Jorubhai Nakubhai Mori vs Pravinbhai Narubhai Rathod
2023 Latest Caselaw 2570 Guj

    C/CRA/95/2023                                  ORDER DATED: 28/03/2023




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/CIVIL REVISION APPLICATION NO.                     95 of 2023

====================================================
               JORUBHAI NAKUBHAI MORI
                       Versus
             PRAVINBHAI NARUBHAI RATHOD
====================================================
Appearance:
THAKKAR AND PAHWA ADVOCATES(1357) for the
Applicant(s) No.
1,10,11,12,13,14,15,16,2,3,4,5,6,7,8,9
 for the Opponent(s) No. 2,3,4,5
MR VICKY B MEHTA(5422) for the Opponent(s) No. 1
====================================================
 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                         Date : 28/03/2023

                               ORAL ORDER

1. By way of this Civil Revision Application, the

applicants have challenged the order dated

10.1.2023 passed by learned Principal Civil

Judge, Barwala, on application below Exh.27

under Order 7 Rule 11 in Regular Civil Suit No.

67 of 2022.

2. Heard learned advocate Mr. Ravi Pahwa appearing

for the applicants and learned advocate Mr.

Vicky B. Mehta appearing of the respondent -

Original plaintiff.

C/CRA/95/2023 ORDER DATED: 28/03/2023

3. The applicants herein are the original

defendants No.5 to 20 in Regular Civil Suit

No.67 of 2022.

4. The original plaintiff is the respondent No.1

here before this Court.

5. The original plaintiff preferred Regular Civil

Suit No.67 of 2022 claiming adverse possession

and thereby prayed for execution of sale deed

and for permanent injunction.

6. The case of the original plaintiff before the

trial Court was that the plaintiff is residing

at the premises stated in the Cause Title since

last around 35 years and he has constructed two

storied building since last more than 35 years.

Birth of his children also took place in the

said premises only and all the documents etc.

barring the address which is mentioned in the

Cause Title. Though, as the society is an

unregistered society, the other members of the

society are harassing the original plaintiff and

C/CRA/95/2023 ORDER DATED: 28/03/2023

therefore, by using their influence, they got a

notice for demolition issued by Barwala

Municipality on the ground of unauthorized

constructions. The plaint states that the cause

of action has arisen because the plaintiff

purchased the property in question since last

more than 35 years by paying a consideration of

Rs.10,000/- from one Manjibhai Dalabhai Patel,

who was to execute a Registered Sale Deed in

favour of the plaintiff but as the said

Manjibhai Dalabhai Patel expired, the legal

heirs started residing at Botad and though they

were ready and willing to execute a Sale Deed in

favour of the plaintiff, it is because of

insistence of defendant Nos.5 to 20 - present

applicants that they did not execute the Sale

Deed in favour of the applicants and that is how

according to the plaintiff the cause of action

to file the suit has arisen.

7. Once the suit was filed and summons was issued,

the present applicants appeared in the said suit

C/CRA/95/2023 ORDER DATED: 28/03/2023

and filed one page application under Order 7

Rule 11 of Code of Civil Procedure, 1908.

8. The application was preferred on two grounds :-

(i) that the property in question has not

been valid properly and therefore, for

the purpose of jurisdictions, the suit

has not been valued properly;

(ii) The contentions raised in that

application under Order 7 Rule 11 was

that the suit is barred by limitation.

9. Except for the aforesaid two grounds, the

application was not preferred canvassing any

other grounds.

10. The application was heard by learned

Principal Civil Judge, Barwala and an order

below Exh.27 was passed on 10.1.2023 rejecting

the application on the ground that the aspect of

limitation is a triable issue and as the suit is

for specific performance and permanent

C/CRA/95/2023 ORDER DATED: 28/03/2023

injunction on the basis of adverse possession,

the evidence is required to be laid by going on

with the trial.

11. The aforesaid order is under challenged by

way of present Civil Revision Application.

12. Learned advocate Mr. Ravi Pahwa appearing

for the applicants vehemently challenged the

impugned order and submitted that in a suit for

adverse possession as held by Delhi High Court

in case of Raunak Singh Versus Delhi Development

Authority and Others wherein reliance is placed

upon judgment of the Hon'ble Supreme Court in

case of Karnataka Board of Wakf Versus

Government of India reported in 2004 SCC Online

SC 505.

13. Learned advocate Mr. Ravi Pahwa contended

that as per the judgment in case of Karnataka

Board of Wakf (Supra) the Hon'ble Supreme Court

has laid down four parameters that (a) if a

person claims adverse possession then he is

C/CRA/95/2023 ORDER DATED: 28/03/2023

required to show on what date he came into

possession; (b) what was the nature of

possession; (c) Whether the factum of possession

was known to the other party and (d) How long

his possession has continued and (e) his

possession was open and undisputed.

14. Learned advocate Mr. Ravi Pahwa submitted

that the aforesaid aspect has not been taken

care while drafting the plaint and therefore,

the plaint is faulty and therefore, as it not

meeting with the parameters laid down by the

Hon'ble Supreme Court which are reiterated in

the judgment of the Hon'ble Delhi High Court in

case of Raunak Singh Versus Delhi Development

Authority and Others in CS (OS) 194 of 2020

which was decided on 30th November, 2021. The

present application preferred by the present

applicant under Order 7 Rule 11 was required to

be allowed by rejecting the plaint.

15. Learned advocate Mr. Ravi Pahwa also relied

upon recent judgment of the Hon'ble Supreme

C/CRA/95/2023 ORDER DATED: 28/03/2023

Court in case of C.S. Ramaswamy Versus V.K.

Senthil and others reported in AIR 2022 SC 4724.

According to learned advocate Mr. Ravi Pahwa

that as there is no cause of action stated in

the suit as according to learned advocate

Mr.Ravi Pahwa as per the judgment in case of

C.S. Ramaswamy (Supra) if cause of action is

vague the same should not have been considered

by the Court and should have returned the

plaint.

16. Except the aforesaid submissions no other

submissions were made by learned advocate Mr.

Ravi Pahwa nor he relied upon any other

decisions except the two judgments which are

already referred to in the foregoing paragraph.

17. Learned advocate Mr. Vicky Mehta appearing

for the original plaintiff - respondent No.1

herein opposed the present Civil Revision

Application and submitted that the suit is for

adverse possession and therefore, the petitioner

is required to prove that he was in possession

C/CRA/95/2023 ORDER DATED: 28/03/2023

of the property in question without any

disturbance or objections from the defendants

since 35 years which is a matter of evidence and

a triable issue and therefore, the Court below

has rightly rejected the application preferred

by the present applicants. Learned advocate

Mr.Vicky Mehta further submitted that limitation

is a mixed question of facts and law and

therefore also the order passed by learned

Principal Civil Judge, Barwala cannot be said to

be erroneous, as even the trial Court has also,

while rejecting the application under Order 7

Rule 11, considered the facts that limitation is

a mixed question of facts and law.

18. Learned advocate Mr. Vicky Mehta also

pointed out that though the aforesaid judgments

were cited today by learned advocate for the

respondent, actually when the application under

Order 7 Rule 11 was preferred that was a one

page application and except on the ground of

uncertain valuation for the purpose of

C/CRA/95/2023 ORDER DATED: 28/03/2023

jurisdiction and limitation, no other ground was

canvassed by the present applicants and

therefore, the Court below has rightly rejected

the application preferred by the petitioner.

19. As far as the parameters set by the Hon'ble

Supreme Court in the case of Karnataka Board of

Wakf (Supra) is concerned, learned advocate Mr.

Vicky Mehta submitted that in the very same

judgment the Hon'ble Supreme Court has observed

that the plea of adverse possession is not a

pure question of law but a blended question of

facts and law, which itself indicates that the

evidence is required to be laid by straying the

suit. He further states that the paragraphs

which is relied upon by the learned advocate

appearing for the applicant does not say

anything about the contents in the plaint.

20. The judgment in case of Karnataka Board of

Wakf Versus Government of India was not produced

before this Court but the same is referred to in

the judgment of Raunak Singh Versus Delhi

C/CRA/95/2023 ORDER DATED: 28/03/2023

Development Authority and Others and in

paragraph No.15 of the judgment of Raunak Singh

(Supra) by reproducing paragraph No.11 of

judgment of Karnataka Board of Wakf (Supra), the

Hon'ble Delhi High Court observed as under :-

"15. As observed by the Supreme Court in Karnataka Board of Wakf (supra), certain facts relating to adverse possession have to be clearly pleaded. It would be apposite to reproduce the observations below :

11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. 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 the 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", 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.

(See S.M. Karim v. Bibi Sakina [AIR

C/CRA/95/2023 ORDER DATED: 28/03/2023

1964 SC 1254] , Parsinni v. Sukhi [(1993) 4 SCC 375] and D.N.

Venkatarayappa v. State of Karnataka [(1997) 7 SCC 567].) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma [(1996) 8 SCC 128].] (emphasis added)"

21. Learned advocate Mr. Vicky Mehta emphasized

on the later part of the aforesaid paragraph and

submitted that in the very paragraph, the

Hon'ble Supreme Court has emphasized that the

plea of adverse possession is not a pure

question of law but a blended one of fact and

C/CRA/95/2023 ORDER DATED: 28/03/2023

law. Therefore, a person who claims adverse

possession should show : (a) On what date he

came into possession, (b) what was the nature of

his possession, (c) whether the factum of

possession was known to the other party, (d) how

long his possession has continued, and (e) his

possession was open and undisputed. A person

pleading adverse possession has no equities in

his favour. Since he is trying to defeat the

rights of the true owner, it is for him to

clearly plead and establish all his adverse

possession.

22. By pointing out the aforesaid observation,

he submitted that the Hon'ble Supreme Court said

that it is for the person who wish to establish

the adverse possession is required to establish

all the facts necessary to establish his adverse

possession by showing the aforesaid five

parameters which itself indicates that its a

matter of evidence and therefore, it has nothing

to do with plaint.

C/CRA/95/2023 ORDER DATED: 28/03/2023

23. Learned advocate Mr. Vicky Mehta states

that in the plaint even otherwise it is

categorically stated by the plaintiff that he is

in possession of the land in question since last

more than 35 years and though the respondents

No.2 to 4 were ready and willing to execute the

sale deed, it is because of the interference of

defendant No.5 to 20 the sale deed could not be

executed and the original plaintiff was served

with a notice for demolition. All this fact

shows that the four question is something which

is required to be decided only by way of leading

evidence and therefore, the application under

Order 7 Rule 11 has rightly been rejected by the

Trial Court.

24. I have heard learned advocates appearing

for the respective parties, perused the plaint

as well as the application under Order 7 Rule 11

and order passed therein as also the judgments

relied upon by learned advocate Mr. Ravi Pahwa.

C/CRA/95/2023 ORDER DATED: 28/03/2023

25. On perusal of the plaint as well as the

material available on record this Court is of

the view that the original plaintiff has

categorically stated that he is in possession of

the property in question since last more than 35

years. The Hon'ble Supreme Court's intention it

seems from the paragraphs cited from the

paragraph shown from the judgment of Raunak

Singh (Supra) by learned advocate Mr. Ravi Pahwa

as he did not produce the original judgment,

this Court was not is a position to consider the

original judgment but only a selective paragraph

that was shown to the Court.

          This      Court       is      of       the     view        that         the

  parameters            which    are     relied        upon       by      learned

  advocate         Mr.       Ravi    Pahwa       are     required           to      be

  established           by     leading       evidence,         as      the       said

  paragraph         does       not    say       that    there       should          be

  specific          averment         about        date       and       all        the

  relevant factors in the plaint itself. It's                                         a

matter of evidence which can be considered by

leading evidence only.

C/CRA/95/2023 ORDER DATED: 28/03/2023

26. When the judgment was almost dictated and

was almost over, at this stage, an unreasonable

request has come from learned advocate Mr. Ravi

Pahwa appearing for the applicants that he

should be given an opportunity to provide the

judgment.

Today, in all there are 193 matters are

listed before this Court and there are three

additional matters are listed in Per Court

Board. This Court has heard the matter almost

for 45 minutes and it is expectation of the

Court that whenever the learned advocates make

submissions on merit, they should come prepared.

Learned advocate Mr. Ravi Pahwa though had

come with a paper book of various judgments

running into 92 pages and a separate judgment of

7 pages (Raunak Singh Versus Delhi Development

Authority and Others), learned advocate Mr. Ravi

Pahwa could have come with one more judgment of

Karnataka Board of Wakf Versus Government of

India. Once the Court has heard the matter and

C/CRA/95/2023 ORDER DATED: 28/03/2023

decided the matter against the applicants, its

unreasonable to suggest the Court that he may be

permitted to cite one more judgment. Therefore,

considering the aforesaid conduct, the aforesaid

request is rejected. Even out of entire paper

book he has relied upon only one judgment that

is C.S. Ramaswamy Versus V.K. Senthil and others

reported in AIR 2022 SC 4724.

27. Further on overall perusal of the impugned

judgment, this Court has found that the

application preferred by the applicant under

Order 7 Rule 11 bares only two grounds and Court

below has considered both the grounds and passed

the order placed upon the submissions made by

learned advocate appearing for the parties. The

Trial Court specifically dealt with the issue in

respect of limitation and held that the issue of

limitation is a mixed question of facts and law.

More particularly, by taking into consideration

the provisions of Article 64 and 65 which is in

respect of possession of immovable property and

C/CRA/95/2023 ORDER DATED: 28/03/2023

Article 65 is specifically in respect of case of

adverse possession, which according to this

Court, cannot be said to be erroneous.

28. Further as far as the applicant's

submission in respect of valuation is concerned

it is not the case of the present applicant that

despite the order of the trial Court that suit

is undervalued and the applicant was asked to

pay the remaining court fees, he has failed to

pay the remaining court fees and therefore, even

that contention raised in the application under

Order 7 Rule 11 also cannot be sustained.

29. In view of above, as this Court does not

find any error committed by the Court below, I

do not see any reason to interfere with the

order passed by the Trial Court and therefore,

the present Civil Revision Application is

required to be rejected and the same is rejected

accordingly.

(NIRZAR S. DESAI,J) Pallavi