Recently, the Gujarat High Court dismissed a second appeal under Section 100 of the Code of Civil Procedure, reaffirming concurrent findings directing removal of an unauthorised religious structure constructed on a public access road. While upholding the decree against the appellant pujari, the Court underscored that a second appeal cannot be converted into a “third trial on facts or one more dice in the gamble.”
Brief Fact:
The dispute traces back to a civil suit instituted in 2011 by the plaintiff, who claimed ownership over Plot Nos. 60 to 63 of Survey No. 111/A/1/2 and 1/3, admeasuring 468 sq. metres, purchased through a registered sale deed dated 6 November 1995. The suit property, converted into non-agricultural land, was accessible through a six-metre-wide public road on its northern side. The controversy erupted when the plaintiff received an invitation card announcing the inauguration of a Ganesh temple allegedly constructed on the entrance road abutting her property. Upon visiting the site, she alleged encroachment and illegal construction by the defendants, including the pujari.
After failed attempts to seek police intervention, she approached the trial court seeking declaration, permanent injunction, and mandatory removal of the unauthorised construction under Section 39 of the Specific Relief Act. The trial court decreed the suit on 29 December 2023, directing removal of the encroachment, a decision later affirmed, with minor modification, by the first appellate court on 29 November 2025. Aggrieved, only the pujari carried the matter in second appeal before the High Court.
Contentions of the Petitioner:
Counsel for the appellant argued that the courts below committed grave errors of law by entertaining a time-barred suit, contending that Articles 58 and 65 of the Limitation Act squarely applied as the alleged construction existed for decades. It was further submitted that the pujari had perfected title over the disputed land by adverse possession, supported by documents such as ration cards, electricity bills, and tax receipts evidencing long-standing possession exceeding twelve years. The appellant also challenged the maintainability of the suit for non-joinder of the Gram Panchayat, asserted that no specific prayer for demolition existed in the plaint, questioned the legality of reliance on the Commissioner’s report without precise measurements, and claimed violation of principles of natural justice as devotees were not impleaded.
Contentions of the Respondent:
On the other hand, counsel for the respondent plaintiff supported the concurrent findings, contending that the appellant, being merely a pujari, had no proprietary or possessory rights over the suit property or the public road. It was argued that adverse possession cannot be claimed by a person whose possession is permissive or derivative, particularly when the alleged structure stood on a public access road. The respondent emphasized that the trial and appellate courts had rightly appreciated the evidence, framed proper issues, and granted relief strictly within the pleadings to prevent illegal encroachment and obstruction of ingress and egress to private property.
Observations of the Court:
The High Court undertook a detailed examination of the limited scope of interference under Section 100 CPC, reiterating that the existence of a substantial question of law is a sine qua non for admission of a second appeal. Relying on precedents such as Union of India v. Ibrahim Uddin and Nazir Mohamed v. J. Kamala, the Court underscored that concurrent findings of fact cannot be reopened unless they are perverse or contrary to settled law. A central plank of the appellant’s case, adverse possession, was decisively rejected.
The Court observed that a pujari is “merely a servant or appointee of the shebait and gains no independent right,” drawing strength from the Constitution Bench decision in M. Siddiq (Ram Janmabhoomi case) and State of Madhya Pradesh v. Pujari Utthan Avam Kalyan Samiti. It further held that adverse possession demands strict pleading and proof of “nec vi, nec clam, nec precario,” which was conspicuously absent. The Bench also took note of the growing tendency to misuse adverse possession claims to avoid lawful dispossession and reiterated that courts must adopt a strict approach against illegal constructions, especially on public land, warning that law “ought not to come to the rescue of those who flout its rigours.”
The decision of the Court:
Concluding that the appellant failed to demonstrate the involvement of any substantial question of law, the Gujarat High Court dismissed the second appeal at the admission stage, thereby affirming the orders directing removal of the unauthorised temple structure. The core ratio of the decision is clear, a pujari, having no proprietary rights, cannot claim adverse possession over temple or public land, and second appeals cannot be converted into a re-trial of settled facts.
Case Title: Rameshbhai Umakant Sharma Vs. Ashaben Kamleshkumar Modi & Ors.
Case No.: R/Second Appeal No. 10 Of 2026
Coram: Hon'ble Mr. Justice J. C. Doshi
Advocate for the Petitioner: Mr Vijal P Desai
Advocate for the Respondent: None Appeared
Read Judgment @Latestlaws.com
Picture Source :
