Gujarat High Court
Lh Of Decd. Popatbhai Merambhai ... vs State Of Gujarat on 9 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 9 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SECOND APPEAL NO. 9 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
Yes
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LH OF DECD. POPATBHAI MERAMBHAI BHUPATBHAI POPATBHAI &
ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MS SAMRUDDHI V PAWAR(13069) for the Appellant(s) No. 1
MR BHARAT VYAS, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 09/04/2025
ORAL JUDGMENT
1. Being aggrieved by the judgment and decree passed by Principal
District Judge Rajkot in Regular Civil Appeal no.42 of 2010,
whereby the said appeal has been dismissed and the judgment and
decree passed in Regular Civil Suit No.101 of 1993 passed by the
4th Additional Senior Civil Judge is confirmed, the present second
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appeal has been filed.
2. For the sake of brevity and convenience, the parties are referred to
as plaintiffs and the defendants.
3. The brief facts arising in the present Second Appeal are that the
plaintiffs filed suit for permanent injunction on the ground that
they are occupying suit property since 1961 and the suit premises
belongs to the defendants, i.e. State of Gujarat and the plaintiffs are
in possession of the property since last more than 30 years and as
the plaintiffs have become the owner on the ground of adverse
possession, the plaintiffs have filed a suit for injunction and after
going through the documentary evidence and oral evidence and
giving findings on all the issues, the Trial Court dismissed the said
suit and thereafter the plaintiffs filed appeal and the same was also
rejected.
4. Learned advocate for the plaintiffs has mainly contended that the
plaintiffs have become the owner of the property as they are in
possession of the property for the last 30 years and therefore, the
defendants cannot dispossess the plaintiff from the suit premises.
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The learned advocate for the plaintiffs has also stated that the
defendant Government has no right what so ever to remove the
plaintiffs from the possession without following due process of
law.
5. Having heard learned advocate for the plaintiffs, the fact remains
that the following points are not in dispute:
1. The defendant government is the
owner of the property.
2. The defendants are claiming to be
owner by way of adverse possession.
3. There is no relief to declare that the
plaintiffs have become owner by way of
adverse possession.
4. the suit is only for injunction.
6. Having heard learned advocate for the plaintiffs, the fact remains
that, the plaintiffs who are claiming adverse possession, have
miserably failed to show that, on what date he came into
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possession and that what was the nature of his possession and
whether the factum of possession, was known to the defendant and
since how long his possession has continued and the plaintiffs have
also miserably failed to prove that his possession was open and
undisturbed. All the above referred ingredients are not mentioned
in the pleadings and are also not proved in evidence and therefore,
when there are no proof in the pleadings and there is no oral or
documentary evidence, the case of the plaintiffs without evidence
will not establish a case in law. Moreover, mere possession of the
land by the plaintiffs would not ripen into possessory title. The
plaintiffs to claim right by adverse possession must have intention
and hold the suit property adverse to the title of the defendant.
7. Moreover, with respect to the claim of the plaintiffs to be in
adverse possession, the possession of the suit property by the
plaintiffs contemplates a hostile possession i.e. a possession which
is impliedly or expressly in denial of the title of the true owner and
for claiming possession to be adverse, the same must be a
possession by the plaintiffs, who does not acknowledge either the
defendant's right or anybody else's right, but also denies the said
right. The plaintiffs possession for claiming adverse possession had
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to imply a control and consciousness in the mind of the plaintiffs
having dominion over an object that plaintiffs have adverse
possession and only then can plaintiffs exercise it, and therefore by
only holding possession of the suit property would not entitle the
plaintiffs into possessory title as there has to be an element to hold
the suit property adverse to the title of the true owner.
8. Moreover, the possession of the premises of the plaintiffs only
implies the bare use of the land without any right to retain it and
therefore, in order to constitute adverse possession, the plaintiffs
must prove that the actual possession of the plaintiffs was claimed
by the plaintiffs as of right by himself or by persons deriving title
from him and therefore, it was not sufficient for the plaintiffs to
prove adverse possession to show just the possession of property
and for the claim of adverse possession, the said possession along
with being actual, visible exclusive has to be hostile and continued
during the time necessary to create a bar under the statute of
limitation. It is not enough for the plaintiffs to prove that he was in
actual possession of the property within period of limitation, but
the plaintiffs must establish his title to the property and if the
plaintiffs fail to prove his title, the suit fails and the question of
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adverse possession does not arise in such a case.
9. In the present case the defendant having established his title to a
land, the burden of proving that he has lost the title by reason of
adverse possession of the plaintiffs, lies upon the plaintiffs and in
the present case, the plaintiffs have failed to prove that he was in
adverse possession for more than 30 years and therefore also, the
defendant is entitled to succeed simply on the strength of his title.
Moreover, the present suit is only for injunction and the plaintiffs
have not claimed ownership by way of adverse possession.
10.The next issue is with respect to the claim of injunction that the
defendant government should not dispossess the plaintiffs from the
suit property without due process of law.
11.The law of due process is well settled in case of Maria Margarida
Sequeria Fernandes and Others v. Erasmo Jack de Sequeria
(Dead) in Appeal No.2968 of 2012 (Arising out of SLP (C)
No.15382 of 2009) decided on 21.03.2012, the Hon'ble Apex
Court has approved the finding of the High Court of Delhi in case
of Thomas Cook (India) Limited V/s. Hotel Imperial wherein it
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has held that the settled possession of even a person in unlawful
possession cannot be disturbed forcibly by true owner taking law in
his own hands therefore ejectment from settled possession can only
be had by recourse to Court of law and due process of law or due
course of law would mean that a person in settled possession
cannot be ejected without a Court of law having adjudicated upon
his rights qua the true owner. The Court held that it was not
important who brought the action to Court, it could be the owner in
an action for enforcement of his right to eject the person in an
unlawful possession of the property meaning thereby that if the
defendant is in unlawful possession of the property, the owner can
file a suit for ejectment and also it could be the person who is
sought to be ejected and who has filed a suit preventing the action
of the owner from ejecting him like the present case that the
respondent plaintiff is claiming a right in the property stating that
he is in settled possession of the property and the defendant cannot
dispossess the plaintiffs without due process of law. It is not
important that whether the owner has filed a suit for recovery of
possession or the person in settled possession has filed a suit for
protection of his right i.e. injunction against dispossession. What is
important is that in either event it is an action before the Court and
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that the Court adjudicates upon it and if that is done, the bare
minimum requirement of due process or due course of law would
stand satisfied as recourse to law would have been taken.
Therefore, when the person in settled possession approaches the
Court seeking a protective remedy, such injunction, like the present
case and the plaintiffs of the said suit fails in setting up a good
case, in that event the recourse to law stipulation stand satisfied
when a judicial determination is made with regard to protective
action filed by a person in settled possession is decided.
12.Therefore, the plaintiff who files a suit for injunction for seeking
protective remedy fails and suit is dismissed thereafter he cannot
state that owner must now institute an action in Court of law for
recovery of possession when the Court has already held that
possession of the property that is with the plaintiffs is unlawful.
13.Therefore, the bare minimum requirement of due process of law is
met with, as the plaintiffs have already lost the suit and has not
been able to show that he has a right to claim injunction against the
true owner. Moreover, the plaintiffs even by long possession of
years or decades cannot acquire any right or interest in the suit
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property, the plaintiffs having claimed right by way of adverse
possession and having not proved the adverse possession and or
filed any suit with respect to the adverse possession cannot be
protected.
14.In the present case, the conclusion which has been reached by both
the Trial Court and the Appellate Court cannot be interfered as the
judgment and decree of the Court below are not perverse, arbitrary
so as to warrant interference. Moreover, as per the well settled
decisions of this Court as well as the Hon'ble Apex Court, the
Court ordinarily will not interfere with concurrent findings of fact
except in exceptional cases where the findings are such that it
shocks the conscious of the Court or may disrespect to the forms of
legal process or some violation or some principle of natural justice
or otherwise substantial and great injustice has been done.
15.It is required to be noted that in Second Appeal, the scope is very
limited and the Court cannot re-appreciate the evidence. In the case
of Navaneethammal v. Arjuna Chetty reported in 1996 (6) SCC
177, the Hon'ble Apex Court has observed as under:-
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"11. This Court, time without number,
pointed out that interference with the
concurrent findings of the courts below
by the High Court under Section 100
CPC must be avoided unless
warranted by compelling reasons. In
any case, the High Court is not
expected to reappreciate the evidence
just to replace the findings of the lower
courts."
16.In the case of Jaichand (Dead) through Lrs and Other v.
Sahnulal and Another reported in 2024 SCC OnLine SC 3864,
the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section
100 CPC, the High Court cannot
interfere with the findings of fact
arrived at by the first Appellate Court
which is the final Court of facts except
in such cases where such findings were
erroneous being contrary to the
mandatory provisions of law, or its
settled position on the basis of the
pronouncement made by the Apex Court
or based upon inadmissible evidence or
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without evidence."
17.Under the circumstances, this Second Appeal is devoid of any
substantial question of law. Both the learned Trial Court and first
appellate Court have rightly decided the issue between the parties
in the right perspective and as stated above no substantial question
of law arises in the present appeal. The appellants have failed to
prove their case before the learned trial Court as well as before the
first appellate Court. This Court does not find any substance in the
present Second Appeal as the same is devoid of any merit both on
facts and law and the same is dismissed at admission stage.
18. In view of the dismissal of the Second Appeal, the Civil
Application does not survive and the same is accordingly disposed
of.
(SANJEEV J.THAKER,J)
URIL RANA
