Gujarat High Court
Banni Mirani Cooperative Housing ... vs Bhadreshwar Mohanlal Shah on 13 November, 2025
NEUTRAL CITATION
C/SA/271/2022 ORDER DATED: 13/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 271 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
In R/SECOND APPEAL NO. 271 of 2022
With
CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL EVIDENCES)
NO. 2 of 2022
In R/SECOND APPEAL NO. 271 of 2022
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BANNI MIRANI COOPERATIVE HOUSING SOCIETY LTD
Versus
BHADRESHWAR MOHANLAL SHAH
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Appearance:
MR KIRTIDEV R DAVE(3267) for the Appellant(s) No. 1
MR RAHUL K DAVE(3978) for the Appellant(s) No. 1
MR NIRAV C SANGHAVI(5950) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/11/2025
ORAL ORDER
1. The present Second Appeal is instituted under Section 100 of the Code of Civil Procedure, 1908, assailing the legality, propriety, and correctness of the judgment and decree dated 14.03.2022 rendered by the learned 8th Additional District Judge, Bhuj in Regular Civil Appeal No.111 of 2019, whereby the appellate court has been pleased to affirm the judgment and decree dated 03.09.2019 passed by the learned 2nd Senior Civil Judge, Bhuj in Regular Civil Suit No.177 of 2012.
2. Shorn of non-essential details, the relevant factual matrix of the lis in hand is adumbrated, thus: The plaintiff instituted Regular Civil Suit No.177 of 2012 before the learned Civil Court at Bhuj seeking a declaration of ownership over sub-plot Nos.1201, 1202 and 1203 carved out of the scheme of 99 plots on Survey No.870, Page 1 of 12 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 20:50:27 IST 2025 NEUTRAL CITATION C/SA/271/2022 ORDER DATED: 13/11/2025 undefined Bhuj, and a concomitant injunction restraining the defendant from asserting any right, raising any construction, or entering upon the suit property, coupled with a further prayer for demolition of any construction allegedly undertaken by the defendant. Upon a full- fledged trial and after appreciating the evidence led by the parties, the learned 2nd Additional Senior Civil Judge, Bhuj, dismissed the suit vide judgment and decree dated 03.09.2019. Aggrieved thereby, the original plaintiff preferred Regular Civil Appeal No.111 of 2019; however, the learned 8th Additional District Judge, Bhuj, by judgment and decree dated 14.03.2022, affirmed the findings of the trial court, thus leaving the plaintiff with no alternative remedy but to invoke the appellate jurisdiction of this Court.
3. Learned advocate for the appellant would contend, in tandem with the factual milieu borne out from the record, that the appellant- society is a duly registered cooperative housing society to which the suit land was allotted by the Collector vide order dated 02.04.1984, upon due payment of the premium, thereby vesting ownership and lawful possession in the appellant. The resolutions of the society, the allotment orders, and allied documents establishing the appellant's title have been kept sub silentio and wholly ignored by both Courts below. This deliberate exclusion of material documentary evidence, which constitutes the very life-blood of the appellant's case, indubitably amounts to a serious error of law and jurisdiction, rendering the concurrent findings perverse.
3.1. It is further urged that both Courts below have committed a manifest error in placing reliance upon RCS No.118 of 1990 and RCS No.204 of 2005 suits to which the present defendant was not a party and whose subject matter pertained merely to right of way and Page 2 of 12 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 20:50:27 IST 2025 NEUTRAL CITATION C/SA/271/2022 ORDER DATED: 13/11/2025 undefined open space relating to GIDC. The allottee members of the appellant- society, whom the defendant purports to represent, were also not parties thereto. Ergo, the invocation of constructive res judicata or estoppel is wholly misconceived.
3.2. Learned advocate would submit that the defendant has candidly admitted in his cross-examination that he neither owns the suit plots nor possesses any title documents; that the land stands allotted to other individuals; and further that he is merely a poa holder without even producing the allotment letters or the alleged sale deeds. Such oral assertions, in absence of registered conveyances, constitute no evidence in the eye of law. On the contrary, witnesses from GIDC have unequivocally admitted that the land had been found encroached, that it was returned by the Collector,present lis and that it stands allotted to the appellant- society and its members. These admissions, vetted on the touchstone of cross-examination, unequivocally fortify the appellant's claim. In absence whereof, the very foundation of the defendant's claim crumbles.
3.3. Lastly, it is entreated that both Courts below have adjudicated the matter in a perfunctory and cursory manner. All six issues have been disposed of in a single paragraph without any meaningful appreciation of evidence, and the First Appellate Court has failed even to frame proper points for determination, contrary to the trite posit of law governing appellate scrutiny. Thus, it is submitted to admit the present Second Appeal.
4. Per contra, the learned advocate for the respondent would submit that the appellant has failed to establish, by any cogent or Page 3 of 12 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 20:50:27 IST 2025 NEUTRAL CITATION C/SA/271/2022 ORDER DATED: 13/11/2025 undefined admissible evidence, that sub-plot Nos.1201, 1202 and 1203 form part of the land allegedly allotted to the society under the Collector's order dated 02.04.1984. It is urged that the appellant has not produced the sanctioned layout, demarcation records, municipal permissions, or the requisite documents demonstrating compliance with the conditions of the grant--particularly the mandatory requirement of completing construction within the stipulated period. The alleged resolutions or internal records of the society, in absence of statutory proof of title or possession, cannot by themselves create ownership. It is further submitted that the Courts below have rightly appreciated that earlier litigations involving GIDC touch upon the root of the appellant's claim, and the conclusions reached therein cast a serious doubt on the appellant's asserted title. Thus, the theory of sub silentio non-consideration is wholly misplaced.
4.1. It is further contended that the defendant's status as a Power of Attorney holder is immaterial when the foundational issue pertains to the appellant's failure to prove its own title. The burden of establishing ownership squarely rested upon the plaintiff, and the Courts below have rightly held that such burden remained undischarged. The alleged admissions extracted from the defendant's witnesses do not eclipse the documentary record of GIDC, which continues to reflect that the original land belonged to GIDC and that no lawful conveyance in favour of the appellant or its members was ever executed or proved. The concurrent findings, arrived at after due appreciation of the record, cannot be characterised as perverse merely because they do not align with the appellant's expectations. Thus, no substantial question of law arises, and the prayer to admit the Second Appeal deserves to be rejected in limine.
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5. I have heard learned advocates for both the sides and perused the documents on record.
5.1. Learned trial Court framed the following issues at Exh.32 in the Civil Suit, which are as under:-
"a) Whether the plaintiff proves that he is the President of a duly registered cooperative housing society and is competent and authorised to institute the present suit on behalf of the society?
b) Whether the plaintiff proves that the society was allotted land admeasuring 11,040 sq. metres near Bhuj by the Government for residential purposes for its 99 members, and that the society is in lawful possession and enjoyment thereof?
c) Whether the plaintiff proves that the defendant has no right, title, or interest in sub-plots Nos.1201, 1202 and 1203 carved out of Plot No.99?
d) Whether the defendant proves that the plaintiff's suit is not maintainable in law?
e) Whether the plaintiff is entitled to the reliefs prayed for in the suit?
f) What order and decree?"
5.2. The plaintiff led only oral evidence, whereas the defendant adduced both oral and documentary evidence. Upon a holistic evaluation of the evidentiary corpus, the learned Trial Court answered all issues in the negative except Issue No.4, holding, inter alia, that the suit was not maintainable and stood barred by the Page 5 of 12 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 20:50:27 IST 2025 NEUTRAL CITATION C/SA/271/2022 ORDER DATED: 13/11/2025 undefined principles of res judicata. It remains crystal clear and indubitable that the plaintiff, Mr. Abdulla Haji Rahiman Node, asserted that he was the President of Banni Mirani Cooperative Housing Society Ltd.
and that the members of the society had passed a resolution authorising him to institute the suit. However, no such resolution has been produced on record as part of the duly exhibited documentary evidence.
5.3. Learned advocate Mr. Dave for the appellant sought to rely upon Mark 3/1, yet the said document, being unexhibited, cannot, in law, be read in evidence. The plaintiff abjectly failed to discharge the burden of proving the document; and ergo, it cannot enure to his benefit at the stage of Second Appeal. In the absence whereof, the very foundation of the authority claimed by Mr. Abdulla Haji Rahiman Node crumbles. Without any proof of authorization, he was not in seisin of the requisite competence to institute the proceedings on behalf of the society, rendering the suit legally untenable, an inference rightly drawn by the learned Trial Court.
5.4. Furthermore, the plaintiff did not produce a scintilla of documentary evidence to demonstrate that either the society or Mr. Abdulla Haji Rahiman Node held any title or proprietary interest in the land forming the subject matter of the lis. The chequered factual milieu of the land, as meticulously delineated by the learned Trial Court and re-appraised by the First Appellate Court, leaves no manner of doubt. The learned First Appellate Court, upon a comprehensive and reasoned appreciation of the record, has, indubitably, and in tandem with the governing ratio, rightly affirmed the judgment and decree of the learned Trial Court.
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5.5. In the judgment and decree rendered by the learned First Appellate Court, it emerges indubitably that two previously civil suits had been instituted inter se the parties. The judgments and decrees emanating therefrom have not been carried in challenge before any higher foram, and ergo, the findings recorded by the learned Trial Court have attained finality and have now crystallised. The seminal legal issue before both the Courts in the said suits pertained to the ownership of Plot Nos.1201, 1202 and 1203. The plaintiff had asserted proprietary rights over the aforesaid plots; however, such assertion stood repelled in the earlier proceedings and, having not been challenged before a higher forum, has attained finality, leaving no scope for adjudication of the said issue again by filing a fresh suit. It is apt to note that nothing has transpired subsequently to alter that position.
5.6. It is clear from the record that the present defendant is a member of the GIDC and, consequently, the findings arrived at by the learned Trial Court in Regular Civil Suit No.204 of 2005 would, pro tanto, operate as res judicata against the plaintiff in prosecuting the present lis. As noticed, Regular Civil Suit No.204 of 2005 had been instituted by the plaintiff against the GIDC seeking reliefs of a similar nature. In a bid to extricate himself from the rigours of the doctrine of res judicata, learned advocate for the appellant sought to canvass that the defendant had preferred an application under Order VII Rule 11 of the CPC, during the pendency of the earlier suit, contending that the said suit was barred by the principles of res judicata. It was further submitted that the learned Trial Court was, therefore, legally precluded from adjudicating the said issue afresh at the culmination of trial.
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5.7. I am, however, not even remotely impressed by the aforesaid submission.
5.8. The issue regarding the applicability of res judicata can, indubitably, never be adjudicated within the narrow contours of Order VII Rule 11 of the CPC, for the said provision is confined to the scrutiny of the plaint in limine. The invocation of the bar of res judicata is not a matter that can be resolved at the interlocutory stage merely on the anvil of pleadings; it necessitates the establishment of foundational facts, nay, a meticulous examination of the prior proceedings, pleadings, issues, evidence, and the final adjudication therein. Such a determination is quintessentially a mixed question of law and fact, which must be deduced upon a holistic appraisal of the evidentiary record.
5.9. Ergo, the argument that the Trial Court was denuded of its jurisdiction to revisit the issue at the conclusion of the trial is wholly misconceived and bereft of legal substance. The Hon'ble Supreme Court, in its aureate enunciation in Pandurangan v. T. Jayarama Chettiar and Another, 2025 SCC OnLine SC 1425, has meticulously delineated the contours of this principle. Relevant Para is as under:-
"9. Issue relating to whether the ex parte decree is obtained by collusion, or whether the defendant No. 1, as alleged, has played fraud by filing a suit in a court having no jurisdiction or whether the appellant is a bonafide purchaser or not need to be examined in detail. This Court has held that such circumstances require an in-depth examination of the previous decree, and its impact on the second suit. Res judicata cannot be decided merely on assertions made in the application seeking rejection of plaint. As held by this Court Page 8 of 12 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 20:50:27 IST 2025 NEUTRAL CITATION C/SA/271/2022 ORDER DATED: 13/11/2025 undefined in V. Rajeshwari v. T.C. Saravanabava,9 identifying similarity in causes of action should be a matter for trial where documents from the first suit are studied and analysed. Res judicata cannot be a matter of speculation or inference. In Keshav Sood v. Kirti Pradeep Sood,10 this Court took a strong view against the plea of res judicata being raised in applications seeking rejection of plaint and held as follows:
"5. As far as scope of Rule 11 of Order VII of CPC is concerned, the law is well settled. The Court can look into only the averments made in the plaint and at the highest, documents produced along with the plaint. The defence of a defendant and documents relied upon by him cannot be looked into while deciding such application.
6. Hence, in our view, the issue of res judicata could not have been decided on an application under Rule 11 of Order VII of CPC. The reason is that the adjudication on the issue involves consideration of the pleadings in the earlier suit, the judgment of the Trial Court and the judgment of the Appellate Courts. Therefore, we make it clear that neither the learned Single Judge nor the Division Bench at this stage could have decided the plea of res judicata raised by the appellant on merits."
6. What is clearly discernible is that the plaintiff, in an attempt to satiate his personal predilections, has repeatedly instituted suits seeking one and the same relief, thereby trifling with the truth and taking undue liberties with the sanctity of judicial proceedings. Such recidivist litigation conduct, if left unchecked, not only subverts the orderly administration of justice but also undermines the very life- blood of the judicial process.
6.1. The Hon'ble Apex Court has, in its authoritative
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NEUTRAL CITATION
C/SA/271/2022 ORDER DATED: 13/11/2025
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pronouncements, underscored that the legal system is already besieged by frivolous and groundless filings, which constitute a serious menace to the administration of justice. Such litigations consume valuable judicial time, clog the institutional infrastructure, and deplete scarce and productive resources which ought otherwise to be devoted to meritorious causes.
6.3. The Hon'ble Supreme Court has, therefore, emphatically exhorted the Courts to nip such vexatious litigations in the bud by imposing exemplary costs, so as to deter the misuse of the judicial machinery and preserve its efficacy for genuine grievances.
7. In Dnyandeo Sabji Naik and Another v. Pradnya Prakash Khadekar and Others, (2017) 5 SCC 496, the Hon'ble Apex Court has, in its aureate enunciation, held thus:-
"13. This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practise in our country, there is no premium on the truth.
14. Courts across the legal system-this Court not being an exception-are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by Page 10 of 12 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 20:50:27 IST 2025 NEUTRAL CITATION C/SA/271/2022 ORDER DATED: 13/11/2025 undefined prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an institutional approach which penalises such behaviour. Liberal access to justice does not mean access to chaos and indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as wehras to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner."
8. In the aforesaid conspectus, this Court is of the considered view that the learned Courts below have not committed any error, much less any jurisdictional infirmity, that would warrant the interdiction of this Court in the exercise of its limited appellate Page 11 of 12 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 20:50:27 IST 2025 NEUTRAL CITATION C/SA/271/2022 ORDER DATED: 13/11/2025 undefined scrutiny under Section 100 of the Code of Civil Procedure. What is sought to be achieved is, in effect, an impermissible endeavour on the part of the crestfallen and unsuccessful plaintiff to inaugurate a third round of litigation, which the law does not countenance.
9. Ergo, and in view of the prevenient ratiocination, the present second appeal stands DISMISSED at the admission stage, with costs quantified at Rs.10,000/- (rupees ten thousand only), to be borne by Mr. Abdulla Haji Rahiman Node. The said amount shall be deposited with the District Legal Services Authority, Bhuj, within a period of four weeks from today; failing which, the Collector, Bhuj, is hereby directed to recover the same as arrears of land revenue from Mr. Abdulla Haji Rahiman Node on being informed by District Legal Services Authority, Bhuj.
9.1. Pending Civil Applications, if any, shall stand disposed of accordingly, as they no longer survive for adjudication.
9.2. Records and Proceedings, if any, shall be remitted to the Court concerned forthwith for necessary compliance.
(J. C. DOSHI,J) MANISH MISHRA Page 12 of 12 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 20:50:27 IST 2025