Gujarat High Court
Pathan Yasinkhan Naththekhan vs Pathan Vahizkhan @ Nabikhan Afzalkhan on 8 September, 2025
NEUTRAL CITATION
C/SA/243/2025 ORDER DATED: 08/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 243 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/SECOND APPEAL NO. 243 of 2025
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PATHAN YASINKHAN NATHTHEKHAN
Versus
PATHAN VAHIZKHAN @ NABIKHAN AFZALKHAN & ORS.
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Appearance:
MR.DARSHAN A. DAVE(7921) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 08/09/2025
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.66 of 2021, dated 28.03.2025, passed by the Additional District Judge, Mehsana, whereby the appeal filed by the plaintiff has been allowed and the judgment and decree dated 03.05.2021 passed in Regular Civil Suit No.105 of 2015 passed by the Additional Senior Civil Judge, Kadi has been quashed and set aside and the first appellate Court had declared that the plaintiffs are joint owners of the suit property and that the defendant No.1 is directed to hand over the vacant and peaceful possession of the suit premises within one month from the date of judgment. Hence, the present Second Appeal.
2. For the sake of brevity the parties are referred to as per their original status as that in the suit.
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3. The brief facts arising in the present Second Appeal are that the plaintiff filed suit on the ground that the plaintiffs are joint owners of the suit property and it was the case of the plaintiff that earlier suit property was one small room which was numbered Municipal Census No.1/6/84 and later on house No.1/6/82 and that the suit property belong to the plaintiff's father and defendant No.1 and after the death of their father, suit property and another property came in the hands of mother of the plaintiffs. Moreover, it was the case of the plaintiffs that the defendant No.1 is their real uncle and in the year 1984, suit property and another property was partitioned with the consent of the family members and the suit property by way of said partition came in the hands of the plaintiff and by succession, the suit property was inherited by the plaintiffs. It was the case of the plaintiff that the defendant No.1 does not have any right in the suit property, defendant No.1 used small room/keeping agricultural product/equipment and that defendant No.1 illlegally obtained electricity connection on 18.05.2000, in the suit property, and therefore, application was given to defendant No.2 authority for disconnection of electricity supply and it was the case of the plaintiff that the defendants are in illegal possession of the property, and therefore, a declaration was sought to declare that the plaintiffs are the owners of the suit property and to declare that defendant No.1 is in illegal Page 2 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:13:17 IST 2025 NEUTRAL CITATION C/SA/243/2025 ORDER DATED: 08/09/2025 undefined possession of the property and that the defendant No.1 be directed to hand over the vacant and peaceful possession of the suit property.
4. The defendant appeared in the said suit and filed written statement at Exhibit-17, the trial Court framed issues vide Exhibit-21 as under:-
1. Whether the plaintiff prove that the defendant No.1 has illegally occupied the suit room?
2. Whether the plaintiff prove that the defendant No.1 has illegally obtained electricity connection in the suit room with the connivance of the defendant No.2?
3. Whether the plaintiff's claim barred by the so-called limitation period?
4. Whether the defendant No.1 prove that the suit property was rented by the defendant from the plaintiff's father from the year 1983 on a monthly rent of Rs.20?
5. Whether the defendant prove that he has electricity connection in the suit room since the year 2000?
6. Whether the plaintiff entitled to the relief sought in the suit?
7. What order and decree?
5. The plaintiff examined himself vide Exhibit-24, witnesses of the plaintiff were examined at Exhibit-55. The defendant Page 3 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:13:17 IST 2025 NEUTRAL CITATION C/SA/243/2025 ORDER DATED: 08/09/2025 undefined examined himself vide Exhibit-33 and witnesses of the defendant were examined vide Exhibit-80 and after considering the oral evidence, documentary evidence and giving findings on all the issues, the trial Court came to the conclusion that the plaintiff is not entitled for the relief of possession and that the plaintiff could not prove that defendant No.1 is in illegal possession of the property and that defendant No.1 has illegally taken electricity connection with respect to the suit property. The trial Court also held that the suit filed by the plaintiff was beyond the period of limitation. The defendant had taken defence that defendant No.1, is shown as tenant of the plaintiff's father since the year 1983 and has been paying rent of Rs.20/- and the trial Court held that defendant could not prove that the defendant No.2 in possession of the property as a tenant of the plaintiff.
6. The said judgment and decree passed by the trial Court was challenged by the plaintiff, by filing Regular Civil Appeal No.66 of 2021 and after reappreciating the evidence the first appellate Court came to the conclusion that the defendant could not prove that the defendant had any right, title and authority to occupy the premises and in view of the said fact the first appellate Court allowed the said appeal and quashed and set aside the order passed by the trial Court. Hence, the present Page 4 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:13:17 IST 2025 NEUTRAL CITATION C/SA/243/2025 ORDER DATED: 08/09/2025 undefined Second Appeal.
7. Learned advocate for the defendant has mainly argued that the defendant No.1 is in possession of the suit property since the time the plaintiff's father was alive and even during the life time the plaintiff's father, the defendnat has right in the suit property. It is the case of the defendant No.1 that, the plaintifff's father had given the suit property to the defendant No.1, on rent of Rs.20/- and that on the basis of being a tenant in the suit premises the defendant had occupied since the year 1983 and had been paying regularly rent to father of the plaintiff. Moreover, it has also been argued that the defendant No.1 has already got the electricity connection in the suit premises since more than 15 years and the said fact is within the knowledge of plaintiff as the plaintiffs are residing next to the suit premises, and therefore, the order passed by the trial Court was not required to be interfered by the first appellate Court and that the first appellate Court has not taken into consideration, the oral evidence as well as documentary evidence and in view of the said fact, the present Second Appeal is required to be admitted on the following substantial questions of law:-
i) Whether or not the first appellate court erred in not framing independent issues according to Order 41 Rule 31 of the Civil Procedure Code, 1908, with respect to issues of law Page 5 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:13:17 IST 2025 NEUTRAL CITATION C/SA/243/2025 ORDER DATED: 08/09/2025 undefined and fact while reversing the finding of the trial court?
ii) Whether the plaintiffs have proved their case independently by showing that the plaint of plaintiffs discloses the cause of action?
iii) Whether ornot the suit filed by the plaintiff is barred by Article 58 of the Limitation Act, when, as per the plaint, the right of the plaintiff accrues after the death of his father in the year 1997?
iv) That, the First Appellate Court had erred in not appreciating the fact that no cause of action has arose in the year 2015 to file the suit because the plaintiffs are knowing that the defendant No.1 has the suit property since the year 1982 and the father of the plaintiffs have also not filed any suit for recovery of possession in his lifetime.
v) Whether the First Appellate Court has erred in not considering that the defendant No.1 is in continuous possession of the suit property since 1982 and even after partition in the year 1984 and the defendant No.1 is paying the revenue taxes, electricity bills and water taxes of the land in question and the evidences at Exh.63, 64, and 65 to 70 are produced on record to substantiate the same and hence, the defendant cannot be considered to be in illegal possession of the suit property in absence of any averment in plaint by the plaintiffs that the suit property was given for usage or occupation to the defendant No.1 and on demand he did not hand over the possession and hence, it can be presumed that the plaintiffs have extinguished their right to property as section 27 of the Limitation Act.
vi) Whether or not a suit filed after the prescribed limitation period of three years from the date of first right to suit accrues is maitainable according to the Limitation Act?Page 6 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:13:17 IST 2025
NEUTRAL CITATION C/SA/243/2025 ORDER DATED: 08/09/2025 undefined
vii) Whether the First Appellate Court had not appreciated the undisputed fact that the defendant No.1 is in possession of the suit property since 1982 and the plaintiffs had admitted in his cross examination that he is aware about the same and therefore, the plaintiff ought to have filed the suit within 12 years to recover the possession from the dae of said knowledge as per Article 65 of Limitation Act and hence, the suit is time barred as rightly held by the learned Trial Court in affirmative.
viii) Whether or not plaintiffs have discharged their burden of proof according to sections 101, 103 and 103 of the Indian Evidence Act?
ix) Whether the plaintiffs have proved that the defendant has been in possession of the suit property since 1982 without their consent?
x) Whether the plaintiffs have established that they had made attempts to vacate the suit property since 1982?
xi) Whether the plaintiffs has cause of action to file the suit after delay of almost 32 years of the possession of the defendant No.1 when it is admitted in the applicaion at Exh.39 that the respective brothers/owners have taken over the peaceful possession of their respective properties as per partition?
xii) Whether is it amount to deemed consent given by the plaintiffs to the defendant No.1 to reside in the suit property as the plaintiffs have not taken any steps to disconnect the electric connection from 2000 to 2014 despite the fact that the plaintiffs are residing besides the said property.
xiii) That, the First Appellate Court has erred in relying on the cross examination of the plaintiff wherein, the plaintiff had accepted that it is within knowledge of the plaintiffs that the Page 7 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:13:17 IST 2025 NEUTRAL CITATION C/SA/243/2025 ORDER DATED: 08/09/2025 undefined defendant No.1 had given the suit property on rent to one Isabbhai Rasulbhai from the year 2000 to 2014 in absence of any corroborative documentary evidence.
8. Having heard learned advocate for the defendant, the only defence taken by the defendant before the trial Court was that the defendant No.1 is occupying the premises as a tenant of the father of the plaintiff and that the defendant No.1 is in possession of the premises since the year 1983 as a tenant of the premises, but the trial Court has given findings that the defendant was not able to prove the fact that defendant No.1 is a tenant in the premises. The said findings has not been challenged by defendant No.1 by challenging the said finding, and therefore, the said finding has become final. On a query put by this Court to the learned advocate for the defendant No.1 that in which capacity the defendant No.1 is in possession of the property, the answer that was given by the learned advocate for the defendant No.1 was that, the defendant No.1 is permissive user of the suit premises, if the same is taken into consideration, the law is very clear that there can never be any relief that can be granted to a permissive user once the said permission is revoked.
9. By way of long and uninterrupted possession, the defendant cannot be considered as owner in settled possession Page 8 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:13:17 IST 2025 NEUTRAL CITATION C/SA/243/2025 ORDER DATED: 08/09/2025 undefined of the suit premises. Moreover, as defendant has not sought for any relief to declare the defendant to be the owner in view of adverse possession and/or family arrangement, the question of defendant being the owner of the suit property does not arise.
10. In the case of Maria Margarida Sequeria Fernandes and Others v. Erasmo Jack de Sequeria (Dead) in Appeal No.2968 of 2012 (Arising out of SLP (C) No.15382 of 2009) decided on 21.03.2012, the Hon'ble Apex Court has observed as under:-
"101. Principles of law which emerge in this case are crystallized as under:-
1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously.
Even by long possession of years or decades such person wuld not acquire any right or interest in the said property.
2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent Page 9 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:13:17 IST 2025 NEUTRAL CITATION C/SA/243/2025 ORDER DATED: 08/09/2025 undefined agreement, lease agreement or license agreement in his favour.
5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession."
11. Under the circumstances, this Second Appeal is devoid of merit. The first appellate Court has rightly decided the issue between the parties in the right perspective. The appellant has failed to prove his case before the learned 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. Accordingly, connected Civil Application would not survive and it is disposed of.
(SANJEEV J.THAKER,J) Manoj Kumar Rai Learned advocate for the appellant requests to stay the implentation and operation of the present order. In view of the fact that he wants to challenge the same.
Request is granted. The operation and implementation of the present order is stayed for a period of four weeks.
(SANJEEV J.THAKER,J) Manoj Kumar Rai Page 10 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:13:17 IST 2025