ORAL ORDER
1. Heard learned advocate Mr.Nishith K.Joshi for the appellant.
2. The present Second Appeal has been filed challenging the order dated 30.09.2021 in Regular Civil Appeal no.5 of 2013, whereby the Appellate Court has rejected the said appeal and confirmed the judgment and decree dated 15.09.2012 passed in Regular Civil Suit No.23 of 2005.
3. The brief facts of the present case are that, it is the say of the appellant, that the appellant owned and possessed the suit property bearing City Survey no.1759 which included small chawk ad-measuring 23.61*5 feet and the same chawk was the disputed matter in the said suit. The respondent Government stated that the small piece and
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parcel of the land in dispute, is Naveri Government land and the appellant stated that the same belong to the appellant and the said naveri is owned and possessed by the fore father of the appellant since 1965 and that the said property is inclusive, as a chawk and in possession and enjoyment of the appellant.
4. It was the say of the appellant, in the suit that the Government had earlier declared the said land belonging to the appellant but subsequently the said land was declared as government land and by initiating inquiry under Section 37(2) of the Bombay Land Revenue Code, 1879 (for short "the Code") by the City Survey Superintendent Collector, the said land was declared as a government land belonging to the government and not to the appellant.
5. The said dispute was carried before the Revenue Tribunal, in appeal, by the appellant and the said appeal, was dismissed and being aggrieved and dissatisfied with the said order of the Revenue Tribunal, the appellant had approached High Court, by way of filing Civil Appeal No.10807 of 2002 and the High Court had directed the appellant, to approach the Civil Court and thereafter, the
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appellant had filed Civil Suit no.23 of 2005 and sought declaration to declare that the appellant is sole owner and in possession of the said premises and that the respondents do not have any right title or interest in the said premises and to restyrain the respondent from obstacles the appellants in enjoyment of the said land. The appellants in the said suit also sought a declaration that the said land is not the naveri but a chawk and that directions be given to the respondents to carry out necessary correction in the government record and to declare that the appellants are the sole owner of the property and to delete the word naveri from the record of the City Survey Office.
6. After going through the record the Trial Court and after considering all the evidence, more particularly the fact that the present appellants failed to prove that the property is not a private land or chawk and it was proved that the disputed property was a government land.
7. Even the Appellate Court after going through the records and proceedings of the Trial Court has held that the suit property is not a private land or chowk and looking at the facts of the case, has not interfered with the Judgment and Decree as the same being a reasoned order.
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8. Having regard to the submissions made by the learned advocate for the appellant to the judgment and decree passed by the Courts below, it appears that both the Courts have recorded concurrent finding of the facts as to the effect that the disputed property is a government property and the order passed by the Revenue Authority, City Survey Superintendent, Collector and Gujarat Land Revenue Tribunal have remained unchallenged.
9. It was clearly established before the Trial Court in the Regular Civil Suit No.23 of 2005 that as per order of the City Survey Superintendent, the amendment in measurement was carried out by an order dated 12.10.1973 and 25.07.2002 and vide Exhibit 81 and documents vide Exhibit- 80 and 81 were produced before the Trial Court which is for the disputed land of naveri piece and parcel which is mentioned in City Survey no.1759 and as per the order of Remand Case no.5 of 1989 dated 31.05.1990, the disputed land situated towards eastern side of the City Survey no.1759 was declared as government land naveri, moreover, an entry was made effective in city survey records and separate City Survey no.5450 was allotted and the dispute qua the land which was initiated since 1968
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under the provisions of Section 37(2) of the Code in which the appellant was declared as occupier of naveri and thereafter the said order came to be challenged by one Chunilal Choksi by way of Revision Application, which came to be dismissed on 28.11.1969 and the said order was challenged up to the Revenue Tribunal and once again the matter was remanded on 31.04.1970 to decide afresh as to whether the land of naveri is a private property joint property or in proprietary land and it was declared on 15.6.1986 that the land belong to the appellant, but thereafter the said order was reviewed by the Collector wherein order passed by the City Survey Superintendent, Himmatnagar dated 15.06.1986 was cancelled and it was declared that the land in dispute in the present proceeds is not private ownership land but a government land and the same was declared on 31.08.1987 and thereafter the present appellant had challenged the said order wherein the matter was remanded on 31.05.1990 wherein it was declared that the property situated towards eastern side of the City Survey no.1759 neither belong to the present appellant nor Cunnilal Choksi but is a government land and new Survey no.5450 admeasuring 12-25-51 square meters was given and necessary amendment and correction was made in the property record.
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10. Looking to the facts of the present case, the present appellant has not been able to show that there is any substantial question of law involved in the case and that both the Courts below have given concurrent finding and on factual aspect, the Court has held that the suit property is not a private property and therefore, in the second appeal, the Court cannot interfere with the concurrent findings of the fact without there being a substantial question of law.
11. Looking to the facts of the present case and the proposed substantial questions of law that are formulated by the appellant all the said are not substantial questions of law but are questions of fact and in exercise of powers conferred under Section 100 of the Code, the jurisdiction of the second appeal is confined to substantial question of law only. In the present case, no substantial question of law has been raised so as to enable this Court to admit the present appeal as the scope of the second appeal under Section 100 of the Code is very limited and the same is competent only if the same involves substantial questions of law. In the second appeal only if the findings are so perverse which are apparent on the face of the record, the
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High Court can interfere in the second appeal.
12. Considering the submissions made and after examining the findings of the both the Courts below on the issue raised in the suit and upon examination of the judgment and orders of both the Courts below, this Court is of the considered opinion that the learned advocate for the appellant are unable to point out any infirmity, perversity or inproprietary in the findings recorded by the Courts below. Not only that the learned advocate for the appellant is unable to show that the findings recorded by the learned Trial Courts is without any reasons and against the provisions of law.
13. Under the circumstances, the Second Appeal is devoid of any substantial question of law, both the learned Trial Court and the First Appellate Court have rightly decided the issue between the parties in the right perspective and as stated above, no substantial questions of law arises in the present Second Appeal. This Court does not find any substance in the present Second Appeal and hence the same is dismissed at the admission stage.
(SANJEEV J.THAKER,J)
URIL RANA
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