Gujarat High Court
Mukulbhai Rajendra Thakore(Deleted) vs Upendrabhai Anupram Joshi on 17 July, 2025
NEUTRAL CITATION
C/SA/39/2019 ORDER DATED: 17/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 39 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/SECOND APPEAL NO. 39 of 2019
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MUKULBHAI RAJENDRA THAKORE(DELETED) & ANR.
Versus
UPENDRABHAI ANUPRAM JOSHI & ANR.
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Appearance:
MR KASHYAP R JOSHI(2133) for the Appellant(s) No. 2
DELETED for the Respondent(s) No. 2
MS KJ BRAHMBHATT(202) for the Respondent(s) No. 1
MS VARSHA BRAHMBHATT(3145) for the Respondent(s) No. 1
POOJA H BHARDWAJ(7844) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 17/07/2025
ORAL ORDER
1. The present Second Appeal under section 100 of the Code of Civil Procedure, 1908 (for short "the Code") challenging the judgement and decree passed by Additional District Judge, Bharuch in Regular Civil Appeal No.138 of 2006, confirming the judgement and decree passed in Regular Civil Suit No.193 of 1997, passed by Principal Senior Civil Judge Bharuch dated 22.02.2006.
2. For the sake of brevity and convenience, the parties are referred to as per their original status as that in the suit.
3. The brief facts arising in the present Second Appeal are that Page 1 of 12 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:28 IST 2025 NEUTRAL CITATION C/SA/39/2019 ORDER DATED: 17/07/2025 undefined the plaintiff filed a suit for permanent injunction, declaration and also for possession of the suit land, against the trustee of Shri Sadvidhya Mandal. In the said suit, the plaintiff had sought for relief for declaration that the plaintiff is an exclusive owner and in possession of the suit land. The defendant appeared in the said suit and it was the case of the defendant before the Trial Court, that the defendants are in possession of the suit property since last 40 years and it is the case of the defendant that the plaintiff is not the owner of the property, nor is in possession of the suit land. The Trial Court framed following issues which reads as under:
"(i) Whether the plaintiff proves that he is the sole owner and in possession of the land bearing Revenue Survey No.82/1/2/B admeasuring Hector Are Sq. Meters 0-2-23 situated at Mauje Kasak, Taluka Bharuch ?
(ii) Whether plaintiff's suit is barred by non-
joinder of parties?
(iii) Whether defendant proves that suit land i.e. 0-guntha-20 is in possession of the defendant Trust since 1958?
(iv) Whether suit is barred by the law of limitation?
(v) What order and decree?"
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4. The plaintiff examined witnesses vide Exhibit 102, 114, 132 & 163 and vide exhibit 102- Farsuram Ratilal Bhamwala, vide exhibit-114, Haribhai Mangalbhai Ahir, vide exhibit 132- Jamalsing Ratilal Vasava, vide exhibit 163- Upendra Anupram Joshi. The defendant vide oral evidence examined Rameshchandra Chhotalal Joshi vide exhibit 148 and after taking into consideration the oral evidence and the documentary evidence and giving finding on all the issues, the Trial Court allowed the suit and declared that the plaintiff is an exclusive owner of the suit property, bearing Survey No.82/1/2/B admeasuring acres 0-2-23 gunthas of Kasak, District Bharuch and so far as the relief of the plaintiff to declare the possession of the plaintiff over the suit property, the same was dismissed and so far as the relief that the plaintiff is in possession of the suit property, the defendants were restrained from disturbing the possession of the plaintiff and the relief as sought for injunction was dismissed and the defendants were directed to handover the peaceful possession of the suit property which is shown in maps of exhibits 55 and 133 to the plaintiff within a period of 60 days from the date of order and so far as the relief for the mesne profit sought by the plaintiff was dismissed.
5. The said order was challenged by the defendant by filing Page 3 of 12 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:28 IST 2025 NEUTRAL CITATION C/SA/39/2019 ORDER DATED: 17/07/2025 undefined Regular Civil Appeal No.138 of 2006 and after appreciating the evidence, the First Appellate Court dismissed the said appeal and confirmed the judgement and decree passed by the Trial Court in Special Civil Suit No.193 of 1997, hence the present Second Appeal. By an order dated 09.04.2019, this Court directed the First Appellate Court to decide application exhibit 29 preferred by the Appellants under Order 41 Rule 27 of the Code of Civil Procedure, 1908 within a period of one month from the receipt of the order and thereafter the present Second Appeal is heard.
6. Learned advocate for the defendant has mainly argued that the notice that was served by the plaintiff was on the trust, and in the present suit, knowing full well that the dispute is between the plaintiff and the trust, the plaintiff has not joined the trust as party defendant and has only joined the trustees in the said suit, and therefore, the suit is bad on the ground of non joinder of parties, and in absence of the trust being joined as party, the Trial Court could not have passed a decree against the trustees of Shri Sadvidhay Mandal Trust.
7. Learned advocate for the defendant has also argued that if the plaint is perused, the plaintiff has not given any particulars and description of the suit property and the subject matter of dispute is a immovable property and the plaint does not Page 4 of 12 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:28 IST 2025 NEUTRAL CITATION C/SA/39/2019 ORDER DATED: 17/07/2025 undefined sufficiently give description of the property, so that the same can be identified and the plaintiff has not identified the suit property by boundaries or numbers in the record of of survey and in view of the said fact, the Trial Court could not have passed judgement and decree and there are substantial questions of law involved in the present Second Appeal the same are formulated in the memorandum of appeal and the present Second Appeal is required to be admitted on the said substantial questions of law.
"1. Whether both the courts below have committed error in not examining the vital issue of non-joinder of party i.e. Trust, who was the necessary party as a legal entity i.e. owner of the suit land?
2. Whether both the courts below have committed error in partly allowing the suit against the Trustees in their personal capacity, who merely represented the Trust and not actually occupied the so- called land in question?
3. Whether both the courts have committed error in construing the documents/maps on record qua the so-
called disputed land in question l.e.
R.S.No.82/1/2/"B" on the site that in fact it isactually situated in Kasak area, Taluka Page 5 of 12 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:28 IST 2025 NEUTRAL CITATION C/SA/39/2019 ORDER DATED: 17/07/2025 undefined and District Bharuch and really in existence as mentioned in the suit filed by the plaintiff?
4. Whether both the courts have committed error about the existence of the suit land l.e. "Revenue Survey no.
82/1/2/B", though it is not in the record of rights or in the Maps mentioned by the learned Civil court at Exhibit-55 and 133?
5. Whether both the courts below have committed grave error in not believing the fact that the defendants have proved their continuous and constant uninterrupted possession over the suit land since 1958 and so, they are entitled for declaration in respect of their plea of adverse possession that the Trust became owner of the suit land by way of adverse possession?"
6. Whether the Id. Lower/first appellate court has committed grave error in dismissing the appeal without framing proper points for determination and also without deciding the Application below exhibit-29 of the Additional Evidence under order-41, rule-27 of the CPC in spite of direction of this Hon'ble Court in SCA/14490/2017?"
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8. Per contra, learned advocate for the plaintiff has argued that the Trust has not been joined as party defendant and therefore, the Trial Court could not have granted a decree. The learned advocate for the plaintiff has relied on provisions of Order 1 Rule 9 of the Code of Civil Procedure, 1908 and Order 1 Rule 13 of the Code of Civil Procedure, 1908 and has stated that the said objection that has been raised in the second appeal was not raised at the time when the written statement was filed by the defendant and on close scrutiny of the written statement, it can be clearly seen that the only objection of non-joinder of party that has been raised with defendant is at paragraph-3 wherein the defendant has stated that the legal heirs of Ismail Musa Umarji have not been joined as party defendants and, therefore, the suit is not maintainable. In the entire written statement, the defendant has not raised the issue that the trust is a necessary and proper party and in view of the same, the said contention that has been raised in the second appeal is an after thought and has to be raised at the earliest possible opportunity that is at the time of filing written statement and the said issue was not even raised before the Trial Court and on perusal of the issues that have been framed by the Trial Court, the said issue that the Trust was a necessary and proper party was not argued by the defendant and, therefore, there are no substantial question of law involved in the present second appeal and the present second appeal is required to be Page 7 of 12 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:28 IST 2025 NEUTRAL CITATION C/SA/39/2019 ORDER DATED: 17/07/2025 undefined dismissed.
9. With respect to the contention that proper description of the suit property has not been stated in the plaint, the plaintiff relies on paragraph 2 of the plaint, wherein the plaintiff has categorically given details of the immovable property, whereby the immovable property can be identified by the numbers in the record of survey and therefore, it cannot be said that the suit property could not be identified and in view of the said fact it has been argued that the judgement and decree are proper and are not required to be interfered.
10. Having heard learned advocates appearing for the respective parties and having considered the judgement and decree passed by the Trial Court and affirmed by the First Appellate Court and having taken into consideration the oral evidence, the only dispute that has been argued in the present proceeding is of non-joinder of the parties and not giving particulars of the suit property.
11. If the first contention is taken into consideration, the fact remains that the plaintiff while filing the suit have not joined the defendants in their individual capacity and have joined them as trustees of Shri Sadvidhay Mandal Trust and the name of the trust is also mentioned in the cause title. The said Page 8 of 12 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:28 IST 2025 NEUTRAL CITATION C/SA/39/2019 ORDER DATED: 17/07/2025 undefined contention that the trust is a necessary and proper party has not been raised by the defendant while filing his written statement, vide Exhibit 10 and even in view of Order I Rule 9 of the Code, no suit can be defeated by the reason of non-joinder of parties and the fact remains that in view of Order I Rule 13 of the Code, all objections on the ground of non-joinder have to be taken at the earliest possible opportunity and in all cases where issues are settled on or before such settlement and looking to the pleadings that have been filed in the written statement, the said contention has not been taken by the defendant while filing the written statement and therefore, the said contention cannot be taken in the Second Appeal.
12. Moreover, it is well known that a trust is not a legal entity as such, In fact, a trust may be defined as an obligation imposed on the ostensible owner of a property to use the same for a particular object for the benefit of a named beneficiary or a charity. Thus, all trustees in law are owners of the property, but they are obliged to use the same in a particular manner. If a number of trustees exist, they are joint owners of the property and it is not like a corporation which has a legal existence of its own and therefore, can appoint an agent and therefore, a Trust is not in this sense a legal entity. In the present case, as the said objection was not raised in the written statement, the said cannot be taken in the Second Appeal.Page 9 of 12 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:28 IST 2025
NEUTRAL CITATION C/SA/39/2019 ORDER DATED: 17/07/2025 undefined
13. With respect to the second contention that the suit property has not been properly described and therefore, the Trial Court could not have passed a decree. Taking into consideration the said argument, if the plaint is perused the plaintiff has categorically stated at para no.2 stating that the suit property is situated at Mouje Kasak, Taluka Bharuch, Survey No.82/1/2 and totally admeasuring Acre 2 Guntha 25 and as per the partition, between Mohammad Umarji and Musa Umarji, out of the above referred property 1 acre 5 guntha came in the hands of Mohammad Umarji and 1 acre 20 guntha came in the hands of Musa Umarji and from the property that was acquired by the Musa Umarji out of 1 acre 20 guntha land, 1 acre 0 guntha was sold to Vali Umarji Aadam and Vali Umarji Aadam sold it to Shri Sadvidhya Mandal and therefore, out of the 1 acre 20 guntha land, 0 Acre, 20 guntha land was still kept by Musa Umarji and the present suit was filed for 0 acre 20 guntha having Survey No.82/1/2/B and therefore, the suit property was described in the plaint and therefore it cannot be said that proper description of the suit property has not been given in the plaint.
14. 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 Page 10 of 12 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:28 IST 2025 NEUTRAL CITATION C/SA/39/2019 ORDER DATED: 17/07/2025 undefined 1996 (6) SCC 177, the Hon'ble Apex Court has observed as under:-
"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."
15. 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 without evidence."
16. Under the circumstances, this Second Appeal is devoid of any substantial question of law. The learned Court has 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 Page 11 of 12 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:28 IST 2025 NEUTRAL CITATION C/SA/39/2019 ORDER DATED: 17/07/2025 undefined 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.
17. In view of the dismissal of the main matter, the civil application does not survive and the same is accordingly disposed of. Interim relief if any stands vacated.
(SANJEEV J.THAKER,J) Further Order After the pronouncement of judgment, learned advocate for the appellant has requested to stay the operation of the order.
In view of the said fact, operation and execution of the order shall be stayed for further four weeks.
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