Gujarat High Court
Nagindas Laxmidas Ratandhayara vs Mahemuna Abdul Rajaq Meman on 9 September, 2025
NEUTRAL CITATION
C/SA/455/2023 JUDGMENT DATED: 09/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 455 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/SECOND APPEAL NO. 455 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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NAGINDAS LAXMIDAS RATANDHAYARA
Versus
MAHEMUNA ABDUL RAJAQ MEMAN & ORS.
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Appearance:
DHRUVIN P BHUPTANI(8295) for the Appellant(s) No. 1
KISHAN Y DAVE(8293) for the Appellant(s) No. 1
MR MA KHARADI(1032) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 09/09/2025
ORAL JUDGMENT
1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (herein after referred to as "the Code")challenging the judgment and decree dated 19.10.2022, passed by Additional District Judge Keshod, in Regular Civil Appeal No.38 of 2019, confirming the judgement and decree, dated 23.03.2018, passed by Principal Civil Judge Maliya - Hatina, in Regular Civil Suit No.28 of 2009.
2. For the sake of brevity and convenience, the parties are Page 1 of 14 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:32 IST 2025 NEUTRAL CITATION C/SA/455/2023 JUDGMENT DATED: 09/09/2025 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 Regular Civil Suit No.28 of of 2009, against the defendant for removal of encroachment and possession of the defendant in, plot no.8, which belongs to the plaintiff. The defendant appeared in the said suit and filed written statement vide Exhibit 18. The Trial Court framed issues vide Exhibit 52 which reads as under:
(1) Whether plaintiff proves that, they are legal occupant of Plot No. 8?
(2) Whether plaintiff proves that, respondent had encroached upon West- South corner of plot No. 8 of plaintiff and made construction without permission of the Municipality?
(3) Whether respondent proves that, the plot No. 8 as considered by plaintiff is actually evacuee plot No. 35 whose owner was deceased Shamaldas Achlomal Ahuja?
(4) Whether respondent proves that, respondent became legal occupant and owner of evacuee plot No. 35 by inheritance?
(5) Whether respondent proves that, at the instance of Page 2 of 14 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:32 IST 2025 NEUTRAL CITATION C/SA/455/2023 JUDGMENT DATED: 09/09/2025 undefined predecessor owner of plaintiff the said rights were lost under the provisions of Administration of Evacuee Property Act by transaction of sale Dated- 14/11/1961?
(6) Whether the suit of the plaintiff is barred by the jurisdiction of the Court?
(7) Whether plaintiff is entitled to get relief as demanded?
(8) What Order and Decree?
4. The plaintiff examined himself vide Exhibit 54 and the witness of the plaintiff was examined vide Exhibit 47. The defendant examined himself vide Exhibit 91 and the witnesses of the defendants were examined vide Exhibits 137, 144, 159, 163 and 166 and after considering the oral evidence and the documentary evidence and giving finding on all the issues, the Trial Court allowed the said suit and declared that the defendants are not entitled to encroach on plot no.8, which belongs to the plaintiff and directed the defendant to remove the encroachment of the defendant in plot no.8. Aggrieved by the said judgement and decree, the defendant filed Regular Civil Appeal No.38 of 2019 and after reappreciating the evidence, the First Appellate Court dismissed Regular Civil Page 3 of 14 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:32 IST 2025 NEUTRAL CITATION C/SA/455/2023 JUDGMENT DATED: 09/09/2025 undefined Appeal No.38 of 2019 and confirmed the judgement and decree passed by Principal Civil Judge, Maliya-Hatina in Regular Civil Suit No.28 of 2009, hence the present Second Appeal.
5. The learned advocate for the defendant has mainly argued that in the entire suit, the plaintiff has not given description of the suit property and in the guise of claiming right in plot no.8, the plaintiffs are trying to claim right in plot nos.25 and 35, which belongs to the defendant.
6. Learned advocate for defendant has also argued that if the entire plaint is taken into consideration, there is no iota of evidence to show that on what basis is the plaintiff coming forward with the case that the defendants have encroached upon plot no.8. It is the case of defendant that the defendants are the owners of plot nos.25 and 35 and even the gift deed produced vide Exhibit 61, is taken into consideration, the said gift deed is executed by the grandfather of the plaintiffs in favour of the mother of the plaintiff and even in the said gift deed, the suit property is not described by boundary and therefore, it cannot be ascertained that the claim of the plaintiff that, defendants have encroached upon plot no.8 is correct, in view of the fact that the defendant is already an owner of the adjoining property, i.e. plot nos.25 and 35, and therefore, Page 4 of 14 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:32 IST 2025 NEUTRAL CITATION C/SA/455/2023 JUDGMENT DATED: 09/09/2025 undefined unless and until the plaintiff proves that the defendant have encroached upon plot no.8, the Trial Court and the Appellate Court could not have allowed the said suit. Learned advocate for the defendant has also argued that if the oral evidence of the plaintiff is taken into consideration, the plaintiff has come forward with a case that since last many years they are residing at Village Mangrol and the suit property is at Villager Chorwad, and therefore, the plaintiff could not prove the fact that the defendants have encroached upon plot no.8.
7. Moreover, the plaintiff has relied on the Will executed by the mother of the plaintiff which is produced, vide Exhibit 65, to claim that the suit property was bequeathed by the mother of the plaintiff in favour of plaintiff, but if the said Will is also taken into consideration, the said Will also does not give description of the plot no.8, with boundaries and therefore it cannot be said that the property which is owned by the defendants is the property in which the defendants have encroached upon plot no.8.
8. Learned advocate for the defendants has also argued that under the provisions of the Muslim Personal Law (Shariat) Application Act, 1937, (hereinafter referred to as "the Muslim Law")the essential elements of gift have not been satisfied by the plaintiff in view of the fact that the plaintiff has not proved Page 5 of 14 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:32 IST 2025 NEUTRAL CITATION C/SA/455/2023 JUDGMENT DATED: 09/09/2025 undefined that the possession has been handed over to the plaintiff's mother by the gift deed that has been executed by the grandfather to the mother of the plaintiffs. Learned advocate for the defendant has relied on the judgement in the case of Hafeeza Bibi and Others Vs. Shaikh Farid and Others reported in 2011 (5) SCC 654, wherein there are three essential ingredients of a valid gift under the Muslim Law, (i) the declaration of gift of the donor (ii) acceptance of gift by donee and (iii) delivery of possession and in view of the said fact it has been argued that though by the gift deed produced vide Exhibit 61, the declaration of gift by donor has been established and the acceptance of gift by donee has been proved, but the fact of delivery of possession has not been proved and therefore, unless and until the said fact is proved, it cannot be said that the plaintiff has proved the fact that the possession of the suit property was handed over by the grandfather of the plaintiff to the mother of the plaintiff by way of the gift deed and in view of the fact that the mother of the plaintiff did not have possession of the suit property i.e. plot no.8, the mother of the plaintiff could not have executed a Will produced vide Exhibit 65 and handed over the possession of the plot no.8 to the plaintiff. In view of the said fact, it has been argued that there are substantial questions of law involved in the present second appeal and the second appeal is required to be admitted on the following substantial questions Page 6 of 14 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:32 IST 2025 NEUTRAL CITATION C/SA/455/2023 JUDGMENT DATED: 09/09/2025 undefined of law:
"i) Whether the suit can be said to maintainable when the identity of the suit property is not established?
(ii) Whether the suit ought to have been dismissed solely on the ground of adverse possession of Defendant over the suit property?
(iii) Whether the Civil Court has jurisdiction to entertain a suit, more particularly when the suit property was an evacuee property?
(iv) When the District Court has committed gross error of law, more particularly when the District Court has not framed necessary and proper issues?
(v) Looking to the documentary evidence produced on record and situation of the property, can it be said that the suit is filed within the period of limitation?
(vi) Whether the suit filed by the plaintiff can be said to have been filed within the period of limitation, more particularly when Defendant has proved by documentary evidence that the suit is filed much after the expiry of period of limitation?
(vii) Whether the burden which was lying on Page 7 of 14 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:32 IST 2025 NEUTRAL CITATION C/SA/455/2023 JUDGMENT DATED: 09/09/2025 undefined the plaintiff can be said to have been discharged by him by leading cogent evidence?
(viii) Whether the judgment and decree passed by the District Court can be said to be legal and valid,. when the District Court has not given any independent finding other than the findings given by Ld. Trial Judge?"
9. Per contra, learned advocate for the plaintiff has mainly argued that the entire case of the defendant was based on the fact that the plaintiff is trying to project plot no.8 to be plot no.35 and is trying to state that the defendant is trying to encroach upon plot no.35. The fact is that according to the defendant it is his case that in the guise of stating that the defendant is encroaching upon plot no.8, but actually the said plot is not plot no.8 but the said is plot no.35, and therefore, the defendant has come forward with the case that actually what the plaintiff is seeking is that defendant is encroaching upon plot no.8 but the same is plot no.35, which exclusively belongs to the defendant. The Trial Court and the Appellate Court have rightly held that plot no.35 is a different plot and the same is not the plot in which the defendant is stated to have encroached.
10. The fact remains that by documentary evidence, more Page 8 of 14 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:32 IST 2025 NEUTRAL CITATION C/SA/455/2023 JUDGMENT DATED: 09/09/2025 undefined particularly, the revenue record produced by the plaintiff, vide Exhibit 77, states that the suit property i.e. plot no.8, is allotted to the plaintiff, vide Exhibits 54, 77, 60, 61, 64, 66, 68, the plaintiff has proved that the plaintiff is the owner of the suit property i.e. plot no.8, on the basis of the title. If measurement sheet, Exhibit 74 is taken into consideration, it has been found that there is encroachment on the suit property, and therefore, the plaintiff has been able to prove that there is an encroachment on plot no.8.
11. It has also been argued by the learned advocate for the plaintiff that moreover, the fact remains that the substantial questions which has been raised in the memo of appeal are findings of facts of the First Appellate Court, and it is not within the domain in the Second Appeal to investigate the grounds on which the findings have been arrived at by the First Appellate Court, which is the last Court of fact, and therefore also, the preset Second Appeal is required to be dismissed.
12. Moreover, the defendant in the written statement has also taken an alternative defence of being the owner of the property by way of adverse possession and therefore also it has been argued that the defendant has miserably failed to prove the case before the Trial Court and the judgement and decree Page 9 of 14 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:32 IST 2025 NEUTRAL CITATION C/SA/455/2023 JUDGMENT DATED: 09/09/2025 undefined passed by the Trial Court and affirmed by the Appellate Court is on proper finding and in view of the same, the present Second Appeal is required to be dismissed.
13. Having heard learned advocates appearing for the respective parties and having considered the judgement and decree passed by the Trial Court and affirmed by the First Appellate Court, the fact remains that the plaintiff has been able to prove that the plaintiff is the owner of the suit property. The fact remains that even as per the measurement sheet produced at Exhibit 74, it has been found that there is encroachment on the suit land. The defendant is the owner of plot no.25 and plot no.35. The defendant has relied on documents produced vide Exhibits 94, 95, 96 and 97 to prove the fact that the defendant is the owner of plot nos.25 and 35. The suit that has been filed by the plaintiff, is only with respect to plot no.8 and has got nothing to do with plot no.35, if the measurement sheet Exhibit 74, is taken into consideration, plot no.25 is situated towards the eastern side of plot no.8 and after plot at northern side, plot no.35 is situated and therefore, the fact that plot no.35 is next to plot no.8, as stated by the defendant is not true. Moreover, the fact that the plaintiff has not proved the essential ingredient of delivery of possession, the said fact can clearly be established from the gift deed produced vide Exhibit 61, which clearly states that Page 10 of 14 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:32 IST 2025 NEUTRAL CITATION C/SA/455/2023 JUDGMENT DATED: 09/09/2025 undefined the possession of the plot no.8, has been handed over by the grandfather of the plaintiff in favour of the mother of the plaintiff. Therefore, the essential ingredients of the Muslim Law has been fulfilled, making the gift complete an irrevocable. Therefore, the judgement relied on by the learned advocate for the defendant will not be of any assistance in view of the fact that the gift deed clearly states that the possession of the property is handed over at the time of execution of the said gift deed.
14. Moreover, the fact remains that if the defendant has claimed that the defendant is the owner of Plot nos.25 and 35, and the defendant has got nothing to do with plot no.8, and the fact that the plaintiff has tried to agitate of encroaching on plot no.8, but the same is plot no.35, if that was the fact, there was no reason for the defendant to claim adverse possession of the suit property, in view of the fact that if the entire case of the defendant is taken into consideration that defendant is the owner of plot nos.25 and 35, then the question of claiming adverse possession would not arise. Therefore the plaintiff has been able to prove that there is an encroachment on plot no.8, which belongs to the plaintiff.
15. Moreover, the measurement sheet Exhibit 77, clearly states that plot no.8 and 25 are adjoining and thereafter plot Page 11 of 14 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:32 IST 2025 NEUTRAL CITATION C/SA/455/2023 JUDGMENT DATED: 09/09/2025 undefined no.35 is situated. The address that has been shown of the defendant shows Jalaram Saw Mill is near Government Hospital and therefore on facts, the Trial Court and the Appellate Court have held that defendant has encroached upon plot no.8.
16. 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."
17. In the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and Another reported in 2024 SCC OnLine SC Page 12 of 14 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:32 IST 2025 NEUTRAL CITATION C/SA/455/2023 JUDGMENT DATED: 09/09/2025 undefined 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."
18. Under the circumstances, this Second Appeal is devoid of any substantial question of law. Both the learned Trial Court and the First Appellate Court have rightly decided the issue between the parties in the right perspective and as stated above no substantial question of law arises in the present appeal. The defendant has failed to prove his 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 dismissed. In view of the dismissal of the second appeal the connected civil application is accordingly disposed of.
Sd/-
(SANJEEV J.THAKER,J) Page 13 of 14 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:32 IST 2025 NEUTRAL CITATION C/SA/455/2023 JUDGMENT DATED: 09/09/2025 undefined Further Order After the pronouncement of the judgment, learned advocate for the appellant seeks stay of the execution of the order.
In view of the fact that there was no stay granted earlier in the First Appeal, the request is rejected.
Sd/-
(SANJEEV J.THAKER,J) URIL RANA Page 14 of 14 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:32 IST 2025