Rahimbhai Ahemadbhai Lehari vs Divisional Controller, Gujarat ...
2023 Latest Caselaw 3033 Guj

    C/SCA/2416/2023                               JUDGMENT DATED: 19/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 2416 of 2023
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 2425 of 2023
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 3201 of 2023
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 3244 of 2023
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 3289 of 2023
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 3539 of 2023
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 3565 of 2023
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 3597 of 2023
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 3643 of 2023

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT                     Sd/-

==========================================================

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 ?


==========================================================
                      RAHIMBHAI AHEMADBHAI LEHARI & ORS.

                                    Versus

      GUJARAT STATE ROAD TRANSPORT CORPORATION & ANR.
==========================================================


                                   Page 1 of 25

                                                       Downloaded on : Mon Apr 24 20:36:15 IST 2023
       C/SCA/2416/2023                                       JUDGMENT DATED: 19/04/2023




Appearance:
BHARGAVKUMAR K PATEL & HEMANG S BHARWAD, ADVOCATES for
the Petitioners

MR HS MUNSHAW, ADVOCATE for the Respondent No. 1 - S.T.
Corporation

MS SUMAN MOTLA, AGP for the Respondent No. 2 - State in SCA
Nos.2416 of 2023 & 2425 of 2023

MS KRUSHITA DAVE, AGP for the Respondent No. 2 - State in other all
SCAs
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                   Date : 19/04/2023

                                   ORAL JUDGMENT

1.1 The present group of petitions is filed by the

petitioners - original plaintiffs challenging the impugned

identical but separate orders passed by the appellate Court

below i.e. the Principal District Judge, Arvalli at Modasa

dated 17.101.2022 in C.A.F.O. No.15 of 2022, whereby the

order dated 30.10.2021 passed by the trial Court in Regular

Civil Suit No.21 of 2020 below Exh.5 & 6 for interim

injunction was set aside.

1.2 Since the issue involved in all the petitions are

similar in nature, all the petitions are heard and decided

together by this common order, with the consent of all the

learned advocates for the respective parties, today.

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

2.1 Learned advocate for the petitioners has submitted

that the petitioners have direct possession of the suit land

for more than sixty years. He has submitted that the S.T.

Corporation is aware about this fact. He has submitted that

the petitioners are the small cabin holders and are doing

their business and earning their livelihood. He has

emphasised on the order passed by the trial Court below

applications Exh.5 & Exh.6 dated 30.10.2021. He has

submitted that the trial Court has not committed any error

in granting injunction in favour of the petitioners. He has

submitted that the appellate Court below has not properly

appreciated the facts on record and rejected the appeal filed

against the order of the injunction application/s. He has

submitted that the trial Court has observed in detail and

held that the petitioners are in possession of the land in

question since long. He has submitted that the petitioners

are claiming their rights over the land in question on the

basis of the adverse possession, which is since long i.e. sixty

years. He has heavily relied upon the provisions of Order

XXXIX Rule 1 & 2 of the Code of Civil Procedure, 1908 and

has submitted that all the three ingredients are in favour of

the petitioners.

2.2 He has submitted that the Hon'ble Apex Court

has, in some decisions, held such issue in favour of the

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

holder of the land on the basis of the claim of adverse

possession. He relied upon the decision of the Hon'ble Apex

Court for temporary injunction in the case of Rajnibai (Smt.)

Alias Mannubhai versus Kamla Devi (Smt.) and others

reported in (1996) 2 SCC 225 and in the case of M/s. Best

Sellers Retail (India) Pvt. Ltd v. M/s. Aditya Birla Nuvo Ltd.

and Ors. reported in (2012) 6 SCC 792 and has submitted

that the impugned order passed by the appellate Court below

be set aside. He has submitted that this petition may be

allowed and the petitioners may be protected.

3.1 Per contra, learned advocate for the contesting respondent - S.T. Corporation has submitted that the

Corporation is the owner of the suit land, which is

undisputed fact. He has submitted that both the Courts

below have rightly observed this fact and therefore, there is

no question about the ownership of the land in question. He

has submitted that the petitioners are not claiming their

right on the basis of the ownership also. He has submitted

that the petitioners are claiming their right on the basis of

the adverse possession. He has submitted that the adverse

possession itself without producing documentary evidence

about such possession, which indicates that the petitioners

are not the owner of the land in question and they have

encroached upon the land in question.

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

3.2 He has further submitted that the plaintiff has

not come with clean hands and as such original owners i.e.

Doshi Punamchand Chhabildas and others had gifted the said

suit land in July, 1968 and handed over the possession of

the suit land on 25.04.1971 to the defendant No.1 - S.T.

Corporation. He has further submitted that the original

owner of the suit land had filed the suit being Regular Civil

Suit No.4 of 2010 (Old Regular Civil Suit No.91 of 1990)

against the defendants for getting the possession and said

suit was dismissed by vide judgment and order dated

23.08.2012. Thereafter, the appeal was also dismissed by the

appellate Court below.

3.3 He has submitted that the plaintiffs are the

trespassers and their such illegal possession cannot be

protected.

3.4 He has drawn attention towards the judgments

cited by the respondent - S.T. Corporation before the

appellate Court below, which are that :- (i) Mardia Chemicals

Limited versus Gujarat Electricity Board & another - 2002 GLH 282, (ii) Anupam Rekadi Cabin Association versus Jamnagar Municipal Corporation - 1995 (1) GLH 586, (iii) Jagpal Singh versus State of Punjab (SC), (iv) Premji Ratansey Shah versus Union of India - (1994) 5 SCC 547

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

and (v) Padhiyar Prahladji Chenaji versus Maniben Jagmalbhai (SC) - 2022 SCC OnLine SC 258 and has

submitted that the appellate Court below has rightly

discussed the case and thereafter given proper findings in

para 9 of the judgment impugned. Therefore, there is no

reason to interfere with he impugned order of the learned

appellate Court below by this Court.

3.5 He has submitted that the Hon'ble Apex Court

has, in catena of decisions, held that the encroachers have no

right at all, as they are the wrong-doers and encroachers

have no right over the land. He has submitted that the law

does not help the encroachers. He has submitted that time

and again the Corporation has issued notices to the

petitioners but they have not vacated the land in question.

He has submitted that the appellate Court below has rightly

observed the facts of the case and passed the impugned

order. He has submitted that these petitions may be

dismissed.

4. Learned Assistant Government Pleaders for the

respondent - State have jointly submitted that the appellate

Court below has rightly passed the impugned orders. They

have supported the case of the S.T. Corporation. They have

submitted that these petitions may be dismissed.

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

5. Rule. Learned advocates waive service of notice of

rule on behalf of the respective respondents.

6.1 I have heard learned advocates for the respective

parties at length. I have considered the material available

on record. I have perused the impugned order/s passed by

the appellate Court. I have also perused the order passed by

the trial Court below Exh.5 & 6 in the suit proceedings.

From record, the following facts are emerged:

6.2 The land in question was originally belonged to

Doshi Punamchand Chhabildas and others, who had gifted

the said land to the S.T. Corporation in the year 1968 and

handed over the possession in turn. Since then, the S.T.

Corporation has become the legal owner of the land in

question, which is an undisputed fact.

6.3 It is not the case of the petitioners before any

Court below that they are the owners of the land in

question, which itself suggests that the S.T. Corporation is

the owner of the land in question.

6.4 Though the petitioners are not the owners of the

land in question, they have illegally put their cabins in the

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

premises of the S.T. Bus Stand. The S.T. Corporation has

issued notices to the petitioners for vacating the land in

question.

6.5 Therefore, the petitioners have filed Regular Civil

Suit No.21 of 2020 against the S.T. Corporation for

declaration and permanent injunction, along with the

applications Exh.5 & Exh.6 for interim injunction under

Order XXXIX Rule 1 & 2 of the Code of Civil Procedure,

1908, on the basis of the adverse possession that too without

producing any valid and legal documents to prima facie made

out case, but not on the basis of the ownership or tenancy

right or any agreement holders.

6.6 The trial Court has granted interim injunction in

favour of the plaintiffs - present petitioners.

6.7 Against which, the S.T. Corporation has filed

appeal before the appellate Court below, which is allowed in

favour of the Corporation and the order passed by the trial

Court below Exh.5 & Exh.6 is set aside and those

applications are rejected, which is impugned in this group of

petitions.

6.8 It is noted that the suit is pending for

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

adjudication. The order passed by the trial Court below

applications Exh.5 & Exh.6 is challenged by the defendant

before the appellate Court below, which is allowed and hence,

the petitioners are before this Court. Therefore, it is the

interim order which is travelled upto this Court by the

parties. The suit is still to be adjudicated by the trial Court.

It would not be proper for this Court to comment any factual

aspect by which the rights of any party get prejudiced or the

Courts below gets influenced.

6.9 However, on perusal of the impugned order as

well as the order passed by the trial Court, this Court finds

that the petitioners have preferred the application/s for

interim injunction below Exh.5 & Exh.6 before the trial Court

under the provisions of Order XXXIX Rule 1 & 2 and

Section 151 of the Code of Civil Procedure, 1908. The said

provisions of Order XXXIX Rule 1 & 2 of the Code of Civil

Procedure, 1908 read as under:

" ORDER XXXIX - TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS Temporary injunctions

1. Cases in which temporary injunction may be granted.--Where in any suit it is proved by affidavit or otherwise--

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors, [(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,] the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.

2. Injunction to restrain repetition or continuance of breach.--(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. 1. Ins. by s. 85, ibid. (w.e.f. 1-2-1977). 2. Ins. by Act 1 of 1926, s. 4. 3. Subs. by Act 104 of 1976, s. 86, for "defraud" (w.e.f. 1-2- 1977). 4. Ins. by s. 86, ibid. (w.e.f. 1-2-1977). 5. Ins. by Act 104 of 1976, s. 86 (w.e.f. 1-2-1977). 212 (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit. 1* * * * * 1

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

[2A. Consequence of disobedience or breach of injunction.--(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.

(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.]"

6.10 The appellate Court below has considered the

above provisions and passed the impugned order. At this stage, the Court has to consider only the prima facie case of

the plaintiff/s. In view of the application filed under the

provisions of XXXIX Rule 1 & 2 of the Code of Civil

Procedure, 1908, main three ingredients are required to be

looked into i.e. prima facie case, balance of convenience and

irreparable loss. However, it is also most important to

consider that who is claiming the rights. In the instant case,

admittedly, the plaintiffs - present petitioners are not the

owners of the suit land. Looking to the pleadings in the

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

suit as well as in the appeal proceedings, the petitioners

have claimed their right not as the owners of the suit land,

but on the basis of the adverse possession, which itself

proves that they are not the owners of the land in question,

but they are possessing the land in question illegally and

without any title. From record it transpires that they have

put their cabins on the land in question which is open land,

but the ownership of the S.T. Corporation. When they have

put their cabins and/or they have constructed their pakka

cabins on the land in question, they are very much aware

that the land on which they are putting their cabins are not

the ownership of them and they are going to encroach the

land in question, which is of the ownership of the S.T.

Corporation. In fact, no documentary evidence is produced to

establish their long uninterrupted possession and also no

evidence about the title of the property by the plaintiffs.

Under these circumstances, when neither the petitioners have

right, title or interest over the suit land nor they have any

rent agreement in their favour, they can be said only the

encroachers and encroachers do not have any right over the

suit land, more particularly when the S.T. Corporation is the

owner and working in the interest of the public at large.

6.11 Looking to the provisions of Order XXXIX Rule 1

& 2 of the Code of Civil Procedure, 1908 noted above, under

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

which the petitioners have preferred the application/s before

the trial Court for interim injunction, it clearly shows that

there is no contract at all between the petitioners and the

S.T. Corporation for the land in question and since there is

no contract at all, the question of its breach does not arise.

Further, since the petitioners are not the real owners, not

any agreement holders, not the tenant and not the lawful

possession holder of the land in question, they have not right

to claim over the land in question. Only trespassing or

encroaching the land does not allow or give any right to any

person, though long time and more particularly the lawful

owner is of the State ex-chequer - S.T. Corporation, who is

working for the interest of public at large. The appellate

Court below has rightly observed in the impugned order that

the possession of the petitioners is wholly unlawful possession

as a trespasser and an injunction cannot be granted in

favour of a trespasser or a person who gained unlawful

possession. The appellate Court below has rightly considered

the facts and circumstances of the case and passed the

impugned order.

6.12 At this stage, it would be fruitful to refer to the

provisions of Order XLIII Rule 1(r) of the Code of Civil

Procedure, 1908 is as under :

" Order XLIII Rule 1(r) :

1. Appeal From Orders: An appeal shall lie from the

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

following orders under the provisions of section 104, namely:-

(r) an order under rule 1, rule 2 1 [rule 2A], rule 4 or rule 10 of Order XXXIX;"

6.13 It is also fruitful to refer to the decision of the

Hon'ble Apex Court in the case of Ramdev Food Products

Pvt. Ltd. v. Arvindbhai Rambhai Patel and Ors. reported in

(2006) 8 SCC 726, more particularly paras 126 to 128

thereof, which is as under :

" 126. The grant of an interlocutory injunction is in exercise of discretionary power and hence, the appellate courts will usually not interfere with it. However, appellate courts will substitute their discretion if they find that discretion has been exercised arbitrarily, capriciously, perversely, or where the court has ignored settled principles of law regulating the grant or refusal of interlocutory injunctions. This principle has been stated by this court time and time again. [See for example Wander Ltd. v. Antox India P. Ltd (1990) Supp SCC 727, Lakshmikant V. Patel v. Chetanbhai Shah (2002) 3 SCC 65 and Seema Arshad Zaheer v. MC of Greater Mumbai (2006) 5 SCALE 263].

127. The appellate court may not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

matter at the trial stage it would have come to a contrary conclusion.

128. However, in this case the courts below proceeded on a prima facie misconstruction of documents. They adopted and applied wrong standards. We, therefore, are of the opinion that a case for interference has been made out."

6.14 The appellate Court below has rightly considered

the judgments cited by the respondent - S.T. Corporation and relied on the decision reported in AIR 2012 SC 1727 in the

case of Maria Margarida Sequeria Fernandes and Ors v.

Erasmo Jack de Sequeria (Dead) through LRs. and has

observed that one who claims possession, must give the

details as under :

" (a) who is or are the owner or owners of the property;

                     (b)     title of the property;

                     (c)     who is in possession of the title documents

                     (d)      identity of the claimant or claimants to
                     possession;

                     (e)     the date of entry into possession;

                     (f)       how he came into possession - whether he

purchased the property or inherited or got the same in gift or by any other method;

(g) in case he purchased the property, what is the

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;

(h) If taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed;

(i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;

(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and

(k) basis of his claim that not to deliver possession but continue in possession."

6.15 It is also fruitful to refer to the judgment of the

Hon'ble Apex Court in the case of Padhiyar Prahladji Chenaji

versus Maniben reported in 2022 SCC OnLine SC 258,

relevant observations are as under :

" 9. Even otherwise on merits also, the Courts below have erred in passing the decree of permanent injunction restraining the defendant No.1 from disturbing the alleged possession of the plaintiff.

Assuming for the sake of argument that the plaintiff is found to be in possession, in that case also, once the plaintiff has lost so far as the relief of declaration and title is concerned and the defendant No.1 is held to be the true and absolute owner of the property in question, pursuant to the execution of the sale deed dated 17.06.1975 in his favour, the true owner cannot be restrained by way of an injunction against him. In a given case, the plaintiff may succeed in getting the

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

injunction even by filing a simple suit for permanent injunction in a case where there is a cloud on the title. However, once the dispute with respect to title is settled and it is held against the plaintiff, in that case, the suit by the plaintiff for permanent injunction shall not be maintainable against the true owner. In such a situation, it will not be open for the plaintiff to contend that though he/she has lost the case so far as the title dispute is concerned, the defendant - the true owner still be restrained from disturbing his/her possession and his/her possession be protected. In the present case, as observed hereinabove and it is not in dispute that the suit filed by the plaintiff for cancellation of the registered sale deed and declaration has been dismissed and the registered sale deed in favour of the defendant No.1 has been believed and thereby defendant No.1 is held to be the true and absolute owner of the suit land in question. The judgment and decree passed by the trial court in so far as refusing to grant the relief for cancellation of the registered sale deed and declaration has attained finality. Despite the fact that the plaintiff has lost so far as the title is concerned, still the Courts below have granted relief of permanent injunction against the defendant No.1 - the absolute owner of the land in question, which is unsustainable, both, on law as well as on facts. An injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession.

10. Now, so far as the reliance placed upon the decision of this Court in the case of Anathula Sudhakar (supra) by the learned Advocate appearing on behalf of the original plaintiff in support of his submission that in a suit for permanent injunction to restrain the defendant to interfere with the plaintiff's possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

or disturb his possession is concerned, what is observed by this Court in paragraph 15 is the "lawful possession" of the plaintiff. In the present case the plaintiff, who has failed to get any declaratory relief and the defendant No.1 is held to be a true and absolute owner on the basis of the registered sale deed on payment of full sale consideration thereafter the plaintiff's possession cannot be said to be "lawful possession". Therefore, the plaintiff is not entitled to any permanent injunction against the true owner in the instant case.

11. From the impugned judgment and order passed by the High Court, it appears that the High Court has not properly appreciated the distinction between a substantive relief and a consequential relief. The High Court has observed that in the instant case the relief of permanent injunction can be said to be a substantive relief, which is clearly an erroneous view. It is to be noted that the main reliefs sought by the plaintiff in the suit were cancellation of the sale deed and declaration and the prayer of permanent injunction restraining defendant No.1 from disturbing her possession can be said to be a consequential relief. Therefore, the title to the property was the basis of the relief of possession. If that be so, in the present case, the relief for permanent injunction can be said to be a consequential relief and not a substantive relief as observed and held by the High Court. Therefore, once the plaintiff has failed to get any substantive relief of cancellation of the sale deed and failed to get any declaratory relief, and as observed hereinabove, relief of injunction can be said to be a consequential relief. Therefore, the prayer for permanent injunction must fail. In the instant case as the plaintiff cannot be said to be in lawful possession of the suit land, i.e., the possession of the plaintiff is "not legal or authorised by the law", the plaintiff shall not be entitled to any permanent injunction."

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

6.16 Further, it is also fruitful to discuss some aspects

about the concept of adverse possession at this stage. They

are as under :

 The concept of adverse possession in India is more than a century old concept of law which is primarily based on three fundamental principles. Firstly, competing rights of ownership between the actual owner and the person taking care of the land. Right of a person taking care of the land and making highest and best use of the land would prevail over the actual title holder of the land who does not take care of the land. Secondly, the title of the land should not be kept in abeyance for a long period of time i.e., a situation should not arise in which the title holder of the land is not known. Thirdly, it is presumed that the actual title holder has abandoned his possessory rights if despite knowing that some other person is claiming hostile possession over his land but he chooses to keep quite and fails to take any action against the said person as provided under the law.

 Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario'

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

that is, peaceful, open and continuous. The possession must be adequate in continuity in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.

 The concept of adverse possession has been well settled by the judicial committee of the Privy Council in 1907 in Perry v. Clissold (1907) AC 73, wherein it was held that;"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period of prescribed by the provisions of the statue of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title."

 The decision of the Privy Council though not binding on the Supreme Court but still the said decision was upheld by three Judges of the Hon'ble Supreme Court in the case of Nair Service Society v. K.C. Alexander , AIR 1968 SC 1165 . The Hon'ble Apex Court in the case of P. T.

Munichikkanna Reddy and others v.Kant 110 Revamma and others (2007) 6 SCC 59 : (AIR 2007 SC 1753) further laid down certain guidelines regarding the enquiry to be held by the Courts while deciding the plea of adverse possession. The Hon'ble Apex Court has held that;"

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

Therefore, to assess a claim of adverse possession, two-pronged enquiry is required;

 Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.

 Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distances from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property."

 Plea of adverse possession is not a pure question of law but a blended one of fact and law.

Whenever plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property therefore, the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. In Dagadabai (Dead) by LR.s. v. Abbas alias Gulab Rustum Pinjari (2017) 13 SCC 705 : (AIROnline 2017 SC 602), the Hon'ble Apex Court held that a person who acquires title by adverse possession, has to first admit the ownership of the true owner over the property before claiming ownership on the strength of adverse possession. Defendants having setup adverse title have not chosen to lead rebuttal

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

evidence. In that event, plaintiffs are bound to succeed and is entitled to recover possession."

6.17 Thus, there is no illegality committed by the

appellate Court below, which warrants interference by this

Court. The scope of interference under Article 227 of the

Constitution of India by this Court is very limited in view of

the decision of the Hon'ble Apex Court in the case of M/s.

Garment Craft versus Prakash Chand Goel reported in (2022) 4 SCC 181, more particularly in paras 15 to 17, observed as under :

"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, 1 Celina Coelho Pereira (Ms)

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217 violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:-

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding

C/SCA/2416/2023 JUDGMENT DATED: 19/04/2023

so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex- parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution."

7. In view above, the present group of petitions

deserves to be dismissed and is dismissed accordingly. Rule is

discharged in all the petitions.

Sd/-

(SANDEEP N. BHATT,J) M.H. DAVE