Zala Jagatsinh Ratansinh vs Kanaksinh Ramsinh Zala
2025 Latest Caselaw 2489 Guj

Gujarat High Court

Zala Jagatsinh Ratansinh vs Kanaksinh Ramsinh Zala on 12 August, 2025

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                            C/SA/79/2001                                        JUDGMENT DATED: 12/08/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                              R/SECOND APPEAL NO. 79 of 2001


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR.JUSTICE SANJEEV J.THAKER                                 Sd/-
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                                  Approved for Reporting                        Yes            No
                                                                                               ✔
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                                            ZALA JAGATSINH RATANSINH & ORS.
                                                         Versus
                                             KANAKSINH RAMSINH ZALA & ORS.
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                      Appearance:
                      MR FB BRAHMBHATT(1016) for the Appellant(s) No. 1,2,3,4.1
                      MR JV JAPEE(358) for the Respondent(s) No. 1
                      NOTICE SERVED for the Respondent(s) No. 2,4,5
                      RULE SERVED for the Respondent(s) No. 3.1,3.2,3.3,3.4,3.5
                      ==========================================================

                        CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                          Date : 12/08/2025

                                                         ORAL JUDGMENT

1. The present Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 (for short "the Code"), challenging the judgement and decree dated 30.04.2001 passed by Assistant Judge Sabarkantha at Himmatnagarb in Civil Appeal No.32 of 1993, whereby the Appellate Court has allowed the said appeal and the judgement and decree passed by Civil Judge Junior Division, Prantij, in Regular Civil Suit No.56 of 1985, was set aside and the Cross Objections filed by the respondents were rejected and the First Appellate Court has passed an order that even when the judgement and decree

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passed by the Trial Court is set aside, but the same will not effect the rejection of the declaratory relief and the only fact that the Appellate Court has considered is that the rejection of the declaratory relief is proper but the reasons assigned by the Trial Court for rejecting declaratory relief are not proper.

2. For the sake of brevity and convenience, the parties are referred to as per their original status as that in the suit.

3. The brief fact arising in the present Second Appeal are that the plaintiff claiming to be the owner of the suit property by virtue of a sale deed executed on 07.04.1982. The plaintiff has purchased the suit property from one Abdulrahim Haji Umarbhai Vora. Regular Civil Suit No.56 of 1985, has been filed by the plaintiff for declaration and permanent injunction against the defendants and the Trial Court framed issues vide Exhibit 37 and the Trial Court had partly allowed the suit and the relief that has been prayed by the plaintiff with respect to the declaration has been rejected by the Trial Court and with respect to the permanent injunction, restraining the defendant from causing any disturbance, hindrance to the plaintiff's peaceful possession of the suit property, the same was granted by the Trial Court. Aggrieved by the said judgement and decree whereby the Trial Court had granted the prohibitory injunction against the defendants, the defendant filed appeal.

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The plaintiffs filed cross-objection to the said appeal and the said cross objections of the plaintiffs with respect to the dismissal of declaratory relief was heard and the said Cross- objections were rejected. Being aggrieved by the judgement and decree passed by the Trial Court and confirmed by the First Appellate Court with respect to the declaratory relief, the plaintiff has filed the present second appeal. The present Second Appeal was admitted by an order of Co-ordinate Bench dated 04.07.2001 and the following substantial questions of law were framed:

"(1) In the facts and circumstances of the case and having held by both the Courts that the plaintiffs are in possession of the disputed land, whether the lower Appellate Court ought to have confirmed the order of the Trial Court with regard to the injunction as defendants are not entitled to take possession from the plaintiff without following the due procedure of law?

(2) Whether the decree of the lower court is vitiated by non-consideration of "possessory title" of Appellant herein?"

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Submissions of the of the plaintiff:

4. Learned advocate for plaintiff has mainly argued that, if the entire evidence is perused, it comes on record that it is the case of the plaintiff that by an oral agreement, the suit property was sold to one Abdulrahim Haji Umarbhai Vora and said Abdulrahim Haji Umarbhai Vora, was in possession of the suit premises and even in the mutation entries, the name of Abdulrahim Haji Umarbhai Vora, was entered in the revenue record and thereafter, the suit property has been purchased by the plaintiff by registered sale deed, from said Abdulrahim Haji Umarbhai Vora, which is produced vide Exhibit 124 and since the year 1982, the plaintiff is in possession of the suit property.

5. Moreover, it has also been argued that the fact that vide entry no.205, posted in the year 1966, the name of Abdulrahim Haji Umarbhai Vora was stated in the mutation entry. Moreover, it has also been argued that the defendants have neither challenged the sale deed executed on 07.04.1982, produced vice Exhibit 124, nor have they claimed possession in the suit property and therefore, the fact remains that in view of the registered sale deed, the plaintiff has become the owner of the property. Moreover, the predecessor of the plaintiff had also made a statement before the Talati, acknowledging the fact that the suit property was sold to Abdulrahim Haji Umarbhai

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Vora and therefore the plaintiff has become the owner of the suit property.

6. Learned advocate has further contended that in view of the fact that the plaintiff is in possession of the suit property, since, the date of Execution of the sale deed dated 07.04.1982, the possession of the suit property being with the plaintiff, the defendant cannot dispossess the plaintiff without due process of law, and therefore even on the said ground, the Appellate Court could not have quashed and set aside the judgement and decree of the Trial Court whereby the possession of the suit property of the plaintiffs was protected by the Trial Court.

7. Learned advocate for the plaintiff has argued that in view of the fact that the plaintiff is in possession of the property even by way of adverse possession, the plaintiff has become the owner of the property and therefore also, the plaintiff has to be protected and in view the said fact, it has been argued that as both the Courts have held that the plaintiff is in possession of the suit property, the Appellate Court ought to have confirmed the order of the Trial Court with regard to the injunction, as defendants are not entitled to take possession from the plaintiff without following due process of law and the Trial Court should have taken into consideration the possessory title of the plaintiff and in view of the said fact, it been argued that the judgement and decree passed by the Trial Court whereby, the

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Trial Court has dismissed the declaratory relief sought by the plaintiff and the judgement and decree of the Appellate Court, whereby the judgement of the Trial Court qua the relief of declaratory having been confirmed and the Cross Objection having been rejected, the present Second Appeal is required to be allowed.

Submissions of the defendant:

8. Learned advocate for the defendant has mainly argued that the fact remains that on the date when the sale deed is executed by Abdulrahim Haji Umarbhai Vora, Abdulrahim Haji Umarbhai Vora was not the owner of the suit property and the said fact has been proved by the defendants before the Trial Court and confirmed by the Appellate Court. The fact remains that though the sale deed dated 07.04.1982, has not been challenged, but the fact remains that it is the case of the defendant that the signatory to the said sale deed i.e. Abdulrahim Haji Umarbhai Vora, could not have executed the sale deed in favour of the plaintiff as Abdulrahim Haji Umarbhai Vora was not the owner of the property and therefore he could not have executed the sale deed produced vide Exhibit 124.

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9. Moreover, it has also been argued that the statements that have been made before Talati, whereby, the father of the defendant has stated that the Revenue Entry were made pertaining to the rights of said, Abdulrahim Haji Umarbhai Vora whereby the plaintiff wants to rely on Entry No.205, but the fact remains that the said entry i.e. Entry No.205, has been cancelled and in view of the said fact, the said entry cannot be relied on by the plaintiff.

10. Moreover, it has also been argued that after the said Entry No.205 having been cancelled, the plaintiff has not challenged the said entry. Therefore, the judgement and decree passed by the Trial Court and confirmed by the Appellate Court with respect to the declaratory relief is as per law and same does not require to be interfered with.

11. With respect to the relief of the injunction, learned advocate for the defendant has argued that the plaintiff by way of the present Second Appeal has challenged the judgement and decree, whereby the First Appellate Court has confirmed the judgement and decree of the Trial Court with respect to the declaratory relief. The fact remains that the plaintiff has not challenged the judgement and decree of the Trial Court but had only filed Cross-objection in Civil Appeal No.32 of 1993

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and the said Cross-objection have also been rejected thereafter in view of the fact that though in Cross-objection, the plaintiff had sought to challenge the judgement and decree whereby the Trial Court had rejected the declaratory relief and the Appeal having been allowed with respect to the prohibitory injunction relief sought by the plaintiff, the plaintiff ought to have filed two separate appeals. Be that as it may, but the fact remains that the plaintiff cannot claim any right to be in possession of the property in view of the fact that there is no subsisting agreement whereby the plaintiff is entitled to be in possession of the property. Moreover, it is also been argued that the fact that the possession has to be sought only after due process of law but the fact remains that once the plaintiff having not succeeded to protect his possession of the suit property, the defendant does not have to file a separate suit for seeking possession in view of the fact that due process of law is satisfied as the plaintiff had sought for protection of right against dispossession and the Court having held against the plaintiff, the due process of law would stand satisfied as recourse to law would have been taken and as the plaintiff approached the Court seeking a protective remedy such as an injunction and the plaintiff having failed to set up a good case, the plaintiff then cannot say that the defendant must now institute an action in a Court of law for enforcing his right i.e. for taking back something from the plaintiff who holds it

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unlawfully, and therefore the recourse to law stipulation stood satisfied when the judicial determination is made with regard to the plaintiff's protective action, and in view the said fact, it has been argued that the present Second Appeal is required to be dismissed and in view of the fact that the plaintiff himself had not sought any relief claiming to be owner by way of possessory title, and the fact that the plaintiff has not been able to prove any document to show that the plaintiff has a right to be in possession of the suit property, the judgement and decree of the Appellate Court is proper and as per law and in view of the said fact, the present Second Appeal is required to be dismissed.

Analysis:

12. Having heard learned advocates for the respective parties and having considered the substantial questions of law that have been framed by this Court by an order dated 04.07.2001, which are stated in the above referred para.

13. The fact remains that the plaintiff has claimed right in the suit premises by virtue of a sale deed executed on 07.04.1982, if the said fact is considered, there is no documentary evidence to prove that the suit property has been sold to the plaintiffs by the real owners of the suit property. The fact remains that the

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suit property has been sold to the plaintiff vide Exhibit 124, by one Abdulrahim Haji Umarbhai Vora, the fact remains that the plaintiff has stated that said Abdulrahim Haji Umarbhai Vora had become the owner of the suit property by way of an oral agreement that was executed by the predecessor in title of the defendants.

14. The plaintiff has tried to rely on the receipts Exhibit 132 and 133, wherein vide Exhibit 132 ₹1,000/- is paid to the father of defendant No.2 and vide Exhibit 133 ₹2,850/- is paid to the father of defendant no.2, Exhibit 133 is dated 18.05.1966, and therefore it is the case of the plaintiff that even according to the statement made vide Exhibit 136, the father of the defendants have stated before Talati-Cum-Mantri that they have sold the suit property to Abdulrahim Haji Umarbhai Vora, for an amount ₹6,210/-. The fact remains that even according to the plaintiffs, the suit property was alleged to have been sold for an amount ₹6,210/- therefore, as per the provisions of the Registration Act, the said property could not have been sold by the father of the defendants without a registered sale deed. The plaintiff has come forward with the case that there was a oral sale, but the fact remains that as per the Transfer of Property Act and as per Registration Act, there cannot be any oral sale of the suit property. Moreover, the plaintiff has tried to rely on the statements made before the

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Talati-Cum-Mantri, but the fact remains that subsequent to the said statement an Entry No.205 was entered, Entry No.205 was cancelled during the lifetime of Abdulrahim Haji Umarbhai Vora and Abdulrahim Haji Umarbhai Vora has not challenged the said entry. Moreover, there is no proof regarding payment made by Abdulrahim Haji Umarbhai Vora, in view of the said fact, the plaintiff has not proved that the plaintiff is the owner of the suit property and that said Abdulrahim Haji Umarbhai Vora was entitled to execute a sale deed in favour of the plaintiff on 07.04.1982, and therefore the sale deed produced vide Exhibit 124 could not have been executed by Abdulrahim Haji Umarbhai Vora.

15. In view of the said fact, the Trial Court and the Appellate Court have rightly held that by virtue of registered sale deed produced vide Exhibit 124, the plaintiff could not be said to be the owner of the suit property.

16. With respect to the claim of the plaintiff stating that the plaintiff are in possession of the suit property since the date of execution of sale deed, the fact remains that the sale deed that has been executed in favour of the plaintiff is of the year 1982 and the suit that has been filed by the plaintiff is in the year 1985, and though the plaintiff has not claimed right by way of

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becoming the owner by way of adverse possession, but even if the said fact is considered, the plaintiff is in possession of the suit property only for three years.

17. Moreover, the fact remains that, even if the plaintiff is in possession of the suit property for decades, the plaintiff would not acquire any right or interest in the suit property and the protection of the Court can only be granted to a person who has valid Agreement. With respect to the fact that the only ground that and the plaintiff has stated to have a right to be in possession of the property is the fact that the plaintiff has become the owner by way of Registered sale deed produced vide Exhibit 124 which has been executed by Abdulrahim Haji Umarbhai Vora but the fact remains that Abdulrahim Haji Umarbhai Vora was neither the owner of the property nor there is any document to show that any registered sale has been executed in favour of Abdulrahim Haji Umarbhai Vora in the present case.

18. In the present case, the fact remains that the plaintiff having not filed any suit on the ground of claiming to be owner by way of adverse possession, the plaintiff does not have any right, title, interest to occupy the suit premises and the plaintiff has not proved that other than the alleged document Exhibit

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124, the plaintiff has any right to occupy the suit property. In view of the same, the issue no.1, the Appellate Court has rightly quashed and set aside the order of the Trial Court with regard to the injunction sought by the plaintiff and the decree of the lower Court, with respect to the declaratory relief is as per law and the decree of the lower Court is not vitiated with respect to the possessory title of the appellant, in view of the fact that the plaintiff had not claimed to be the owner of the suit property on the ground of possessory title.

19. In view of the same, the substantial question of law are answered

(1) Negative

(2) Negative.

Conclusion

20. In view of the aforesaid finding the judgment and decree passed by the First Appellate Court is hereby confirmed, and the present Second Appeal is dismissed.

Sd/-

(SANJEEV J.THAKER,J) URIL RANA