Gujarat High Court
Alarakhiben Alambhai Sipai vs Gebansha Pir Dargah Trust on 9 September, 2025
NEUTRAL CITATION
C/SA/42/2001 JUDGMENT DATED: 09/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 42 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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ALARAKHIBEN ALAMBHAI SIPAI & ORS.
Versus
GEBANSHA PIR DARGAH TRUST & ORS.
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Appearance:
MR PS CHAMPANERI(214) for the Appellant(s) No.
2.1,2.2,2.3,2.4,2.5,2.6,3.1.1,3.1.2,3.2.1,3.2.2,4,5
NOTICE SERVED for the Appellant(s) No. 1
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 1.1,1.2,1.3
NEHA M KAYASTHA(7609) for the Respondent(s) No. 1.1,1.2,1.3
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 09/09/2025
ORAL JUDGMENT
1. The present Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 (for short "the Code")challenging the judgement and decree passed by Assistant Judge Bhavnagar at Mahuva, in Regular Civil Appeal No.28 of 1989, whereby by an order dated 21.10.2000, the Appellate Court has confirmed the judgement and decree dated 20.04.1989, passed in Regular Civil Suit No.134 of 1982 by Civil Judge Junior Division, Mahuva.
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2. For the sake of the brevity and 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 had filed the suit for injunction on the ground that the plaintiffs are the owners of the property and to restrain the defendants from obstructing the plaintiffs from cultivating the suit property. The defendant appeared in the said suit and filed reply vide Exhibit 16 and the plaintiff examined himself vide Exhibit 44 and the defendant examined vide Exhibit 70. The trial court framed issues vide Exhibit 34 as under:
"1. Whether the Plaintiff Trust proves that they are a registered trust?
2. Whether the Plaintiff Trust proves that land bearing Survey No. 288 admeasuring 5 Acre 8 Guntha located at Ratol village is under their independent possession and ownership?
3. Whether the Plaintiff Trust proves that the Defendant is causing obstruction in the possession and ownership of Plaintiff Trust over the suit land?
4. Whether the Defendant No. 1 proves that he has been cultivating the disputed land for years?
5. Whether the Defendants prove that they have made expenses to make improvement in suit land?
6. Whether the Plaintiff is entitled to get relief as sought for in Para-9 of the plaint?
7. What order? What decree?"
4. After taking into consideration the fact that the plaintiff trust Page 2 of 17 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:26 IST 2025 NEUTRAL CITATION C/SA/42/2001 JUDGMENT DATED: 09/09/2025 undefined has proved that the plaintiff is the owner of the property and the fact that the defendants are trying to obstruct the plaintiff's possession of the suit property and the fact that defendant could not prove that the defendant has been cultivating the suit property since many years, the Trial Court allowed the said suit and restrained the defendants from obstructing the plaintiff's peaceful possession of the property and restrained the defendant from cultivating the suit property. Aggrieved by the judgement and decree passed by the Trial Court, the defendant filed Regular Civil Appeal no.28 of 1989 and after re-appreciating the evidence the Appellate Court dismissed the said appeal, aggrieved by the same the present Second Appeal has been filed.
5. The present Second appeal has been admitted by an order of the Coordinate Bench on 06.08.2001, and the following substantial question of law have been framed:
"(1) Whether the learned Judge committed a substantial error of law on the issue of jurisdiction of the Civil Court in view of Section 39 of the Saurashtra Bharkhali Abolition Act inasmuch as the appellants are in actual and physical possession of the land and the same was not in occupation and Page 3 of 17 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:26 IST 2025 NEUTRAL CITATION C/SA/42/2001 JUDGMENT DATED: 09/09/2025 undefined possession of the Trust at any point of time ? (2) Whether the court below has committed a substantial error of law in granting the decree in the form in which it has been granted after having held that the land was in actual and physical possession of the appellants and on the assumption that the appellants were in unauthorized occupation of the land?"
6. Learned advocate for the defendant has mainly argued that it is an admitted position that the suit property is a barkhali land and for the same the defendant has relied upon exhibit 54, which clearly establishes the fact that the suit property is a barkhali land and therefore, it has been argued that the Trial Court did not have jurisdiction to examine the question raised by the defendant which arises under the Saurashtra Barkhali Abolition Act, 1951.
7. Learned advocate for the defendant has also argued that it has come on record that the defendants are in actual possession of the suit property and therefore, were entitled for protection provided under the provisions of Saurashtra Barkhali Abolition Act, 1951 and the Civil Court ought to have referred the question to the Mamlatdar under Section 21 of the Page 4 of 17 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:26 IST 2025 NEUTRAL CITATION C/SA/42/2001 JUDGMENT DATED: 09/09/2025 undefined Saurashtra Barkhali Abolition Act, 1951.
8. Learned advocate for the defendant has also argued that it has come on record that the defendant was in actual possession of the property and that the suit property was never in possession of the plaintiff trust and therefore, the Trial Court ought to have dismissed the said suit and the said suit could not have been allowed in view of specific bar under Section 39 of the Saurashtra Barkhali Abolition Act, 1951.
9. It has been argued by the learned advocate for the defendant that the Trial Court also could not have come to the conclusion that the defendant is unauthorized occupant of the suit property and in view of the said fact, the present Second Appeal is required to be allowed and the judgement and decree passed by the Trial Court and confirmed by the First Appellate Court is required to be quashed and set aside and in view of the fact that there is a bar under Section 39 of the Saurashtra Barkhali Abolition Act, 1951, and therefore, the Civil Court did not have jurisdiction to decide the said suit, in view of the fact that, the present defendants are the tenants as defined under Section 2 (iv) read with Section 4 of the Saurashtra Barkhali Abolition Act, 1951 and in view of the said fact, as per Section 21 the said issue had to be decided by the Mamlatdar under Section 21(a) of the Saurashtra Barkhali Page 5 of 17 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:26 IST 2025 NEUTRAL CITATION C/SA/42/2001 JUDGMENT DATED: 09/09/2025 undefined Abolition Act, 1951 and therefore the Trial Court could not have come to the conclusion that the defendant is an unauthorized occupant of the suit premises. In view of the same, the present Second Appeal is required to be allowed.
10. Per contra, learned advocate for the original plaintiff has argued that there are concurrent findings of the Trial Court and the First Appellate Court, and the order that has been passed by the Trial Court are based on evidence and that, it is not the defendant's contention before the Trial Curt that the defendant is a tenant in the suit property.
11. It has been argued by the learned advocate for the plaintiff that by way of amendment at the stage of appeal, the defendant had tried to move an amendment application vide Exhibit 25, wherein, the defendant wanted to seek amendment in the written statement, claiming right, as a tenant in the suit premises, and the said amendment application vide Exhibit 25, was rejected on 10.07.1998. Thereafter the said order, passed by the Assistant Judge, Bhavnagar, in Regular Civil Appeal No.28 of 1989, has not been challenged by the defendant, and in view of the same, it becomes final.
12. It has been argued by the learned advocate for the Page 6 of 17 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:26 IST 2025 NEUTRAL CITATION C/SA/42/2001 JUDGMENT DATED: 09/09/2025 undefined plaintiff that the fact remains that even in the appeal memo filed before the First Appellate Court, in Regular Civil Appeal, the defendant has not taken the ground of defendant being the tenant in the premises under the Saurashtra Barkhali Abolition Act, 1951, and therefore, the said contention could not be raised at the stage of Second Appeal, in view of the fact that the said defense was not taken while filing the written statement, nor at the stage of filing the appeal memo, and therefore, the question of bar under Section 39 of the Saurashtra Barkhali Abolition Act, 1951 does not arise.
13. It has been argued by the learned advocate for the plaintiff that, it has come on record that while deciding the suit, the Trial Court has held that the plaintiff is the owner of the property, and that defendant no.1 was cultivating the land for and on behalf of the plaintiff as a labourer. The defendant, in his deposition, has also admitted that the plaintiff is the owner of the property, and there is nothing on record to show that the defendant is in possession of the suit property as a tenant under the Saurashtra Barkhali Abolition Act, 1951.
14. It has been argued by the learned advocate for the plaintiff that, in view of the said fact, the Trial Court has rightly held that the defendant is in unauthorized possession of the suit property and, in view of the fact that there is no Page 7 of 17 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:26 IST 2025 NEUTRAL CITATION C/SA/42/2001 JUDGMENT DATED: 09/09/2025 undefined dispute with respect to the defendant being a tenant in the suit premises, the question of the suit being barred under the provisions of Section 39 of the Saurashtra Barkhali Act, 1951 does not arise.
15. Having heard learned advocates appearing for the respective parties and having considered the judgment and decree passed by the Trial Court and confirmed by the First Appellate Court, the fact remains that, it is admitted position that the plaintiff is the owner of the property, and the only contention that the defendant has taken is that the defendant is a tenant under the Saurashtra Barkhali Abolition Act, 1951. But if the written statement filed vide Exhibit 16 is taken into consideration, and the appeal memo filed in Regular Civil Appeal No.28 of 1989 is taken into consideration, there is nothing on record to establish the fact that the defendant has claimed to be a tenant under the Saurashtra Barkhali Abolition Act, 1951 of the plaintiff.
16. Though, vide Exhibit 25 at the stage of appeal, the defendant has tried to introduce the said defense that the defendant is a tenant under the Saurashtra Barkhali Abolition Act, 1951, but the said contention of the defendant, was not permitted to be introduced. In view of the fact that, by way of amendment vide Exhibit 25, the defendant wanted to introduce Page 8 of 17 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:26 IST 2025 NEUTRAL CITATION C/SA/42/2001 JUDGMENT DATED: 09/09/2025 undefined the said defense, clearly suggests that, till the amendment application was filed, the said defense was never taken by the defendant and in view of the fact that the said amendment application, filed vide Exhibit 25 for amending the written statement of the defendant, at an appellate stage, having been rejected, and the defendant having not challenged the said order, the same becomes final, and, therefore, as there is no defense with respect to whether the defendant is a tenant, under the Saurashtra Barkhali Abolition Act, 1951, the only question that was under consideration was whether the defendant was occupying the premises legally. The fact remains that, from the documentary and oral evidence, the Trial Court and Appellate Court have held that the plaintiff is the owner of the property and that the defendant does not have any document to prove his right to be in possession of the suit premises.
17. Moreover, Section 39 of the Saurashtra Barkhali Abolition Act, 1951 only requires the authority under the said Act to decide disputes, if the same falls within the jurisdiction to be decided under Section 21 of the the Saurashtra Barkhali Abolition Act, 1951. and therefore, it cannot be said that there is a bar of Civil Court to decide the present dispute. Though the defense of being a tenant under the Saurashtra Barkhali Abolition Act, 1951, has not been taken, but the fact remains Page 9 of 17 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:26 IST 2025 NEUTRAL CITATION C/SA/42/2001 JUDGMENT DATED: 09/09/2025 undefined that even perusing the said defense, following Sections are relevant:
"2. Definitions :-
In this Act, unless there is anything repugnant to the subjects or context:- ( i ) "Barkhalidar" means a person who holds a tenure as Barkhalidar, Jivaidar, Chakariyat, Kherati or Dharmada and includes-
(a) any person who has been granted any such tenure; or
(b) any holder of an estate whom the Government may, by notification, in the Official Gazette, declare to be a Barkhalidar for the purposes of this Act: Provided that where the great-grand-father, grandfather or father of an Barkhalidar is alive, only the great-grand-father, grand father or the father, as the case may be, who is alive, shall be deemed to the Barkhalidar for the purposes of this Act;]
(ii) "bid land" means such land as has been used by Barkhalidar for grazing his cattle or for cutting grass for the use of his cattle;Page 10 of 17 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:26 IST 2025
NEUTRAL CITATION C/SA/42/2001 JUDGMENT DATED: 09/09/2025 undefined (iia) "estate" includes a Jagir, Inam or other grant or interest or aggregate of interests of similar nature in land but shall not include an occupancy;]
(iii) "Gharkhed" means land lawfully reserved by a Barkhalidar for cultivating personally before 20th
(iv) "tenant" means an agriculturist who holds land on lease from a Barkhalidar or a person claiming through him and includes a person who is deemed to be a tenant under the provisions of this Act;
(v) all words and expression used, but not defined, in this Act shall have the meaning assigned to them in the Saurashtra Land Reforms Act, 1951.
1. This Clause was substituted for the original by Sau. Act No. XX of 1953.
2. This clause was Inserted by Saurashtra Act No. XX of 1953.
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4. Person when deemed to be a tenant :-
(1) Any person who is lawfully cultivating any land belonging to a Barkhalidar shall, for the purposes of this Act, be deemed to be his tenant: Provided that no such person shall be deemed to be a tenant if he-
(a) is a member of the Barkhalidar's family; or
(b) is a servant on wages payable in cash or in kind but not in a share of the corps or a hired labourer cultivating the land under the personal supervision of the Barkhalidar or any member of his family; or
(c) is a mortgagee in possession.
Explanation.- A person who is otherwise deemed to be a tenant shall not cease to be a tenant only on the ground that he is also a mortgagee in possession.
(2) A tenant, who, on joining the Armed Forces of India, had given land for cultivation to a sub-tenant, shall be deemed to be a tenant for the purposes of this Act.
(3) Notwithstanding anything contained in sub- section (1), a person shall not be deemed to be a tenant under this section if such a person has been previously declared by a competent Page 12 of 17 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:26 IST 2025 NEUTRAL CITATION C/SA/42/2001 JUDGMENT DATED: 09/09/2025 undefined authority not to be a tenant.
21. Functions of Mamlatdar :-
For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar, namely:-
(a) to decide whether a person is a tenant or not,
(b) to make inquiries under Section 7 and Section 11 ,
(c) to issue an occupancy certificate under Section 7 and 12,
(d) to determine the amount of compensation under Section 13 , [(dd) to decide claims of the jiwaidars under Section 18A ,]
(e) to make inquiry and fix assessment under Section 19 ,
(f) to decide such other matters as may arise out of the provisions of this Act or as may be referred to him.
1. This clause was inserted by Saurashtra Act No. III of 1954.
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39. Bar of jurisdiction :-
(1) No civil court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar, the Collector or the Tribunal or by the Government in exercise of their powers or control.
(2) No order of the Mamlatdar, the Collector or the Tribunal made under this Act shall be questioned in any Civil or Criminal Court.
Explanation. -For the purposes of this section a Civil Court shall include a Mamlatdar's Court constituted under the Saurashtra Mamlatdars' Courts Ordinance, 1948."
18. Taking into consideration all the above referred provisions of law of Saurashtra Barkhali Abolition Act, 1951, the fact remains that, in the entire defense, the defendant has not taken the contention that he is a tenant under the said Act. Therefore, the fact of ascertaining whether the defendant is a tenant or not under the provisions of Section 21(a) of the Saurashtra Barkhali Abolition Act, 1951, will be of no assistance to the defendant. The dispute before the Civil Court, was on the ground that the plaintiff is the owner of the Page 14 of 17 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:26 IST 2025 NEUTRAL CITATION C/SA/42/2001 JUDGMENT DATED: 09/09/2025 undefined property and that the defendants are trying to disturb or obstruct the plaintiff's occupation in the suit premises and are trying to enter the premises. Therefore, the same was purely a civil dispute filed by the owner of the property against a defendant who was a labourer and who had no right to occupy and enter the premises.
19. Therefore, substantial question of law,(1) Whether the learned Judge committed a substantial error of law on the issue of jurisdiction of the Civil Court in view of Section 39 of the Saurashtra Bharkhali Abolition Act inasmuch as the appellants are in actual and physical possession of the land and the same was not in occupation and possession of the Trust at any point of time ? the same is answered that, in view of the fact that the defendant's case is not that he is the tenant under the provisions of Saurashtra Barkhali Abolition Act, 1951, the Civil Suit that has been filed by the plaintiff is not barred under Section 39 of the Saurashtra Barkhali Abolition Act, 1951.
20. With respect to the second substantial question of law (2) Whether the court below has committed a substantial error of law in granting the decree in the form in which it has been granted after having held that the land was in actual and physical possession of the appellants and on the assumption Page 15 of 17 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:26 IST 2025 NEUTRAL CITATION C/SA/42/2001 JUDGMENT DATED: 09/09/2025 undefined that the appellants were in unauthorized occupation of the land?, the fact remains that the plaintiff has proved that he is the owner of the property and there is nothing on record to prove that the defendant has any right to occupy the premises and cultivate the said suit premises. Therefore, the Trial Court has rightly held that the possession of the premises with the defendant is unauthorized and the same is rightly confirmed by the Appellate Court.
21. It is required to be noted that in Second Appeal, the scope is very limited and the Court cannot re-appreciate the evidence. In the case of Navaneethammal v. Arjuna Chetty reported in 1996 (6) SCC 177, the Hon'ble Apex Court has observed as under:-
"11. This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts."
22. 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 Page 16 of 17 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:26 IST 2025 NEUTRAL CITATION C/SA/42/2001 JUDGMENT DATED: 09/09/2025 undefined 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."
23. 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. 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 hereby dismissed.
Sd/-
(SANJEEV J.THAKER,J) Further Order After the pronouncement of judgment, learned advocate for the appellant seeks stay of operation and implementation of the order as the appellant wants to challenge the said order.
In view of the same, the judgment is stayed for a period of three weeks.
Sd/-
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