Gujarat High Court
Rabari Nagjibhai Maneklal vs Nilamben Upendrabhai Shah on 3 February, 2022
Bench: J.B.Pardiwala
C/FA/3155/2017 CAV JUDGMENT DATED: 03/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3155 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RABARI NAGJIBHAI MANEKLAL
Versus
NILAMBEN UPENDRABHAI SHAH & 2 other(s)
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Appearance:
MR. H.M. PARIKH, LD. SR. COUNSEL WITH MR JAYPRAKASH
MR. S.N. SOPARKAR, LD. SR. COUNSEL WITH LD. COUNSEL MR.
UNMESH D. SHUKLA AND MR MANAV A MEHTA(3246) for the
SHASHVATA U SHUKLA(8069) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 03/02/2022
CAV JUDGMENT
C/FA/3155/2017 CAV JUDGMENT DATED: 03/02/2022
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. This appeal under Section 96 of the Civil Procedure
Code, 1908 (for short "the CPC") is at the instance of the
original defendant No.4 and is directed against the
judgment and decree passed by the Principal Senior Civil
Judge, Kalol, District: Gandhinagar dated 11 th August, 2017
in the Special Civil Suit No.58 of 2015 instituted by the
respondents Nos.1 and 2 respectively herein (original
plaintiffs), by which, the suit filed by the original plaintiffs
for declaration and possession came to be allowed.
2. The operative part of the impugned order reads thus;
"ORDER
1. The present suit of plaintiffs is hereby decreed.
2. It is held that present plaintiffs are absolute
owners of immovable property i.e, Plot No.11 of
Survey Block No.487 of village Rancharda, Taluka:
Kalol, District: Gandhinagar, on the basis of
registered sale deed having Registration No.8041
dated 15.12.2012.
3. It is also ordered that Defendant No.4 is
directed to demolish the wall constructed and gate
made by him at the earliest. On failure of Defendant
No.4 to perform such act, plaintiffs are free to
demolish such construction at the cost of defendant
No.4.
4. Receiver of Court is hereby directed to hand
over the peaceful and vacant possession of suit land
to the present plaintiffs and he is also directed to
submit a detailed report of action taken with
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Panchnama, photographs etc.
5. Permanent injunction not to interfere in any
manner is enjoyment of this plot is also granted in
favour of plaintiffs and against Defendant No.4.
6. Defendant No.4 is hereby directed not to create
any obstacle of any type in use of suit property
directly or indirectly.
7. Parties are directed to bear their own cost.
8. Decree to be drawn up accordingly."
3. The appellant herein, original defendant No.4, being
aggrieved and dissatisfied with the aforesaid judgment
and order, has come up before this Court with the present
appeal.
4. This appeal came to be admitted vide order passed
by a Coordinate Bench dated 18th September, 2017. The
order passed in the Civil Application No.12006 of 2017 for
interim relief reads thus;
"Order in C.A. No.12006/2017
1. Rule returnable on 7th November, 2017. Mr. Manav
A. Mehta, learned advocate waives service of notice
of rule for respondent No.1 and Mr. Shashvat U.
Shukla, learned advocate waives service of notice of
rule for respondent No.2.
2. Heard, Mr. Ansin Desai, learned senior counsel
assisted by Mr. Jayprakash Umot, learned advocate
for the applicant, and Mr. Mihir Joshi, learned senior
counsel assisted by Mr. Manav Mehta, learned
advocate for the respondent No.1 and Mr. Shashvat
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A. Shukla, learned advocate for the respondent No.2.
3. Mr. Ansin Desai, learned advocate has submitted
that by registered sale deed dated 12.09.1981
varsangji purchase the subject land from Ranchodji
Chanduji. Therefore, by a registered sale deed dated
22.01.1985 Aakar Co-operative Society versus
subject land from Varsangji, and therefore, on
30.10.1993 Saurabji Modi and Seela Modi were
allotted the subject plot. The subject plot came to be
purchased by the appellant by registered sale deed
dated 26.06.1994 from Chanduji and heirs of
Ranchodji.
4. The contesting respondent has purchased the
subject plot by registered sale deed dated
15.12.2012 from Saurabji Modi and Seela Modi.
According to his submission, Revenue Entry No.3353
came to be mutated in the name of the appellant,
which was challenged by filing RTS Appeal which was
dismissed on 29.10.1996. Revision against the
dismissal of the RTS Appeal is also filed on
17.11.2005, Special Secretary also dismissed the
Appeal on 22.05.2013. All these orders challenged by
filing Special Civil Application, wherein notice is
issued and parties are directed to maintain status
quo. He has also urge that the original owners
applied for N.A. Permission on 08.04.1982 which was
granted by the TDO, but, later on in suo moto
revision, N.A. Order came to be cancelled on
29.08.1993. This Court has also dismissed the
Special Civil Application which was filed to challenge
the cancellation of N.A. Order. He has also submitted
that the contesting respondent has not prayed for
the cancellation of registered sale deed in favour of
the appellant in the suit. He also submitted that in
view of the bar contained in Section 63 of the
Bombay Tenancy Act, the nonagricultural Land could
not have been sold to the society. He, therefore,
urges that the interim order granted by the Supreme
Court which is continued till date may continue till
the disposal of the appeal.
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5. Mr. Mihir Joshi, learned senior counsel for the
respondent No.1 has vehemently opposed the grant
of any interim relief in favour of the appellant. It is
his submission that in view of Section 3 of Transfer of
Property Act, the registered sale deed in favour of
the respondent No.1 amount to deemed notice as
has been held by this Court and the Supreme Court
in the catena of decisions. He submitted that any
transaction in respect of agricultural land in favour of
non-agriculturist is invalid and not void and therefore
unless and until such a transaction is declared to be
in valid, in view of the decision of this Court in the
case of Navalram Laxmidas Devmurari v. Vijayaben
Jayvantbhai Chavda, 1997 (8) GLH 841 and Mavji
Dhoraji and others v. State of Gujarat and another,
1999 (1) GLH 20. The transaction in favour of the
respondent No.1 does not become void by operation
of Section 63 of Tenancy Act. He submitted that the
possession follows title relied upon the decision of
the Supreme Court in the case of Atla Sidda Reddy v.
Busi Subba Reddy and Others, reported in (2010) 6
SCC 666, he submitted that the subject plot was
already sold to the Sorabji Modi and Sheela Modi,
and therefore, the appellant did not acquire any title
by purchasing the same plot subsequently. He
further submitted that the trial Court has recorded
the findings of fact in favour of the appellant after
appreciation of evidence and therefore, the
respondent No.1 is required to be put into possession
of the subject plot on any terms and conditions that
may be deemed just and fit by this Court till disposal
of the appeal which would not quashed any prejudice
or irreparable loss to the appellant. He, therefore
urges that the interim relief not be granted.
6. Mr. Shukla, learned advocate for the respondent
No.2 is adopted the arguments of Mr. Joshi, learned
senior Counsel.
7. Having heard learned advocates for the parties
and having perused the impugned judgment. It is
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vividly clear that the learned trial Judge has prima
facie recorded conflicting findings as regards the
possession of the subject plot by the respondent
No.1. It also appears at this stage that the learned
trial Judge on the basis of the decision of this Court
has recorded the findings that the transaction
between Aakar Society and the land owner cannot be
declared invalid and since the sale transaction
between the plaintiffs i.e. respondent and the
previous owners was otherwise according to law this
sale transaction cannot be said to be invalid under
Section 64(8) of the Tenancy Act to decree the suit in
favour of the
respondent.
8. In our opinion, the impugned judgment of the
learned trial Court requires scrutiny in light of the
meaning assigned to the term valid, invalid and void
transactions in dictionary and our statute and the
fact that the learned trial Judge has recorded
contradictory findings as regards the possession of
the subject plot by the respondent No.1. We are of
the view that the possession of the plot which is with
the Court Commissioner under the direction of the
Supreme Court requires to be maintained till the
returnable date by way of interim relief. Direct
service to the respondent No.3 is permitted."
5. The Civil Application No.12006 of 2017 ultimately
came to be disposed of vide order dated 14 th November,
2017, which reads thus;
"1. This Civil Application is filed by the appellant for
interim injunction pending the First Appeal. The First
Appeal has been admitted. By an order dated
18.09.2017, Division Bench of this Court in the
present Civil Application, recorded detailed reasons
why certain interim relief should be granted. The
Court was of the opinion that the possession of the
plot of land, which is the subject matter of the suit
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and therefore, this First Appeal, which is with the
Court Commissioner as directed by the Supreme
Court, should be maintained in that manner. Perusal
of this order would reveal that the Advocates for the
appellant and contesting opponent No.1 were heard
at length. But for the presence of opponent No.3,
perhaps, the Court would have disposed of the Civil
Application itself. In that view of the matter, in our
opinion, interim relief granted earlier by the Court
under the said order dated 18.09.2017 is required to
be confirmed, despite strong resistance by Shri
Soparkar for opponent No.1.
2. Considering his contentions for vacating the
interim relief at this stage, would virtually amount to
reviewing the said order passed by a cognate
Division Bench. It is true that the Civil Application
was not disposed of by the said order and has
therefore been fixed for further hearing today.
Nevertheless, the purport of the order, as noted,
would be that the Bench had considered all
contentions of opponent No.1 before granting the
said interim relief.
3. Shri Soparkar for opponent No.1, however,
submitted that the opponent No.1 has a plot right
adjacent to the disputed land, in which the family is
in the process of constructing a residential unit.
Keeping the possession of the disputed land with the
Court Commissioner serves no purpose. If the
possession is granted to opponent No.1, who was
successful before the trial Court, he would undertake
not to make any change either in title, possession or
character of the land. He submitted that the
appellant claims to have purchased the land from the
erstwhile owner long after the land was sold more
than once. He submitted that the Supreme Court,
while putting the Court Commissioner into
possession of the land, had required the appeal to be
completed within six months.
4. Considering the facts of the case, while confirming
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interim relief granted by the Division Bench under
order dated 18.09.2017, it is further provided that
the First Appeal may be listed for hearing on
22.01.2018. If the First Appeal is not heard for a
reasonable period after that, it would be open for the
opponent No.1 to file application for vacating or
modifying the interim relief. Civil Application is
disposed of accordingly."
6. We also take notice of the order passed by the
Supreme Court, challenging the order dated 8 th February,
2017 passed by this Court in the Appeal From Order
No.265 of 2016 arising from the order passed by the Trial
Court on the Exh.5 application. The same reads thus;
"Heard Mr. Harin P. Rawal, learned senior counsel
appearing for the petitioner and Mr. Shyam Divan,
learned senior counsel appearing for the respondent.
Having heard learned counsel for the parties and
considering the impugned order passed by the trial
court as well as the High Court, we are inclined to
direct as follows:-
a) Neither the plaintiffs nor any person engaged
by him nor the respondents or any person engaged
by them shall enter into the suit land.
b) The learned Trial Judge shall appoint a Receiver
in respect of the suit property.
c ) The Receiver shall take over possession of the
property immediately after his appointment.
d) Neither of the parties shall in any manner deal
with the property, that is to say, transfer in any
manner whatsoever.
C/FA/3155/2017 CAV JUDGMENT DATED: 03/02/2022
e) The trial Judge shall dispose of the suit pending
before him within six months hence.
The aforesaid order is passed without prejudice to
the contentions that have been raised in the suit. The
learned trial Judge, while disposing of the suit shall
not be influenced by any of the observations made
by it in the interim order or the order that has been
passed by the High Court or our present order.
With the aforesaid observations and directions, the
special leave petition is disposed of. There shall be
no order as to costs."
7. In the last, we take notice of the order passed by the
Supreme Court dated 25 th November, 2019 in the Special
Leave Petition (Civil) No.36497 of 2019 arising from the
order dated 16th April, 2019 passed by this Court in the
Civil Application No.01 of 2018, referred to above.
"Order
Delay condoned.
We decline to interfere in this special leave petition.
However, we we request the High Court to dispose of
the pending appeal expeditiously, preferably by the
end of March, 2020.
In case, the appeal does not reach for hearing before
the end of March, 2020, it will be open to the parties
to move the learned Chief Justice of the High Court
for appropriate directions, if so advised.
The special leave petition and pending application(s)
are accordingly disposed of."
C/FA/3155/2017 CAV JUDGMENT DATED: 03/02/2022
8. Thus, it appears that, as on date, the possession of
the suit property is with the Receiver as appointed by the
Supreme Court vide order dated 27th February, 2017,
referred to above.
Factual Background
9. The facts, giving rise to this appeal, may be
summarized as under;
9.1 For the sake of convenience, the parties shall be
hereinafter referred to as the original plaintiffs and the
contesting defendant No.4. The plaintiffs claim to be the
absolute owners of one immovable property being the Plot
No.11 at the Arjun Orchards situated at the village
Rancharda, District: Gandhinagar. It is the case of the
plaintiffs that the original defendant Nos.1 to 4, in
collusion with each other, trespassed into the suit property
and dispossessed the plaintiffs from the Plot No.11 Arjun
Orchards.
9.2 One Aakar Cooperative Housing Society Ltd. (for
short "the Society") came to be registered/incorporated
bearing the Registration No.GH-9856/82 under the Gujarat
Cooperative Societies Act, 1961 (for short "the Act,
1961"). The Society purchased several parcels of land
from various owners bearing the Plot Nos.486, 487, 488,
489 and 514 respectively falling within the village
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Rancharda, District: Mehsana. The Society, thereafter,
floated a scheme of plotting and construction of buildings
on such land. The Society entrusted the work of
development to M/s. Shanav Corporation (hereinafter
referred to as the "builders"). The builders constructed
the buildings in accordance with the specifications as
suggested by the Society on behalf of its members. The
Plot Nos.11 and 12 respectively (without construction of
the bungalow/superstructure) came to be allotted in
favour of one Mr. Sorab Mody and his wife Ms. Sheela
Sorab Mody (hereinafter referred to as "the previous
owners") and the possession of both the said plots, i.e,
Plot Nos.11 and 12 respectively came to be handed over
to the previous owners.
9.3 It is the case of the plaintiffs that one agreement also
came to be executed dated 30th October, 1993 between
the previous owners and the builders. One possession
receipt also came to be issued by the builders in favour of
the previous owners dated 22nd August, 1994. The Society,
thereafter, allotted a share certificate to the previous
owners. It came to be issued on 31 st March, 2002.
9.4 It is the case of the plaintiffs that the previous
owners were in peaceful and vacant possession of the Plot
Nos.11 and 12 respectively at Arjun Orchards since 1994.
No construction was put up on the said two plots.
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9.5 The plaintiffs were desirous of purchasing the Plot
No.11 admeasuring about 4757 square meters along with
the membership of the Society. Accordingly, along with
the rights of being the shareholders/allottees purchased
the same for a total sale consideration of Rs.1,34,51,512/-
(Rupees One Crore Thirty Four Lakh Fifty One Thousand
Five Hundred & Twelve Only) from the previous owners.
The previous owners, i.e, the Modys executed a sale deed
in favour of the plaintiffs dated 15 th December, 2012 which
came to be duly registered at the Serial No.8041 in the
Office of the Sub-Registrar, Kalol on the same day.
9.6 It is the case of the plaintiffs that the previous
owners handed over the peaceful and vacant possession
of Plot No.11 at the Arjun Orchards in their favour. Since
then, the plaintiffs were in peaceful and vacant possession
of the suit property without any obstruction and hindrance
or interference from any third party including the
defendants.
9.7 The plaintiffs also employed a watchman to protect
the suit property together with the Plot No.12 being
contiguous to the suit property. The plaintiffs claim that
they were regularly paying the electricity bills towards the
consumption of the power. The electricity connection is in
the names of the plaintiffs and the bills are also issued in
the names of the plaintiffs. The plaintiffs also dug a bore
well on the suit property for the supply of water. The
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plaintiffs also carried out the work of landscaping and
plantation on the suit property.
9.8 It is the case of the plaintiffs that by amalgamating
the suit property and the plot No.12, they entrusted the
work of development to a leading architect of Ahmedabad,
namely, Shri Kamal Mangaldas. The bills raised by the
architect in respect of the work undertaken are in the
name of the plaintiff No.1.
9.9 It is also the case of the plaintiffs that the Society
had also erected a bore-well on the suit property. The
plaintiffs also performed the "Khat Muhurat" ceremony.
9.10 It is the case of the plaintiffs that they were in
peaceful and vacant possession of the suit property since
15th December, 2012. The plaintiff No.2, thereafter,
purchased the adjoining Plot No.12. The plaintiffs enjoyed
uninterrupted, peaceful and continuous possession of the
suit property till 25th September, 2015.
9.11 One fine day, the engineer engaged by the plaintiffs
informed the plaintiffs that the defendants had trespassed
into the suit property with a JCB excavator and had
started putting up a wall on the boundaries between the
suit property and Plot No.12, i.e, between the Plot No.11
and Plot No.12.
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9.12 In view of the aforesaid, the plaintiffs filed a police
complaint with the Santej Police Station on 25 th
September, 2015.
9.13 It is the case of the plaintiffs that the defendant No.4
(appellant herein) forcibly took over the possession of the
land and erected a compound wall between the suit land,
i.e, Plot No.11 and Plot No.12. It is also the case of the
plaintiffs that the defendants also put up a gate and
restrained the plaintiffs from entering into the suit
property.
9.14 It is the case of the plaintiffs that the defendants
have no legal right, title or interest in the suit property.
They were, at no point of time, in possession of the suit
property. The suit property was in possession of the
previous owners since 1994 when the same came to be
allotted by the Society. The suit property came to be
purchased by the plaintiffs on 15 th December, 2012. Past
22 years from the date of the institution of the suit, the
suit property remained in possession of the Society,
thereafter, the previous owners and, in the last, in
possession of the plaintiffs since 15th December, 2012.
9.15 It is the case of the plaintiffs that the defendants,
being headstrong persons, forcibly dispossessed them
from the suit property.
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9.16 In such circumstances, referred to above, the
plaintiffs had to institute the Special Civil Suit No.58 of
2015 in the Court of the Principal Civil Judge (SD) at Kalol
with the following cause of action;
"The cause of action for the present suit has arisen
when the plaintiffs purchased the suit property vide
registered sale-deed dated 15.12.2012 and also
when the suit property was initially owned and
possessed by the society and allotted to the previous
owners in 1993 and sold by the previous owners to
the plaintiffs vide registered sale-deed 15.12.2012
and also when the defendants have illegally
trespassed upon the suit property on 25.09.2015 and
also when the plaintiffs lodged the complaint with
Santej Police Station and also when the defendants
are liable to hand over peaceful and vacant
possession of the suit property to the plaintiffs and
also when the plaintiffs are entitled to other reliefs as
prayed and also when the defendants have no right,
title or interest in the suit property or to stay or
remain in possession when the same has been
obtained by wrongful acts of trespass and forcible
dispossession of the plaintiffs."
9.17 The plaintiffs prayed for the following reliefs;
"(a) The Hon'ble Court be pleased to declare that
the plaintiffs are the absolute owners of the
immovable property being Plot No.11 (also referred
to as sub-plot No.11), admeasuring 4757 sq.mtrs
bearing Revenue Survey/Block No.487 in mouje
Rancharda, Tal. Kalol, registration district
Gandhinagar by virtue of the registered sale-deed
dated 15.12.2012 bearing registration No.8041 and
that the defendants do not have any right, title or
interest in such property.
(b) The Hon'ble Court be pleased to grant a
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mandatory order/injunction that the defendants do
demolish, dismantle and remove the wall and the
gate constructed on Plot No.11 (also referred to be
sub-plot No.11), admeasuring 4757 sq. mtrs. bearing
Revenue Survey/Block No.487 in Mouje Rancharda,
Tal. Kalol, registration district Gandhinagar and that
the defendants do further handover peaceful and
vacant possession of such property to the plaintiffs.
(c ) The Hon'ble Court be pleased to grant a
permanent injunction restraining the defendants,
their agents, servants, employees, representatives or
persons claiming through them from making any
kind of temporary or permanent construction or
development or to create any third party
rights/interest in respect of the property being plot
No.11 (also referred to as sub-plot No.11),
admeasuring 4757 sq. mtrs. bearing Revenue
Survey/Block No.487 in Mouje Rancharda, Tal. Kalol,
registration district Gandhinagar and/or from causing
any obstruction or interference in the possession of
such property of or by the plaintiffs.
(d ) Such other and further reliefs as deemed fit and
proper be granted.
(e) Costs of the suit be awarded."
9.18 It is also important for us to trace the previous
history of the suit land in question. Upto 1981, the
mutation entry in the revenue records in respect of the
land in question was in the name of one Ranchhodji
Ghabaji and Chanduji Ghabaji. This fact is not in dispute.
On 21st September, 1981, one Thakore Varsang Kanaji
purchased the land bearing Block No.487, situated at the
Village Rancharda (suit land) from Ranchhodji Ghabaji and
Chanduji Ghabaji by way of a registered sale-deed. It is
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not in dispute that the entry in respect of this document
was not mutated in the revenue records and, in such
circumstances, the names of Ranchhodji Ghabaji and
Chanduji Ghabaji continued to figure in the revenue
records. However, the factum of Thakore Varsangji
purchasing the suit land from Ranchhodji Ghabaji and
Chanduji Ghabaji is not in dispute or rather cannot be
denied.
9.19 On 8th April, 1982, the land in question came to be
converted to non-agricultural vide the permission granted
by the Competent Authority under the Bombay Land
Revenue Code. The land we are talking about is Block
No.487.
9.20 As noted above, the Society came to be registered
under the provisions of the Act, 1961 on 22 nd April, 1982.
One Special Civil Application No.564 of 1984 was filed by
Ranchhodji Ghabaji, challenging the order passed by the
Secretary (Appeals) cancelling the grant of N.A.
Permission. The N.A. Permission was cancelled by the
Secretary (Appeals) in exercise of its powers under Section
211 of the Bombay Land Revenue Code.
9.21 It appears that a memorandum of understanding was
arrived at in the form of a registered family arrangement
dated 22nd January, 1985, by which, the suit land came to
the share of Thakore Varsang Kanaji.
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9.22 Thakore Varsang sold the land on 22 nd January, 1985
by way of a registered sale-deed to the Society. The
Special Civil Application No.564 of 1984, referred to
above, came to be dismissed by this High Court upholding
the order cancelling the N.A. Permission. The order
passed by the High Court is dated 3 rd April, 1987.
9.23 On 5th November, 1988, the name of Ranchhodji
Ghabaji came to be deleted from the record of rights by
mutation of the Revenue Entry No.1107. On 28 th August,
1989, the names of Thakore Shantaben Viraji and Thakore
Shankarji Bhalaji came to be mutated in the revenue
records along with Chanduji Ghabaji as the heirs of
deceased Ranchhodji Ghabaji.
9.24 On 26th October, 1994, Chanduji Ghabaji executed a
registered sale-deed in his individual capacity as well as in
his capacity as the Karta of the HUF along with Thakore
Shantaben Viraji and Thakore Shankarji Bhalaji in favour of
the appellant herein (defendant No.4) with respect to the
very same suit land. This is how the two sale-deeds have
come on record. The first sale deed of 21 st September,
1981 in favour of Thakore Varsangji and then later in 1994
in favour of the defendant No.4, i.e, the appellant herein.
It is also pertinent to note that on 19 th January, 1995, one
Regular Civil Suit No.22 of 1995 came to be instituted by
the Society against one Girishbhai Patel apprehending that
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Girishbhai may disturb the possession of the Society. On
21st January, 1995, the Court Commissioner was appointed
and Commission was undertaken showing the possession
of the Society. On 7th October, 1999, in view of the
settlement arrived at between the parties, a consent
decree was drawn in the Regular Civil Suit No.22 of 1995.
9.25 On 31st March, 2002, the Society issued a share
certificate evidencing allotment of Plots Nos.11 and 12
respectively in favour of the Modis.
9.26 Upon service of summons to the defendants, the
defendant No.4 (appellant herein) appeared before the
Trial Court and filed his written statement at Exh.24. In the
written statement, the defendant No.4 took a stance that
he cannot be termed as a trespasser as he had been in
possession of the suit land since 1994, i.e, from the date
of purchase of the land from the original owners, namely,
Chanduji Ghabaji and heirs of Ranchhodji Ghabaji.
According to the defendant No.4, he was not a party in the
Regular Civil Suit No.22 of 1995 and, therefore, the court
commissioner's report is not binding to him in any
manner. In 1994, the name of the defendant No.4
(appellant) came to be mutated in the revenue record so
far as the Block No.487 is concerned. He took the stance
that the plaintiffs could not have instituted a vexatious
suit claiming to be the lawful owners of the suit land.
9.27 Having regard to the pleadings of the parties, the
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Trial Court framed the following issues at Exh.36;
"(1) Whether the plaintiffs prove that they are only
owner of the suit property and defendants have no
right and entitlement to make any obstruction or
hindrance to the present plaintiffs?
(2) Whether the plaintiffs prove that the wall and
gate made by Defendants in Plot No.11 are required
to be removed? Plaintiffs are also entitled to
mandatory injunction and recovery of possession?
(3) Whether the plaintiffs prove that the defendants
are not entitled/authorize to make any obstruction or
hindrance in development or construction of suit
property?
(4) Whether the Defendant No.4 proves that is the
owner and occupier of suit property vide registered
sale deed No.2310 dated 26.10.1994?
(4-A) Whether the Defendant No.4 proves that suit of
present plaintiffs is barred by principle of mis-joinder
and non-joinder of necessary parties.
(5) Whether the plaintiffs are entitled to any relief?
(6) What order and decree?"
9.28 The issues aforesaid came to be answered as under;
"(1) In the Affirmative
(2) In the Affirmative
(3) In the Affirmative
(4) In the Negative.
(4-A) In the Negative
(5) Plaintiffs are entitled to relief as claimed
for.
(6) As per final order."
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9.29 The plaintiffs adduced the following oral as well as
the documentary evidence;
"Oral Evidences:-
Sr. Description of deposition Exhibit
No.
1. Affidavit in lieu of Examination-in-chief 62
of Mr. Upendrabhai Chinubhai Shah
2. Affidavit in lieu of Examination-in-chief 97
of Mr. Nishant Upendrabhai Shah
3. Affidavit In lieu of Examination-in-chief 98
of Mr. Jayprakash Amrutlal Rao.
Documentary Evidences:-
Sr. Description of evidence Exhibit
No.
between M/s. Shanav Corporation and
the previous owners.
M/s. Shanav Corporation to the
previous owners.
certificate No.14 issued by Aakar
Cooperative Housing Society Pvt. Ltd.
plaintiffs
5. Original electricity bills of the suit 135 to 147
property
Construction Pvt. Ltd.
7. Original receipt No.16 issued by Aakar 99 to 103
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Cooperative Hosing Society Pvt. Ltd.
Kamal Mangaldas
Shri Kamal Mangaldas.
made to Shri Kamal Mangaldas by
Upendra Shah
before the Santej Police Station
2013 filed by Aakar Cooperative
Housing Society Pvt. Ltd.
SCA no.11805 of 2013
No.10780 of 2015 filed in Special Civil
Application No.11805 of 2013
No.22 of 1995 filed by the plaintiff.
commissioner's report made in
Regular Civil Suit No.22 of 1995 with
typed copy.
18. Photographs of the board installed by 159 to 160
Aakar Cooperative Housing Society
Pvt. Ltd.
19. Photographs of the suit property 161 to 179
20. Photographs of the Khat Muhurt 180 to 189
performed by the plaintiffs
21. Photographs of the illegal acts of the 190 to 202
defendants
Upendrabhai Shah
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9.30 The defendant No.1 thought fit not to contest the suit
whereas the defendant Nos.2 and 3 came to be deleted
from the cause title of the plaint during the pendency of
the suit. It is only the defendant No.4 (appellant herein)
who contested the suit and led the following oral as well
as the documentary evidence;
"Oral Evidences:-
Sr. Description of deposition Exhibit
No.
1. Affidavit in lieu of Examination-in-chief 108
of defendant no.4 Nagjibhai Maneklal
Desai
2. Affidavit in lieu of Examination-in-chief 130
of Mr. Chehraji Viraji a witness of
defendant no.4.
Documentary Evidences:-
Sr. Description of evidence Exhibit
No.
1. Certified copy of Plaint of Regular Civil 109
Suit No.123/2013
application in Regular Civil Suit
No.123/2013
injunction application in Regular Civil
Suit No.123/2013
Defendant No.4 for the suit as well as
interim injunction application in
Regular Civil Suit No.123/2013
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plaintiff under Order-1 Rule-10 of CPC
in Regular Civil Suit No.123/2013
Judge, Kalol below an application of
plaintiff under Order-1 Rule-10 of CPC
in Regular Civil Suit No.123/2013
deed of the suit prooperty.
8. Certified copy of the village form 116 to 119
no.7/12 of the suit property.
9. Revenue Receipt of the suit property 120 & 121
Court of Gujarat in Special Civil
Application No.564/1984
Application No.564/1984
No.564/1984
Court of Gujarat in Special Civil
Application No.759/1983 and
564/1984.
rights of the suit property
permission of the suit land
land
property.
land
Oral evidence on record
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9.31 The original plaintiff No.1, namely, Upendrabhai
Chinubhai Shah, Exh.62, has deposed explaining how he
derived the title to the suit property and how he came into
possession of the same upon purchase of the suit
property. His evidence explains in detail how he became
the absolute owner of the suit property purchased vide the
sale deed dated 15.12.2012 bearing the Registration
No.8041. He has also deposed about the purchase of the
Plot No.12 (also referred to as the Sub-plot No.12) vide the
registered sale deed dated 15.12.2012 bearing
Registration No.8040. In his deposition, he has stated
that it was decided that both the plots would be subjected
to a common development and that the Plot No.12
purchased by him was to be used for the construction of
the house and the Plot No.11 was to be used as the
landscaped garden in front of the house and that for the
purpose of development, he treated both the properties
as one. He has further deposed that Mr. Sorabh R. Modi
and Ms. Sheela Sorabh Modi (previous owners) remained
in vacant and peaceful possession of the suit property as
well as the Plot No.12 since 1994. The Modis did not make
any kind of construction or development except
constructing a small room for the watchman on the Plot
No.12. The Modis however obtained electricity connection
from the erstwhile Gujarat Electricity Board. He has further
deposed that he had employed a watchman for the
protection of the suit property as well as the Plot No.12.
He used to regularly pay the electricity bills. He also got a
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bore well dug for water supply and also carried out the
work of landscaping and plantation. He entrusted the
work of development of both the properties to Shri Kamal
Mangal Das, a leading architect of Ahmedabad. A Khaat
Muhurat ceremony was also performed and the
photographs were taken of the ceremony. There are
about 95 documents, in respect of which, Shri
Upendrabhai Shah offered formal proof in his affidavit.
9.32 In his cross-examination on behalf of the appellant-
defendant No.4, he has stated that the previous owners,
i.e, Modis obtained the electricity connection and as both
the plots were owned by the Modis, no separate
connection was sought for in respect of the suit property.
The suggestion was put to him that it is the appellant-
defendant No.4 who was in possession of the suit
property, however, such suggestion was categorically
denied. Nothing substantial could be elicited by the
appellant-defendant No.4 through the cross-examination
of the plaintiff No.1.
9.33 The plaintiff No.2-Nishant Upendrabhai Shah, Exh.97
has reiterated what has been stated by the plaintiff No.1-
Upendrabhai. He was cross-examined by the learned
counsel appearing for the appellant-defendant No.4.
However, nothing substantial could be elicited in his cross-
examination.
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9.34 The plaintiffs also examined one Shri Jayprakash
Amrutlal Rao, Exh.98 as their witness. Shri Jayprakash
Rao was the employee of the Aakar Cooperative Housing
Society. Jayprakash Rao has mainly deposed as regards
the proof of certain documents produced by the plaintiffs
with the list Exhs.63/28 to 63/32. These documents are
receipts issued by the Society evidencing payment of
transfer fees, land revenue and maintenance charges paid
by the plaintiffs. It appears that the plaintiffs examined
Jay Prakash Rao primarily for proving such documents. He
was cross-examined on behalf of the appellant-defendant
No.4. He outright denied the suggestion that no such
receipts were issued by the Society in respect of which he
deposed in his examination-in-chief.
9.35 The appellant-defendant No.4 Nagjibhai Maneklal
Desai, Exh.108 has examined himself by filing his affidavit
in lieu of examination-in-chief. The appellant has sought to
reproduce his written statement in such affidavit. The
appellant particularly deposed that he is the owner of the
suit property by virtue of the sale deed dated 26.10.1994
bearing the Registration No.3353. He also deposed that
he was in possession of the property since 26.10.1994.
The appellant has offered formal proof in respect of
various documents produced vide the list Exh.91 and
Exh.96 respectively.
9.36 The appellant was cross-examined on behalf of the
plaintiffs. The appellant admitted in his cross-examination
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that before purchasing the suit property vide the sale
deed dated 26.10.1994, he had not obtained any written
report of title investigation. He admitted that he had also
not issued any public notice in the newspaper before
purchasing the suit property. He has also admitted that
he had also not made any inquiry in the office of the Sub-
registrar before the sale deed was executed on
26.10.1994. The appellant has deposed that he had
applied for electric connection in 2016. When he was
asked about any documentary evidence to show whether
the compound wall and the gate were constructed in
2013, he admitted that he had no such documentary
evidence. Although he stated that he used to maintain
the books of accounts, yet he admitted that the
expenses incurred for the construction of the compound
wall and the gate are not debited in such accounts. He
admitted that he does not have any documentary
evidence to prove the payment claimed to have been
made to Shri Somabhai Desai for the construction of the
compound wall and the gate.
9.37 The appellant-defendant No.4 has examined a
witness, namely, Chehraji Visaji Thakore Exh.130. It is
important to note that in the written statement filed by
the appellant, he has not disclosed that he had entrusted
the work of agricultural operations in the suit property to
another person. The appellant does not even mention it in
his examination-in-chief. It appears that the appellant
brought the second witness only to improve his case. His
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affidavit in chief consists of only one paragraph. Chehraji
also deposed that under the instructions and supervision
of the appellant, he was doing agricultural operation in the
suit property for growing millet and juwar. During his
cross-examination, he stated that he does not have any
written instructions from the appellant for conducting such
agricultural operations in the suit property. He has stated
that he does not have any bills showing the purchase of
seeds used sowing operations in the suit property. He
has stated that he also does not have the bills for
purchase of manure, pesticide etc. He also says that he
did not keep any note of the crop taken from the suit
property and has never sowed such crop in the market.
He did not take any insurance in respect of such crop,
though he takes insurance in respect of his land at Nandoli
jointly owned with his brothers and that he is a member of
a cooperative society.
9.38 Upon appreciation of the oral as well as the
documentary evidence led by the parties to the suit, the
Trial Court arrived at the conclusion that the plaintiffs are
the true and lawful owners of the suit property and the
defendant (appellant herein) has no right, title or interest
in the suit property and is not entitled to hold the
possession of the suit land. The suit, ultimately, came to
be allowed directing the appellant herein to demolish the
wall and the gate constructed and was also permanently
injuncted from interfering in any manner so far as the suit
land is concerned.
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9.39 Being dissatisfied with the judgment and decree
passed by the Trial Court, the original defendant No.4
(appellant herein) is here before this Court with the
present appeal.
Submissions on behalf of the appellant (original
defendant No.4)
10. Mr. H.M. Parikh, the learned senior counsel has many
submissions to canvass while assailing the impugned
judgment and decree passed by the Trial Court. Few
relevant submissions put by Mr. Parikh in writing are as
under;
"ANALYSIS OF EVIDENCE OF THE PLAINTIFFS
The Plaintiffs have produced no reliable and
believable evidence qua title and possession. There
is no believable and legal evidence on the following
points:
I. That plot no. 11 is situated in Block No.487.
II. That society has entrusted the work of allotment of
the plot to Mr. Chintan Parikh(HUF) by any valid
resolution and have any contract between him.
III. That society has entrusted the work of
development of plots and to hand over possession of
plots to the proposed members, by Shanav
Corporation, by any valid resolution and any legal
contract between them.
IV. The contents of the alleged document of 1981
and 1985 are also not proved. The alleged
documents have not been referred by the Plaintiffs in
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his deposition and has proved the contents thereof.
V. The Plaintiffs have falsified their own case
mentioned in the Plaint about the existence of the
borewell and electric connection in Block No.487.
VI. Plaintiffs has supressed material document being
map attached to Exhibit 132 and thereby and
adverse inference is required to be drawn.
VII. The suppression of map which is an attachment
to the document amounts to fraud and hence the suit
of the Plaintiffs is liable to be dismissed on this
ground. (Refer AIR 2005 SC 3330, para 16 and 10-17)
VIII. Plaintiffs has failed to prove by any document of
government or semi government that the Plaintiffs
were ever in possession of Block No.487.
IX. The document produced by the Plaintiffs namely,
the bills of architect, photo of khat mahurat, bills of
electricity cannot prove the possession pertaining to
Block No.487.
X. The Plaintiffs witness has admitted that in the
documents there is no reference that the payment
was made for Plot No. 11 (Block No.487). He has
admitted that in Mark 63/33 to 36 there is no
reference of Plot no. 11. He has also admitted that in
document marked 63/2, there is no recital that in
which block plot no. 11 and 12 are situated.
XI. So far as Exh. 131 is concerned, there is no
reference to Block No.487 and there is no reference
to allotment of particular plot.
XII. Exh. 132 even does not say that plot No. 11 is
situated in Block No.487. In this document, the map
was annexed but the Plaintiffs has detached the map
from the said document and has not produced the
map though it was a part of the document. Thus, an
adverse inference is required to be drawn against the
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Plaintiffs. Even otherwise, the act on the part of the
Plaintiffs in supressing the material document and in
the present case, material part of the document itself
would amount to a fraud and hence, the whole suit is
required to be dismissed.
XIII. The Plaintiffs have not rebutted the
presumptions arising under Section 135J of the
Gujarat Land Revenue Code, 1879. (for short, 'the
L.R. Code').
Note: The reliance is placed on S. 114 of the Indian
Evidence Act. That if the document is produced by
the Plaintiffs, it would have gone against the
Plaintiffs.
Reliance is placed on the following judgements:
a. AIR 1968 SC 1413 (Para 5,6)
b. AIR 1981 SC 977 (Para 10)
Suppression of material documents and production of
non- complete documents would amount to fraud.
ANALYSIS OF EVIDENCE OF THE DEFENDANT
I. The Defendant has proved the document by which
he has become the owner in the year 1994. Even it is
the case of the Plaintiffs that the Defendant has
purchased the land bearing Block No.487 in the year
1994.
II. The revenue record produced by the Defendants
clearly suggest that the predecessor in title of the
Defendant was in possession since 1970 till 1994 and
since 1994, the Defendant No.4 is in possession of
the suit land. Reliance is placed on Section 135J of
L.R. Code.
III. The mode of cultivation of the land is a personal
cultivation. Section 2(6) of the Tenancy Act, defines
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"to cultivate personally" and it would also include if
cultivation is made by hired labourer.
Note: The contention that the DW-2 was cultivating
the land and the Defendant was not cultivating the
land, is not tenable at law. Reading the deposition of
DW-2, it is clear that he was cultivating on behalf of
the Defendant. Thus the land was cultivated by the
Defendant and the revenue record supports the fact
that the crops were grown in Block No.487. Thus, this
clearly disprove the case of the Plaintiffs that the
Plaintiffs or their predecessor in title were ever in
possession of the suit land.
IV. Under the Gujarat Land Revenue Code, Section
136, the land revenue is required to be paid by the
occupant and the Defendant has paid the land
revenue. This also proves that the land is owned and
possessed by the present Defendant.
Note: The Plaintiffs have not challenged the
documents, revenue record and the sale deed in
favour of Defendant of the year 1994 during the
Cross Examination of the Defendant.
The Plaintiffs are required to prove their title and
possession to succeed in the suit and cannot rely on
alleged weakness in the title of the Defendant. The
Defendant relies upon the following Judgments
a. TK Mohammed Abubucker through his LR vs. PSM
Ahamed Abdul Khader and Ors. AIR 2009 SC 2966
(Para 14).
b. Nagarpalika Jind Vs. Jagatsingh, Advocate reported
at 1995 (3) SCC 426 - Para - 8.
c. (2007) 6 SCC 737. (Para 13) Ramchandra
Sakharam Mahajan vs. Damodar Trimbak
Tanksale(Dead) and Ors.
d. (2014) 2 SCC 269. (Para 15 to 19) Union Bank of
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India and Ors. Vasavi Cooperative Housing Society
Limited and Ors.
e. Somnath Burman Vs. Dr. S.P. Raju & Anr. reported
at 1969 (3) SCC 129 `
2. In the above two principles as well as proving the
Cause of Action, the Plaintiffs have to prove their title
as well their possession by their own evidence
without relying upon any alleged weakness in the
evidence of the Defendant. The unchallenged
evidence that the Defendant is in possession as per
the revenue record and payment of the revenue by
the Defendant proves that the Defendant is in
peaceful possession since 1994.
CAUSE OF ACTION
1. The Plaintiffs are required to prove every facts,
which if traversed by the Defendant, to support their
right to Judgment of the Court.
2. The Defendant relies upon the following
Judgments:
a. Rajiv Modi vs Sanjay Jain and ors. reported at
(2009)13 SCC 241wherein, in para 13, 14,
15,16,17,18,19,20 and 21.
b. Alchemist Ltd. And Anr vs. State Bank of Sikkim
and Ors. reported at (2007) 11 SCC 335. (Para 20,21
and 22)
c. Kashi Nath (Dead) Through LRS. Vs. Jaganath
reported in (2003) 8 SCC 740 in para 17.
As stated herein above, the Plaintiffs has failed to
prove the material facts, constituting the cause of
action, which have been denied by the Appellant and
as the Plaintiffs has failed to prove the same the suit
is required to be dismissed.
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LEGAL TITLE OF BLOCK NO.487 (TRUE OWNER)
1. Plaintiffs don't plead in the plaint that Plot No. 11
of Arjun Orchards is situated in Block No. 487 of
Village Rancharda. The Plaintiffs cannot prove his
case which is not pleaded in the plaint and for which
there is no evidence adduced by the Plaintiffs. The
reliance is placed by the Defendant on following
Judgments:
a. Bondar Singh and others v. Nihal Singh and others
reported in AIR 2003 SC 1905 (Para 7)
b. Atta Mohammad vs. Emperor reported at AIR 1930
PC 57(2).
The case of the Plaintiffs as well as the previous
owners are to the effect that they are merely
allottees of the suit property being plot no. 11.
Exh. 131 and the Exh. 132 are executed by two
different entities and that too, without producing any
authority given on behalf of the society. The society
being a legal entity, has to act by valid Resolutions
and no Resolutions are produced by the Plaintiffs
that society has allotted plots to Mr. & Mrs. Mody or
transferred to Plaintiffs, nor it refers that plot no. 11
is situated in Block No.487.
The deposition of the Plaintiffs is not believable. The
deposition is to be tested not from the facts sated in
the Examination in Chief but it is to be tested on the
touchstone of the Cross Examination and the
Plaintiffs' witness has miserably failed to prove the
Plaintiffs' case in Cross Examination.
It will be pertinent to note that the Plaintiffs' Witness
at Exh. 98 has stated that the affidavit of
Examination in Chief of the said witness was brought
by the Plaintiffs' person and he has read it and
signed it. This suggests that the affidavit was not
prepared on his instruction, but it was prepared
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under the instructions of the Plaintiffs. He is also not
able to prove that plot no. 11 is situated in Block
No.487.
From the record, it clearly transpires that Block
No.487 is an agriculture land and there is no legal
N.A. Permission qua Block No.487.
DOCUMENT IS VOID BEING AGAINST THE
PROVISIONS OF SECTION 63 OF THE TENANCY
ACT.
1. The Plaintiffs's document is void and in the same
manner, the alleged document in favour of Mr. & Mrs.
Modi and the alleged document in favour of society
are also void documents. The Appellant relies upon
the following Judgments
a. AIR 1967 SC 651 (Para 10)
b. 2009 (2) GLR 1784 (DB) (Para11, 12, 13 and 14)
c. AIR 2020 SC 5138(Para 25)
SECTION 64A OF THE TENANCY ACT. (NOW
REPEALED) IS NOT APPLICABLE TO THE FACTS
OF THE PRESENT CASE.
1. The Society cannot take shelter under Section 64
A of the Tenancy Act (now repealed by Act 21 of
1987). The repealed provision was applicable to a
Society registered under the Bombay Cooperative
Societies Act, 1925 and not a society registered
under the Gujarat Co. Op. Societies Act, 1961. The
Plaintiffs' case is that Akar Co. Op. Housing Society
was registered in the year 1982 under the provisions
of Gujarat Co.Op. Societies Act, 1961. "Principle of
statute by Incorporation", is applicable in interpreting
Section 64 A of the Tenancy Act. The Appellant relies
upon the following judgements:
a. Ram Sarup vs. Munshi and Anr. reported in AIR
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1963 SC 553 Para 11
b. (1979) 2 SCC 529 in the case of Mahindra and
Mahindra Ltd. Vs. Union of India and Anr. (Para 8,9)
c. Bharat Co-Operative Bank (Mumbai) Ltd. Vs
Cooperative Bank Employees Union reported at AIR
2007 SC 2320 (Para 14,15,16,17,18,19)
d. Prabhashankar Shankarlal Joshi and Ors. vs.
Fulsinhji Kesharisinhji Parmar reported at 1984 GLH
662 (F.B.) (Para 7,8,11 and 12)
PLAINTIFFS ARE MERELY ALLEGED ALLOTTEES
AND NOT TRUE OWNER OF BLOCK NO.487
i. The Plaintiffs have no title also on the ground that
in a Co. Op. Housing Society, the concept of dual
ownership would be applicable, and, in that case,
ownership of the land remains with the Society and
allottee has mere right for the enjoyment for the
same.
ii. The Appellant relies upon the Full Bench Judgment
in the case of Mulshanker Kunverji Gor and Others
Vs. Juvansinhji Shivubha Jadeja reported at AIR 1980
GUJARAT 62.
POSSESSION OF THE SUIT PROPERTY - BLOCK
In the present case, the Plaintiffs have measurably
failed in proving their possession over the land
bearing Block No. 487. Even the Ld. Trial Judge has
found on appreciation of the evidence that on page
No. 49 as under:
"It is very difficult to come to the conclusion that on
the basis of the oral evidence, the Plaintiffs were
having possession of Plot No. 11."
It will be pertinent to note that the Defendant has
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produced revenue record of the Suit property vide
Exh. 116 to 119 on Page No. 176 to 182. The said
revenue record is from the year 1977-78 till 2004-
2005. In the said revenue record, upto year 1994,
the name of Chanduji Ghabhalji and Ranchhodji
Ghabhalji or his heirs are shown occupants and as
cultivators and agriculture crop have been taken
from the land bearing Block No.487 and it was
mentioned as personal cultivation as it is shown as
mode of cultivation as 1, which is a personal
cultivation. From the year 1994-95 onwards, the
name of the present Appellant - Defendant has been
shown as an occupant and as cultivator and
cultivation is of agriculture produce and that is also
mode of cultivation is shown as No.1 that is a
personal cultivation. It will be pertinent to note that
vide Exh. 126 on Page No. 235 (typed Page No. 237),
an entry has produced being Entry No. 3353 which is
mutated in the name of the present Appellant -
original Defendant. It will be pertinent to note that
vide Exh. 120 - 121, Page No. 183, there is
documentary evidence suggesting that land revenue
has been paid by the present Appellant in the year
2006.
All these documents being revenue record have
presumptive value under Section 135J of the Gujarat
Land Revenue Code and, under Section 35 of the
Evidence Act, 1872.
It will be pertinent to note that the Plaintiffs have not
rebutted the presumption which are statutory
presumptions.
The Appellant relies upon the following judgments to
support this contention:
a. Pratap Singh (Dead) Through Legal
Representatives & ors. Vs. Shiv Ram (Dead) Through
Legal Representatives reported at (2020) 11 SCC 242
- Para 10 & 26.
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b. M.T.W. Tenzing Namgyal &^ Ors. Vs. Motilal
Lakhotia & Ors. reported at (2003) 5 SCC 1. Paras -
27, 33 and 35.
c. Narasamma and Ors vs. State of Karnataka and
Ors. reported at (2009) 5 SCC 591 Para - 27, 28.
THE DOCUMENT AT EXHIBIT 205, 206, 207 and
208 CANNOT BE RELIED UPON. (CONTENTS OF
THE DOCUMENT NOT PROVED)
It will be pertinent to note that the above referred
document are the xerox copy of the original
document (pg. 23 of the impugned judgement).
Hence, they are not the original document.
The said documents have not been referred to by the
Plaintiffs witnesses during the examination-in-chief. If
the Rojkam is perused, it will be clear that the said
documents have been exhibited without proving the
contents of the said documents by the Plaintiffs and
after the evidence of both the parties were over. The
said documents were exhibited without following any
procedure prescribed under the law. Even looking to
the Rojkam, it clearly transpires that there is
interpolation to add their exhibits. Thus, the said
documents cannot be considered in evidence.
Even if it is assumed that the court has Exhibited the
said documents, the contents of the said documents
have not been proved by the Plaintiffs.
The Appellant relies upon the case of Narbada Devi
Gupta vs. Birendra Kumar Jaiswal and Anr. Reported
at (2003) 8 SCC 745 (Para 14,15,16).
ADMISSION OF THE CASE OF THE APPELLANT/
DEFENDANT BY THE PLANTIFF
The Plaintiffs are required to prove their version to
the Defendant No. 4 as well as to Cross examined
the Defendant No.4 on all material facts which has
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been pleaded and deposed by the Defendant No. 4.
Looking to the Cross Examination of the Defendant
No. 4, the Plaintiffs have not cross examined the
Defendant on any material fact stated by the
Defendant No. 4 as well as the Plaintiffs have not put
their case to Defendant No. 4 during the Cross
Examination. Thus, the Plaintiffs have accepted the
evidence of the Defendant No. 4 and thereby
Plaintiffs have accepted the title and possession of
the Defendant No. 4 since 1994.
The Defendant relies upon the judgements of:
a. Sarwan Singh vs. State of Punjab reported at AIR
2002 SC 3652 (Para 8)
b. A.E.G. Carapiet vs. A.Y. Derderia reported at AIR
1961 Calcutta 359.(Para 10)
c. Anita Sharma and Ors. vs New India Assurance
Company Ltd. And Anr reported at (2021) 1 SCC 171.
(Para 18,19,20)
MAINTAINABILITY OF THE SUIT
During the evidence, it has come on the record that
the society has filed the suit Regular Civil Suit 123 of
2013 (Exh. 109, pg. 104) against the present
Defendant and others for Block No.487 claiming to
be the owner and in possession of the Block No.487
and for injunction. Even in the said plaint, Society
does not say that plot no. 11 is situated in Block
No.487. It is not contented that plot no. 11 is
transferred to the Plaintiffs in the year 2012. In the
said suit, the society has to prove his legal ownership
on Block No.487. The Plaintiffs cannot be the true
owner of the land and hence the alleged true owner
being the society has to prove its title in the above
referred suit against the Defendant. Hence, till the
said suit is not decided, the Plaintiffs cannot prove
his title and the present suit is not maintainable at
law.
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NON-JOINDER OF NECESSARY PARTIES
It will be necessary on the part of the Plaintiffs to
prove the title of Varsangji, Akar Society and Mr. and
Mrs. Mody from whom they claim the title. In
absence of them, being necessary party, the suit is
required to be dismissed.
THE STATUS OF DEFENDANT
As stated herein above in the present suit, the title of
the present Defendant is not in issue for granting any
relief to the Plaintiffs. The Defendant cannot be
termed as a trespasser as there is an unchallenged
proof of revenue record that the Defendant is in
possession of the said suit land since 1994 i.e. from
the date of purchase of the land from the original
owners of the land, namely Chanduji and heirs of
Ranchodji as per revenue record. He is enjoying the
land as an owner since 1994. The Regular Civil Suit
no. 22 of 1995 filed by the society not against the
Defendant. In 1994, in the revenue record the name
of the present Defendant was mutated qua Block
No.487. As per Section 135 H of the L.R. Code, copy
of revenue record is required to be placed along with
the plaint and hence, when the suit was filed in the
year 1995, the society had knowledge that the
present Appellant is in possession which has been
reflected in the revenue record. The revenue
proceedings were already started but the Defendant
was not added as a party in the said suit of 1995.
The document of the Defendant was not challenged
by the society even till today i.e. in the suit of 1995
or in the suit of 2013 or in the present suit. Thus, the
Defendant cannot be termed as a trespasser. The
Defendant is in possession of Block No.487 in his own
right as an owner.
Even otherwise, the Plaintiffs should not be obsessed
with the word trespasser. The legislature as well as
the law laid down by the Hon'ble Supreme Court has
given certain rights to the trespassers such as,
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I. Possession of a trespasser is a good title against
the whole world except the true owner.
II. In view of Section 27 of the Limitation Act, 1963, if
the true owner file the suit after 12 years, his rights
are extinguished to that property and possessor
becomes owner of the property.
III. Even a trespasser who is in settled possession
cannot be evicted without following due process of
law.
IV. And other rights available under the various
statutes i.e., the Specific Relief Act.
V. Even such other rights are also given by the State
statutes to person in possession.
JUDGEMENT OF THE TRIAL COURT
The Judgement of the trial court is based on a point
which is not relevant for deciding the suit of the
Plaintiffs. As stated herein above, it is the Plaintiffs
who must prove his title and possession of the suit
property. In the present suit the question of deciding
the title of the Defendant is not material at all.
The Trial Court has committed material error in
observing that some of the facts are not disputed by
the Defendant No. 4. This statement is incorrect and
hence, the reasoning adopted by the Trial Court
based on the incorrect statement of facts is a
perverse decision. In fact, in para 40, 41 & 42, the
Trial Court has stated that undisputed fact but in
fact, those facts are disputed facts and hence, the
appreciation made by the Trial Court is completely
erroneous.
The Trial Court once came to the conclusion that by
way of oral evidence as well as documentary
evidence, the Plaintiffs have failed to prove their
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possession but, thereafter, an irrelevant point is
decided being the title of the Defendant in the
present suit and came to the conclusion that the title
of the Defendant is not perfect. It will be pertinent to
note that title of the Defendant was never challenged
by the Plaintiffs. It will be also pertinent to note that
so far the deposition of the Defendant about the title
of Defendant coupled with the document of 1994,
have not been assailed by the Plaintiffs during the
Cross Examination and thereby, the Plaintiffs have
admitted the title and possession of the present
Defendant over the suit property.
The Trial Court was required to consider twin
requirement to be proved by the Plaintiffs viz.:
1. Being a true and legal owner and
2. Actual physical possession.
If any requirement is not proved, the Plaintiffs' suit is
liable to be dismissed.
1. The reliance placed on the alleged report of the
Court Commissioner, which was alleged to have been
made in a suit being Regular Civil Suit No. 22 of
1995, wherein the present Appellant is not a party.
The said report cannot be relied upon against the
present Appellant in view of O.26, R.18 of Code of
Civil Procedure, 1908. The reliance is placed on
following Judgments
a. Rani Aloka Dudhoria and Ors vs. Goutam Dudhoria
and Ors. reported at AIR 2010 SC 53 at (Para 94 and
95)
b. Pedda Seetharamappa and Ors vs. Pedda Appaiah
reported in AIR 1962 AP 84 at (Para11,12 and 14).
2. The contention that there is a recital in the
document that the possession has been handed over
to the purchaser cannot be relied upon as those
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documents have no presumptive value. On the
contrary, it is the case of the Plaintiffs that the
Appellant is in possession on the date of the filing of
the suit. Under the circumstances, it was the duty on
the part of the Plaintiffs to prove that the Plaintiffs
were in possession of the suit property. It will be
pertinent to note that the Plaintiffs has not produced
any reliable documentary evidence that they were
ever in possession of the suit property being Block
No.487. Since 1981 till the day of filing of the suit,
their name has not been mutated in the revenue
record. That is to say for nearly 34 years. The
Plaintiffs has not produced any document to show
that since 1981 onwards till the date of fling of the
suit, the Plaintiffs or their predecessor in title have
paid any revenue for Block No.487. on the contrary
the case of the Plaintiffs has been falsified that there
was a borewell in Block No.487, Plot No. 11 or there
was any electric connection in the suit land. Thus,
the attempts on the part of the Plaintiffs to create
the evidence mentioned in the plaint has failed and
under the circumstances, merely because there is a
recital in the documents that seller has handed over
the possession to the purchaser cannot be believed.
On the other hand, the possession of the Defendant
is accepted by the Plaintiffs coupled with the revenue
record which has presumptive value that the
Defendant and their predecessor in title were in
continuous possession since 1970 and their
possession were never disturbed by anybody
including the Plaintiffs or their predecessor in title.
The revenue of the land was paid by the Defendant.
The agriculture produce is taken out of the land and
thus the trial court has rightly come to the conclusion
that the Plaintiffs have failed to prove their
possession.
Reliance placed on the judgement reported at 1977
(18) GLR 700, wherein a society registered under the
Bombay Co-operative Societies Act (Para 2) and
hence the said judgement is not applicable to the
said fact of the case. In the same manner judgement
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reported at 2004 (1) GLR 387, from the judgement, it
is not established that the society was registered
under the Gujarat Co-operative Societies and hence
ratio laid down in the said judgements is not
applicable to the facts of the judgement. Even
otherwise the principles regarding statutes of
incorporation were not under consideration in the
said judgement and hence also the said judgement is
also not applicable in facts of the present case.
Confirming the judgment of the Trial Court would
amount to confirming the ownership of Block No. 487
in favour of Plaintiff which would be against the
document produced by the Plaintiff at Exhibit. 131
and 132. It would amount to confirming the title of
Block No. 487, though nowhere from the document
produced by the Plaintiff suggest that Plot No. 11 is
in fact Block No. 487. "
11. In such circumstances, referred to above, Mr. Parikh
prays that there being merit in his appeal, the same may
be allowed and the judgment and order passed by the
Trial Court be set aside. He prays that the suit filed by the
plaintiffs may be ordered to be dismissed.
Submissions on behalf of the plaintiffs:-
12. Mr. S.N. Soparkar, the learned senior counsel
assisted by Mr. Umesh Shukla and Mr. Manav Mehta, the
learned counsel appearing for the plaintiffs has
vehemently opposed the present appeal submitting that
no error, not to speak of any error of law, could be said to
have been committed by the Trial Court in allowing the
suit and passing appropriate decree in terms of the reliefs
prayed for in the plaint. The first submission of Mr.
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Soparkar is that a person cannot acquire a better title than
his predecessor. Mr. Soparkar submitted that the plaintiffs/
respondents are the owners of immovable property
bearing plot No.11 (also referred to as sub-plot no.11)
admeasuring 4757 sq. mtrs. Bearing Revenue
Survey/Block No.487 in Mouje Rancharda, Taluka: Kalol,
District: Gandhinagar by virtue of the registered sale-deed
dated 15th December, 2012 bearing Registration No.8041
(Exh.134 Pg.296-313). It is submitted that the plaintiffs
purchased the same from Sorab R. Mody and Sheela
Sorab Mody. They were the original allottees of such plot
from Aakar Cooperative Housing Society Ltd. Such
allotment was made pursuant to the agreement made on
30th October, 1993 (Exh.131 Pg. 241-288) and the
possession receipt also came to be executed on 22 nd
August, 1994 (Exh.132 Pg. 280-293).
13. Mr. Soparkar submitted that the husband of plaintiff
No.1, namely, Upendra Chinubhai Shah purchased the
adjacent and contiguous Plot No.12 (also referred to as
sub-plot No.12) by registered sale-deed dated 15 th
December, 2012 bearing Registration No.8040 (Exh.203
Pg. 446-466). They amalgamated both the properties, i.e.,
the suit property and Plot No.12 and decided to develop
the entire property by entrusting the work to a leading
and well renowned Architect of Ahmedabad viz. Shri
Kamal Mangaldas. The plaintiffs/respondents were in
peaceful and vacant possession of the suit property from
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15th December, 2012. He further submitted that however
on 25th September, 2015, the engineer employed by the
plaintiffs/respondents noticed that the
defendant/appellant had barged into the suit property with
a JCB excavator and started constructing the wall on the
boundary between the suit property and Plot No.12. The
plaintiffs/respondents immediately filed a police
complaint (Exh.153 Pg.333-335). However, illegal
encroachment did not stop and the construction of the
wall between the suit property and Plot No.12 was
completed. In this way, the plaintiffs/respondents were
unlawfully dispossessed.
14. Mr. Soparkar would submit that during the pendency
of the suit, the plaintiffs/respondents filed an application
for interim mandatory injunction. Such application was
granted and the order was affirmed by the High Court.
However, the Supreme Court appointed a receiver with
directions to the defendant/appellant to handover the
possession of the suit property to the receiver and further
directed expeditious hearing of the suit. He further
submitted that the plaintiffs examined three witnesses viz.
Shri Upendra C. Shah, the plaintiff No.2 and Shri
Jayprakash Rao. The defendant No.4/appellant examined
two witnesses, i.e, himself and one Chehraji Visaji
Thakore. Mr. Soparkar further submitted that the
defendant No.4/appellant claims to be the owner of the
suit property by virtue of the sale-deed dated 26 th
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October, 1994. He claims to have purchased the same
from Thakore Chanduji Ghabhaji, Thakore Shantaben Viraji
and Thakore Shankaraji Sulaji. He also claims to be in
possession of the suit property since such sale-deed was
executed.
15. Mr. Soparkar submitted that in a suit involving
dispute as to the title and possession, it is first necessary
to see who the owners of the suit property are. There is no
dispute between the parties that the suit proeprty
originally belonged to Ranchhodbhai Ghabaji and Chanduji
Ghabaji. They sold the suit property to Varsangji Kanaji
and executed a sale-deed on 21st September, 1981 duly
registered at the Serial No.100 (Exh.206) in the office of
the Sub-registrar and handed over the possession of the
suit property to him. Varsangji Kanaji obtained N.A.
permission vide order dated 8th April, 1982 (Exh.205).
Thereafter, there was a partition in the family of Varsangji
Kanaji by a registered deed of partition on 22 nd January,
1985 (Exh.207) and the same came to be registered at the
Serial No.126 in the office of the Sub-Registrar and on the
same day Varsangji Kanaji sold the suit property by a
registered sale-deed to Aakar Cooperative Housing Society
Ltd. bearing Registration No.128 (Exh.208).
16. Mr. Sopakar also submitted that the said Aakar
Cooperative Housing Society Ltd., along with other
societies, promoted a scheme known as "Arjun Orchards"
and plotted the property purchased by them. They allotted
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Plot Nos.11 and 12 respectively to Sorab Mody and Sheela
Mody, pursuant to the agreement dated 30 th October,
1993 (Exh.131). This sub-plot No.11 is the very same
property bearing Block No.487 purchased from Varsangji
Kanaji in 1985. One possession receipt was also executed
on 22nd August, 1994 (Exh.132). Since then, Sorab Mody
and Sheela Mody were in possession of the suit property.
17. Mr. Soparkar further submitted that the claim of the
appellant to the ownership of the suit property rests on
the sale-deed made on 26th October, 1994 (Exh.113). Such
sale deed was executed by Thakore Chanduji Ghabaji,
Thakore Shantaben Viraji and Thakore Shankarji Sulaji in
favour of the appellant with certain confirming parties.
Such sale deed is also in respect of the suit property
bearing Block No.487.
18. Mr. Soparkar submitted that the appellant's claim to
ownership on the basis of such sale-deed is patently false
and absurd. The vendors or the confirming parties did not
have any right, title or interest in the suit property on the
day of the sale. More than 13 years before the sale, the
suit property was sold to Varsangji Kanaji by a registered
sale-deed on 21st September, 1981 bearing Registration
No.1004 (Exh.206). Such sale was made by Thakore
Ranchhodji Ghabaji and Thakore Chanduji Ghabaji in
favour of Thakore Varsangji Kanaji. When they had already
sold the said property by such sale-deed made in 1981,
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they or one of them could not have resold the very same
property to the defendant/appellant by a sale-deed dated
26th October, 1994. The well known Maxim/Doctrine that a
person cannot convey a better title than he himself has
(Nemo dat quod non habet), is squarely applicable to the
facts of the present case. When the vendors did not have
any ownership rights, the purported sale-deed dated 26 th
October, 1994 does not convey any ownership rights to
the defendant No.4. He further submitted that moreover
neither Takore Chanduji Ghabaji nor anybody else
challenged or questioned the registered sale-deed dated
21st September, 1981 bearing Registration No.1004
(Exh.206) or the sale deed of 22nd January, 1985 (Exh.208)
at any stage. The appellant now cannot claim ownership in
such circumstances.
19. The second limb of Mr. Soparkar's submissions is on
the principle of law that possession follows title. In this
regard he submitted that since the plaintiffs title to the
suit property is clearly established through the sale-deeds
from 1981 onwards, the appellant is not entitled to
question or challenge the plaintiffs title. The possession
usually follows title and more particularly in the case of a
vacant piece of land. He further submitted that the
appellant claims to be in possession of the suit property
since 1994. Such claim is only based upon the sale-deed.
Once such sale-deed is shown to be illegal and void and
not conferring any title to the appellant, his claim of
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possession automatically falls through. The appellant has
not asserted possession of the suit property independently
of his claim of ownership. He submitted that however,
even the claim for possession put forward by the
appellant, when looked into in the light of the evidence on
record, the same fails. The plaintiffs have produced
cogent and reliable evidence of possession. Such evidence
is broadly described hereunder;
A) Sale-deed (Exh.131)
B) Possession Receipt (Exh.132)
C) Share Certificate (Exh.133 )
D) Receipts issued by Aakar Cooperative Housing
Society Ltd., (Exhs.99-103)
E) Copy of the complaint (Exh.153)
F) Payment to architect (Exh.151)
G) Electricity bills and payments (Exhs.135-147)
H) Commissioner's report (Exh.138)
I) Photographs of the suit property on various occasions
like Khat Muhurat ceremony (Exhs.159-202)
20. Mr. Soparkar further submitted that the appellant has
also made an attempt to confuse the issues by referring to
certain proceedings instituted by the Aakar Cooperative
Housing Society Ltd or the Commissioner's report made
therein. All such proceedings are filed on the premise that
the Aakar Cooperative Housing Society Ltd. Is the owner of
the suit property and has allotted two Plots Nos.11 and 12
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respectively to Sorab Mody and Sheela Mody. Aakar
Society has also filed a writ petition taking the same
stand. Therefore, none of the proceedings, civil or
revenue or writ, initiated by Aakar Society, in any manner
contradicts the plaintiffs' case that the suit property was
allotted to Sorab Mody and Sheela Mody. None of such
documents are, therefore, helpful to the appellant. He also
submitted that the appellant claims to have obtained an
electric connection in the suit property in 2016. Such
illegal act does not help the appellant since the appellant
forcibly entered into the suit premises in the month of
September, 2015 and any act done during the pendency
of the proceedings cannot create any equity in his favour
nor can it become a relevant piece of evidence in his
favour. Mr. Soparkar seeks to rely on the judgment in the
case of Navalram Laxmidas Devmurari vs. Vijayaben
Jayvantbhai Chavda reported in 1997 (2) GLR 1755.
21. Mr. Soparkar submitted that one of the witnesses of
the appellant has claimed that he was undertaking the
agricultural operations in the suit property. Such evidence
is utterly unreliable for the following reasons;
I) There is no documentary evidence to support his
claim. Neither the purchase of the seeds nor the use of
fertilizer nor sharing of crops or the instructions from the
appellant is supported by any documents. This is
something vital and falsifies the oral evidence.
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II) The witness has other agricultural lands at Nandoli on
which he takes crop insurance. No such insurance is taken
for the suit property.
III) The claim of harvesting monsoon crop is not
believable. The suit was filed in September, 2015 and the
Commissioner's report reveals that no crops were noticed
at the time of commission.
(IV) The appellant, in his evidence, does not say that he
had arrangements with Chehraji for carrying out the
agricultural operations or that the suit property was used
for agricultural operations.
V) There is neither electricity nor water available in the
suit property.
VI) The witness admits that the property is situated in
Arjun Farms, Phase-II.
VII) Non-agricultural conversion was already granted in
1982. (Exh.205)
VIII) He is unaware of the transactions between
Ranchhodji Ghabaji and Chaduji Ghabaji on one hand, and
Varsangji Kanaji on the other. However, he knows all of
them as they are/were of the nearby village.
IX) The evidence of electricity connection in the name of
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Sorab Mody and Sheela Mody, photographs and the
documents of Aakar Society are clearly inconsistent with
such oral testimony. In case of conflict between the oral
and documentary evidence, more weight is required to be
given to the documentary evidence.
X) This witness has claimed something that even the
appellant has not claimed. The appellant has never
claimed that he had permitted Thakore Cheraji Visaji to
undertake agricultural operations on the suit property in
the present suit. The appellant has produced his written
statement in the Regular Civil Suit No.123/2013 at
Exh.112 of the present proceedings. No such claim has
been made by the defendant No.4 even in such written
statement. Similarly, the defendant No.4 has not talked
about shed (Ordi) in the Written Statement that Thakore
Cheraji Visaji has claimed on the existing property.
XI) The plaintiffs have examined independent witness
Jayprakash Rao. He was the office bearer of the society.
He has confirmed and proved the payments made by the
plaintiffs to the society at the time of purchase in 2012.
He confirms the ownership of the plaintiffs in the light of
the registered sale-deed.
XII) In view of the above, the appellant is liable to
handover peaceful and vacant possession of the suit
property to the plaintiffs.
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22. The third limb of Mr. Soparkar's submissions is that
the revenue entries do not prove ownership or possession.
In this regard he would submit that the appellant has
attempted to confuse the whole issue by referring to the
various revenue proceedings. While it is true that the
revenue records do not reflect the sale-deeds made in
favour of Varsangji Kanaji in 1981 or in favour of Aakar
Cooperative Housing Society Ltd. In 1985,. or in favour of
the plaintiffs/respondents in 2012, however, the revenue
entries are not conclusive. They are recorded only for
fiscal purpose. They cannot determine the questions of
title involved in the present proceedings. They cannot
override the registered sale-deeds in favour of Varsangji
Kanaji, Aakar Cooperative Housing Society Ltd and the
plaintiffs respectively. For this, Mr. Soparkar seeks to rely
on the judgments in Kureshi Hussainbhai Motibhai vs.
Saiyed Sidar Kesharbhai 1985 (1) GLR 139, Gandabhai
Dalpatbhai Patel vs. State of Gujarat & Ors. 2005 (2) GLR
1370 and Atla Sidda Reddy vs. Busi Subbha Reddy & ors.,
2010 (6) SCC 666.
23. Mr. Soparkar further submitted that Section 64A of
the Gujarat Tenancy & Agricultural Lands Act, 1948
protects purchase/sale of an agricultural land by a
Cooperative Society. In this regard he would submit that
section 64A of the Gujarat Tenancy & Agricultural Lands
Act, 1948 which was in force at the relevant time, clearly
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provides that Sections 63 and 64 respectively would not
apply to the transactions effected either by a Cooperative
Society or in favour of a Cooperative Society constituted
under the Cooperative Societies Act, 1925. Hence, the
purchase by Aakar Cooperative Housing Society vide
registered sale deed dated 22nd January, 1985 was
protected from invalidation under Sections 63 and 64
respectively of the Gujarat Tenancy & Agricultural Lands
Act, 1948.
24. Mr. Soparkar submitted that a transaction of sale by
an agriculturist of agricultural land to a non-agriculturist is
not void but only invalid. In this regard, he submitted that
the appellant has also attempted to confuse the issue by
referring to the cancellation of non-agricultural
permission. However, such cancellation is the subject
matter of the litigation and the same issue is at present
pending. No final decision has yet been arrived at. It also
does not result into automatic cancellation of the sale
deeds of 1981 or 1985 or 2012 respectively in favour of
the plaintiffs. He further submitted that without prejudice
to the aforesaid, this Court has held the transactions
under Section 63 are not void but are invalid and that they
are to be treated as valid till they are invalidated
(declared invalid) by an appropriate forum. A transaction
under Section 63(1)(c) is like a transaction under Section
63(10)(a) or (b) and is only 'invalid' and not 'void'. The
transaction in question has not been declared to be invalid
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by any authority and even assuming for the sake of
argument that it is covered by Section 63(1)(c), it still has
to be treated as valid because it has not been declared
invalid.
Final Analysis
25. Having heard the learned counsel appearing for the
parties and having gone through the materials on record,
the only question that falls for our consideration is
whether the Trial Court committed any error in passing
the impugned judgment and decree?
Principles of law governing the rights of the parties
having regard to the subject matter of the suit
26. Mr. Soparkar, the learned senior counsel appearing
for the original plaintiffs vehemently submitted that how
can a rank trespasser dictate terms to the lawful owners of
the property. He would submit that this is a unique case
wherein a rank trespasser is asking the plaintiffs to
establish their title over the suit property.
27. On the other hand Mr. Parikh, the learned senior
counsel appearing for the appellant-defendant would
submit that assuming for the moment without admitting
that his client is a rank trespasser, in a suit for declaration
of title, if the plaintiffs are to succeed, they must do so on
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the strength of their own title. The onus to prove title to
the property in question was on the plaintiffs. He would
submit that in a suit for ejectment based on title, it was
incumbent on the part of the Trial Court to first record a
finding on the claim of title to the suit land made on behalf
of the plaintiffs. Mr. Parikh very boldly submitted that
even if the title set up by his client on the strength of the
sale deed of 1994 is doubtful or his client has not been in
a position to establish lawful title over the suit property, in
the absence of establishment by the plaintiffs of their own
title, the plaintiffs must be non-suited.
28. Keeping the aforesaid in mind, we proceed to discuss
the position of law.
29. The Supreme Court in the Union of India & Ors.
vs. Vasavi Cooperative Housing Society Ltd. & Ors.,
reported in (2014) 2 SCC 269, has observed as under;
"16. The High Court, we notice, has taken the view
that once the evidence is let in by both the parties,
the question of burden of proof pales into
insignificance and the evidence let in by both the
parties is required to be appreciated by the court in
order to record its findings in respect of each of the
issues that may ultimately determine the fate of the
suit. The High Court has also proceeded on the basis
that initial burden would always be upon the plaintiff
to establish its case but if the evidence let in by
defendants in support of their case probabalises the
case set up by the plaintiff, such evidence cannot be
ignored and kept out of consideration.
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17. At the outset, let us examine the legal position
with regard to whom the burden of proof lies in a suit
for declaration of title and possession. This Court in
Maran Mar Basselios Catholicos v. Thukalan Paulo
Avira reported in AIR1959 SC 31 observed that
"in a suit for declaration if the plaintiffs are to
succeed, they must do so on the strength of their
own title."
18. In Nagar Palika, Jind v. Jagat Singh, Advocate
(1995) 3 SCC 426, this Court held as under:
"The onus to prove title to the property in question
was on the plaintiff. In a suit for ejectment based on
title it was incumbent on the part of the court of
appeal first to record a finding on the claim of title to
the suit land made on behalf of the plaintiff. The
court is bound to enquire or investigate that question
first before going into any other question that may
arise in a suit."
19. The legal position, therefore, is clear that
the plaintiff in a suit for declaration of title and
possession could succeed only on the strength
of its own title and that could be done only by
adducing sufficient evidence to discharge the
onus on it, irrespective of the question
whether the defendants have proved their case
or not. We are of the view that even if the title
set up by the defendants is found against, in
the absence of establishment of plaintiff's own
title, plaintiff must be non-suited."
30. Thus, the Supreme Court, as above, made itself very
clear that the plaintiff in a suit for declaration of title and
possession could succeed only on the strength of his own
title and for that the plaintiff has to adduce sufficient
evidence to discharge the onus on it irrespective of the
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fact whether the defendant has proved his case or not.
Even if the title set up by the defendant is found against
him, in the absence of establishment of the plaintiff's own
title, the plaintiff must be non-suited.
31. In view of the settled position of law as above, there
is nothing unusual in the principal contention of Mr. Parikh,
the learned senior counsel raised on behalf of the
appellant. Mr. Parikh is right to that extent.
32. However, the matter does not come to an end with
the aforesaid. Whether a civil or a criminal case, the anvil
for testing of 'proved', 'disproved' and 'not proved', as
defined in Section 3 of the Indian Evidence Act, 1872 is
one and the same. A fact is said to be 'proved' when, if
considering the matters before it, the Court either believes
it to exist, or considers its existence so probable that a
prudent man ought, under the circumstances of a
particular case, to act upon the supposition that it exists.
It is the evaluation of the result drawn by applicability of
the rule, which makes the difference. "The probative
effects of evidence in civil and criminal cases are not
however always the same and it has been laid down that a
fact may be regarded as proved for purposes of a civil
suit, though the evidence may not be considered sufficient
for a conviction in a criminal case. BEST says : There is a
strong and marked difference as to the effect of evidence
in civil and criminal proceedings. In the former a mere
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preponderance of probability, due regard being had to the
burden of proof, is a sufficient basis of decision: but in the
latter, especially when the offence charged amounts to
treason or felony, a much higher degree of assurance is
required. (BEST, S. 95). While civil cases may be proved
by a mere preponderance of evidence, in criminal cases
the prosecution must prove the charge beyond reasonable
doubt." (See Sarkar on Evidence, 15th Edition, pp.58-59)
In the words of Denning LJ (Bater Vs. B, 1950, 2 All ER
458,459) "It is true that by our law there is a higher
standard of proof in criminal cases then in civil cases, but
this is subject to the qualification that there is no absolute
standard in either case. In criminal cases the charge must
be proved beyond reasonable doubt, but there may be
degrees of proof within that standard. So also in civil cases
there may be degrees of probability." Agreeing with this
statement of law, Hodson, LJ said "Just as in civil cases the
balance of probability may be more readily fitted in one
case than in another, so in criminal cases proof beyond
reasonable doubt may more readily be attained in some
cases than in others." (Hornal V. Neuberger P. Ltd., 1956 3
All ER 970, 977) [See R.V.E. Venkatachala Gounder vs.
Arulmigu Viswesaraswami & V.P. Temple & Anr., Appeal
(Civil) No.10585 1996, decided on 08.10.2003 (SC)]
33. In a suit for recovery of possession based on title it is
for the plaintiff to prove his title and satisfy the Court that
he, in law, is entitled to dispossess the defendant from his
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possession over the suit property and for the possession
to be restored with him. However, as held in A.
Raghavamma & Anr. Vs. Chenchamma & Anr., AIR
1964 SC 136, there is an essential distinction between
burden of proof and onus of proof: burden of proof lies
upon a person who has to prove the fact and which never
shifts. Onus of proof shifts. Such a shifting of onus is a
continuous process in the evaluation of evidence. In
our opinion, in a suit for possession based on title
once the plaintiff has been able to create a high
degree of probability so as to shift the onus on the
defendant it is for the defendant to discharge his
onus and in the absence thereof the burden of
proof lying on the plaintiff shall be held to have
been discharged so as to amount to proof of the
plaintiff's title.
34. In the case on hand, the Trial Court, upon evaluation
of the oral as well as the documentary evidence has
recorded a categorical finding that the plaintiffs have been
able to establish their lawful title over the suit property
and the appellant-defendant could be said to be a
trespasser. At this stage, it is relevant to state that in any
circumstances, the appellant-defendant can rely upon the
sale deed dated 26.10.1994 Exh.115 through which he is
said to have purchased the suit property. We are saying
so because there is already a sale deed with respect to
the suit property of 1981 Exh.206 and not challenged by
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the appellant-defendant in any manner.
35. The plaintiffs, on the other hand, have produced few
relevant documents including the sale deed in their favour
executed by the Modis. The plaintiffs have established, by
leading cogent evidence, how the Modis acquired the plot
from the Aakar Cooperative Society. The original
allotment of the plot in favour of the Modis was by the
Society pursuant to the agreement dated 30.10.1993
Exh.131 and the possession receipt dated 22.08.1994
(Exh.132).
36. We are not impressed by the submission of Mr.
Parikh that the plaintiffs have not been able to produce
any deed of title with respect to the suit property directly
lending support to their claim for title. Being a civil case,
the plaintiffs cannot be expected to prove their title
beyond any reasonable doubt; a high degree of probability
lending assurance of the availability of title with them
would be enough to shift the onus on the appellant-
defendant and if the appellant-defendant does not
succeed in shifting back the onus, the burden of proof on
the plaintiff's can safely be deemed to have been
discharged. Having regard to the evidence led by the
plaintiffs, oral as well as the documentary, we have no
hesitation in arriving at the conclusion that the plaintiffs
could be said to have succeeded in shifting the onus on
the defendant and, therefore, the burden of proof on the
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plaintiffs could be said to have stood discharged. We
need to now consider whether the appellant-defendant
could be said to have led cogent evidence in shifting back
the onus. According to Mr. Parikh, his client could be said
to have shifted back the onus as there is evidence on
record to indicate that the appellant-defendant was in
possession of the suit property since 1994. How does Mr.
Parikh propose to establish this? Mr. Parikh would like to
rely upon the documentary evidence in the form of
revenue records vide Exhibits-116 to 119. The revenue
record is for the period between 1977-78 and 2004-05.
Mr. Parikh laid much stress on the fact that in the said
revenue record, the names of Chehraji Thakore and
Ranchhodji Thakore figured upto the year 1994. They were
shown as occupants and cultivators of the suit land. From
the year 1994-95 onwards, the name of the appellant-
defendant figured as an occupant and cultivator.
According to Mr. Parikh these documents, being revenue
record, have a presumptive value under Section 135J of
the Gujarat Land Revenue Code. The plaintiffs have failed
to rebut such statutory presumption.
37. In the aforesaid context, we may only say that the
entries in the revenue record, by themselves, do not
constitute title and establish possession. It is settled legal
position that the revenue entries are only for fiscal
purposes and those cannot decide the questions of title
and possession. The revenue entries are not decisive on
such questions. It is also a settled legal position that
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possession follows title and when the revenue entries are
not conclusive on the question of title, as a logical
corollary, the same are not conclusive even on the
question of possession.
38. In the aforesaid context, we may refer to a decision
of the Supreme Court in the case of Ram Pat & Ors. vs.
State of Haryana, reported in (2009) 7 SCC 614, wherein
the Supreme Court observed as under;
"Mr. Sushil Kumar made two inconsistent
submissions before us; firstly, relying on or on the
basis of the decision of the Privy Council in (Thakur)
Nirman Singh & Ors. vs. Thakur Lal Rudra Partab
Narain Singh & Ors. [1926 Privy Council 100], it was
urged that the entry in the revenue records do not
prove possession;, on the other hand, our attention
was drawn to the order passed by the Financial
Commissioner dated 25.2.2002 in terms whereof the
order of the appellate authority whereupon reliance
has been placed by the High Court to contend that
the order passed by the revenue authorities
mutating the names of the accused had been set
aside. The Financial Commissioner, even if the
subsequent event is to be taken note of, in his order
held that actual possession cannot form the basis of
mutation of the name of a person claiming to be in
possession in the revenue records. We would,
therefore, proceed on the basis that the entries
made in the revenue records were not decisive for
proving actual possession."
39. We have one interesting judgment of the Supreme
Court on hand rendered in the case of Muddasani
Venkata Narsaiah (Dead) Thr. Legal
Representatives vs. Muddasani Sarojana, reported in
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(2016) 12 SCC 288, wherein the Supreme Court observed
in Para-18 as under;
"Coming to the question whether the plaintiff was
placed in possession by Buchamma, in our opinion, it
is apparent that Yashoda was enjoying the property
in her lifetime, though it appears that defendant no.
3 was residing with Yashoda, but she has not claimed
any derogatory title to Yashoda nor has claimed
adverse possession. Her claim of an adopted
daughter of Yashoda has not been found established.
The entry of possession in some revenue records
simplicitor does not confer any right to defendant no.
3 to retain the possession of the property. The
property on the death of Yashoda had been passed
on to Buchamma being class II heir, as such she had
the right to sell the property to plaintiff. Even if
Buchamma had not placed plaintiff in possession of
property on strength of his title conferred by way of
sale deed in question he had right to recover
possession. The first appellate Court was thus right in
decreeing the suit. The High Court has erred in
allowing appeal."
40. The aforesaid observations of the Supreme Court
fortifies our view that assuming for the moment that the
appellant-defendant, at one point of time, was in
possession of the property, that by itself, would not entitle
him in law to retain the possession of the suit property. In
other words, even if it is believed for the time being that
the appellant-defendant was in possession of the suit
property, the plaintiffs on the strength of their title
conferred by way of a valid sale deed can be said to have
the right to recover the possession.
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41. At this stage, we should also discuss the maxim
"possession follow title".
42. In the aforesaid context, we may refer to the
observations of the Supreme Court in a very recent
pronouncement in the case of Nazir Mohammed vs. J.
Kamala & Ors., Civil Appeal Nos.2843-2844 of 2010,
decided on 27.08.2020. We quote Para-53;
"52. The maxim "possession follows title" is limited
in its application to property, which having regard to
its nature, does not admit to actual and exclusive
occupation, as in the case of open spaces accessible
to all. The presumption that possession must be
deemed to follow title, arises only where there is no
definite proof of possession by anyone else. In this
case it is admitted that the Appellant-Defendant is in
possession and not the Respondent Plaintiff."
43. Sec. 114 Evidence Act- Title Follows Possession &
Possession Follows Title
In M. Siddiq v. Mahant Suresh Das, 2020-1 SCC 1,
the Supreme Court quoted the following from the State of
AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC
319 where Justice B.S. Chauhan explained as under:
'21.....The said presumption is read under Section 114 of
the Evidence Act and applies only in a case where there is
either no proof, or very little proof of ownership on either
side. The maxim-possession follows title - is applicable
in cases where proof of actual possession cannot
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reasonably be expected, for instance, in the case of
wastelands, or where nothing is known about possession
one way or another.
Presumption of title as a result of possession, can arise
only where facts disclose that no title vests in any party.
Possession of the plaintiff is not prima facie wrongful, and
title of the plaintiff is not proved. It certainly does not
mean that because a man has title over some land, he is
necessarily in possession of it. It in fact means, that if at
any time a man with title was in possession of the said
property, the law allows the presumption that such
possession was in continuation of the title vested in him.
A person must establish that he has continued possession
of the suit property, while the other side claiming title,
must make out a case of trespass/ encroachment, etc.
Where the apparent title is with the plaintiffs, it is
incumbent upon the defendant, that in order to displace
this claim of apparent title and to establish beneficial title
in himself, he must establish by way of satisfactory
evidence, circumstances that favour his version.
Even, a revenue record is not a document of title. It
merely raises a presumption in regard to possession.
Presumption of possession and/or continuity thereof, both
forward and backward, can also be raised under Section
110 of the Evidence Act."
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44. The aforesaid would be relevant because the Trial
Court, in its judgment, has recorded the following findings;
'It is very difficult to accept that the seller who has
sold property in 1981 once again can handover any
peaceful and legal possession to Defendant No.4, as
they have already sold out the suit property in the
year 1981 to one Varsangji Kanaji Thakor. Therefore,
it is very difficult to accept the argument made by
Defendant No.4 for his possession over suit land. It is
the duty of Defendant No.4 to offer some meaningful
and reliable material of his claim of possession. This
court cannot allow any person to enter into the
premises or land of others without any legal cause.
The claim offered by Defendant No.4 in the form of
sale deed in his favour does not appear to be true
and correct. Defendant No.4 was duty bound to offer
some meaningful and legal details of his possession.
He was obliged to offer details at which point of time,
actually when he has taken the possession of suit
land. On this point, the pleading and evidence of
Defendant No.4 are not good enough to support his
independent, legal claim of possession. If we
examine the claim on the basis of his sale deed, it
very difficult to accept that any person can maintain
possession over suit property after sale of 13 years.
The claim of defendant is based on sale deed in his
favour and on the basis of such sale transaction the
possession received cannot be believed. On this
point, any reliable evidence is also not produced by
Defendant No.4. Therefore, looking to the entire
evidence adduced by Defendant No.4 on point of his
possession any legal, reliable and 'meaningful
evidence is not brought forward to support his legal
claim of possession. If Defendant No.4 cannot offer
any good history for his legal possession, in my
opinion he cannot maintain his claim of possession in
a given set of facts. If we examine the rival claims on
this aspect, it is the case of plaintiffs that they have
received vacant and peaceful possession of the plot
from previous owners. It is the case of previous
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owners that they have received this plot on allotment
being made by Society and such allotment letter is
produced and they have also produced an
agreement to support their Claim. Defendant No.4
was unable to explain about this document, why
these documents should be relied. Sale deed in
favour of Varsangji Kanaji Thakor produced at
Exh.206 clearly suggests that Varsangji Kanaji
Thakor has also received the possession of suit land
on the date of registration of this document.
Defendants side has not explained the situation and
why such version stated by some independent
person should not be believed. Therefore, it appears
that the person who has sold plot to Defendant No.4
has already sold this plot to Varsangji Kanaji Thakor
and also handed over the peaceful and vacant
possession on 22.01.1981. Defendants side is totally
silent on this point and unable to explain this
situation. If we further examine the evidence on
record, Exh.208 is the registered sale deed in favour
of Aakar Co-operative Housing Society Pvt. Ltd. on
22.01.1985. In this sale deed Varsangji Kanaji Thakor
has also clearly stated that he has given peaceful
and vacant possession to Aakar Co-operative
Housing Society Pvt. Ltd. Defendants side is unable
to explain why this version of registered sale deed
should not be believed. It is also relevant to note that
Society has independently offered possession receipt
of Plot No.11 and 12 and handover the possession to
previous owners of plaintiffs on 22.08.1994. After
22.08.1994 present plaintiffs have purchased this
plot on 15.12.2012. In this document also the seller
of plaintiffs have clearly stated that they have
handed over the peaceful and vacant possession of
disputed plot. If we consider sale transaction in
favour of present plaintiffs, it appears that the
plaintiffs have offered the logically chain and genesis
of their sale transaction. Present plaintiffs have also
produced their evidence in form of electricity bills of
disputed plots at Exh.135 to 137 and in these bills
also, the address shown to be Plot No.11/12 of Arjun
Orchards. Therefore, in these bills both the plot
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numbers were mentioned. The present plaintiffs have
also produced various fees paid to Aakar Co-
operative Housing Society Pvt. Ltd. and receipts have
produced at Exh.99 to 103. The plaintiffs have also
produced various photographs of disputed property.
They have also produced the photographs of ""Khat
Muhurt" Ceremony and other ceremonies. I have
gone through all the photographs and I have also
gone through the other documentary evidence to
support the claim of possession of suit land by
plaintiffs. I have considered the police complaint filed
on behalf of plaintiffs, one Virendra Thakkar has filed
this complaint. This complaint is also produced by
plaintiffs at Exh.153. If we consider the complaint
filed for plaintiffs, it appears that in this complaint it
is stated that on 25.09.2015 one person is trying to
take illegal possession of Plot No.11 with the help of
JCB Excavator. It appears that this complaint is silent
about who was actually trying to take illegal
possession of. the plot. It appears from reply offered
by Upendrabhai Chinubhai Shah in his cross-
examination by defendant side, he has stated that he
is not aware about the development of his complaint.
Looking to the evidence adduced on this point,
plaintiffs or defendants have not produced any
further details of this police complaint. It is the case
of Defendant No.4 that he was already in possession
of plot and false complaint has been made by
plaintiffs to recover the possession. I have
categorically examined the documents produced by
plaintiffs and I have also considered the oral
deposition produced by Plaintiffs. It is very difficult to
come to the conclusion on the basis of oral evidence
that Plaintiffs were having possession of Plot No.11.
It is pertinent to note that both the plots were in
developing phase. Plaintiffs are residing at
Ahmedabad and they were frequently visiting the
disputed land. On the point of possession aspect, the
plaintiffs have also produced various photographs of
""Khat Muhurt" Ceremony and other ceremonial
photographs but such photographs also cannot
certainly fix the possession in favour of plaintiffs. If
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we consider the cross-examination made on this
point by defendant side, Shri Upendrabhai Shah who
is prime witness for plaintiff side, it appears that he
has clearly stated that bore-well is not situated in
Plot No.11. He has also admitted that he is also not
sure that electric meter is situated in Plot No.11 or
not. I have categorically gone through the reply
offered by Shri Upendrabhai Shah, it appears that he
has avoided pointed question on the point of
possession, he has given evasive reply of such
question. If we consider the documentary proof on
such aspects like photographs, bills of electricity
company and payment made to Society etc. does not
certainly confirmed the crystal clear possession in
favour of plaintiffs. It appears that plaintiffs have also
not stated full and true facts on this point. At the
same time if we examine the evidences produced by
Defendant No.4, it is the case of Defendant No.4 that
he has received possession of plot on the basis of
sale deed of year 1994. I have already stated earlier
that such proposition is very difficult to digest that
after selling any plot the seller is having any
possession and buyer receive any possession once
again in the year 1994. If at all Defendant No.4 is
having any possession prior to sale deed executed in
favour of present plaintiffs, Defendant No.4 is unable
to explain legal cause for his possession. Looking to
entire evidence on point of possession it appears that
Defendant No.4 should not maintain his possession
and if he trespassed suit land at any point of time,
should be cured. As I have stated earlier that sale
deed in favour of Defendant No.4 is void ab-initio and
it does not create any right, title and interest in suit
land and this is very clear and certain. Therefore,
Defendant No.4 has no reason to maintain the
possession of suit land. I have also stated earlier that
Defendant No.4 does not even gave full and true
account for his possession. It appears that Defendant
No.4 has also not given any true and real history
from which point of time and how he has entered in
the disputed plot. Looking to entire evidence and
claim of Defendant No.4 on the point of tile and
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possession, it appears that he has failed totally on
both aspects. This court cannot support such litigant
who has no reason to maintain any possession
without any legal basis. I am absolutely clear that the
seller of Defendant No.4 has no right, title or interest
to sell disputed property once again in 1994. They
have already sold out the property in 1981 to one
Shri Varsangji Kanaji Thakor, they have no reason to
sell it once again in 1994. Defendant No.4 has not
offered single justification for such activity. The
activities of Defendant No.4 do not inspire any
confident at all. It is therefore clear that Defendant
No.4 has not offered full and true account for his
possession. Therefore, any claim of possession of
Defendant No.4 also cannot be legally entertained.
Therefore, if we cumulatively analyze any claim of
defendant No.4, it appears that defendant No.4 has
not offered any legal or reliable evidence.
If we examine the case of possession of
plaintiffs, in any opinion the plaintiffs have
also not offered meaningful and direct
evidence of possession. Plaintiffs have tried to
establish their possession over suit land
through title, agreement, possession receipt,
electricity bills, society bills and photographs.
They have tried to offer the best available
piece of evidence to support their possession.
If we consider these documents, that with
present title in their favour of them can
certainly raise the presumption of possession
in their favour. It is settled legal position that
possession follows the title. Therefore, in my
opinion, together with the documents
produced by plaintiffs in form of photographs,
electricity bills and bills paid to Society etc.
together with sale deed and previous recital of
sale transaction. It appears that plaintiffs have
safely established their claim of title and
possession."
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45. It is no doubt true that the revenue entries are not an
evidence to show title of tenure holder but shows
possession of property concerned by the person, whose
name is recorded in the revenue entries. That too a
presumption only. This presumption is rebuttable.
46. In Narain Prasad Agarwal Vs. State of Madhya
Pradesh, 2007 (8) SCALE 250, the Supreme Court said:
"Record of right is not a document of title. Entries
made therein in terms of Section 35 of the Indian
Evidence Act although are admissible as a relevant
piece of evidence and although the same may also
carry a presumption of correctness, but it is beyond
any doubt that such a presumption is rebuttable."
47. In Gurunath Manohar Pavaskar and others Vs.
Nagesh Siddappa Navalgund and others, AIR 2008 SC
901, the Supreme Court said:
"A revenue record is a not a document of title. It
merely raises a presumption in regard to the
possession. Presumption of possession and/or
continuity thereof both forward and backward can
also be raised under Section 110 of the Indian
Evidence Act."
48. The entries in revenue record may refer to the
possession of the person on the land in dispute and prima
facie it may raise a presumption of title but such
presumption is rebuttable.
49. In Nair Service Society Ltd. Vs. K.C. Alexander
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and others, AIR 1968 SC 1165, construing Section 110 of
Evidence Act, the Supreme Court said:
"Possession may prima facie raise a presumption of
title no one can deny but this presumption can hardly
arise when the facts are known. When the facts
disclose no title in either party, possession alone
decides."
50. In Chief Conservator of Forests Vs. Collector
and others, AIR 2003 SC 1805, the Supreme Court said:
"Presumption, which is rebuttable is attracted when
the possession is prima facie lawful and when the
contesting party has no title."
51. Referring to the above authorities, the Supreme
Court in State of A.P. and others Vs. M/s Star Bone
Mill and Fertilizer Co. JT 2013 (3) SC 401 said:
"13. The principle enshrined in Section 110 of the
Evidence Act, is based on public policy with the
object of preventing persons from committing breach
of peace by taking law into their own hands, however
good their title over the land in question may be. It is
for this purpose, that the provisions of Section 6 of
the Specific Relief Act, 1963, Section 145 of Code of
Criminal Procedure, 1973, and Sections 154 and 158
of Indian Penal Code, 1860, were enacted. All the
afore- said provisions have the same object. The said
presumption is read under Section 114 of the
Evidence Act, and applies only in a case where there
is either no proof, or very little proof of ownership on
either side. The maxim "possession follows title" is
applicable in cases where proof of actual possession
cannot reasonably be expected, for instance, in the
case of waste lands, or where nothing is known about
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possession one-way or another. Presumption of title
as a result of possession, can arise only where facts
disclose that no title vests in any party. Possession of
the plaintiff is not prima facie wrongful, and title of
the plaintiff is not proved. It certainly does not mean
that because a man has title over some land, he is
necessarily in possession of it. It in fact means, that if
at any time a man with title was in possession of the
said property, the law allows the presumption that
such possession was in continuation of the title
vested in him. A person must establish that he has
continued possession of the suit property, while the
other side claiming title, must make out a case of
trespass/encroachment etc. Where the apparent title
is with the plaintiffs, it is incumbent upon the
defendant, that in order to displace this claim of
apparent title and to establish beneficial title in
himself, he must establish by way of satisfactory
evidence, circumstances that favour his version.
Even, a revenue record is not a document of title. It
merely raises a presumption in regard to possession.
Presumption of possession and/or continuity thereof,
both forward and backward, can also be raised under
Section 110 of the Evidence Act."
52. At this stage, we shall now deal with a very curious
argument canvassed by Mr. Parikh on behalf of the
appellant-defendant. According to Mr. Parikh, the Trial
Court ought not to have looked into the Exhibits 205, 206,
207 and 208 respectively as the plaintiffs failed to prove
the contents of such documents. Mr. Parikh would submit
that by merely giving an exhibit to a particular document,
it cannot be said that the contents of such documents are
proved in accordance with law. We have not been able to
comprehend this argument of Mr. Parikh because all these
documents which Mr. Parikh is talking about have been
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produced by his own client, i.e., the appellant-defendant
vide the list Exh.25. If all the aforesaid documents have
been produced by the appellant-defendant and those have
been admitted without any objection at the end of the
plaintiffs, then how does the appellant-defendant expect
the plaintiffs to prove such documents. Any document
produced and relied upon by the defendant can also be
relied upon by the plaintiffs.
53. In the aforesaid context, we may first look into the
nature of the documents;
(a) The document at Exh.205 is the order passed by the
competent authority granting the N.A. Permission under
the provisions of the Bombay Land Revenue Code in
respect of the suit property (Plot No.487). This document
has been indisputably produced by the appellant-
defendant. The plaintiffs had admitted such document
and, accordingly, the same was exhibited.
(b) The document at Exh.206 is the sale deed dated
21.09.1981 executed by Thakore Ranchhodji and Thakore
Chaduji respectively in favour of Varsarngji Thakore. It is a
registered sale deed bearing Registration No.1004. This
document has also been produced by the appellant-
defendant. The plaintiffs admitted such document and,
accordingly, the same was exhibited.
(c ) The document at Exh.207 is the partition deed
between Varsangji Thakore and his family members. This
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document is also registered at Serial No.126 in the office
of the Sub-registrar, Kalol. This document has also been
produced by the appellant-defendant. The plaintiffs
admitted such document and, accordingly, the same was
exhibited.
(d) The document at Exh.208 is the sale deed executed
by late Varsangji Thakore in favour of the Aakar
Cooperative Housing Society Ltd. The said sale deed has
been registered at Serial No.128 in the office of the Sub-
registrar at Kalol. This document has also been produced
by the appellant-defendant. The plaintiffs admitted such
document and, accordingly, the same was exhibited.
54. All the aforesaid documents were produced by the
appellant-defendant with the list Exh.25. The learned
advocate appearing for the plaintiffs in the Trial Court
made an endorsement for admission of such documents
on 12.07.2017.
55. All the aforesaid documents clearly indicate that the
Aakar Cooperative Housing Society Ltd. acquired the suit
property vide the registered sale deed dated 22.01.1985
and, in such circumstances, the suit property could not
have been sold in favour of the appellant-defendant by
way of the sale deed dated 26.10.1994 Exh.115.
56. Having regard to the overall evaluation of the oral as
well as the documentary evidence on record, we are of the
view that the appellant-defendant has not been able to
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adduce or lead any credible documentary evidence even
to establish his possession since 1994. We have already
made ourselves very clear that the revenue receipts by
itself do not establish either the title or possession of the
suit property. On the other hand, the plaintiffs have
produced evidence to establish their possession. Such
evidence includes the electricity bills, photographs of the
Khat Muhurat ceremony and other miscellaneous bills. On
balance of probabilities, it clearly appears that the suit
property was in possession of the plaintiffs since their
purchase in December, 2012. The oral evidence led by the
plaintiffs go to show that they are the lawful owners of the
suit property and in possession of the same and that they
were dispossessed by the appellant-defendant.
57. Once the suit property came to be sold to Varsangji
Kanaji Thakore in 1985, the very same property could not
have been sold to the appellant-defendant vide the sale
deed dated 26.10.1994 (Exh.115). In the course of the
hearing of this appeal, Mr. H.M. Parikh, the learned senior
counsel appearing for the appellant, with his usual
fairness, submitted that his client does not question the
sale deed of the suit property in favour of Varsangji Kanaji
Thakore. In this view of the matter, the appellant's claim
to the title over the suit property clearly fails. We are of
the view that the plaintiffs have been able to establish
their title to the suit property as well as possession.
58. The main bone of contention canvassed on behalf of
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the appellant-defendant is that there is no reference to
the Survey No.487 in the agreement dated 30.10.1993
(Exh.131) and further there is nothing on the record to
indicate that the Plot No.11 is the same land as the Survey
No.487. This submission, in our view, is absolutely
misconceived for more than one reason. Once the suit
property came to be sold to Varsangji Kanaji Thakore,
who in turn, sold it to the Society, it is wholly immaterial
as to how the Society treated such land bearing the
Survey No.487. From the agreement dated 30.10.1993
Exh.131, it is clear that there is also no mention of the
Survey No.488 from which the Plot No.12 was carved out.
It appears from the agreement that the Society had
prepared a layout plan. If we read Clauses-43, 44 and 44A
respectively of such agreement, it is clear that the Society
intended to purchase additional parcels of land
abetting/adjoining the lands mentioned at the Serial Nos.1
to 39 respectively in such agreement and that such
additional lands would also be a part of the scheme and
which resulted in the change of the layout plan. Over and
above, it is the Society which alone can raise any issue
about the Survey No.487 and its exact location in their
layout plan. From the record, it is clear that the Society
has not raised any issue in this regard. On the contrary,
the Society has accepted the transfer of the suit property
being the Plot No.11, i.e, the erstwhile Survey No.487 in
favour of the plaintiffs.
59. In the overall view of the matter, we are convinced
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that the Trial Court committed no error much less any
error of law in arriving at the conclusion that the plaintiffs
have been able to establish their title over the suit
property and are entitled to take back the possession of
the suit property from the appellant-defendant.
60. Mr. Parikh also raised various issues as regards the
provisions of the Bombay Tenancy & Agricultural Lands
Act, 1948. The whole attempt on the part of Mr.Parikh
was to persuade us to take the view that even if
everything as put forward by the plaintiffs is believed to
be true, all the transactions were hit by the provisions of
the Bombay Tenancy & Agricultural Lands Act. Even the
Trial Court has gone into all such issues. We are of the
view that there was no good reason for the Trial Court also
to go into all such issues. If any of the transactions
between the plaintiffs and the Society or any other
transaction with any other party is hit by any of the
provisions of the Bombay Tenancy and Agricultural Lands
Act, then it is for the revenue authorities to look into the
same. Even otherwise the Civil Court could not have gone
into all such issues.
61. There is another aspect of the matter, which cannot
be lost sight of. The right of property is now considered to
be not only a constitutional or statutory right but also a
human right.
62. Declaration of the Rights of Man and of the Citizen,
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1789 enunciates right to property under Article 17:
"since the right to property is inviolable and sacred,
no one may be deprived thereof, unless public
necessity, legally ascertained, obviously requires it
and just and prior indemnity has been paid".
63. Moreover, the Universal Declaration of Human Rights,
1948 under Sections 17(i) and 17(ii) also recognises right
to property:
"17(i) Everyone has the right to own property alone
as well as in association with others.
(ii) No one shall be arbitrarily deprived of his
property."
64. Our mind is redolent with the maxim 'nec vi, nec
clam, nec precario' (not by violence, stealth or permission)
65. For all the foregoing reasons, this appeal fails and is
hereby dismissed. The judgment and decree passed by
the Trial Court is hereby affirmed. The receiver of the suit
property as appointed by the Supreme Court shall now
handover the vacant and peaceful possession of the suit
property to the plaintiffs. The receiver, while handing over
the possession of the suit property to the plaintiffs, shall
also issue a receipt of possession. Parties to bear their
own costs.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
Vahid
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66. After the judgment and order was pronounced, Mr.
H.M. Parikh, the learned senior counsel appearing for the
appellant made a fervent appeal that the direction issued
by this Court to the receiver to handover the vacant and
peaceful possession of the suit property be stayed from its
operation for a period of eight weeks from today.
67. The above request has been vehemently opposed by
Mr. Unmesh Shukla, the learned counsel appearing for the
original plaintiffs.
68. Having regard to the fact that the receiver was
appointed by the Supreme Court and the appellant intends
to carry the matter further before the Higher Forum, the
direction issued by us to the receiver to handover the
vacant and peaceful possession of the suit property to the
plaintiffs shall remain stayed from its operation for a
period of four weeks from today.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
Vahid
