Somabhai Ranchodbhai Rabari vs Sureshbhai Krushnakant Thakkar
2023 Latest Caselaw 8105 Guj

                                                                                   NEUTRAL CITATION




      C/SA/508/2023                                ORDER DATED: 07/11/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/SECOND APPEAL NO. 508 of 2023

                                  With
               CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
                   In R/SECOND APPEAL NO. 508 of 2023
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                        SOMABHAI RANCHODBHAI RABARI
                                   Versus
                      SURESHBHAI KRUSHNAKANT THAKKAR
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Appearance:
MR AMIT N PATEL(2749) for the Appellant(s) No. 1,2,3
for the Respondent(s) No. 2,3,4
MR. JAY M THAKKAR(6677) for the Respondent(s) No. 1,5
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 07/11/2023

                            COMMON ORAL ORDER

1. The present Second Appeal is filed, under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 28.08.2023, passed in Regular Civil Appeal No. 53 of 2019, by the learned Additional District Judge, Anand at Petlad, dismissing the appeal of the present appellants and confirming the judgment and decree dated 21.08.2019, passed in Regular Civil Suit No. 225 of 2013 (Old RCS No. 14/2008) by the learned Principal Civil Judge, Sojitra.

2. Learned Advocate Mr. Patel submitted that the appellant is the original plaintiff, who had filed Regular Civil Suit No. 225 of 2013, claiming adverse

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possession on the Suit land, which came to be dismissed. It was further submitted that the learned Judge has failed to appreciate the oral as well as the documentary evidences produced by the original plaintiff to prove his continuous possession for more than 25 years. It was further submitted that the appellate Court ought to have appreciated the fact that in the complaint filed by the defendant under the Gujarat Land Grabbing (Prohibition) Act, 2020, the complainant-Sureshbhai Krishnakant Defendant No.1 has admitted the possession of the plaintiffs from 06.02.2008 and thus, the learned appellate Judge was required to appreciate the evidence with regard to the admission made by the complainant-Sureshbhai Krishnakant Thakkar with regard to adverse possession.

3. While countering the aforesaid submissions, learned Advocate Mr. Thakkar appearing for the Caveator-original defendants submitted that both the Courts have very specifically dealt with the pleadings and evidence of the plaintiffs and the trial Court has dismissed the Suit as it did not find any evidence from the side of the plaintiff to prove the case of adverse possession. Reference was also made to the observations made by the learned Judge in Regular Civil Suit No. 225 of 2013 and it was submitted that the record proves that by sale deed dated 22.01.1925, which was given Exhibit-86, indicates that Rabari Lakha Saiji bin Khoda purchased

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the Suit land from Molesalam Garasiya Vaghela Behcar Dhudhaji bin Bhagvandas in consideration of Rs.100/-. Thereafter, the Suit land were mortgaged with the elders of defendants in consideration of Rs.400/-. Since, the elders of the plaintiffs failed to repay the mortgage amount, the defendants filed Suit No. 355/42-43 to recover the mortgage amount and got decree and on the basis of the same, they filed Execution Petition No. 775/42 and after confiscation, in auction the defendants have purchased the Suit land and became the owners thereof. It was submitted that the aforesaid fact is duly supported by the evidence produced by the defendants. It was submitted that Exhibit-85 does not establish as to on which date Rabari Lakha Sayiji got the possession of the Suit land and submitted that if, at all, the plaintiffs wanted to prove their possession, the assessment records would have reflected their names, as the same is issued by the competent authority, independent of the fact as to who is the owner and the Assessment Sheet, Exhibit-81, does not reflect the names of the plaintiffs or their elders, as party in possession. Therefore, it was submitted that the plaintiffs failed to prove their possession by way of any documentary evidence.

4. Having heard the learned Advocates for the parties, it is required to be noted that the plaintiff had filed the Suit, pleading that he has been in continuous possession of the Suit land for

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more than 25 years. The Court Commission was ordered, but the learned Judge did not believe the said report and did not consider the same as an evidence to prove the possession, as it would be only be a document which reflects the possession of the Suit land, on the date of the Commission. It has been rightly observed that the plaintiff has to prove his case of continuous possession for 25 years to prove adverse possession of the Suit land. The plaintiffs have not produced any evidence to suggest that that he was using the Suit land, by producing any electricity bill or tax receipts or any other document to show that he had been dealing in agricultural products or was selling or buying any crops. In the cross- examination of Defendant No.1, a suggestion was put to the effect that on the Suit land there is a shop situated, wherein the business of ready-made garment is being done and that there is also a stall of Samosa. However, Defendant No.1 denied the aforesaid suggestion. If, at all, such a suggestion is being put, then the plaintiffs were required to produce certain documents in connection with the sale of ready-made clothes or any other business on the Suit land. Thus, both the learned Judges have rightly come to the conclusion that nothing is produced on record to prove the continuous possession for 25 years. At the time of appreciating the report of the Court Commissioner, the Court below has noted that it was the case of the plaintiffs that they have put up fodder of their cattle in the rooms situated on the

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Suit land and the same were locked. However, the Court Commissioner's report does not establish that the rooms situated on the Suit land were locked and that fodder was therein. Thus, the case of the plaintiffs falls, as the same could not be corroborated by the report of the Court Commissioner.

5. Learned Advocate Mr. Patel appearing for the plaintiffs submitted that the appellate Court was required to appreciate the case of the plaintiffs by relying on the complaint made by the defendant No.1 under the Land Grabbing Act, wherein, it was admitted by Defendant No.1 of the possession of the plaintiffs from 2008. It is required to be noted that the Suit was filed in the year 2008, wherein the plaintiff had come-up with the case of having continuous possession for 25 years prior to the filing of the Suit on 05.02.2008 while the filing of complaint by Defendant No.1 against the plaintiffs is on 05.03.2023, which reflects that the plaintiffs had been in possession since 06.02.2008 and therefore, the complaint for the land grabbing is filed, which are the proceedings, independent of the civil rights of the parties and hence, the Appellate judge has rightly considered the said contention as a way to snatch away the Suit land.

6. The plaintiffs ought to have proved their case by producing relevant documents. By way of Exhibit-85

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even the assessment sheets, Exhibits-135 and 136, as well as the tax receipts produced at Exhibits- 137 to 142 show the ownership of Defendant No.5. The admitted possession was with the elders of the defendants, who purchased the Suit land in an auction, which also indicates that the plaintiffs have no claim of ownership on the Suit land by way of title, but they have tried to claim ownership by way of adverse possession, which they were required to prove, but they failed to do so and the defendants have successfully dis-proved the claim of the plaintiffs. Both the Courts below have rightly appreciated the evidence produced before them and the trial Court as well as the appellate Court have rightly dismissed the Suit as well as the appeal filed by the plaintiffs, respectively.

7. This Court, on merits, does not find any substantial question of law to be raised in this appeal. Hence, this matter fails and is DISMISSED, accordingly.

7.1 In view of the disposal of the main matter, Civil Application (for Stay) No. 1 of 2023 shall not survive and the same also stands disposed of, accordingly.

(GITA GOPI,J) UMESH/-