Gujarat High Court
Lh Of Decd. Popatbhai Merambhai ... vs State Of Gujarat on 9 April, 2025
NEUTRAL CITATION
C/SA/9/2024 JUDGMENT DATED: 09/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 9 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SECOND APPEAL NO. 9 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
Yes
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LH OF DECD. POPATBHAI MERAMBHAI BHUPATBHAI POPATBHAI &
ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MS SAMRUDDHI V PAWAR(13069) for the Appellant(s) No. 1
MR BHARAT VYAS, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 09/04/2025
ORAL JUDGMENT
1. Being aggrieved by the judgment and decree passed by Principal District Judge Rajkot in Regular Civil Appeal no.42 of 2010, whereby the said appeal has been dismissed and the judgment and decree passed in Regular Civil Suit No.101 of 1993 passed by the 4th Additional Senior Civil Judge is confirmed, the present second Page 1 of 11 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:30:41 IST 2025 NEUTRAL CITATION C/SA/9/2024 JUDGMENT DATED: 09/04/2025 undefined appeal has been filed.
2. For the sake of brevity and convenience, the parties are referred to as plaintiffs and the defendants.
3. The brief facts arising in the present Second Appeal are that the plaintiffs filed suit for permanent injunction on the ground that they are occupying suit property since 1961 and the suit premises belongs to the defendants, i.e. State of Gujarat and the plaintiffs are in possession of the property since last more than 30 years and as the plaintiffs have become the owner on the ground of adverse possession, the plaintiffs have filed a suit for injunction and after going through the documentary evidence and oral evidence and giving findings on all the issues, the Trial Court dismissed the said suit and thereafter the plaintiffs filed appeal and the same was also rejected.
4. Learned advocate for the plaintiffs has mainly contended that the plaintiffs have become the owner of the property as they are in possession of the property for the last 30 years and therefore, the defendants cannot dispossess the plaintiff from the suit premises.
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The learned advocate for the plaintiffs has also stated that the defendant Government has no right what so ever to remove the plaintiffs from the possession without following due process of law.
5. Having heard learned advocate for the plaintiffs, the fact remains that the following points are not in dispute:
1. The defendant government is the owner of the property.
2. The defendants are claiming to be owner by way of adverse possession.
3. There is no relief to declare that the plaintiffs have become owner by way of adverse possession.
4. the suit is only for injunction.
6. Having heard learned advocate for the plaintiffs, the fact remains that, the plaintiffs who are claiming adverse possession, have miserably failed to show that, on what date he came into Page 3 of 11 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:30:41 IST 2025 NEUTRAL CITATION C/SA/9/2024 JUDGMENT DATED: 09/04/2025 undefined possession and that what was the nature of his possession and whether the factum of possession, was known to the defendant and since how long his possession has continued and the plaintiffs have also miserably failed to prove that his possession was open and undisturbed. All the above referred ingredients are not mentioned in the pleadings and are also not proved in evidence and therefore, when there are no proof in the pleadings and there is no oral or documentary evidence, the case of the plaintiffs without evidence will not establish a case in law. Moreover, mere possession of the land by the plaintiffs would not ripen into possessory title. The plaintiffs to claim right by adverse possession must have intention and hold the suit property adverse to the title of the defendant.
7. Moreover, with respect to the claim of the plaintiffs to be in adverse possession, the possession of the suit property by the plaintiffs contemplates a hostile possession i.e. a possession which is impliedly or expressly in denial of the title of the true owner and for claiming possession to be adverse, the same must be a possession by the plaintiffs, who does not acknowledge either the defendant's right or anybody else's right, but also denies the said right. The plaintiffs possession for claiming adverse possession had Page 4 of 11 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:30:41 IST 2025 NEUTRAL CITATION C/SA/9/2024 JUDGMENT DATED: 09/04/2025 undefined to imply a control and consciousness in the mind of the plaintiffs having dominion over an object that plaintiffs have adverse possession and only then can plaintiffs exercise it, and therefore by only holding possession of the suit property would not entitle the plaintiffs into possessory title as there has to be an element to hold the suit property adverse to the title of the true owner.
8. Moreover, the possession of the premises of the plaintiffs only implies the bare use of the land without any right to retain it and therefore, in order to constitute adverse possession, the plaintiffs must prove that the actual possession of the plaintiffs was claimed by the plaintiffs as of right by himself or by persons deriving title from him and therefore, it was not sufficient for the plaintiffs to prove adverse possession to show just the possession of property and for the claim of adverse possession, the said possession along with being actual, visible exclusive has to be hostile and continued during the time necessary to create a bar under the statute of limitation. It is not enough for the plaintiffs to prove that he was in actual possession of the property within period of limitation, but the plaintiffs must establish his title to the property and if the plaintiffs fail to prove his title, the suit fails and the question of Page 5 of 11 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:30:41 IST 2025 NEUTRAL CITATION C/SA/9/2024 JUDGMENT DATED: 09/04/2025 undefined adverse possession does not arise in such a case.
9. In the present case the defendant having established his title to a land, the burden of proving that he has lost the title by reason of adverse possession of the plaintiffs, lies upon the plaintiffs and in the present case, the plaintiffs have failed to prove that he was in adverse possession for more than 30 years and therefore also, the defendant is entitled to succeed simply on the strength of his title. Moreover, the present suit is only for injunction and the plaintiffs have not claimed ownership by way of adverse possession.
10.The next issue is with respect to the claim of injunction that the defendant government should not dispossess the plaintiffs from the suit property without due process of law.
11.The law of due process is well settled in case of Maria Margarida Sequeria Fernandes and Others v. Erasmo Jack de Sequeria (Dead) in Appeal No.2968 of 2012 (Arising out of SLP (C) No.15382 of 2009) decided on 21.03.2012, the Hon'ble Apex Court has approved the finding of the High Court of Delhi in case of Thomas Cook (India) Limited V/s. Hotel Imperial wherein it Page 6 of 11 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:30:41 IST 2025 NEUTRAL CITATION C/SA/9/2024 JUDGMENT DATED: 09/04/2025 undefined has held that the settled possession of even a person in unlawful possession cannot be disturbed forcibly by true owner taking law in his own hands therefore ejectment from settled possession can only be had by recourse to Court of law and due process of law or due course of law would mean that a person in settled possession cannot be ejected without a Court of law having adjudicated upon his rights qua the true owner. The Court held that it was not important who brought the action to Court, it could be the owner in an action for enforcement of his right to eject the person in an unlawful possession of the property meaning thereby that if the defendant is in unlawful possession of the property, the owner can file a suit for ejectment and also it could be the person who is sought to be ejected and who has filed a suit preventing the action of the owner from ejecting him like the present case that the respondent plaintiff is claiming a right in the property stating that he is in settled possession of the property and the defendant cannot dispossess the plaintiffs without due process of law. It is not important that whether the owner has filed a suit for recovery of possession or the person in settled possession has filed a suit for protection of his right i.e. injunction against dispossession. What is important is that in either event it is an action before the Court and Page 7 of 11 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:30:41 IST 2025 NEUTRAL CITATION C/SA/9/2024 JUDGMENT DATED: 09/04/2025 undefined that the Court adjudicates upon it and if that is done, the bare minimum requirement of due process or due course of law would stand satisfied as recourse to law would have been taken. Therefore, when the person in settled possession approaches the Court seeking a protective remedy, such injunction, like the present case and the plaintiffs of the said suit fails in setting up a good case, in that event the recourse to law stipulation stand satisfied when a judicial determination is made with regard to protective action filed by a person in settled possession is decided.
12.Therefore, the plaintiff who files a suit for injunction for seeking protective remedy fails and suit is dismissed thereafter he cannot state that owner must now institute an action in Court of law for recovery of possession when the Court has already held that possession of the property that is with the plaintiffs is unlawful.
13.Therefore, the bare minimum requirement of due process of law is met with, as the plaintiffs have already lost the suit and has not been able to show that he has a right to claim injunction against the true owner. Moreover, the plaintiffs even by long possession of years or decades cannot acquire any right or interest in the suit Page 8 of 11 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:30:41 IST 2025 NEUTRAL CITATION C/SA/9/2024 JUDGMENT DATED: 09/04/2025 undefined property, the plaintiffs having claimed right by way of adverse possession and having not proved the adverse possession and or filed any suit with respect to the adverse possession cannot be protected.
14.In the present case, the conclusion which has been reached by both the Trial Court and the Appellate Court cannot be interfered as the judgment and decree of the Court below are not perverse, arbitrary so as to warrant interference. Moreover, as per the well settled decisions of this Court as well as the Hon'ble Apex Court, the Court ordinarily will not interfere with concurrent findings of fact except in exceptional cases where the findings are such that it shocks the conscious of the Court or may disrespect to the forms of legal process or some violation or some principle of natural justice or otherwise substantial and great injustice has been done.
15.It is required to be noted that in Second Appeal, the scope is very limited and the Court cannot re-appreciate the evidence. In the case of Navaneethammal v. Arjuna Chetty reported in 1996 (6) SCC 177, the Hon'ble Apex Court has observed as under:- Page 9 of 11 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:30:41 IST 2025
NEUTRAL CITATION C/SA/9/2024 JUDGMENT DATED: 09/04/2025 undefined "11. This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts."
16.In the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100 CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or Page 10 of 11 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:30:41 IST 2025 NEUTRAL CITATION C/SA/9/2024 JUDGMENT DATED: 09/04/2025 undefined without evidence."
17.Under the circumstances, this Second Appeal is devoid of any substantial question of law. Both the learned Trial Court and first appellate Court have rightly decided the issue between the parties in the right perspective and as stated above no substantial question of law arises in the present appeal. The appellants have failed to prove their case before the learned trial Court as well as before the first appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merit both on facts and law and the same is dismissed at admission stage.
18. In view of the dismissal of the Second Appeal, the Civil Application does not survive and the same is accordingly disposed of.
(SANJEEV J.THAKER,J) URIL RANA Page 11 of 11 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:30:41 IST 2025