Gujarat High Court
The State Of Gujarat, Through Chief ... vs Kumbhar Ranchhodbhai Naranbhaisince ... on 14 August, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 173 of 2009
With
CIVIL APPLICATION NO. 3 of 1994
In R/SECOND APPEAL NO. 173 of 2009
With
CIVIL APPLICATION (SCA & SA BR.) NO. 4 of 1994
In R/SECOND APPEAL NO. 173 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
No
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THE STATE OF GUJARAT, THROUGH CHIEF SECRETARY, & ORS.
Versus
KUMBHAR RANCHHODBHAI NARANBHAISINCE DECD. THROUGH
HEIRS. & ORS.
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Appearance:
MR BHARAT TRIVEDI AGP for the Appellant(s) No. 1,2,3
MR BHAVESH P TRIVEDI(2731) for the Respondent(s) No.
1.1,1.2,1.3,1.4,1.5,1.7,1.8
MR RR TRIVEDI(941) for the Respondent(s) No.
1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 14/08/2025
ORAL JUDGMENT
1. The present Second Appeal has been filed under Section 100
of the Code of Civil Procedure, 1908 ('CPC', for short) challenging
the judgment and decree dated 30.09.1992, passed by the 3 rd Extra
Additional Judge, Gondal, Rajkot in Regular Civil Appeal No.40 of
1984 whereby the learned appellate Judge has dismissed the said
appeal and confirmed the judgment and decree dated 01.10.1983,
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passed in Regular Civil Suit No.168 of 1981 by Civil Judge (S.D.)
Gondal, Rajkot.
2. For the sake of convenience, the parties are referred to as their
original status referred in the suit.
FACTS :
3.1 The brief facts arising in the present appeal are that the
plaintiff had filed Civil Suit No.168 of 1981, for declaration and
permanent injunction on the ground that plaintiff is owner and
occupier of the suit property and it is the case of the plaintiff that the
suit land is open land and that State of Jetpur was original owner of
the suit land and it was given to the plaintiff's ancestor Mavji Jiva by
the State of Jetpur before 50 years and without issuing notice order
was passed by City Survey Officer dated 08.01.1970 and thereafter
order was passed by the Deputy Collector dated 16.04.1981
declaring the suit property as property belonging to the Government.
3.2 It was the case of the plaintiff in the suit that City Survey
Officer could not have passed the said order in view of the fact that
plaintiff is in possession of the property since last more than 50
years and in view of long standing possession, plaintiff has become
owner of the property. The direction was also sought in the suit to
the effect that name of the plaintiff be entered in the Government
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record in respect of suit land. The defendant appeared in the said suit
and the trial Court framed issues vide Exh.29 which reads as under:
"(1) Whether the plaintiff proves that he is the owner of
the suit property with possession since more than
50 years ?
(2) Whether the plaintiff proves that the order passed
by City Survey Officer on 8-1-1970 and order
passed by the defendant no.2 on 16-4-81 are illegal
and void ?
(3) Whether the plaintiff proves that the Government
and the municipality has no right or interest or title
in the suit property ?
(4) Whether the defendants prove that the suit
property is Government property ?
(5) Whether the plaintiff is entitled to get the reliefs of
declaration and injunction as prayed for ?
(6) What order ? What decree ?"
3.3 After considering the oral evidence and the documentary
evidence and after giving findings on all the issues, trial Court held
that plaintiff has proved that he is the owner of the suit property by
way of possession since more than 50 years and that the order passed
by City Survey Officer on 08.01.1970 and the order passed by
defendant no.2 Deputy Collector on 16.04.1981 are illegal and void
and that Government and Municipality has no right or interest or title
in the suit property and the defendants have failed to prove that the
suit property belongs to the Government.
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3.4 Aggrieved by the said judgment and decree, the appeal came
to be filed being Regular Civil Appeal No.40 of 1984 and after re-
appreciating the evidence, the first appellate Court dismissed the
appeal. Hence, present Second Appeal.
3.5 The coordinate Bench of this Court by order dated 09.09.2010
admitted present Second Appeal on the following substantial
questions of law.
"(a) Whether the Courts below are right in law in declaring the
orders passed by the authorities below viz., order passed by
the City Survey Officer on 08.01.1970 and Deputy
Collector on 16.04.1981 are null and void, illegal and
unconstitutional and without jurisdiction ?"
4. Learned Assistant Government Pleader has mainly argued that
the plaintiff in the suit has miserably failed to prove that the plaintiff
is owner of the property, the plaintiff has also failed to show any
document to prove his ownership with respect to the suit property. It
has been argued that plaintiff has only relied upon on the documents
i.e. receipts produced vide Exhs.35, 36 and 37 to prove the fact that
the plaintiff is in possession of the property, since at least year 1941.
Exhibits 35, 36 and 37 and the sale-deeds that are relied upon by the
plaintiff are not of the suit property and even in the sale-deeds
produced vide Exhs.48 and 49 also clearly show that property in
which the plaintiff claims right is shown as Darbari land and,
therefore, there are no documentary evidence to prove the fact that
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the plaintiff has any ownership in the suit property and plaintiff is
only claiming right by way of possessory title in the suit property.
Therefore, it has been argued that the trial Court and the appellate
Court could not have declared the order passed by the City Survey
Officer on 08.01.1997 and Deputy Collector on 16.04.1981 as null
and void, illegal and unconstitutional and without jurisdiction and in
that view of the matter, it has been argued that present appeal is
required to be allowed and the judgment and decree passed by the
trial Court and confirmed by the appellate Court, are required to be
quashed and set aside.
5. Per contra, learned advocate for the plaintiff has mainly relied
on oral evidence led by the parties more particularly the fact that
vide Exh.61 the Maintenance Surveyor viz. Ratigar Jivangar has
deposed before the Court and in his cross-examination the said
witness has stated that he has not seen the property and that no
notice was given before the City Survey inquiry was made and
pursuant to the said inquiry the order dated 16.04.1981 was passed.
In his cross-examination, the said witness has also admitted that
even intimation about the order of City Survey Officer i.e.
08.01.1970 was not given to the plaintiff or his father and nothing
has come on record to show that Government was in possession of
the suit property or Ex- Ruler was in possession of the suit property
for more than 60 years. The said witness i.e. Maintenance Surveyor
who was examined vide Exh.61 has also stated that he has no
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personal knowledge and that there is no evidence that the
Government was ever in possession of the suit property.
5.1 It has been argued that during the regime of Ex-princely
States, the State used to encourage the families of various
communities to start their profession and business and the ancestor
of plaintiff viz. Mavji Nathu, was given suit property for doing
pottery business by Ex Ruler State and, therefore, the suit property
was granted without any price, out of gratis by Ex Ruler and at the
time of filing the suit plaintiff was in possession of the premises for
more than 60 years.
5.2 It is the case of the plaintiff that the ancestor of the plaintiff
used to pay pottery tax to the Government and plaintiff relied on
receipts vide Exhs.35, 36 and 37 and though the possession of
ancestor of the plaintiff were never disturbed or interfered by Ex
Ruler, Gujarat State or Municipality, straight-way the orders have
been passed i.e. by City Survey Officer on 08.01.1970 and the order
passed by defendant no.2 Deputy Collector on 16.04.1981 without
issuing any notice.
5.3 Learned advocate for the plaintiff has also relied on the case of
Dallumiya Lalmiya Malek vs. State of Gujarat reported in 22 GLR
668, stating that plaintiff has shown that he is in possession of the
suit property for more than last 60 years and, therefore, the burden of
proof that the plaintiff is not owner will be on the defendant. In view
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of the same, it has been argued that there are concurrent findings of
the trial Court and the appellate Court and in view of the said fact
there is nothing on record to show that the defendants are owners of
the property and that before passing the order dated by City Survey
Officer on 08.01.1970 and the order passed by defendant no.2
Deputy Collector on 16.04.1981, that the plaintiffs were called upon
to produce documents in defense and trial Court relied on oral and
documentary evidence and giving findings on factual aspect has
rightly decreed the suit and the appellate Court has after re-
appreciating the evidence dismissed the said appeal. In view of the
same, present Second Appeal is required to be dismissed.
6.1 Having heard learned advocates for the parties and having
considered the judgment and decree passed by the trial Court and
confirmed by the appellate Court following admitted facts have
emerged:
(i) It is not in dispute that plaintiff is in possession of the suit
property since at least more than 60 years, at the time of
filing the suit;
(ii) no documentary evidence has been produced by the
defendant to prove that the suit property is owned by the
Government before the order dated 08.01.1970 passed by
City Survey Officer and the order dated 16.04.1981 passed
by defendant no.2 Deputy Collector are passed;
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(iii) it is also admitted position that no notice was served on the
plaintiff or ancestor of the plaintiff and / or plaintiff before
passing order dated 08.01.1970 by City Survey Officer
and the order dated 16.04.1981 by defendant no.2 Deputy
Collector;
(iv) the plaintiff has also not filed suit to claim ownership on
the ground of having any title-deed;
(v) the plaintiff's case is strictly based on ownership by way of
long possession.
6.2 In view of the above referred admitted facts, while considering
the documentary and oral evidence, fact remains that plaintiff has
come forward with the case that the plaintiff's ancestor Mavji Natha
was given suit property for pottery business by Ex- Rural State. It is
the case of the plaintiff that there was no document issued by the Ex-
State Ruler, while granting said suit land to the ancestor of the
plaintiff. There was oral partition and grandfather of the plaintiff was
given northern portion of the suit property and the other son of
Mavji Jiva i.e. Vashram was given southern portion of suit property
and the said partition took place before 60 years and the plaintiff
relies on Exhs.35 to 37 i.e. receipts of pottery tax, which was paid to
the Government and in token of tax defendant used to collect 1500
tiles from potter and thereafter used to collect tax in the form of
money. There is nothing on record to show that the possession of the
suit property with the ancestor of the plaintiff was ever disturbed or
interfered with by Ex- Saurashtra State, Ex-Bombay State and
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Gujarat State or Municipality. The tax receipts are of the year 1937
and of dated 09.06.1941 which suggests that tax has been paid by
ancestor of the plaintiff.
6.3 The plaintiff has relied on evidence of Vrajlal Hemchand at
Exh.46 and the evidence of Prabhudas Girdhardas at Exh.52 wherein
they have stated that since time of their birth they are aware that the
plaintiff and their ancestors are in possession of the suit property.
Even receipt vide Exh.51 itself shows that on the northern side the
property i.e. Akhada of Vashram Ramji is situated. Vide Exh.52
Prabhudas Girdhardas, who was Clerk in the office of the District
Keeper Rajkot has produced entries from the books of account of
Ex-Ruler at Exhs.54 to 58, which are of the year 1938 to 1952 show
that the plaintiff has paid tax for the pottery work to the Ex-Ruler.
Even vide Exh.59 i.e. deposition of Morarji Nathalal, it has come on
record that the plaintiff and his ancestor were doing pottery work in
the suit property and that land was given to him by ruler.
6.4 From the oral evidence of Maintenance Surveyor viz. Ratigar
Jivangar, which is produced vide Exh.61, it appears that in the said
deposition he has admitted that no notice was given before the City
Survey and before inquiry was made, no intimation of the order of
City Survey Officer was given either to the plaintiff or his father.
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6.5 The Court has held that there is no evidence from the
Government or Municipality to show that they were in possession of
the suit property at any point of time within the period of 60 years
and there is nothing on record to show that plaintiff and his ancestors
were disturbed by the defendant or municipality in view of the fact
that plaintiff is in possession of the property since last more than 60
years and the fact that the plaintiff relies on his ownership by long
possession, the burden was upon the defendant to show that plaintiff
is not the owner.
6.6 In the present case, the defendant has not been able to show
his title to the suit property. The evidence about the plaintiff being in
long possession of the suit property has also not been rebutted by
defendant by any cogent evidence.
6.7 The fact also will have to be considered that after merger of
Ex-Jetpur State with Ex-Saurashtra State, the possession of ancestor
of the plaintiff with respect to the suit property has never been
interfered with and after merger of Ex-Saurashtra with Bombay State
and thereafter also after formation of Gujarat State, at no point of
time plaintiff's possession was disturbed by the defendant.
Moreover, in view of Section 110 of the Evidence Act, in view of
the long uninterrupted possession of the plaintiff to the suit property,
the same has to be presumed that it would be for defendant to prove
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that they are not owners of the suit property. Section 110 of the
Evidence Act reads as under.
"Section-110. Burden of proof as to ownership.
When the question is whether any person is owner of anything of
which he is shown to be in possession, the burden of proving that
he is not the owner is on the person who affirms that he is not the
owner."
6.8 Therefore the principle that possession of property furnishes
prima facie proof of ownership of the possessory right and casts
burden of proof on the defendants who denies plaintiff's ownership
and the said presumption, which is rebuttable is permitted when the
possession is prima facie lawful and when contesting party has no
title in view of judgment reported in 2003 (3) SCC 472 in the case
of Chief Conservator of Forests, Govt. of A.P. vs. Collector and
others, more particularly para:21, which reads as under:
"21. This Court in Nair Service Society Limited v. K.C.
Alexander and Ors., A.I.R. (1968) S.C. 1165 observed: (AIR
p.1173, para 15)
"That possession may prima facie raise a presumption of
title no one can deny but this presumption can hardly arise
when the facts are known. When the facts disclose no title
in either party, possession alone decides."
6.9 In the present case, there is nothing on record to show that the
defendants were owners of the property. In view of aforesaid facts,
looking to the judgment and decree passed by the trial Court and
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confirmed by the appellate Court, the substantial question of law
framed by this Court i.e. "(a) Whether the Courts below are right in
law in declaring the orders passed by the authorities below viz.,
order passed by the City Survey Officer on 08.01.1970 and Deputy
Collector on 16.04.1981 are null and void, illegal and
unconstitutional and without jurisdiction ?" is answered in
'affirmative' in view of the fact that neither any notice was issued to
the plaintiff or their ancestors while inquiring before the order was
passed by City Survey Officer 08.09.1971 and 16.04.1981 and the
fact that from oral evidence it has come on record that there are no
documentary evidence to prove before passing of the order order
dated 08.01.1970 by City Survey Officer and the order dated
16.04.1981 by defendant no.2 Deputy Collector, that the
Government was owner of the property.
7. Under the circumstances, this Second Appeal is devoid of any
merits. Both the learned Trial Court and first appellate Court have rightly
decided the issue between the parties in the right perspective. 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. The connected
civil application/s, if any, stand disposed of accordingly.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
