Case Note & Summary
The case involves a second appeal under Section 100 of the Code of Civil Procedure, 1908, filed by the heirs of the original plaintiff, Pirzada Saiyed Bahauddin B. Kadri, against the State of Gujarat. The original plaintiff had filed Regular Civil Suit No. 339 of 1986 seeking a declaration that a notice dated 04.02.1996 issued by the Collector, Vadodara, under Section 202 of the Bombay Land Revenue Code, 1879, was null and void, and for a permanent injunction restraining the State from interfering with the plaintiff's religious and burial activities on the suit land (Survey Nos. 322/1 and 322/2 at Danteshwar, Vadodara). The plaintiff claimed to be the religious scholar (Dharma Guru) at the Gadi of Shijar-ae-Qadariya Ashrafia Rafiya and that the suit land was in possession of the Qadariyas as owners, containing the tomb of Qutbuddin Muhammad Khan and others. The trial court decreed the suit in favor of the plaintiff on 01.10.2003, holding that the plaintiff had proved ownership and possession and that the notice was invalid. The State appealed to the first appellate court, which reversed the trial court's judgment on 23.12.2005 and dismissed the suit. The appellants (heirs of the deceased plaintiff) then filed the present second appeal. The High Court framed substantial questions of law regarding the validity of the notice and the appellate court's reversal. The High Court found that the appellate court had misappreciated the evidence, particularly the documentary evidence showing the plaintiff's possession and ownership, and had wrongly placed the burden of proof on the plaintiff. The High Court held that the Collector lacked jurisdiction under Section 202 of the Bombay Land Revenue Code as the land was not 'unoccupied' and the plaintiff had established his rights. Consequently, the High Court allowed the appeal, set aside the appellate court's judgment, and restored the trial court's decree, declaring the notice null and void and granting permanent injunction.
Headnote
A) Civil Procedure Code, 1908 - Section 100 - Second Appeal - Substantial Question of Law - The High Court can interfere with findings of fact if they are perverse or based on no evidence. The appellate court's reversal of the trial court's decree was set aside as it failed to consider material evidence and misapplied the burden of proof. (Paras 1, 10-12) B) Bombay Land Revenue Code, 1879 - Section 202 - Jurisdiction of Collector - Notice for removal of encroachment - The Collector has no jurisdiction to issue notice under Section 202 if the land is not 'unoccupied' and if the person in possession claims ownership. The notice dated 04.02.1996 was held null and void. (Paras 3.1, 13-15) C) Evidence Act, 1872 - Sections 101-103 - Burden of Proof - In a suit for declaration and injunction, the plaintiff must prove possession and title. The trial court correctly held that the plaintiff had discharged the burden by producing documentary evidence of ownership and possession, which the appellate court ignored. (Paras 8-9) D) Religious Property - Dargah - Ownership and Management - The plaintiff, as religious scholar and head of the Qadariya sect, was held to be in possession of the suit land as owner. The suit land contained tombs and was used for religious and burial activities. (Paras 3.2-3.3, 16)
Issue of Consideration
Whether the learned first appellate court was justified in reversing the trial court's decree without properly appreciating the evidence and without framing substantial questions of law, and whether the notice under Section 202 of the Bombay Land Revenue Code was valid.
Final Decision
The High Court allowed the second appeal, set aside the judgment and decree of the first appellate court dated 23.12.2005, and restored the judgment and decree of the trial court dated 01.10.2003, thereby declaring the notice dated 04.02.1996 null and void and granting permanent injunction in favor of the plaintiff.
Law Points
- Section 100 CPC
- substantial question of law
- Section 202 Bombay Land Revenue Code
- 1879
- jurisdiction of Collector
- ownership and possession
- religious site
- encroachment notice
- burden of proof
- documentary evidence
- oral evidence
- presumption of truth
- appellate court reversal
- perversity
- findings of fact
- interference by High Court
