Gujarat High Court
Jenabhai Somabhai Chavda Since ... vs Punambhai Manubhai Parmar Since ... on 1 September, 2025
NEUTRAL CITATION
C/SA/5/1998 ORDER DATED: 01/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 5 of 1998
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JENABHAI SOMABHAI CHAVDA SINCE DECD.THRO HIS HEIRS & ORS.
Versus
PUNAMBHAI MANUBHAI PARMAR SINCE DECD,THRO HIS HEIRS & ORS.
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Appearance:
DELETED for the Appellant(s) No. 5
MR ND SONGARA(2198) for the Appellant(s) No. 1.1,1.2,1.3,1.4,1.5,4
MR AR MAJMUDAR(428) for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5
MR PRADEEP PATEL(642) for the Respondent(s) No. 2.1,2.2,2.3,2.4
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/09/2025
ORAL ORDER
1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been filed challenging the judgment and decree passed in Regular Civil Appeal No.78 of 1988 by Second Extra Assistant Judge, Kheda at Nadiad whereby the said appeal was allowed and the judgment and decree passed by Civil Judge (J.D.O.) at Anand in Regular Civil Suit No.397 of 1980, dated 29.02.1988 has been quashed and set aside.
2. For the sake of convenience, the parties are referred to as per their original status as that in the suit.
3. Brief facts arising in the present Second Appeal are that the plaintiff claimed to be owner of the property filed a suit that the suit property is an ancestral property of the plaintiff and that as ancestors of the plaintiff were cultivating the suit land and were residing there in hut made with clay. It is the case of the plaintiff that the suit land has been illegally purchased by the Page 1 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:09:23 IST 2025 NEUTRAL CITATION C/SA/5/1998 ORDER DATED: 01/09/2025 undefined defendant by registered sale deed on 01.09.1975 and that the seller mentioned in the registered sale deed dated 01.09.1975 has no right, title, interest to execute sale deed with respect to the suit property and the said suit was filed for declaration that the defendant has no right, title interest in the suit land and restraining the defendants by permanent injunction from making construction in the suit land and disturbe the plaintiff's possession in the suit land.
4. In the said proceedings, the plaintiff had filed an amendment application vide Exhibit-98 that if the Court comes to the conclusion that defendant is in possession of the property the defendant be ordered to hand over the possession of the suit land to plaintiff and the sale deed executed in favour of the defendant be declared null and void and amendment application was allowed. The trial Court framed issues vide Exhibit-29 as under:-
(i) Whether the plaintiffs prove that they are the owners and in possession of the land bearing S. No.1588/22 as alleged by them?
(ii) Whetherthe plaintiffs prove that the defendant had unlawfully purchasedthe suit land as alleged by them in para 3 of the plaint?Page 2 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:09:23 IST 2025
NEUTRAL CITATION C/SA/5/1998 ORDER DATED: 01/09/2025 undefined
(iii) Whether the vendors had no right to sell the suit land as alleged by the plaintiffs in para 3 of the plaint?
(iv) Whetehr the plaintiffs prove that the defendant has tried to make construction over the suit land as alleged in para 5 of the plaint?
(v) Whether the defendant proves tht the suit land was of the exclusive ownership and possession of Mahijibhai Becharbhai, Maiben Dahyabhai and Rukhiben, widow of the deceased Desibhai Becharbhai as contended by him in para 8 of his written statement?
(vi) Whether the plaintiffs are entitled to the declaration as prayed for by them?
(vii) Whether the plaintiffs are entitled to the permanent injunction as prayed for by them?
(vii-A) Whether the plaintiff is entitled to recover the possession of the suit land as prayed for in para 7(c) of the plaint?
(vii-B) Whether plaintiff prove that the sale of suit land by Mahijibhai, Maniben and Rukhiben in favour of defendant is null and oid so far as plaintiffs are concerned?
Page 3 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:09:23 IST 2025 NEUTRAL CITATION C/SA/5/1998 ORDER DATED: 01/09/2025 undefined (vii-C) Whether plaintiffs suit is barred by law of limitation? (viii) What order and decree?
5. The plaintiff No.2 examined himself vide Exhibit-34, the witnesses of the plaintiff was examined vide Exhibit-74. The defendant was examined vide Examined-93 and the defendant's witnesses were examined vide Exhibit-94 and after considering the oral evidence and documentary evidence the trial Court declared that the defendants had no right, title, interest in the suit land and that the sale deed execued in favour of the defendant dated 26.09.1972 was declared illegal and directed the defendant to vacate the suit land and hand over the possession of the suit property to the plaintiff.
6. Aggrieved by the said judgment and decree the defendant filed Appeal No.78 of 1988 and after reappreciating the evidence the said appeal was allowed. Aggrieved by the said order, the plaintiff had filed the present Second Appeal.
7. By an order dated 20.02.1998, the coordinate bench has admitted the present Second Appeal and as no substantial question of law were framed, this Court had framed substantial question of law by an order dated 26.03.2025 which are as follows:-
Page 4 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:09:23 IST 2025NEUTRAL CITATION C/SA/5/1998 ORDER DATED: 01/09/2025 undefined "(C) That the lower appellate Court has also erred in a committing substantive error of law in not considering the admission made by the respondent, as well as one of the vendors, viz, Harmanbhai Meghjibhai, at Exhibit 94.
(D) That the lower appellate court has committed a substantial error of law in not holding that the suit is not for cancellation or setting aside the document, but it is a suit for possession on title and consequent declaration that the document taken by the respondent is not binding upon them, the lower appellate court, therefore, ought to have held that the suit would be covered by Article 65 of the Schedule to Party V of the Limitation Act and not under entry no.58 in Part III or Entry No.59 in Part IV of the Schedule to the Limitation Act.
(J) That the lower appellate court has committed a substantial error of law in not appreciating the fact that the suit is for possession on title and also for a declaration that the transfer made by the vendors of the respondent is not binding upon them. Therefore, in that view of the matter, the Court ought to have held that there is no bar of limitation as the suit is filed within 12 years from the date of dispossession even assuming that the dispossession took place in the year 1975, when the document was registered."
8. Learned advocate for the plaintiff has mainly argued that the appellate Court has not taken into consideration the fact that the seller of registered sale deed dated 01.09.1975, were not the owners of the property and that the first appellate Court has not Page 5 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:09:23 IST 2025 NEUTRAL CITATION C/SA/5/1998 ORDER DATED: 01/09/2025 undefined taken into consideration that it was an undisputed fact that the registered sale deed dated 26.09.1972 was registered on 01.09.1975 and the appellants names were appeared in the records of rights and the name of seller of registered sale deed dated 26.09.1972 were not appearing in the revenue record.
9. It has also been argued that the appellate Court has not taken into consideration the fact that there was nothing on record to establish the fact as to how the name of the plaintifffs and the predecessor have been deleted from the revenue record and how the name of the seller of registered sale deed dated 26.09.1972 were entered in the revenue record, and therefore, it has been argued that the findings of the trial Court were as per law and facts and the appellate Court could not have reversed the said findings.
10. Learned advocate for the plaintiff has also argued that the appellate Court could not have taken into consideration the notices that have been given by town planning authority and Anand Nagarpalika and the same could not prove that the defendant is the owner of the property.
11. Learned advocate for the plaintiff has also argued that the appellate Court also could not have come to the conclusion that in the cross-examination, the plaintiff has stated that after the Page 6 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:09:23 IST 2025 NEUTRAL CITATION C/SA/5/1998 ORDER DATED: 01/09/2025 undefined suit property was purchased the defendant had made two rooms in the suit property, the appellate Court could not have taken into conisderation the fact that just because the defendants are in possession of the property they cannot be dispossessed. Moreover, it has also been argued that the trial Court and appellate Court could not have taken into consideration the fact about the compromise that has been arrived at in Civil Suit No.427 of 1977 and the appellate Court could not have come to the conclusion that it cannot be established that plaintiff has right, title, interest in the suit property. In view of the said fact, it has also been argued that it is held by trial Court that notice has been given by the town planning authority and Anand Nagarpalika to the defendant on 30.01.1976 and 31.01.1976. Exh.63 and Exh.64 clearly shows that town planning authority has given notices to the defendant and thereafter under the Town Planning Scheme another plot has been allotted to the defendant and betterment charges have been paid by defendant, this happened in 1976 yet plaintiff has not taken any step since 1980 and no explanation of delay has been given by plaintiff.
12. Per contra, learned advocate for the defendant has argued that there is no iota of evidence to prove that the plaintiff is the owner of the property. The fact remains that by entry No.25050, name of the plaintiff was deleted from the revenue record and by Page 7 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:09:23 IST 2025 NEUTRAL CITATION C/SA/5/1998 ORDER DATED: 01/09/2025 undefined revenue entry No.25051, the name of the widow of the deceased i.e. Rikhuben was entered as heir of deceased Desaibhai Becharbhai, vide mutation entry No.25052 produced at Exhibit- 43 and 83 name of the defendant is mutated in record of rights of suit land in view of sale deed. Moreover, it has also been argued that at the time when the suit is filed, the plaintiff himself has stated that the defendant has become the owner of the suit property by way of registered sale deed executed in the year 1975. The fact remains that at the time when the suit was filed, plaintiff had not challenged the said registered sale deed. Moreover, it is not the case of the plaintiff that the plaintiffs were not aware of the execution of the sale deed. The fact remains that even while filing the Civil Suit No.427 of 1977, also the plaintiffs of the present suit and defendant herein were plaintiffs in the said suit, therefore, it can be clearly established that the defendant had right, title, authority in the suit property even in the year 1977 to the knowledge of the plaintiff. Moreover, learned advocate for the defendant has argued that even as per the notice issued by the Town Planning Authority and Anand Nagarpalika, it has come on record that the defendant is shown as the owner of the property and by virtue of the said ownership, a notice produced vide Exhibit-67, dated 28.07.1979, was issued to the defendant whereby the suit property i.e. survey No.1588/22 i.e. original plot No.159, that in Page 8 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:09:23 IST 2025 NEUTRAL CITATION C/SA/5/1998 ORDER DATED: 01/09/2025 undefined place of other property for survey No.1588/22 i.e. original plot No.159 final plot No.163 was allotted to the defendant and pursuant to the said oder that was passed by Chief Officer, Anand Nagarpalika, the final plot No.163 has been handed over to defendant, and thereafter, the defendant has executed a sale deed with respect to the said property, and therefore, also the plaintiff could not have filed the present suit.
13. In view of the said fact, it has been argued that the plaintiffs have not challenged the said registered sale deed at the time of filing the suit and the fact that the defendant has purchased the suit property by registered sale deed in the year 1972 from the owners. Those names were mutated in the revenue record by mutation entry No.25051 and 25052 and the fact that even as per the record of Town Planning Authority, name of defendant is shown as owner of the property and the fact that all throughout the defendants are in possession of the suit property.
14. Thereafter the lower appellate Court has not erred in committing substantive error of law in not considering the admission made by the respondent, as well as one of the vendors, viz, Harmanbhai Meghjibhai, at Exhibit 94 and the lower appellate court has not committed a substantial error of Page 9 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:09:23 IST 2025 NEUTRAL CITATION C/SA/5/1998 ORDER DATED: 01/09/2025 undefined law in not holding that the suit is not for cancellation or setting aside the document, but it is a suit for possession on title and consequent declaration that the document taken by the respondent is not binding upon them, the lower appellate court, therefore, ought to have held that the suit would be covered by Article 65 of the Schedule to Party V of the Limitation Act and not under entry no.58 in Part III or Entry No.59 in Part IV of the Schedule to the Limitation Act. Therefore, the Second Appeal is required to be dismissed.
15. Having heard learned advocate for the parties and having considered the judgment and decree passed by the trial Court and the first appellate Court, the point in issue before this Court is that the Civil Suit No.397 of 1980 has been filed in which the plaintiff has specifically stated that by registered sale deed the suit property has been purchased by the defendant on 01.09.1975 and the fact is that at the time of filing of the suit, the said sale deed was not challenged by the plaintiff. The fact which is also required to be seen is that in the mutation entry, the name of the seller of the registered sale deed in the year 1972, the name was stated in the revenue record. It is also required to be seen that even the notices that were issued by the Town Planning Authority and Anand Nagarpalika also clearly states that the defendant was in possession of the suit property Page 10 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:09:23 IST 2025 NEUTRAL CITATION C/SA/5/1998 ORDER DATED: 01/09/2025 undefined and under the Town Planning Scheme another plot was allotted to the defendant for betterment charges which has been paid by the defendant. The said action of the Town Planning Authority has also not been challenged by the plaintiffs nor the plainiffs have shown as to how the defendant come in possession and as to how the plaintiff has been dispossessed from the property. There is one more fact which is required to be considered i.e. amendment application that has been filed to challenge the sale deed after filing of the plaint and the said sale deed has been challenged after 12 years of the said sale deed having been registered. This Court has also taken into consideration the fact that in Civil Suit No.427 of 1977, the plaintiffs have joined the present defendant as plaintiff in the said suit, therefoe also it can be clearly established that even in the year 1977, the defendant had right, title, interest in the suit property.
16. The fact remains that there is nothing on record to prove that as to why the plaintiff has niether challenged the sale deed at the time of filing of the suit nor as to why the plaintiff has filed affidavit in Civil Suit No.427 of 1977 as the plaint was with respect to the suit property. The fact also remains that the plaintiff has not given any explanation as to the notices that have been issued by Town Planning Authority and the fact that in place of suit property survey No.1588/2 Anand Town has Page 11 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:09:23 IST 2025 NEUTRAL CITATION C/SA/5/1998 ORDER DATED: 01/09/2025 undefined been taken by the Town Planning Authority and in place of the said property, plot No.163 has allotted to the defendant and the said plot has already been sold by defendant and the said sale deed has also not been under challenge.
17. That the first appellate Court has also not erred in committing substantive error of law in not considering the admission made by the respondent, as well as one of the vendors, viz, Harmanbhai Meghjibhai, at Exhibit - 94. That the court has not committed a substantial error of law in not holding that the suit is not for cancellation or setting aside the document, but it is a suit for possession on title and consequent declaration that the document taken by the respondent is not binding upon them, the lower appellate court could not have held that the suit would be covered by Article 65 of the Schedule to part V of the Limitation Act and not under entry no.58 in Part III or Entry No.59 in Part IV of the Schedule to the Limitation Act.
18. In view of the same, the present Second Appeal is dismissed.
(SANJEEV J.THAKER,J) Manoj Kumar Rai Page 12 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:09:23 IST 2025