to execute such decree of the Civil Court and, therefore, it would be appropriate to quash and set aside the impugned judgment dated 31.1.2000 with direction to remand Regular Civil Appeal No.62 of 1999 to the District Court, Banaskantha @ Palanpur for deciding it afresh based upon the observations made hereinabove and to find out the suitable order that can be passed in favour of the Plaintiffs - Appellants. (Paras 24, 26, 27, 28, 30 and 31)

       Result: Appeal allowed accordingly.