Gujarat High Court
Heirs Of Decd. Kalumiya Motamiya ... vs Fatehkhan Bhikhabhai Dhasura Since ... on 10 October, 2025
NEUTRAL CITATION
C/SA/92/2004 JUDGMENT DATED: 10/10/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 92 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
==========================================================
Approved for Reporting Yes No
✔
==========================================================
HEIRS OF DECD. KALUMIYA MOTAMIYA DHASURA & ORS.
Versus
FATEHKHAN BHIKHABHAI DHASURA SINCE DECD. THRO HIS HEIRS &
ORS.
==========================================================
Appearance:
MR. D. P. KINARIWALA(410) for the Appellant(s) No. 1,1.1,1.2,2
MR DHAVAL M BAROT(2723) for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 10/10/2025
ORAL JUDGMENT
1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (for short "the Code") challenging the judgment and decree, passed in Regular Civil Appeal No.21 of 1993, Whereby, the Joint District Judge, Second Fast Track Court, Palanpur, vide order dated 30.07.2004 confirmed the judgment and decree passed by the Civil Judge, Senior Division, in Regular Civil Suit No.115 of 1981.
2. For the sake of brevity and convenience, the parties are Page 1 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Oct 13 2025 Downloaded on : Tue Oct 14 01:55:06 IST 2025 NEUTRAL CITATION C/SA/92/2004 JUDGMENT DATED: 10/10/2025 undefined referred to as per their original status as that in the suit.
3. The brief facts arising in the present Second Appeal are that, the plaintiff filed a Civil Suit, claiming that the plaintiff is the owner of plot no.1567 at Village Malan, Taluka Palanpur and that in the said premises, the plaintiff's forefathers were using it for keeping their cattle and agriculture equipments and were in the possession of their forefathers, and the same was in the name of their forefathers. It was the case of the plaintiff that, without the knowledge of the plaintiff, the Gram Panchayat had given the plot number as plot number 1567/ 1, and whereas the said land was given no.1567/2 and therefore, the plaintiff had given an application to the Village Panchayat on 07.01.1977 for deleting the name. Pursuant to the same, the Village Panchayat had passed an order that, if the plaintiff is aggrieved by the said order, the plaintiff has to obtain relief before the Competent Authority. Thereafter, the plaintiff preferred an appeal before the Appellate Committee of the District Panchayat, being Appeal No.11 of 1977, Wherein also, by an order dated 01.01.1981, it has been decided that by the Competent Authority that the Competent Court had to decide the same, and therefore, the plaintiff had filed a suit, claiming the relief that the suit land, which bears plot no.1567/2, be declared to be the ownership of the plaintiff, and the name of defendant no.1 be declared to be wrongly Page 2 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Oct 13 2025 Downloaded on : Tue Oct 14 01:55:06 IST 2025 NEUTRAL CITATION C/SA/92/2004 JUDGMENT DATED: 10/10/2025 undefined registered in the Assessment Register, and a permanent injunction in the form of restraining the defendant from interfering with the possession of the plaintiff be granted.
4. The defendant appeared in the said suit and filed a written statement vide Exhibit 18. The Trial Court framed issues vide Exhibit 19 as under:
"1. Whether the Plaintiff proves that he is the sole owner and occupant of land mentioned in Para-2 of the plaint?
2. Whether the Defendants prove that the Plaintiff and Defendant No. 1 and 2 are the joint owners of the Plot No. 1567 mentioned in Para-2 of the plaint?
3. Whether the Defendant No. 1 and 2 prove that they possess and occupy the suit compound?
4. Whether the suit is filed on appropriate Court Fee Stamp?
5. Whether the Plaintiff is entitled to the reliefs as sought for of Para-13 of the plaint?
6. What order and decree?"
5. The plaintiff examined himself vide Exhibit 48 and the witness of the plaintiff was examined vide Exhibit 57. The defendant examined himself vide Exhibit 22, and after taking into Page 3 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Oct 13 2025 Downloaded on : Tue Oct 14 01:55:06 IST 2025 NEUTRAL CITATION C/SA/92/2004 JUDGMENT DATED: 10/10/2025 undefined consideration the oral evidence, the documentary evidence, and giving findings on all issues, the Trial Court allowed the said suit and aggrieved by the said order, the defendant nos.1 and 2 filed Regular Civil Appeal No.21 of 1993. After re- appreciating the evidence, the First Appellate Court dismissed the said appeal hence, the present Second Appeal. The present Second Appeal had been admitted by an order dated 27.09.2004, and the following substantial questions of law have been framed:
"(i) Whether the suit is maintainable in view of Section 320(1) of the Gujarat Panchayat Act challenging the resolution and more particularly prayer prayed in Para.13.1 of the plaint ?
(ii) Whether the suit filed by the present plaintiff is maintainable in view of sub-section 2 of section 320 of the Gujarat Panchayat Act,1961 in the absence of the statement that the notice has been served and one month period next after the notice has been expired ?
(iii) Whether the suit filed by the present plaintiff is maintainable in view of sub-section 3 of Section 320 of the Gujarat Panchayat Act as there is no statement in the plaint that the suit has been filed within six months from accrued cause of action ?
(iv) Whether the trial court was justified in granting the prayer prayed in the plaint inspite of the fact that the period prescribed in sub-section 3 of section 320 have expired ?"Page 4 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Oct 13 2025 Downloaded on : Tue Oct 14 01:55:06 IST 2025
NEUTRAL CITATION C/SA/92/2004 JUDGMENT DATED: 10/10/2025 undefined
6. The learned advocate for the defendant nos.1 and 2 has mainly argued that, if the entire suit is taken into consideration, the plaintiffs in the said suit have also sought relief for the removal of the names of defendant nos.1 and 2 from the Assessment Register and the said could not have been granted by the Civil Court in view of the fact that the same falls within the jurisdiction under the Panchayat Act and therefore, the Civil Court did not have jurisdiction to hear and decide the said dispute.
7. Moreover, the fact also remains that, if the order passed by the Trial Court is taken into consideration, the Trial Court has also not passed any order with respect to the relief of the plaintiff to declare him to be the owner of the property and therefore, the only relief that has been granted by the Trial Court and confirmed by the First Appellate Court is with respect to the direction given to defendant No.3 i.e. Malan Gram Panchayat to remove the names of defendant nos.1 and 2 from the Assessment Register of the Gram Panchayat and therefore, under the provisions of Section 320(1) of the Gujarat Panchayat Act, 1961 the said was beyond the jurisdiction of the Trial Court and in view of the said fact, the Trial Court has exceeded its jurisdiction and therefore the present Second Appeal is required to be allowed, in view of the fact that the Page 5 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Oct 13 2025 Downloaded on : Tue Oct 14 01:55:06 IST 2025 NEUTRAL CITATION C/SA/92/2004 JUDGMENT DATED: 10/10/2025 undefined suit which was filed was not maintainable in view of Section 320(1) of the Gujarat Panchayats Act, 1961 as it challenging the resolution and more particularly the prayer prayed in Para 13(1) of the plaint.
8. With respect to the substantial questions of law nos.ii, iii and iv, it has been argued that though a relief has been sought by the plaintiff to challenge the resolution passed by defendant no.3 i.e., the Malan Gram Panchayat, it has been argued that, no suit could have been filed, under the provisions of Section 320(2) of the Gujarat Panchayats Act, 1961, until one month's notice expiry, after the notice in writing had been left, in view of the fact that the resolution and deletion of defendant nos.1 and 2 from the Assessment Register was an act which defendant no.3 was doing or had to do under the Gujarat Panchayats Act, 1961 and therefore also, the present Second Appeal is required to be allowed in view of substantial questions of law i.e. Nos.2, 3 and 4 which are framed by this Court and it is required to be held that the suit filed by the plaintiffs was not maintainable in view of Sub-section 2 of Section 320 of the Gujarat Panchayats Act, 1961 and in view of the provisions of Section 320(3) of the Gujarat Panchayats Act, 1961, the suit was not maintainable, as there was no statement in the plaint that the suit had been filed within six months from the accrued cause of action, and that the Trial Page 6 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Oct 13 2025 Downloaded on : Tue Oct 14 01:55:06 IST 2025 NEUTRAL CITATION C/SA/92/2004 JUDGMENT DATED: 10/10/2025 undefined Court was not justified in granting the prayer prayed in the plaint, in spite of the fact that the period prescribed in Sub- section 3 of Section 320 of the Gujarat Panchayats Act, 1961 had expired.
9. Non-appeared for the respondent when the matter was called out.
10. Having heard the learned advocate for the defendant nos.1 and 2 and having taken into consideration the judgment and decree passed by the Trial Court and confirmed by the First Appellate Court and taking into consideration the overall case, the fact remains that the plaintiff, before filing the suit, had filed proceedings under the Gujarat Panchayats Act, 1961, whereby the plaintiff had sought for the relief of the removal of the defendant no.1 and 2's names from the Assessment Register of the panchayat, and an order was passed whereby, the plaintiff was directed to file a suit before the Competent Authority, to prove his ownership in the property, and in that view of the matter, the plaintiff has filed a suit claiming his ownership in the suit property. The contention that has been raised by defendant nos.1 and 2 that the Trial Court and the Appellate Court has not dealt with the relief of ownership of the plaintiff in the suit property, if the order passed by the Trial Court is taken into consideration, the Trial Court has Page 7 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Oct 13 2025 Downloaded on : Tue Oct 14 01:55:06 IST 2025 NEUTRAL CITATION C/SA/92/2004 JUDGMENT DATED: 10/10/2025 undefined held, at paragraph no.6 at page 7 of the order, that it has been proved that defendant no.1's name has wrongly been added in the Assessment Register and the Court has also held that the plaintiff has proved that he alone is the exclusive owner of the premises, i.e., property no.1567/A.
11. Moreover, at para no.8 of the judgment and decree passed by the Trial Court, it was held that the plaintiff has proved that he is the exclusive owner of the premises. Therefore, the question that the Trial Court has not held and decided the issue of the plaintiff being the owner of the property is factually incorrect.
12. With respect to the first substantial question of law (i) Whether the suit is maintainable in view of Section 320(1) of the Gujarat Panchayat Act challenging the resolution and more particularly prayer prayed in Para.13.1 of the plaint, the fact remains that before initiating the suit, the plaintiff had already filed a proceedings under the Gujarat Panchayats Act, 1961 and it is thereafter, the Panchayat had passed an order directing the defendant to file proceedings before the Competent Authority to claim his ownership and thereafter, the plaintiff filed civil suit and the reliefs that have been claimed in the said suit are(1) to remove the name of the defendants from the Assessment Register of defendant no.3;
Page 8 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Oct 13 2025 Downloaded on : Tue Oct 14 01:55:06 IST 2025NEUTRAL CITATION C/SA/92/2004 JUDGMENT DATED: 10/10/2025 undefined (2) to declare that the plaintiff is the owner of the suit premises; and (3) an injunction restraining the defendant with respect to the suit property.
13. Therefore, if the said reliefs are taken into consideration, the said reliefs could not have been granted under the Gujarat Panchayats Act, 1961, more particularly Section 320(1) of the Gujarat Panchayats Act, 1961, which reads as under:
"320(1) No action shall be brought against any panchayat, conciliation panch or Nyaya Panchayat or any member, officer, servant or agon of a panchayat, conciliation panch or Nyaya Panchayat acting under its direction, in respect of anything in good faith done under thin Act or any rule or by-law."
14. Therefore the said reliefs could only have been granted by the Civil Court, and, therefore, it cannot be said that the suit was not maintainable under the provisions of Section 320(1) of the Panchayats Act, 1961.
15. With respect to substantial questions of law no.(ii) Whether the suit filed by the present plaintiff is maintainable in view of sub-section 2 of section 320 of the Gujarat Panchayat Act,1961 in the absence of the statement that the notice has been served and one month period next after the notice has been expired ? (iii) Whether the suit filed by the Page 9 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Oct 13 2025 Downloaded on : Tue Oct 14 01:55:06 IST 2025 NEUTRAL CITATION C/SA/92/2004 JUDGMENT DATED: 10/10/2025 undefined present plaintiff is maintainable in view of sub-section 3 of Section 320 of the Gujarat Panchayat Act as there is no statement in the plaint that the suit has been filed within six months from accrued cause of action ? and (iv) Whether the trial court was justified in granting the prayer prayed in the plaint inspite of the fact that the period prescribed in sub- section 3 of section 320 have expired ?, the fact remains that Section 320(2)(3) of the Guajrat Panchayats Act, 1960 are pertaining to the relief that has been sought against Respondent no.3
16. The fact remains that the said issue has been raised by defendant nos.1 and 2, and defendant no.3, i.e., the Sarpanch of Malan Gram Panchayat, have not raised an objection, before the Trial Court that the suit is not maintainable for want of issuance of statutory notice and the objection as to non service of notice has been taken by the defendant nos.1 and 2 and not by defendant no.3 against whom the notice has to be served and therefore the objection as to the service of notice to defendant no.3 can be only taken by the defendant no.3 i.e. person against whom the notice is not served.
17. The fact remains that the said issue has been raised by the defendant Nos.1 to 2 in the suit, defendant Nos.1 to 2 are neither the Government nor a statutory body. Moreover, Page 10 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Oct 13 2025 Downloaded on : Tue Oct 14 01:55:06 IST 2025 NEUTRAL CITATION C/SA/92/2004 JUDGMENT DATED: 10/10/2025 undefined defendant No.3 has not raised such objection before the trial Court that the suit is not maintainable for want of issuance of statutory notice and the objection as to the non service of notice has been taken by the defendant Nos.1 to 2, and not by the defendant No.3 against whom the notice has to be served, and therefore, the objection as to the non service of notice to defendant No.3 can be taken only by the defendant No.3 i.e. person against whom the notice is not served.
18. Moreover, the question about service of statutory notice, and the ground of non service of statutory notice, is available only to the statutory body and except the statutory body and/or the Government no other person is entitled to receive the said notice, and therefore, it is only concerned statutory body, itself who can waive the objection or take the objection regarding non service and non issuance of the said statutory notice, and therefore, the non service of notice to defendant No.3 before institution of the suit is only available to defendant No.3 to take the aforesaid issue before the Court and the same is not available to defendant Nos.1 to 2 i.e. present Appellant.
19. The said provision is enacted in order to given protection to the concerned authority against whom any vexatious proceeding is filed. Moreover, the authority can always waive such requirement, in that view of the matter the defendant Nos.1 to 2 had no right to raise such objection before the Court Page 11 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Oct 13 2025 Downloaded on : Tue Oct 14 01:55:06 IST 2025 NEUTRAL CITATION C/SA/92/2004 JUDGMENT DATED: 10/10/2025 undefined and it is only available to defendant No.3 authority to raise such objection.
20. Moreover, the statutory authority can waive such objection as ultimately the provision is made for their benefit. As such statutory notice has to be given only to the statutory body of the Government as the case may be, and therefore, the said issue cannot be raised by defendant Nos.1 to 2 as the individual party is not even required to be served to such notice, as the statutory notice is intended to grant such authorities special protection for their own benefit and if they choose they can avail the same, and therefore, it is not open for a third party i.e. in the present case, defendant Nos.1 to 2 to raise such an objection that the suit is not maintainable for want of issuance of statutory notice.
21. Therefore, with respect to the the substantial questions of law nos. ii, iii iv, it is held that the suit that was filed by the plaintiff was maintainable in view of Section 320(2) of the Gujarat Panchayats Act, 1961 in absence of the statement made that the notice has been served and one months period next after the notice has been expired and in view of the fact that the said contention could not be raised by the defendant nos.1 and 2.
Page 12 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Oct 13 2025 Downloaded on : Tue Oct 14 01:55:06 IST 2025NEUTRAL CITATION C/SA/92/2004 JUDGMENT DATED: 10/10/2025 undefined
22.Under the circumstances, both the learned Trial Court and First Appellate Court have rightly decided the issue between the parties in the right perspective. The appellants have failed to prove their case before the learned Trial Court as well as before the First Appellate Court and therefore the present Second Appeal is required to be dismissed and the same is hereby dismissed.
Sd/-
(SANJEEV J.THAKER,J) Further Orders Learned advocate for the appellant states that in view of the fact that the stay was in operation in favour of the appellant from the year 2004 and therefore the order passed today is required to be stayed.
In view of the said fact, the present order is stayed for a period of four weeks.
Sd/-
(SANJEEV J.THAKER,J) URIL RANA Page 13 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Oct 13 2025 Downloaded on : Tue Oct 14 01:55:06 IST 2025