Gujarat High Court
Rupsinh Gulansinh Dabhi vs Manguben D/O Motibhai Ranchhodbhai on 19 January, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/SA/100/2023 ORDER DATED: 19/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 100 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In
R/SECOND APPEAL NO. 100 of 2023
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RUPSINH GULANSINH DABHI
Versus
MANGUBEN D/O MOTIBHAI RANCHHODBHAI
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Appearance:
SAGAR J SHAH(9447) for the Appellant(s) No. 1
MR DASHRATH CHAUHAN(2123) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 19/01/2024
ORAL ORDER
1. Heard learned Advocate for the appellant Mr. Sagar
J. Shah, who submitted that the appellant herein is
the original plaintiff who has assailed the orders of
both the Courts, where he had filed Regular Civil
Suit No.23 of 2014 before the learned Principal Civil
Judge at Kathlal whereby the learned trial Court had
dismissed the Suit on 28.07.2017. Aggrieved by the
same, the plaintiff filed an Appeal, i.e. Regular Civil
Appeal No.57 of 2021 and the same came to be
rejected on 20.04.2022 by the learned 3 rd Additional
District Judge, Kheda at Kapadwanj.
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C/SA/100/2023 ORDER DATED: 19/01/2024
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2. Learned Advocate Mr. Sagar J. Shah raised a primary
contention referring to the decision of the Hon'ble
Apex Court in the case of Somakka (Dead) By Legal
Representatives v. K.P. Basavaraj (Dead) by Legal
Representatives reported in (2022) 8 SCC 261 and
submitted that the learned Appellate Court was
mandated to frame the points of determination in
accordance to Order 41 Rule 31 of the Civil
Procedure Code, 1908. It is further submitted that
the learned Appellate Court in the present matter has
failed to raise the point of determination and thereby,
submitted that the matter is required to be remanded
for re-consideration.
3. Further, referring to the decision of the Hon'ble Apex
Court in the case of State of Rajasthan and Others v.
Shiv Dayal and Another reported in 2019 8 SCC 637,
it is submitted that if there is concurrent findings of
two Courts, it cannot be said that they are not
assailable and also submitted that when substantial
questions of law arises and are to be formulated,
then the Second Appeal is maintainable.
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4. Relying upon the facts of the case, learned Advocate
Mr. Sagar J. Shah submitted that the plaintiff had
filed a Suit relying upon the Agreement dated
24.06.1974 which was executed for Rs.3,200/- and
the Suit property was entrusted by the original owner
- Motiji Ranchhodbji by way of Agreement of Sale;
part of the consideration amount of Rs.2,350/- was
paid to the deceased - Motiji Ranchhodji, in presence
of the witnesses and he had handed over the
possession and for that, the referred documents were
executed.
5. Learned Advocate Mr. Sagar J. Shah submitted that
the defendant - Manguben D/o. Motibhai
Ranchhodbhai had shown herself as daughter of
Motiji Ranchhodji in the revenue records, hence, the
present appellant as plaintiff was constrained to file a
Suit claiming his right on the Suit land on the
Agreement executed on 24.06.1974 and also claimant
as owner by way of adverse possession for a period
of more than 40 years. It is submitted that the
Suit was dismissed and the prayer was not allowed
where the plaintiff had filed the Suit for declaration
and permanent injunction. It is further submitted
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that the learned Appellate Court was required to deal
with all the evidence and the facts and circumstances
pleaded by the plaintiff and the points of
determination were required to be raised but the
same was not done and without any detailed
observations, the learned Court had dismissed the
Appeal.
6. Countering the above arguments, learned Advocate
for the respondent Mr. Dashrath Chauhan submitted
that the learned trial Court has in detail referred to
the evidence. It is further submitted that the
original owner was Motiji Ranchhodji and after, the
death of the original owner in the year 2010, the
name of the present defendant was entered as
daughter. Learned Advocate Mr. Dashrath Chauhan
submitted that no Suit for specific performance was
filed, nor, any attempt was made to get his name
mutated in the revenue records and merely on the
plea of possession by way of adverse possession, the
Suit was filed. It is further submitted that the
learned trial Court has rightly observed that the plea
of adverse possession cannot be claimed by way of
sword but can only be used as a shield. It is
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further submitted that the document dated 24.06.1974
does not make mention of Suit property by way of
any property number or area, and the document at
Exhibit 43 itself is vague without any co-relation to
the suit property. It is further submitted that the
revenue receipts are in the name of the present
respondents and since she was staying at her
matrimonial home, and had given money to the
plaintiff for payment of reserve, hence, he has
wrongly claimed himself to be related to the
property. It is also submitted that the Receipts itself
suggests that the payment of the tax were made
through him, which were filed by the defendant, in
view of the same, learned Advocate Mr. Dashrath
Chauhan submitted that the revenue documents shows
the authority of the defendant.
7. Learned Advocate Mr. Dashrath Chauhan further
submitted, that the issue was in a very narrow
compass, since the documents relied upon were found
to be vague. The learned Appellate Judge had
observed the same and thus, raised the single issue
regarding the legality and validity of the judgment.
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Learned Advocate Mr. Dashrath Chauhan stated that
the Appellate Court has referred to the observations
made by the learned Trial Court and thereafter, had
dealt with both the issues of the document dated
24.06.1974, as well as, the issue of adverse
possession. It is also submitted that, even otherwise
the plaintiff has failed to prove his possession on the
Suit property for about 40 years as claimed by him.
8. Heard learned Advocates on record and perused the
judgments of both the Courts. The learned trial
Court has dealt with all the issues in connection with
the Document dated 24.06.1974 and also the claim of
adverse possession, raised by the plaintiff. The
defendant is the daughter of Motiji Ranchhodji and
the learned trial Court has observed that the writing
does not bear any Survey No., Area of the suit
property. The learned Judge has then given his
findings to the effect that the document is vague and
further, has observed that the possession cannot be
considered to be legal. The plaintiff could not prove
his plea of adverse possession as it has to be nec vi,
nec clam, nec precario, meaning thereby "without
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force, without secrecy, without permission." The
party claiming adverse possession must prove his
possession, as peaceful, open and continuous. The
possession must be adequate, in continuity, in
publicity and in extent to show that the possession is
adverse to the true owner.
9. The learned Appellate Court has referred to the
arguments of learned Advocates on record and has
raised the point of determination. Considering the
legality, validity and observations of the learned trial
Court, a single point of determination would go to
the root of the matter since the appellant was the
plaintiff, before the learned trial Court and the
appellant was required to prove whether the
judgment of the trial was illegal and against the
settled principles of law and which requires any
interference of the Appellate Court. The plaintiff, as
the present appellant herein has failed to prove the
same.
10. This Court also does not find any reason to
interfere with the concurrent findings of both the
Courts and no substantial questions of law arises for
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determination of this Court.
11. The appellant herein, has also failed to show the
actual as well as the settled position on the suit
property, which is shown as Khata No.181 Survey /
Block No.178/1 situated at Shriranimuvadi, Moje
Mirzapur, Taluka Kathal, District Kheda. The
document on record prove that the Suit property is
running in the name of the respondent as the
daughter of Motiji Ranchhodji. The Agreement to
Sell does not find definitive description of the Suit
property for any consideration of the Court. It also
requires to be mentioned that the present appellant
had never asked for specific performance of the
Agreement of Sale from Motiji Ranchhodji, till he
died and there is no material on record to even
consider the plea of adverse possession.
12. In view of the aforesaid discussion, the present
Appeal fails and therefore, stands dismissed. Notice
is discharged. Resultantly, the Civil Application does
not survive and stands disposed of accordingly.
Sd/-
(GITA GOPI, J)
CAROLINE
