Gujarat High Court
Deceased Rajput Devaji Tagajji vs Deceased Brahman Magnaji Govaji Thro ... on 1 September, 2025
NEUTRAL CITATION
C/SA/152/2007 ORDER DATED: 01/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 152 of 2007
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DECEASED RAJPUT DEVAJI TAGAJJI & ORS.
Versus
DECEASED BRAHMAN MAGNAJI GOVAJI THRO POA BRAHMAN KHENGARJI MAGNAJI & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES for the Appellant(s) No. 2
MR DHAVAL M BAROT(2723) for the Appellant(s) No.
1.1,1.2,1.3,1.4,1.5,1.5.1,1.5.2,1.5.3,1.5.4,1.6,2.1,2.2,2.3,2.4,2.5,2.6,2.7
MR N R DESAI(6504) for the Respondent(s) No. 1.3
MR P P MAJMUDAR(5284) for the Respondent(s) No. 1.3
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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 aggreived by the judgment and decree passed in Regular Civil Appeal No.31 of 1999, whereby the first appellate Court has dismissed the suit filed by the plaintiff and allowed the counter claim filed by the defendant, vide Exhibit-50 in Regular Civil Suit No.60 of 1997, dated 07.05.1999.
2. For the sake of 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 the plaintiff filed Civil Suit with respect to the suit property, i.e. survey No.40 admeasuring 5 acres 36 guntha and it is the case of the plaintiff that the defendants are trying to encroach upon the suit property i.e. survey No.40 paiki the northern and southern side of survey No.40 which admeasuring 5 acres 36 guntha and the suit that has been filed by the plaintiff is for Page 1 of 11 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:08:14 IST 2025 NEUTRAL CITATION C/SA/152/2007 ORDER DATED: 01/09/2025 undefined permanent injunction restraining the defendants from entering or disturbing the plaintiff's possession of southern and eastern side of survey No.40 paiki 5 acres 36 guntha.
4. The defendant appeared in the said suit and filed counter claim vide Exhibit-51, the defendant filed counter claim with respect to the property situated at survey No.105, village :
Gundri, total admeasuring 3 acres 08 guntha and in the counter claim the defendnat sought for a relief for possession of the premises, more particularly, the southern side of survey No.105 of village : Gundri, Taluka : Dhanera. More particularly, 0 hector 45 R 19 sq. meter property and restraining the plaintiffs from entering in the property and disturbing defendant from utilizing the said property. The trial Court had allowed the suit of the plaintiff and had dismissed the counter claim of the defendant. Aggrieved by the said judgment and decree passed in Regular Civil Suit No.60 of 1997, the defendant filed Regular Civil Appeal No.31 of 1999, challenging the said judgment and decree and after reappreciating the evidence, the appellate Court allowed the counter claim of the defendant and quashed and set aside the judgment and decree passed by the trial Court. Hence, the present Second Appeal.
5. By an order dated 04.03.2008, coordinate bench admitted Page 2 of 11 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:08:14 IST 2025 NEUTRAL CITATION C/SA/152/2007 ORDER DATED: 01/09/2025 undefined the Second Appeal and following substantial question of law were framed:-
(A) Whether the lower Appelalte Court has erred in law in misinterpreting the evidence produced by the parties vide Ex.
Nos.103 and 104 which has resulted into miscarrriage of justice?
6. Learned advocate for the plaintiff has mainly argued that the plaintiffs were in possession of the suit property even before the suit property was allotted to the defendant.
7. It is the case of the plaintiff that the suit property was allotted by the Government to the defendant on 16.09.1996 and suit property situated at survey No.105 has been allotted to the defendant on 16.09.1996 and from the record, it can be clearly established that the competent authority of the Government has placed on record, vide Exhibit-96. The Deputy Collector has handed over the possession of the property i.e. Survey No.105 to the defendant on 16.09.1996 of which a map is produced, vide Exhibit-104. The Government has noted that the possession has been taken away from the defendant and that the said possession was illegal, and therefore, the competent authority could not have taken the possession on the same date.
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8. The learned advocate for the plaintiff has also argued that the judgment and decree that has been passed by the trial Court, whereby the plaint of the plaintiff has been allowed and the counter claim of the defendant has been rejected, by virtue of Order 20 Rule 19 of the Code of Civil Procedure, the counter claim being a seperate decree, the defendant could not have filed one appeal challenging the judgment and decree allowing the plaint and rejecting the counter claim.
9. Learned advocate for the plaintiff has relied on the following judgments:-
(i) Krishnamurthy S. Setlur (Dead) Through Legal Representatives v. O.V. Narasimha Setty (Dead) By Legal Representatives and Others, (2020) 12 SCC 244.
(ii) Memaji Waghaji Jat v. Bhikhabhai Khengarbhai
Harijan,2008 (0) AIJEL-SC 42142.
(iii) Rajeswari v. Perumal, R.Kaliyappan, S.A. No.848 of 2016 and C.M.P. Nos.16615 & 16616 of 2016 and CMP No.13036of 2017.
(iv) Babu Lal and Others v. Ram Pyari and Others, 2019 SCC OnLine P&H 7588.
(v) Abdul Nazar v.Lakshmana Das, 2016 SCC OnLine Ker 41103.Page 4 of 11 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:08:14 IST 2025
NEUTRAL CITATION C/SA/152/2007 ORDER DATED: 01/09/2025 undefined
10. Learned advocate for the plaintiff has also argued that it is not the case of the plaintiff that, the plaintiff has become the owner of the suit property by way of adverse possession but the argument of the plaintiff is that even before the suit property that is survey No.105, village : Gundri had come in the hands of the defendants, the possession of the said part for which the counter claim was filed, was in possession of the forefather of the plaintiff, and therefore, the plaintiff could not be dispossessed without due process of law and that the plaintiffs were permissive user in the suit property and have never been objected and the said possession was never objected by the competent authority nor by the defendants, and therefore, without due process of law, the plaintiffs could not have dispossessed.
11. Per contra, Learned advocate for the defendant has argued that from the oral evidence of the witness of the plaintiffs it cannot be clearly established and from the record of the Government, that the plaintiffs have right in survey No.105 and the plaintiffs have filed the suit, claiming right in the said property. Moreover, even as per the Government Record, more particularly, Exhibit-103 & 104 it can be clearly established that there was an encroachment of the plaintiffs in suit property, wherein, it has been stated that the owner of survey No.40 i.e. Page 5 of 11 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:08:14 IST 2025 NEUTRAL CITATION C/SA/152/2007 ORDER DATED: 01/09/2025 undefined the present plaintiffs have encroached upon the survey No.105, and therefore, in the guise of seeking relief with respect to survey No.40 of village - Gundri, the plaintiffs have encroached on survey No.105 of village - Gundri and have sought for an injunction and in view of the said fact the documents produced vide Exhibit-103 & 104 are very clear to show that the plaintiffs have encroached opon the property i.e. survey No.105 which are belonging to the defendant.
12. With respect to the fact that arguments of the learned advocate for the plaintiff that the separate appeal had to be filed by the defendant as the defendant was challenging the judgment and decree whereby the trial Court had allowed the plaint and had rejected the counter claim. Learned advocate for the defendant has relied on the following judgments:-
(i) Shankar Masu Dokare v. Shobha Subhash Dokare and another, 2014 SCC OnLine Bom 1859.
(ii) Narhari, Bapoo & Harichand v. Shanker, Bhagwan, Dattu, Maruti, Vithal, Mohan & Ram, 1950 SCC OnLine SC 31.
13. In view of the said fact, it has been argued that the present Second Appeal is required to be dismissed.
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14. Having heard learned advocate for the parties and having considered the judgment and decree passed by the trial Court and first appellate Court and the present Second Appeal has been admitted on the following substantial questions of law:-
"(A) Whether the lower Appelalte Court has erred in law in misinterpreting the evidence produced by the parties vide Ex.
Nos.103 and 104 which has resulted into miscarrriage of justice?"
15. While considering the said substantial questions of law, the following facts will have to be considered:-
(i) The plaintiff has filed the suit for injunction with respect to survey No.40 southern side.
(ii) The defendant has filed a counter claim with respect to the property situated at survey No.105, village Gudri.
(iii) The defendant has been allotted the property by concerned competent authority on 16.09.1996 and Sanad with respect to the property i.e. survey No.105 is dated 07.01.1997, therefore, the question that arises is that from the documents produced vide Exhibit-103 & 104 which are the maps produced by the Government authority to show that the property for which the Page 7 of 11 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:08:14 IST 2025 NEUTRAL CITATION C/SA/152/2007 ORDER DATED: 01/09/2025 undefined plaintiff claimed right is in survey No.40 of village Gundri or whether it is in survey No.105 of village - Gundri. If the written statement of plaintiff to the counter claim is perused, in the written statement produced vide Exhibit-28, wherein the plaintiff himself has admitted that if it is proved that the plaintiff has encroached upon survey No.105, then the plaintiff is in possession of the property since last 12 years and by virtue of adverse possession the plaintiff has become the owner of the suit property and the defendant does not have any right in the suit property of 12 years as the plaintiff has become the owner of the suit property.
(iv) The fact also remains that in the plaint, the plaintiff has not sought for relief to declare that the plaintiff has become the owner of the property situted at survey No.105, on the basis of claiming adverse possession of the property. At one breath, the plaintiff has stated that on 09.09.2016 the competent authority had taken away the possession of the survey No.105 from the plaintiffs and at the same time the plaintiff is claiming that he is still in possession of the property i.e. survey No.105. The fact also remains that there is no documentry evidence to support the fact that the plaintiff has any right to be in possession of survey No.105 of village - Gundri. From the factual aspect the trial Court has held that defendant is not entitled to the counter claim Page 8 of 11 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:08:14 IST 2025 NEUTRAL CITATION C/SA/152/2007 ORDER DATED: 01/09/2025 undefined and the plaintiff by adverse possession has become the owner of suit property, situated at survey No.105. The fact remains that neither the plaintiff had claimed any right being an owner of the property by adverse possession nor there is any issue that has been framed by the trial Court to decide the said issue.
16. 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, and therefore, the appellate Court rightly after reappreciating the evidence passed the judgment.
17. The fact remains that the entire judgment of the trial Court allowing the plaint and dismissing the counter claim is only on the basis of the fact that the trial Court has come to the conclusion that the plaintiffs are the owner by virtue of adverse possession with respect to survey No.105. If the evidence produced vide Exhibit-103 & 104 perused, it clearly states that the occupier of suvey No.40, have encroached upon survey No.105. The said fact can also be established by the map produced by the witness, vide Exhibit-104, which clearly states that, the occupier of survey No.40 have encroached upon survey No.105. In view of the said fact the plaintiffs do not have any Page 9 of 11 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:08:14 IST 2025 NEUTRAL CITATION C/SA/152/2007 ORDER DATED: 01/09/2025 undefined right, title, interest with respect to survey No.105, and therefore, the first appellate Court had rightly dismissed the suit of the plaintiffs and allowed the counter claim filed by the defendant.
18. 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."
19. The other contention with respect to the filing of separate appeal challenging the judgment and allowing the plaint and dismissing the counter claim in view of the judgment reported in 1950 SCC 668, wherein it has been held that where there has been one trial, one finding and one decision, there need not be two appeals even though two decrees may have been drawn up. The said view has also been taken in the case of Shankar Masu Dokare v. Shobha Subhash Dokare and another reported in 2014 SCC OnLine Bom 1859 wherein it has been held that in so Page 10 of 11 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:08:14 IST 2025 NEUTRAL CITATION C/SA/152/2007 ORDER DATED: 01/09/2025 undefined far as the provision of Order 20 Rule 19 of Code of Civil Procedure is concerned, the said provision cannot be extended, so as to contend that there is a requirement of filing of two appeals, in view of the fact that the appeal memo contained common ground of challenge for both the decree in suit as well as the counter claim, therefore, the judgments relied on by the learned advocate for the appellant on the said issue will not be applicable to the facts of the present case, and also the said contention raised by the plaintiff is without any substance.
20. In view of the said fact, after considering the facts of the present case and considering the judgment and decree passed by the trial Court and appellate Court, this Court is of the opinion that the appellate Court has rightly appreciated the evidence produced by the Government records and has considered Exhibit-103 & 104, therefore, the substantial question is anwered in the negative. In view of the same, the present Second Appeal is dismissed.
(SANJEEV J.THAKER,J) Manoj Kumar Rai Page 11 of 11 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:08:14 IST 2025