C/CRA/95/2023 ORDER DATED: 28/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 95 of 2023
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JORUBHAI NAKUBHAI MORI
Versus
PRAVINBHAI NARUBHAI RATHOD
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Appearance:
THAKKAR AND PAHWA ADVOCATES(1357) for the
Applicant(s) No.
1,10,11,12,13,14,15,16,2,3,4,5,6,7,8,9
for the Opponent(s) No. 2,3,4,5
MR VICKY B MEHTA(5422) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 28/03/2023
ORAL ORDER
1. By way of this Civil Revision Application, the applicants have challenged the order dated 10.1.2023 passed by learned Principal Civil Judge, Barwala, on application below Exh.27 under Order 7 Rule 11 in Regular Civil Suit No. 67 of 2022.
2. Heard learned advocate Mr. Ravi Pahwa appearing for the applicants and learned advocate Mr. Vicky B. Mehta appearing of the respondent - Original plaintiff.
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3. The applicants herein are the original defendants No.5 to 20 in Regular Civil Suit No.67 of 2022.
4. The original plaintiff is the respondent No.1 here before this Court.
5. The original plaintiff preferred Regular Civil Suit No.67 of 2022 claiming adverse possession and thereby prayed for execution of sale deed and for permanent injunction.
6. The case of the original plaintiff before the trial Court was that the plaintiff is residing at the premises stated in the Cause Title since last around 35 years and he has constructed two storied building since last more than 35 years. Birth of his children also took place in the said premises only and all the documents etc. barring the address which is mentioned in the Cause Title. Though, as the society is an unregistered society, the other members of the society are harassing the original plaintiff and Page 2 of 17 Downloaded on : Fri Mar 31 20:40:04 IST 2023 C/CRA/95/2023 ORDER DATED: 28/03/2023 therefore, by using their influence, they got a notice for demolition issued by Barwala Municipality on the ground of unauthorized constructions. The plaint states that the cause of action has arisen because the plaintiff purchased the property in question since last more than 35 years by paying a consideration of Rs.10,000/- from one Manjibhai Dalabhai Patel, who was to execute a Registered Sale Deed in favour of the plaintiff but as the said Manjibhai Dalabhai Patel expired, the legal heirs started residing at Botad and though they were ready and willing to execute a Sale Deed in favour of the plaintiff, it is because of insistence of defendant Nos.5 to 20 - present applicants that they did not execute the Sale Deed in favour of the applicants and that is how according to the plaintiff the cause of action to file the suit has arisen.
7. Once the suit was filed and summons was issued, the present applicants appeared in the said suit Page 3 of 17 Downloaded on : Fri Mar 31 20:40:04 IST 2023 C/CRA/95/2023 ORDER DATED: 28/03/2023 and filed one page application under Order 7 Rule 11 of Code of Civil Procedure, 1908.
8. The application was preferred on two grounds :-
(i) that the property in question has not been valid properly and therefore, for the purpose of jurisdictions, the suit has not been valued properly;
(ii) The contentions raised in that application under Order 7 Rule 11 was that the suit is barred by limitation.
9. Except for the aforesaid two grounds, the application was not preferred canvassing any other grounds.
10. The application was heard by learned Principal Civil Judge, Barwala and an order below Exh.27 was passed on 10.1.2023 rejecting the application on the ground that the aspect of limitation is a triable issue and as the suit is for specific performance and permanent Page 4 of 17 Downloaded on : Fri Mar 31 20:40:04 IST 2023 C/CRA/95/2023 ORDER DATED: 28/03/2023 injunction on the basis of adverse possession, the evidence is required to be laid by going on with the trial.
11. The aforesaid order is under challenged by way of present Civil Revision Application.
12. Learned advocate Mr. Ravi Pahwa appearing for the applicants vehemently challenged the impugned order and submitted that in a suit for adverse possession as held by Delhi High Court in case of Raunak Singh Versus Delhi Development Authority and Others wherein reliance is placed upon judgment of the Hon'ble Supreme Court in case of Karnataka Board of Wakf Versus Government of India reported in 2004 SCC Online SC 505.
13. Learned advocate Mr. Ravi Pahwa contended that as per the judgment in case of Karnataka Board of Wakf (Supra) the Hon'ble Supreme Court has laid down four parameters that (a) if a person claims adverse possession then he is Page 5 of 17 Downloaded on : Fri Mar 31 20:40:04 IST 2023 C/CRA/95/2023 ORDER DATED: 28/03/2023 required to show on what date he came into possession; (b) what was the nature of possession; (c) Whether the factum of possession was known to the other party and (d) How long his possession has continued and (e) his possession was open and undisputed.
14. Learned advocate Mr. Ravi Pahwa submitted that the aforesaid aspect has not been taken care while drafting the plaint and therefore, the plaint is faulty and therefore, as it not meeting with the parameters laid down by the Hon'ble Supreme Court which are reiterated in the judgment of the Hon'ble Delhi High Court in case of Raunak Singh Versus Delhi Development Authority and Others in CS (OS) 194 of 2020 which was decided on 30th November, 2021. The present application preferred by the present applicant under Order 7 Rule 11 was required to be allowed by rejecting the plaint.
15. Learned advocate Mr. Ravi Pahwa also relied upon recent judgment of the Hon'ble Supreme Page 6 of 17 Downloaded on : Fri Mar 31 20:40:04 IST 2023 C/CRA/95/2023 ORDER DATED: 28/03/2023 Court in case of C.S. Ramaswamy Versus V.K. Senthil and others reported in AIR 2022 SC 4724. According to learned advocate Mr. Ravi Pahwa that as there is no cause of action stated in the suit as according to learned advocate Mr.Ravi Pahwa as per the judgment in case of C.S. Ramaswamy (Supra) if cause of action is vague the same should not have been considered by the Court and should have returned the plaint.
16. Except the aforesaid submissions no other submissions were made by learned advocate Mr. Ravi Pahwa nor he relied upon any other decisions except the two judgments which are already referred to in the foregoing paragraph.
17. Learned advocate Mr. Vicky Mehta appearing for the original plaintiff - respondent No.1 herein opposed the present Civil Revision Application and submitted that the suit is for adverse possession and therefore, the petitioner is required to prove that he was in possession Page 7 of 17 Downloaded on : Fri Mar 31 20:40:04 IST 2023 C/CRA/95/2023 ORDER DATED: 28/03/2023 of the property in question without any disturbance or objections from the defendants since 35 years which is a matter of evidence and a triable issue and therefore, the Court below has rightly rejected the application preferred by the present applicants. Learned advocate Mr.Vicky Mehta further submitted that limitation is a mixed question of facts and law and therefore also the order passed by learned Principal Civil Judge, Barwala cannot be said to be erroneous, as even the trial Court has also, while rejecting the application under Order 7 Rule 11, considered the facts that limitation is a mixed question of facts and law.
18. Learned advocate Mr. Vicky Mehta also pointed out that though the aforesaid judgments were cited today by learned advocate for the respondent, actually when the application under Order 7 Rule 11 was preferred that was a one page application and except on the ground of uncertain valuation for the purpose of Page 8 of 17 Downloaded on : Fri Mar 31 20:40:04 IST 2023 C/CRA/95/2023 ORDER DATED: 28/03/2023 jurisdiction and limitation, no other ground was canvassed by the present applicants and therefore, the Court below has rightly rejected the application preferred by the petitioner.
19. As far as the parameters set by the Hon'ble Supreme Court in the case of Karnataka Board of Wakf (Supra) is concerned, learned advocate Mr. Vicky Mehta submitted that in the very same judgment the Hon'ble Supreme Court has observed that the plea of adverse possession is not a pure question of law but a blended question of facts and law, which itself indicates that the evidence is required to be laid by straying the suit. He further states that the paragraphs which is relied upon by the learned advocate appearing for the applicant does not say anything about the contents in the plaint.
20. The judgment in case of Karnataka Board of Wakf Versus Government of India was not produced before this Court but the same is referred to in the judgment of Raunak Singh Versus Delhi Page 9 of 17 Downloaded on : Fri Mar 31 20:40:04 IST 2023 C/CRA/95/2023 ORDER DATED: 28/03/2023 Development Authority and Others and in paragraph No.15 of the judgment of Raunak Singh (Supra) by reproducing paragraph No.11 of judgment of Karnataka Board of Wakf (Supra), the Hon'ble Delhi High Court observed as under :-
"15. As observed by the Supreme Court in Karnataka Board of Wakf (supra), certain facts relating to adverse possession have to be clearly pleaded. It would be apposite to reproduce the observations below :
11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.
(See S.M. Karim v. Bibi Sakina [AIR Page 10 of 17 Downloaded on : Fri Mar 31 20:40:04 IST 2023 C/CRA/95/2023 ORDER DATED: 28/03/2023 1964 SC 1254] , Parsinni v. Sukhi [(1993) 4 SCC 375] and D.N.
Venkatarayappa v. State of Karnataka [(1997) 7 SCC 567].) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma [(1996) 8 SCC 128].] (emphasis added)"
21. Learned advocate Mr. Vicky Mehta emphasized on the later part of the aforesaid paragraph and submitted that in the very paragraph, the Hon'ble Supreme Court has emphasized that the plea of adverse possession is not a pure question of law but a blended one of fact and Page 11 of 17 Downloaded on : Fri Mar 31 20:40:04 IST 2023 C/CRA/95/2023 ORDER DATED: 28/03/2023 law. Therefore, a person who claims adverse possession should show : (a) On what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisputed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all his adverse possession.
22. By pointing out the aforesaid observation, he submitted that the Hon'ble Supreme Court said that it is for the person who wish to establish the adverse possession is required to establish all the facts necessary to establish his adverse possession by showing the aforesaid five parameters which itself indicates that its a matter of evidence and therefore, it has nothing to do with plaint.
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23. Learned advocate Mr. Vicky Mehta states that in the plaint even otherwise it is categorically stated by the plaintiff that he is in possession of the land in question since last more than 35 years and though the respondents No.2 to 4 were ready and willing to execute the sale deed, it is because of the interference of defendant No.5 to 20 the sale deed could not be executed and the original plaintiff was served with a notice for demolition. All this fact shows that the four question is something which is required to be decided only by way of leading evidence and therefore, the application under Order 7 Rule 11 has rightly been rejected by the Trial Court.
24. I have heard learned advocates appearing for the respective parties, perused the plaint as well as the application under Order 7 Rule 11 and order passed therein as also the judgments relied upon by learned advocate Mr. Ravi Pahwa. Page 13 of 17 Downloaded on : Fri Mar 31 20:40:04 IST 2023 C/CRA/95/2023 ORDER DATED: 28/03/2023
25. On perusal of the plaint as well as the material available on record this Court is of the view that the original plaintiff has categorically stated that he is in possession of the property in question since last more than 35 years. The Hon'ble Supreme Court's intention it seems from the paragraphs cited from the paragraph shown from the judgment of Raunak Singh (Supra) by learned advocate Mr. Ravi Pahwa as he did not produce the original judgment, this Court was not is a position to consider the original judgment but only a selective paragraph that was shown to the Court.
This Court is of the view that the parameters which are relied upon by learned advocate Mr. Ravi Pahwa are required to be established by leading evidence, as the said paragraph does not say that there should be specific averment about date and all the relevant factors in the plaint itself. It's a
matter of evidence which can be considered by leading evidence only.
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26. When the judgment was almost dictated and was almost over, at this stage, an unreasonable request has come from learned advocate Mr. Ravi Pahwa appearing for the applicants that he should be given an opportunity to provide the judgment.
Today, in all there are 193 matters are listed before this Court and there are three additional matters are listed in Per Court Board. This Court has heard the matter almost for 45 minutes and it is expectation of the Court that whenever the learned advocates make submissions on merit, they should come prepared.
Learned advocate Mr. Ravi Pahwa though had come with a paper book of various judgments running into 92 pages and a separate judgment of 7 pages (Raunak Singh Versus Delhi Development Authority and Others), learned advocate Mr. Ravi Pahwa could have come with one more judgment of Karnataka Board of Wakf Versus Government of India. Once the Court has heard the matter and Page 15 of 17 Downloaded on : Fri Mar 31 20:40:04 IST 2023 C/CRA/95/2023 ORDER DATED: 28/03/2023 decided the matter against the applicants, its unreasonable to suggest the Court that he may be permitted to cite one more judgment. Therefore, considering the aforesaid conduct, the aforesaid request is rejected. Even out of entire paper book he has relied upon only one judgment that is C.S. Ramaswamy Versus V.K. Senthil and others reported in AIR 2022 SC 4724.
27. Further on overall perusal of the impugned judgment, this Court has found that the application preferred by the applicant under Order 7 Rule 11 bares only two grounds and Court below has considered both the grounds and passed the order placed upon the submissions made by learned advocate appearing for the parties. The Trial Court specifically dealt with the issue in respect of limitation and held that the issue of limitation is a mixed question of facts and law. More particularly, by taking into consideration the provisions of Article 64 and 65 which is in respect of possession of immovable property and Page 16 of 17 Downloaded on : Fri Mar 31 20:40:04 IST 2023 C/CRA/95/2023 ORDER DATED: 28/03/2023 Article 65 is specifically in respect of case of adverse possession, which according to this Court, cannot be said to be erroneous.
28. Further as far as the applicant's submission in respect of valuation is concerned it is not the case of the present applicant that despite the order of the trial Court that suit is undervalued and the applicant was asked to pay the remaining court fees, he has failed to pay the remaining court fees and therefore, even that contention raised in the application under Order 7 Rule 11 also cannot be sustained.
29. In view of above, as this Court does not find any error committed by the Court below, I do not see any reason to interfere with the order passed by the Trial Court and therefore, the present Civil Revision Application is required to be rejected and the same is rejected accordingly.
(NIRZAR S. DESAI,J) Pallavi Page 17 of 17 Downloaded on : Fri Mar 31 20:40:04 IST 2023