Gujarat High Court
Lh Of Bhaijibhai Lalbhai Thakor vs Lh Of Mohanbhai Lakhabhai on 5 May, 2025
NEUTRAL CITATION
C/SA/139/2023 ORDER DATED: 05/05/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 139 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/SECOND APPEAL NO. 139 of 2023
================================================================
LH OF BHAIJIBHAI LALBHAI THAKOR & ORS.
Versus
LH OF MOHANBHAI LAKHABHAI & ORS.
==============================================================================
Appearance:
HARSH A VYAS(9330) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8,1.9
Ms. DIXA U PANDYA(9412) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8,1.9
MR BRIJESH K RAMANUJ(9898) for the Respondent(s) No. 1.1
================================================================
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 05/05/2025
ORAL ORDER
1. The present Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 challenging the judgment and decree passed by the 5 th Additional District Judge, Borsad partly allowing the Regular Civil Appeal No.407 of 2006 and setting aside the judgment and decree passed in Regular Civil Suit No.161 of 1995 passed by Civil Judge, Borsad dated 30.09.2003.
2. For the sake of convenience, the parties are referred to as the plaintiffs and defendants herein.
3. The brief facts rising out of the present appeal are that the original plaintiff filed Civil Suit No.161 of 1995 on the ground that the plaintiffs are in possession of the property and on 05.10.1995, the defendants gave a threat of taking away possession of the suit property from the plaintiffs, and therefore, the plaintiffs sought for a relief to declare that the defendants do Page 1 of 6 Uploaded by MANOJ KR. RAI(HC01072) on Fri May 09 2025 Downloaded on : Sat May 10 14:41:21 IST 2025 NEUTRAL CITATION C/SA/139/2023 ORDER DATED: 05/05/2025 undefined not have any right to cause any hindrance and that the defendants do not have any right on the crop grown by the plaintiffs in the suit property and for injunction restraining the defendant from causing any obstruction, hindrance in the plaintiff's possession.
4. The trial Court framed issues vide Exhibit-48 and the issues are as under:-
1. Whether the Plaintiff proves that the land bearing Survey No. 121/1 and Survey No. 120/5 situated in the outskirts of moje Jantral, is under ownership and possession of the Plaintiff, which he inherited?
2. Whether the Respondent proves that he became owner of the disputed property on the basis of adverse possession?
3. Whether the Plaintiff is entitled to get any of the relief as prayed for in the suit?
4. What order and decree?
5. After going through the oral and documentary evidence and giving findings on all issues, it has been held by the trial Court that the plaintiffs could not prove the fact that the they are in possession of the property by way of the said property being an ancestral property and the defendants could not prove that the defendants are in possession has become the owner of Page 2 of 6 Uploaded by MANOJ KR. RAI(HC01072) on Fri May 09 2025 Downloaded on : Sat May 10 14:41:21 IST 2025 NEUTRAL CITATION C/SA/139/2023 ORDER DATED: 05/05/2025 undefined the property by virtue of adverse possession and ultimately, the said suit was dismissed by the trial Court. Aggrieved by the said judgment and decree, the plaintiffs filed Regular Civil Appeal No.407 of 2006 and after reappreciating the evidence the first appellate court partly allowed the said appeal and restrained the defendants from causing any obstruction hindrance with respect to the crop and possession of the plaintiffs in the suit property.
Aggrieved by the said judgment and decree, the defendants have filed the present Second Appeal.
6. Learned advocate for the defendants has mainly argued that the plaintiffs have not produced any evidence showing their possession in the property and merely on the basis of oral evidence, the appellate Court has come to the conclusion that the plaintiffs are in possession of the property. It has also been argued that the father of the original defendant is in continuous possession of the property since the year 1933 and the said fact has not been appreciated by the appellate Court. It has also been argued that once the trial Court came to the conclusion that the plaintiffs have failed to prove that they are the owners of the property by way of having ancestral right in the property, the appellate Court could not have come to the conclusion of partly allowing the suit. In view of the said fact, it has been argued that there are substantial questions of law involved in the present appeal, and therefore, the present appeal is required to be admitted and the suggested substantial questions of law which have been stated in the memorandum of appeal be framed.
Page 3 of 6 Uploaded by MANOJ KR. RAI(HC01072) on Fri May 09 2025 Downloaded on : Sat May 10 14:41:21 IST 2025 NEUTRAL CITATION C/SA/139/2023 ORDER DATED: 05/05/2025 undefined
7. Per contra, learned advocate for the plaintiffs has mainly argued that the names of the plaintiffs were there in the revenue record since the year 1995 and the appeal i.e. RTS Appeal No.21 of 1996 was also rejected on 26.11.1996 and the name of Lakhjibhai has been stated in the revenue record and the trial Court has also clearly held that the possession of the property is with the plaintiff and the trial Court has rightly held that the defendant is not the owner of the property and the fact that looking at the oral evidence also more particularly in Exhibit-183 i.e. the evidence of the witness of the defendants is not aware as to who is cultivating the said land, therefore, it has been argued that the judgment and decree passed by the appellate Court is after reappreciating the evidence, and therefore, the same cannot be quashed and set aside. Moreover, it has been argued that there are no substantial questions of law involved in the present Second Appeal and the substantial questions of law which are stated in the memorandum of appeal are all on the factual aspects, and therefore, the Second Appeal is required to be dismissed.
8. Having heard learned advocates for the parties and on perusal of the judgment and decree passed by the appellate Court, names of the plaintiffs were mutated in the revenue record in the year 1995 and for the same there was revenue entry No.5594 which was challenged by defendant by filing RTS Appeal and ultimately the said appeal was also rejected. The present defendant was aware of the said revenue entry. The Page 4 of 6 Uploaded by MANOJ KR. RAI(HC01072) on Fri May 09 2025 Downloaded on : Sat May 10 14:41:21 IST 2025 NEUTRAL CITATION C/SA/139/2023 ORDER DATED: 05/05/2025 undefined defendant has not been able to prove any right in the suit property. It has been proved beyond doubt that in the revenue entry, the ancestors of the plaintiffs are mentioned and the fact that the defendant vide Exhibit-111 has stated that he is not aware that how many children did Lakhjibhai have. The defendant also could not prove that the suit property was mortgaged and that the father of the defendant had paid the amount and redeemed the said mortgage. Neither any witness has been examined by the defendants nor the defendants have proved as to what amount and to whom the said amount has been paid. Moreover, the defendants has not file any counter claim with respect to claiming adverse possession, and therefore, the trial Court could not have granted an order declaring the defendant to be owner of the property by virtue of adverse possession and after reappreciating the evidence the appellate Court has allowed the said appeal.
9. In view of the said fact, the defendant having not claimed any right of ownership by way of adverse possession, the trial Court could not have passed an order declaring the defendant to be owner by way of adverse possession. The fact also remains that the names of the plaintiffs are mutated in the revenue entry No.5594 and the said entry is since 1995, and therefore, the appellate Court rightly after reappreciating the evidence passed the judgment.
Page 5 of 6 Uploaded by MANOJ KR. RAI(HC01072) on Fri May 09 2025 Downloaded on : Sat May 10 14:41:21 IST 2025 NEUTRAL CITATION C/SA/139/2023 ORDER DATED: 05/05/2025 undefined
10. 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."
11. Under the circumstances, this Second Appeal is devoid of any substantial question of law. The first appellate 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 appellants have failed to prove their case 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.
12. In view of the order passed in main matter, Civil Application does not survive and stands disposed of accordingly.
(SANJEEV J.THAKER,J) Manoj Kumar Rai Page 6 of 6 Uploaded by MANOJ KR. RAI(HC01072) on Fri May 09 2025 Downloaded on : Sat May 10 14:41:21 IST 2025