Gujarat High Court
Gopi Paper Mart India Pvt Ltd vs Lila Ship Recycling Pvt Ltd on 2 May, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
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C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025
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Reserved On : 04/02/2025
Pronounced On : 02/05/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/FIRST APPEAL NO. 5 of 2023
With
R/FIRST APPEAL NO. 6 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/FIRST APPEAL NO. 6 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
✓
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GOPI PAPER MART INDIA PVT LTD
Versus
LILA SHIP RECYCLING PVT LTD
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Appearance:
MR MAULIK S SHETH(3586) for the Appellant(s) No. 1
MR HRIDAY BUCH(2372) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. These captioned appeals are filed by appellant-defendant
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challenging the judgment and decree dated 26.08.2022 passed
by learned Principal Senior Civil Judge, Dholka in Special Civil
Suit Nos.39 and 40 of 2018.
2. Heard learned Senior Counsel Mr. Jal S. Unwalla for
learned advocate Mr. Maulik S. Sheth for the appellant-
defendant and learned Advocate General Mr. Kamal B. Trivedi
with learned Senior Counsel Mr. Anshin H. Desai for learned
advocate Mr. Hriday Buch for the respondent-plaintiff.
3. The brief facts of the case are as under:
3.1. The respondent-original plaintiff (Leelaship Recycling
Pvt. Ltd.) of First Appeal No. 5 of 2023, had filed Special Civil
Suit No. 39 of 2018 for the lands bearing Survey Nos.334/12
and 334/84 situated at Moje-Bhamsara, Tal-Bavla, District-
Ahmedabad and respondent-original plaintiff (Sarvang Shipping
Services Pvt. Ltd.) of First Appeal No. 6 of 2023, had filed
Special Civil Suit No. 40 of 2018 for the land bearing Survey
Nos.334/86 situated at Moje-Bhamsara, Tal-Bavla, District-
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Ahmedabad before the learned Principal Senior Civil Judge,
Dholka seeking relief of removal of encroachment and handing
over possession of encroached land along with permanent
injunction.
3.2. The respondents-original plaintiffs in both appeals were
registered Private Limited Companies and having their business
of Ship recycling and industrial activities.
3.3 As per the case of respondents-original plaintiffs, they
were in search of land for development of its business in
Ahmedabad area apart from Jamnagar and therefore during the
year 2015 the respondent-companies agreed to purchase Non
agricultural lands bearing Revenue Survey No.334/12 from (1)
Rambhai Rajabhai Baraiya and (2) Jayantibhai Rajabhai
Baraiya, Revenue Survey No.334/84 from Jayantibhai Rajabhai
Baraiya and Revenue Survey No.334/86 from Ashok Gordhan
Baraiya, admeasuring 3-Acre, 00-Gunthas i.e. 16,188.00
Sq.mtrs, 01-Acre, 20-Gunthas i.e. 6070.00 Sq.mtrs and 06-Acre,
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00-Gunthas i.e. 24,282 Sq.mtrs respectively situated at Moje-
Bhamsara, Tal-Bavla, Dist- Ahmedabad.
3.4. The owners and possessors of land bearing Survey
No.334/12, (1) Rambhai Rajabhai Baraiya and (2) Jayantibhai
Rajabhai Baraiya had purchased the said land from one
Ganeshbhai Becharbhai Bharwad vide registered sale deed No.
2463 dated 25/07/2011, the owner and possessor of land bearing
Survey No.334/84, Jayntibhai Rajabhai Baraiya had purchased
the said land from one Ajay Kanubhai Joshi vide registered sale
deed No. 3405 dated 12/10/2011 and the owner and possessor of
land bearing Survey No.334/86, Ashok Gordhan Baraiya had
purchased the said land from (1) Nitinkumar Narottam Gandhi
(2) Kailashben (3) Pareshaben Narottamdas Jethalal Gandhi
vide registered sale deed dated 15/06/2012. Thereafter, the
respondents-plaintiffs purchased the said three lands bearing
Survey Nos.334/12, 334/84 and 334/86 vide registered sale deed
Nos. 764, 765 and 766 respectively dated 17/03/2015 from the
respective owner/s and possessor/s.
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3.5. As respondent-companies wanted to start construction for
an industrial activities over three lands, an engineer of
respondent visited suit lands and discovered that appellant-
original defendant had encroached upon the said lands and
constructed an industrial shed with fencing walls. When
respondent inquired, it learnt that appellant-original defendant
had purchased the land bearing Block No.653, Survey
No.334/88 admeasuring about 16,64659 mtrs. situated at Moje-
Bhamsara, Tal-Bavla, Dist-Ahmedabad vide Registered Sale
Deed dated 05.01.2017 from erstwhile owners and inspite of
purchasing the aforesaid land appellant-defendant had
encroached upon the land of respondents and occupied 5837.00
Sqr.mtrs land from southern side and 8816.00 Sqr.mtrs land
from north-eastern side and illegally constructed fencing wall
and sheds for industrial purpose with leaving only 16,421.00
and 15,465.00 Sqr.mtrs land unused/vacant. Therefore, the
respondents-original plaintiffs filed two separate Special Civil
Suits for respective lands.
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3.6. The appellant (Gopi Paper Mart (India) Pvt. Ltd.) appeared
and filed reply and additional reply at Exh-20 and 20A
respectively against the injunction application. Thereafter,
Written Statement vide Exh-84 dated 16/01/2020 has been filed
by the appellant-original defendant.
3.7. Following issues were framed in both the suits;
IN SPECIAL CIVIL SUIT NO.39 OF 2018
1. Whether the plaintiff proves that, suit property bearing revenue
Survey no. 334 paiki 12 admeasuring 16188 sq. m. non-agriculture land
Was purchased by plaintiff as per the original(first) four dimensional
situation?
2. Whether the plaintiff proves that, suit property bearing revenue
Survey no. 334 paiki 84 admeasuring 6070 sq. m. non-agriculture land
was purchased by plaintiff as per the original (first) four dimensional
situation?
3. Whether the plaintiff proves that, defendants had illegally Constructed
5837 sq. m. at West-East direction of the suit property bearing revenue
survey nos. 334 paiki 12 and 334 paiki 84 and encroached upon it ?
4. Whether the plaintiff proves that, defendants had done rectification
registered sale deed for the purpose of validate illegal encroachment
upon the revenue survey no. 334/88?
5. Whether the defendant proves that, property bearing revenue survey
no. 334 paiki 88 admeasuring 16646 sq. m. non-agriculture land was
purchased by defendant as per the original(first) four dimensional
situation and constructed according to it?
6. Whether the defendant proves that as per the Land Revenue Code, this
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court has no jurisdiction to entertain the suit ?
7. Whether the defendant proves that the plaintiff has not paid sufficient
Court fees?
IN SPECIAL CIVIL SUIT NO.40 OF 2018
1) Whether the plaintiff proves that, suit property bearing revenue
survey no. 334 paiki 86 admeasuring 24281 sq. m. non-agriculture land
was purchased by plaintiff as per the original (first) four dimensional
situation?
(2) Whether the plaintiff proves that, defendants had illegally
constructed 8816 sq m. at North-East direction of the suit property
bearing revenue survey nos. 334 paiki 86 and encroached upon it?
(3) Whether the plaintiff proves that, defendants had done rectification
registered sale deed for the purpose of validate illegal encroachment
upon the revenue survey no.338/88?
(4) Whether the defendant proves that, property bearing revenue survey
no. 334 paiki 88 admeasuring 16646 sq. m. non-agriculture land was
purchased by defendant as per the original (first) four dimensional
situation and constructed according to it?
(5) Whether the defendant proves that as per the Land Revenue Code,
this court has no jurisdiction to entertain the suit?
(6) Whether the defendant proves that the plaintiff has not paid sufficient
Court fees
3.8. The respondent filed affidavit, additional affidavit in the
form of depositions vide Exh-61 and 89 in Special Civil Suit
No.39 of 2018 and vide Exh-59 and 84 in Special Civil Suit No.
40 of 2018. The District Inspector Land Record, Ahmedabad
(DILR) was examined by respondent-plaintiff who has deposed
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at Exh-96 in Special Civil Suit No. 39 of 2018 and at Exh-87 in
Special Civil Suit No. 40 of 2018. The Sub-registrar, Bavla
deposed at Exh-102 in Special Civil Suit No. 39 of 2018 and at
Exh-92 in Special Civil Suit No. 40 of 2018.
3.9. The appellant-original defendant filed an affidavit in the
form of deposition vide Exh-155 in Special Civil Suit No. 39 of
2018 and vide Exh-139 in Special Civil Suit No. 40 of 2018.
3.10. After considering the evidence and material placed on
record, learned Trial Court vide its judgment and decree dated
26/08/2022 allowed both the Civil Suits and ordered appellant-
defendant to remove encroachment of 5837.00 Sqr.mtrs and
8816.00 Sqr.mtrs. upon the lands bearing Survey Nos. 334/12,
334/84 and 334/86 within 30 days and ordered to hand over the
peaceful possession of the said lands and granted relief of
declaration and permanent injunction. Being aggrieved, the
appellant-original defendant (Gopi Paper Mart (India) Pvt. Ltd.)
has filed present two first appeals.
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3.11 The controversy in both suits is common, type of evidence,
and contentions and counter contentions are same, upon request
of learned advocates for the parties, both the First Appeals are
heard and decided together by this common judgment.
3.12 To understand the controversy prayers of both the suits are
reproduced as under;-
In Special Civil Suit No.39 of 2018
"Therefore, plaintiff seeks the relief as under-
(A.) That, to grant an injunction directing removal of illegally
constructed fencing walls and sheds intended for industrial use
on non-agricultural land bearing Revenue Survey No.334/12
as well as Survey No.334/84 total admeasuring He.Are.Sq.Mtr.
2-22-58, situated at Moje-Bhamsara, having ownership and
possession of plaintiff as stated in para 2 and further, direct
defendant to restore and hand over vacant, quiet and peaceful
possession of encroached portion admeasuring of 5837.00
Sq.mtrs from southern side of said land.
(B.)That, grant a temporary injunction during the pendency of
the suit and the injunction application, restraining the
defendant, either personally or through any servant, agent,
attorney, director, partner or any other person acting on their
behalf, from carrying out or facilitating any industrial
activities, special construction, or further encroachment on the
disputed land and further, to restrain the defendant from
selling, mortgaging, gifting, leasing, or otherwise transferring,
encumbering, charging, or creating any right or interest in
favour of any third party in respect of the encroached portion
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admeasuring 5837.00 Sq. Mtrs. on the southern side of the
non-agricultural land bearing Revenue Survey No.334/12 as
well as Survey No.334/84 total admeasuring He.Are.Sq.Mtr. 2-
22-58, situated at Moje-Bhamsara.
(C.) That, to pass such orders as it deems fit and to
direct the respondent to bear the cost incurred in the present
application."
In Special Civil Suit No.40 of 2018
"Therefore, plaintiff seeks the relief as under-
(A.) That, to grant an injunction directing removal of
illegally constructed fencing walls and sheds intended for
industrial use on non-agricultural land bearing Revenue
Survey No.334/86 admeasuring He.Are.Sq.Mtr. 2-42-81,
situated at Moje-Bhamsara, having ownership and possession
of plaintiff as stated in para 2 and further, direct defendant to
restore and hand over vacant, quiet and peaceful possession of
encroached portion admeasuring of 8816.00 Sq.mtrs from
north-eastern side of said land.
(B.) That, grant a temporary injunction during the
pendency of the suit and the injunction application, restraining
the defendant, either personally or through any servant, agent,
attorney, director, partner or any other person acting on their
behalf, from carrying out or facilitating any industrial
activities, special construction, or further encroachment on the
disputed land and further, to restrain the defendant from
selling, mortgaging, gifting, leasing, or otherwise transferring,
encumbering, charging, or creating any right or interest in
favour of any third party in respect of the encroached portion
admeasuring 8816.00 Sq. Mtrs. on the north-eastern side of
the non-agricultural land bearing Revenue Survey No.334/86
admeasuring He.Are.Sq.Mtr. 2-42-81, situated at Moje-
Bhamsara.
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(C.) That, to pass such orders as it deems fit and to
direct the respondent to bear the cost incurred in the present
application."
SUBMISSIONS OF APPELLANT-ORIGINAL DEFENDANT
4. It is the case of Appellant-original defendant that land
bearing survey No. 334/88paiki was initially granted by the
government in favour of Karamshi Kachrabhai as new tenure
land in the year 1971. The revenue records were also mutated
vide entry No. 332 on 12.6.1971. Thereafter, Karamashi
Kacharabhai died on 30.4.1974 leaving behind his heirs. The
names of his heirs were mutated in revenue record vide
entry No. 367 on 19.4.1976. Thereafter, widow of
Karamashi Kachrabhai i.e. Shantuben was died on 14.2.2012
and entry to the said effect was mutated into revenue record
vide entry No.2266 on 3.9.2013. The heirs of Karamshi
Kachrabhai sold the land bearing survey No. 334/88 on
01.11.2013 by executing a registered sale deed in favour of
Prashantkumar Bharatbhai Joshi and the revenue records were
also mutated vide entry No. 2279 on 2.11.2013. In the said
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sale deed, the land bearing survey No. 334/88paiki 16646 sq.
mtrs which was sold to Prashantkumar Bharatbhai Joshi was
specifically mentioned. Out of the total land of revenue survey
No. 334, the land bearing survey No. 334/88 admeasuring
16646, owned and possessed by Prashantkumar Bharatbhai
Joshi, was measured and earmarked by DILR on 05.01.2014
and hissa form No. 4 was prepared for measurement and
location of the land bearing survey No. 334/88 admeasuring
16646 sq. mtrs.
5. Since the land was of new tenure land, it was converted by
the original allottee from new tenure to old tenure on
06.07.2008. The Mamlatdar, Bavla vide his order dated
06.07.2008 converted the land on payment of premium by the
heirs of Karamshi Kacharabhai. The said conversion was done
after verifying the revenue record as well as the location
of land and after getting opinions of different authorities.
Prashantkumar Joshi also got the land converted into old
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tenure land for industrial purposes on payment of premium.
The Collector vide his order dated 17.12.2014 converted
the said land into old tenure. The collector has granted such
permission after considering the revenue records and
location of land and after getting necessary opinions
from different revenue authorities. Prashantkumar
Bharatbhai Joshi made an application on 19.01.2015 for
getting NA permission for land admeasuring 16646 sq. mtrs.
of revenue survey No. 334/88. The said permission was
granted by District Development Officer vide his order dated
12.05.2015 which clearly shows that the said permission was
granted after considering opinion with regard to land bearing
survey No. 334/88 from the different authorities.
6. Prashantkumar Bharatbhai Joshi sold and conveyed the
said land to (1) Manankumar Ashokbhai Modi, (2) Sheth Vishal
Kiranbhai and (3) Sheth Parth Kiranbhai by registered sale
deed dated 30.5.2015. The Appellant-defendant herein
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purchased the land bearing survey No. 334/88 admeasuring
16646 sq. mtrs from (1) Manankumar Ashokbhai Modi, (2)
Sheth Vishal Kiranbhai and (3) Sheth Parth Kiranbhai on
05.01.2017 after the lands were duly converted from new
tenure to old tenure and after NA permission was granted.
After purchasing the land Appellant obtained development
permission from the competent authority on 06.06.2017. The
assessment of taxes was also made for the land of the
Appellant. The plans for constructions of industrial shed
were sanctioned by Town Planning and Valuation
Department, Ahmedabad Branch through town planner,
Ahmedabad on 09.06.2017. Appellant has purchased the land
after necessary permissions were granted by the competent
authorities under the provisions of Bombay Land Revenue
Code, 1879 and Bombay Agricultural Lands & Tenancy Act,
1948. The Appellant has started construction only after getting
necessary development permission and the plans were duly
sanctioned. Almost entire industrial shed was constructed on
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survey No.334/88 by appellant and on the date of suit 95% of
construction was complete. The construction is carried out in the
land of ownership of appellant. Lands of plaintiffs and
defendants are not adjacent but situated at different location.
7. It is submitted that sale deed produced by the appellant
executed by the respondent's predecessor with respect to the
disputed land, revealed discrepancies in the boundary
descriptions between successive sale deeds, indicating variations
in the boundaries of the land from one deed to another. It is
further submitted that discrepancies in the boundaries of the said
sale deeds are stated hereinbelow;
I. Survey No.334/12 ad-measuring of 16188 sq. mtrs.
a. 1st Sale deed No.208 dated 20.01.2011
Seller: Baldevbhai Sanabhai Prajapati & ors.
Purchaser: Ganeshbhai Becharbhai Bharwad.
East: Farm of Shambhubhai Gafur
West: Farm of Kalubhai Ramabhai
North: Farm of Jayantibhai Kesubhai
South: Farm of Gopalak Mandli
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b. 2nd Sale deed No.2643 dated 25.07.2011.
Seller: Ganeshbhai Becharbhai Bharwad
Purchaser: 1.Rambhai Baraiya and 2. Jayantibhai Baraiya
East: Survey No. 338Paiki
West: Survey No. 334Paiki
North: Lagu Khedvan Land
South: Lagu Khedvan Land
c. 3rd Sale deed No.764 dated 17.03.2015.
Seller: 1. Rambhai Baraiya and 2. Jayantibhai Baraiya
Purchaser: Leelahip Recycling Pvt. Ltd. (plaintiff)
East: Survey No. 337Paiki Khedvan Land
West: Survey No. 334Paiki Khedvan Land
North: Road thereafter Survey No. 334Paiki Khedvan
Land
South: Survey No. 334/86 Binkhedvan Land
II. Survey No.334/84 ad-measuring of 6070 sq. mtrs.
a. 1st Sale deed No.1160 dated 23.03.2011
Seller: Pasabhai Dahyabhai and 9 ors.
Purchaser: Ajaybhai Kanubhai Joshi
East: Survey No. 338/2 Maharani Mathi Farm
West: Farm of Shambhubhai Gafur
North: Farm of Tinabhai Bharwad
South: Farm of Vipul Gandhi
b. 2nd Sale Deed No. 3405 dated 12.10.2011
Seller: Ajaybhai Kanubhai Joshi
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Purchaser: Jayantibhai Baraiya
East: Survey No. 337/3 Binkhedvan Land
West: Survey No. 334/13
North: Survey No. 334/1
South: Survey No. 334/86 and 334/88
c. 3rd Sale Deed No. 764 dated 17.03.2015
Seller: Jayantibhai Baraiya
Purchaser: Leelaship Recycling Pvt. Ltd. (plaintiff)
East: Survey No. 337Paiki Binkhedvan Land
West: Survey No. 334/12
North: Survey No. 334Paiki Khedvan Land
South: Survey No. 334/12 and 334/86
III. Survey no. 334/86 admeasuring of 24281 sq. mtrs.:
a. 1st Sale Deed No. 3855 dated 29.12.2009
Seller: Haribhai Prajapati
Purchaser: Vipulkumar Gandhi and 2 ors.
East: Farm of Baldevbhai Chanabhai
West: Farm of Sagrambhai Kasibhai
North: Farm of Vasudev Karsanbhai
South: Farm of Devsibhai Jibhubhai
b. 2nd Sale Deed No. 1760 dated 15.06.2012
Seller: Vipulkumar Gandhi and 2 ors.
Purchaser: Ashokbhai Baraiya
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West: Survey No. 334Paiki
North: Survey No. 334/12
South: Gada Road
c. 3rd Sale Deed No. 766 dated 17.03.2015
Seller: Ashokbhai Baraiya
Purchaser: Sarvag Shipping Services Pvt. Ltd. (plaintiff)
West: Survey No. 334Paiki
North: Survey No. 334/12
South: Sarla Road
8. It is further submitted that with every sale deed of the said
land, the boundaries keep changing. This clearly indicates that
the respondents and its predecessors themselves are unaware of
the exact location and identification of its land. Thus, title of the
respondent is not absolutely clear. It is further submitted that a
change in the survey number of the same land is not possible,
which proves that there are multiple discrepancies in the
respondent's claim without establishing land's exact location,
identification and title, respondent cannot allege that the
appellant had encroached upon respondent's property. It is
submitted that there are as many as four maps on record. In the
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map of 2012, the east side features Survey Nos.337 and
336Paiki. However, in map of 2014, the east side instead shows
Survey Nos.336 and 335. It is further submitted that, in 2018
map, the east side includes Survey Nos.337, 336 and 334paiki
adjacent to 335. These significant variations in the same east
side across different maps highlight substantial discrepancies. It
is further submitted that in the measurement sheet / map of
2018, it has been stated by DILR that the map prepared by him
pertains to Survey No.334paiki, covering an area of 45,936 sq.
mtrs. However, as per the revenue records, the land claimed by
the respondent as its ownership measures 46,936 s.q. mtrs.,
which is the disputed land. This shows clear discrepancy
between the measurement conducted by DILR and the official
revenue records indicates that 2018 map is not in sync with the
actual land records. It is further submitted that respondent in suit
claimed that the alleged encroachment was on the south side of
Survey Nos.334 /12 and 334/84 and the north-east side of
Survey No.334/86. However, as per 2018 map, the
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encroachment is only on the south-east side, again contradicts
the suit's claims. It is further submitted that the land bearing
survey No.334/88P, which is owned by the appellant, a
measurement sheet report dated 05.01.2014 was obtained from
the competent authority. The respondent also obtained the same
measurement sheet report of the year 2012 for the purpose of
determining the boundaries of the land at the time of the
purchase. It is further submitted that DILR measurement report
of 2018, prepared pursuant to the directions of this Court, is
entirely based on 2012 measurement sheet and the sale deeds
produced by the respondent. It is further contended that in
seeking removal of the alleged encroachment, firstly the issue of
title to the disputed property is required to be resolved.
Ownership can only be established through a valid sale deed and
cannot be proven solely by reference to the year 2012 and 2018
measurement sheets and till date, the respondent has neither
challenged the appellant's title nor established its own title to
the disputed land.
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9. It is further submitted that Survey No.334 constitute a
large tract of land, which has undergone various partitions
(hissa), and that measurements have not been conducted by any
of the owners. There are no records in DILR office reflecting
these measurements. Resultantly, it is impossible to definitely
ascertain the actual possession of the land. The DILR report also
admits that the boundaries stated in the respondent's sale deed
are inaccurate, as they were not properly considered during the
preparation of the sale deed.
10. It is further submitted that it was admitted by the Court
Commissioner that during the execution of the Court
Commissioner, he was required to obtain the signatures of the
parties present at the site. However, he acknowledged that he
failed to obtain the signatures of the parties. The Court
Commissioner also admitted that Survey No.334/88 was not
mentioned in his report. It is further submitted that he relied
solely on the information provided by the respondents and the
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panchas for the identification of the disputed land.
11. It is further submitted that during cross-examination,
respondent admitted that the boundaries of any land cannot be
changed on sale of the said as it is an immovable property.
DILR officer conducted the measurement based on 2012
measurement sheet and sale deeds provided by the respondent.
There are serious doubts about the accuracy and reliability of the
year 2018 map. It is further submitted that in preparing report,
DILR relied solely on the 2012 measurement sheet and the sale
deed produced by the respondent while failing to consider the
sale deeds of the respondent's predecessors in title.
Additionally, DILR neglected to take into account the 2014
measurement sheet, an omission which was acknowledged
during cross-examination of the witness of DILR Office. It is
further submitted that DILR officer further admitted in cross-
examination that both the 2012 and 2014 measurement sheets
are government records and are readily accessible, yet the 2014
measurement sheet was not considered.
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12. It is further submitted that the officer of DILR conceded
during cross-examination that there was a discrepancy between
the boundaries depicted in the 2012 measurement sheet and
those in the sale deed, thereby undermining the respondents
reliance on 2012 measurement sheet and its claim that
boundaries of the sale deed are consistent with the measurement
sheet. It is further submitted that 2012 measurement sheet
pertains only to survey Nos.334/12, 334/84 and 334/86, whereas
2014 measurement sheet relates to Survey No.334 of 88p.
13. It is further submitted that respondent had produced the
sale deeds to establish ownership over Survey Nos.334/12,
334/84 and 334/86. However, the boundaries delineated in these
sale deeds differ from those specified in the sale deed of the
respondent's predecessor. Respondent has failed to produce the
sale deed establishing the title of its predecessor in interest,
which was duly produced by the appellant. It is further
submitted that respondent neither disputed the appellant's title
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nor sought the cancellation of the appellant's sale deed.
Respondent has failed to provide any evidence establishing its
ownership of the disputed property.
14. It is further submitted that when the respondent-plaintiff
seeks removal of an encroachment, the respondent must also
seek a declaration of ownership over the encroached portion of
the property. It is further submitted that the rectification deed
has been placed on record before the learned Trial Court.
However, the respondent has not filed any application under
Order VI, Rule 17 of the Civil Procedure Code, 1908 to amend
the prayer clause, challenging the rectification deed, or seek a
declaration of ownership over the disputed land. Respondent-
plaintiff has not contested the primary sale deed upon which the
appellant-defendant claims ownership of the disputed land,
which implies that the respondent has no objections to either the
rectification deed or the main sale deed executed in favor of the
appellant. It is further submitted that unless and until the
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appellant's sale deed, to the extent, it pertains to the encroached
land, is set aside, the possession of the disputed property cannot
be transferred to the respondent. Respondent has failed to
establish its title over the disputed land and therefore, the suit
filed by the respondent is hit by Section-34 of Specific Relief
Act, 1963, which clearly lays down that any person entitled to
any legal character or to any right as to any property, may
institute a suit against any person denying or interested to deny,
his title to such character or right, and the court may in its
discretion make therein a declaration that he is so entitled, and
the plaintiff need not, in such a suit, asks for any further relief. It
is further submitted that in proviso that no Court shall make any
such declaration where the plaintiff being able to seek further
relief than a mere declaration of title omits to do so. It is further
submitted that on the one hand, there are registered sale deeds of
both the appellant and the respondent, including the sale deeds
of the predecessors in title, which constitute documentary
evidence. On the other hand, there are 2018 measurement sheet
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and its accompanying report, which represent expert opinions
that are suggestive in nature. Section-83 of the Indian Evidence
Act, 1872 is applicable which is quoted as as under:
"83. Presumption as to maps or plans made by authority of
Government.
The Court shall presume that maps or plans purporting to be
made by authority of [the Central Government or any State
Government] [The original word "Government" has successively been
amended by A.O. 1937, A.O. 1948, Act 40 of 1949 and A.O. 1950 to read
as above.] were so made, and are accurate; but maps or plans made for
the purposes of any cause must be proved to be accurate."
15. It is submitted that pursuant to Section 110 of the Indian
Evidence Act, 1872 the burden of proof rests on the plaintiff to
establish that the defendant is not the owner of the disputed land
and had encroached upon the disputed land and that the plaintiff
is the rightful owner. Learned Trial Court has erroneously
shifted the burden of proof onto the defendant to prove
ownership of the disputed land by framing incorrect issues.
Despite the appellant having filed an application seeking the
recasting of issues to rectify this fundamental error, the learned
Trial Court failed to properly entertain and address the said
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application. It is submitted that the burden of proving the
appellant's encroachment on the disputed land also lies with the
respondent. However, the respondent has failed to discharge this
burden, relying merely on 2018 measurement sheet and DILR
report, which were not prepared in an appropriate manner.
Appellant had indeed challenged the respondent's title through
its reply and examination-in-chief and had also produced the
sale deeds of the respondent's predecessors and it is in this
fashion, raised the dispute of the title of the respondent in the
present suit. Learned Trial Court relied on 2018 DILR report
and the Court commissioner's report despite being fully aware
that the appellant's land and the respondent's land are distinct
and not adjacent. Reliance is placed by learned Trial Court on
reports, is not conclusive proof as both are merely suggestive in
nature.
16. It is further submitted that on the examination-in-chief of
the appellant, appellant has explicitly challenged the
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respondent's title, asserting that the respondent cannot claim a
better title than that of the predecessor-in-title. No one can give
a better title than he himself has. The purpose of executing the
rectification deed is that the appellant at the relevant point of
time discovered a typographical error in the description of
boundaries, wherein the north boundary was mistakenly
recorded as south and south becomes north vice versa.
Additionally, the eastern boundary required correction due to
close adjacency of Survey Nos.335 and 336. The appellant has
referred to the DILR map of 2014 to ensure accuracy and the
necessary corrections are being executed accordingly. It is
further submitted that these corrections do not alter the actual
condition of the property in any manner. Respondent has not
filed any application under Order VI, Rule 17 of the Code of
Civil Procedure, 1908 to amend the plaint, specifically the
prayer clause, nor have they challenged the appellant's sale deed
or rectification deed. It is submitted that respondent has not
sought any declaratory relief to establish himself as the owner of
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the disputed property. It is further argued that a suit for a mere
injunction, is not maintainable in the absence of a prayer for
declaratory relief, more particularly, when the plaintiff, either
directly or indirectly, challenges the title of the defendant. In
such a case, the plaintiff is required to prove its title to the
disputed land. It is submitted that respondent has not sought the
relief of cancellation of the sale deed and/or rectification deed
executed in favor of the appellant. There are discrepancies in the
boundary descriptions of each successive sale deed of the
respondent's predecessors, which are clearly evident. As a
result, the actual possession of the respondent's land cannot be
determined. Appellant has produced the successive sale deeds,
yet respondent has failed to provide any clarification regarding
these discrepancies. Respondent has failed to establish the
precise identification and location of its land without proving its
ownership and the exact extent of its property, respondent
cannot allege encroachment by the appellant.
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17. In support of above submissions, reliance is placed upon
the following decisions by the learned Senior Counsel for the
appellant;
"1. Mary Pushpam Vs. Telvi Curusumary & Ors. decided on
03.01.2024 by the Hon'ble Supreme Court in Civil Application
No.9941 of 2016.
2. The Tehsildar, Urban Improvement Trust & Anr. Vs.
Ganga Bai Menariya (Dead) Through LRS. & Ors. decided on
20.02.2024 by the Hon'ble Supreme Court in Civil Application
No.722 of 2012.
3. Vasantha (Dead) Thr. LR. vs. Rajalakshmi @ Rajam
(Dead) Thr. LR. decided on 13.02.2024 by the Hon'ble Supreme
Court in Civil Application No.3854 of 2014.
4. Anathula Sudhakhar Vs. P. Buchi Reddy (Dead) by Lrs. &
Ors. reported in (2008) 4 SCC 594.
5. Union of India Vs. Ibrahim Uddin & Anr. reported in
(2012) 8 SCC 148.
6. State of Gujarat Vs. Mali Ranchhod Kherta & Ors.
reported in MANU / GJ /0428 / 1995.
7. Durga Singh & Ors Vs. Yadagiri & Ors. reported in
(2018) 6 SCC 209.
8. Ramasami Reddy & Ors. Vs. Govinda Reddy & Ors.
reported in MANU / TN / 1240 / 2015.
9. Chennadi Jalapathi Reddy Vs. Baddam Pratapa Reddy
(2019) 14 SCC 220."
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SUBMISSION OF RESPONDENT-ORIGINAL PLAINTIFF
18. Per contra, learned Senior advocate for the respondent
submitted that respondents-plaintiffs never claim title /
ownership of Survey No.334/88. The appellant-defendant also
does not claim title over the lands of the respondents-plaintiffs.
It is further submitted that appellant-defendant has encroached
over the land of the respondents-plaintiffs and has put up
construction thereon. Therefore, the respondents-plaintiffs
instituted two suits before the learned Civil Court, Dholka.
Respondents-plaintiffs assert the title / ownership over the three
parcels of land, i.e. Survey Nos.334/12, 334/84 and 334/86. A
relief of declaration is prayed against the appellant-defendant
with regard to the encroachment and removal of the construction
and restoration of possession. Appellant-defendant has raised
contentions that suits must fail as no declaration of ownership
of the land is sought by plaintiffs, is misconceived. There is no
dispute about the title of respective land. The appellant-
defendant pleads in its written statement that the lands of the
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respondents-plaintiffs described in the plaint and the land of the
appellant-defendant, are located at different places and the lands
are also different. In the written statement, appellant pleads that
the appellant has not made any encroachment on three parcels of
land of the respondents-plaintiffs and that the construction put
up by the appellant-defendant is on its own land. In cross-
examination, a specific question is put in defence on behalf of
the appellant-defendant about title and ownership of the land. In
response, the witness of the respondents-plaintiffs state that it is
true that the lands of the respondents-plaintiffs and the
appellant-defendant are located at different places and there is
no dispute about the ownership of their respective lands.
Defendant in its evidence for the first time states that the title of
the lands of the plaintiff is not clear. It is further submitted that
in a suit for removal of encroachment, an encroacher cannot
challenge the title of the owner. An independent suit has to be
filed. Onus is on the encroacher to prove that his possession is
legal. There is no dispute about the ownership of the respective
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lands and the only issue is with regard to the location. Hence,
the respondents-plaintiffs had no reason to challenge the sale
deed of the appellant-defendant. A cloud is said to raise over
the person's title when some apparent defect in his title to a
property or some prima facie right of a third party over title is
made out or shown. Thus, a mere contention of the appellant-
defendant that it has put up construction only on its own land
and has not encroached upon the lands of the respondents-
plaintiffs is not raising cloud over the title. It is submitted that in
the case of Kurella Naga Druva vs. Galla Jani [(2008) 15 SCC
150], Hon'ble Apext Court has held that the claim of title by
way of an adverse possession does not mean that a cloud is
raised over plaintiff's title and even in such a case, the plaintiff
not need to file a suit for declaration of the title and in the case
of Muddasani Venkata vs. Muddasani Sarojana [(2016) 12
SCC 288], the Hon'ble Apex Court has held that unless there is
serious cloud over the title of the plaintiff, there is no need to
file suit for declaration of the title. Similarly, in the case of K.M.
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Krishna Reddy vs. Vinod Reddy [(2023) 10 SCC 248], it is held
that the defendant had to set up a title for himself or is claiming
through somebody who was claiming title, to contend that there
is 'cloud over title'.
19. It is further submitted that boundaries in the sale deeds of
respondent-plaintiffs are in sync with DILR map dated
25.5.2012 (Exhibit-72), DILR report dated 17.10.2018
(Exhibit-100) and Court Commissioner's report dated 5.8.2018
(Exhibit-134). It is submitted that first sale transaction happened
in 2011, names of the owners of the adjoining lands are
mentioned. In the second sale deed dated 25.07.2011, the survey
numbers are mentioned. Therefore, there is apparent discrepancy
and more particularly, the same does not change the location of
the lands of the respondents-plaintiffs. It is submitted that on
25.05.2012, the predecessor of the respondent-plaintiff got all
the three parcels of land identified through DILR. Thereafter,
the lands are converted for non-agricultural use. Thus, the
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location and identification of the land is clear and specific.
Thereafter, the respondents-plaintiffs purchased the three parcels
of land by different sale deeds on 17.03.2015, which is
completely in tune with the aforesaid map and N.A. plans.
Admittedly, the lands of the respondents-plaintiffs are adjoining
the private survey numbers viz. Survey Nos.335, 336, 337 and
338. Under the circumstances, the allegation about discrepancy
in the boundaries is totally insignificant. It is further submitted
that when the controversy is in regard to the identification,
location and measurement of land, the only alternative available
to the learned Trial Court for determining the said controversy is
to go for appointment of Commissioner as per Order 26 Rule 9
of CPC or the appointment of expert like government officials
from DILR, for the purpose of getting map drawn and report
made with effect from identification, location and measurement
of land in question. It is submitted that on the one hand, three
registered sale deeds dated 17.03.2015 of the respondent-
plaintiff and on the other hand, one sale deed dated 05.01.2017
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of the appellant-defendant, clearly distinguish different locations
of the lands bearing Survey Nos.334/12, 334/84 and 334/86 of
the respondent-plaintiff.
20. It is submitted that Section 83 of the Evidence Act
provides that the Court shall presume that maps or plans
purporting to be made by the Authority of the Central
Government or any State Government were so made and
accurate, but maps or plan made for the purpose of any cause
must be proved to be accurate. Thus, in the instant case,
presumption in favour of the accuracy of DILR map dated
04.10.2018 and Survey Report dated 17/22.10.2018 is required
to be drawn. No evidence in rebuttal has been produced despite
several opportunities given by the Court. It is submitted that
respondent-plaintiff has never disputed the title of the land
bearing Survey No.334/88 belonging to the appellant-defendant
and therefore, no question arises for invocation of Section 110
of the Evidence Act. It is submitted that learned Trial Court has
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clearly reached a finding that the appellant-defendant had
encroached upon the land of 16,631 sq.mtrs. in the lands of
plaintiff. The aforesaid finding is based upon DILR map dated
04.10.2018 and the Survey Report dated 17/22.10.2018 is part
of the sale deed of the predecessor of the appellant-defendant. It
is clear from the said map that the land of the appellant-
defendant being Survey No.334/88 is in the midst of Survey
No.334. As per the said map, none of the boundaries touch the
private survey numbers viz. Survey Nos.335, 336, etc. It is
submitted that as per the map, approximately 40 to 50 metres of
land of Survey No.334 would be in between the land of the
appellant-defendant and the private survey numbers. It is
submitted that the construction ought to have been put up by the
appellant-defendant as per the said map, instead the construction
is not as per the said map and is touching the boundaries of the
private survey numbers. The boundaries of the appellant land
bearing Survey No.334/88 are not in sync with DILR map dated
05.01.2014, Sale deed dated 05.01.2017 (Exhibit-65),
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Rectification dated 27.08.2018 (Exhibit-175) and construction
of the factory as per DILR dated 17.10.2018 (Exhibit-100). The
map dated 05.01.2014 forming part of the sale deeds as well as
rectification deeds, has not been exhibited.
21. It is submitted that at the time of hearing of Appeal from
Order Nos.213 & 214 of 2018, parties agreed that such dispute
should be resolved by proper identification and demarcation of
the boundaries of the lands of the parties. Hence, by consent, the
Settlement Commissioner was directed to ask to DILR of two
districts to jointly measure the lands of the parties in presence of
the parties and prepare a report. Accordingly, the map (Exhibit-
99) is prepared and a report (Exhibit-100) produced before the
Court. An undertaking dated 19.9.2018 is also given by the
appellant-defendant that he will abide by the outcome of the
joint measurement and demarcation and will not claim any
equity or that may be put up after 18.9.2018 The appellant-
defendant will remove the construction if the same is found by
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this Court on the basis of the reports that the same is on the land
of the respondents-plaintiffs. It is submitted that immediately
after giving this undertaking, the land was mortgaged with
Kalupur Commercial Cooperative Bank on 29.09.2018. The
conduct in execution of the rectification deed is also
objectionable. Having realized, an apparent defect in the sale
deed dated 05.01.2017 and after hearing of Exhibit-5 was over,
the appellant-defendant and his predecessors rushed to the office
of Sub-Registrar and changed the boundaries in the rectification
deeds. It is submitted that the construction commenced later and
the respondents-plaintiffs realized only when they found
construction going on its land. The issue of laches, i.e. suits are
instituted after 95% construction is over, pales into
insignificance.
22. In support of above submissions, reliance is place upon the
following decisions by the learned Senior advocate for the
respondent;
"1. Anathula Sudhakhar Vs. P. Buchi Reddy (Dead) by Lrs. & Ors.
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reported in (2008) 4 SCC 594.
2. Kurella Naga Druva Vudaya Bhaskara Rao vs. Galla Jani
Kamma Alias Nacharamma reported in (2008) 15 SCC 150.
3. Muddasani Venkata narsaiah (Dead) Through Legal
Representatives vs. Muddasani Sarojana reported in (2016) 12 SCC 288.
4. K.M. Krishna Reddy vs. Vinod Reddy reported in (2023) 10 SCC
5. Mahendranath parida vs. Purnananda Parida reported in AIR
1988 Orissa 248
6. Sulemankhan s/o Mumtajkhan vs. Bhagirathibai wd/o Digamber
Asalmol reported in AIR 2014 (4) Mh.L.J. 250.
7. Shreepat vs. Rajendra Prasad reported in MANU/SC/3249/2000.
8. Kashinath s/o Ramkrishna Chopade vs. Purushottam Tulshiram
Tekade reported in 2005 (4) Mh.L.J. 471.
9. Dr. Mahendra Prasad Shaw vs. Raj Kumar Sah reported in 1994
Supp (3) SCC 307.
10. Balwantbhai Somabhai Bhandari Vs. Hiralal Somabhai
Contractor (Decd.) reported in 2023 SCC OnLine SC 1139."
FINDINGS
23. We have heard learned Senior Counsels for the respective
parties and perused record and proceedings of both suits.
24. It is the case of plaintiff that the land bearing Survey
No.334/12 was initially owned by one Ganesh Bharwad who
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sold the said land by registered sale deed to Rambhai Rajabhai
Baraiya and Jayantibhai Rajabhai Baraiya. Thereafter, Rambhai
Rajabhai Baraiya and Jayantibhai Rajabhai Baraiya sold the land
to plaintiff by registered sale dated 17.03.2015. In between the
predecessor-in-title applied for the conversion of land into non-
agricultural land for the purpose of industrial purpose and said
permission was granted on 01.09.2014. The land bearing Survey
No.334/84 was owned and possessed by one Ajaybhai Kanubhai
Joshi, who sold the said land to Jayantibhai Rajabhai Baraiya by
registered sale deed dated 12.10.2011. The said land was sold to
plaintiff by Jayantibhai Rajabhai Baraiya by sale deed dated
17.03.2015. In between the predecessor-in-title applied for
conversion of land into non-agricultural land for the purpose of
industrial purpose. The permission was granted on 07.07.2014.
25. The sister concern of plaintiff namely Sarvang Shipping
Services Private Limited purchased the land bearing survey No.
334/86 from its owner for the purpose of developing the land for
industrial purpose. Thus, all the three lands were purchased by
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plaintiffs for the purpose of industrial use. In 2017, the
defendant purchased a land bearing Survey No.334/88. Before
the institution of the suit, the engineer of the plaintiffs visited
the site and found that defendant has erected a huge industrial
shed and constructed fencing walls by encroaching upon the
lands of the plaintiff. The plaintiff got a map prepared by
engineer with regard to the encroachment done by the
defendant. It is also the case of plaintiff that defendant has
committed a trespass on the southern side of Survey No.334/12
and 334/84 ad measuring about 5837 sq.mtrs
26 In the second suit being Special Civil Suit No.40 of 2018,
it is the case of the plaintiff that a land bearing survey
No.334/86 was purchased by plaintiff from its owners by
registered sale deed dated 17.03.2015. It is also stated by
plaintiff that defendant has committed a trespass on the north-
eastern side of survey number 334/86 ad measuring about
8816.00 sq. mtrs.
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27 An application under Order 39, Rule 1 and 2 of the Code
of Civil Procedure was filed by plaintiff seeking a relief of
injunction against defendant which was identical to the relief
sought for in the plaint. The application Exhibit-5 came to be
rejected by learned trial Court against which an Appeal from
Order bearing No.213 and 214 of 2018 came to be filed by the
plaintiff-respondent. Pending the hearing of appeal from order,
the Co-ordinate bench of this court passed an order on
20.09.2018 which is reproduced as under;-
"4. In view of the above and considering the nature of the dispute in
the suits in connection with which the present appeal from orders have
arisen, the Court finds it appropriate to direct the Settlement
Commissioner to appoint DILR, Ahmedabad District and DILR of any
other district to identify and demarcate the boundaries of the lands of
the parties and to report this Court as to whether the construction of the
factory shed and further construction being made by the respondent is
on the land of the appellants or not. The Settlement Commissioner shall
also depute one Survey Officer in whose presence the procedure of
identification and beneficiary marks of the lands shall be undertaken.
The both DILR shall jointly undertake such procedure for identification
and demarcation of the land on the date which may be fixed by
Settlement Commissioner in presence of respective parties and/or their
representatives and then submit the report to this Court on or before the
next date of hearing.
5. For the purpose of carrying out the work of identification and
demarcation of the lands of both the parties, the parties shall first
appear through their authorized officers before the Settlement
Commissioner on 26.09.2018. It will be open to thelearned advocates for
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the parties to accompany the parties. On appearance of the parties on
26.09.2018 before the Settlement Commissioner, the Settlement
Commissioner may appoint the DILRs and fix the date to carry out the
work of identification / demarcation of the lands of the parties but in any
case the identification / demarcation of the lands of the parties shall be
completed within three weeks from the date of receipt of this order and
the report to that effect shall be made on or before the next date of
hearing."
28. The District Land Office visited the suit lands and
prepared a report and map which was submitted before co-
ordinate Bench of Court. The Co-ordinate Bench of this Court
after considering the report of DILR passed following order on
19.06.2019.
"19. The overall appreciation of material is clearly indicating that a
serious attempt is made to deviate from binding effect of the undertaking
solemnly given before the Court in a judicial proceeding. This Court is of
the opinion that relying upon the specific assertion and undertaking on
oath, if the litigant smartly wants to deviate himself from the binding
effect, the same may not be allowed to be encouraged. The sanctity of the
orders of the Court and the effect thereof cannot be permitted to be
diluted especially with free will and free consent, an assurance is given to
the Court. The breach of undertaking is a serious act striking to the root
of the system and as such, the litigant may not be allowed to give a go-
bye to the effect of undertaking on the basis of which the entire process
has been undertaken. As a result of this, the Court is of the opinion that
nongranting of any relief would result into loss of faith in the system.
Resultantly, the order of injunction deserves to be granted. The technical
considerations which are tried to be pressed into service are not to be
allowed to prevail over when sanctity of the Court's order is put to stake.
A specific assurance, specific undertaking in writing and thereafter, the
report which has been carried out, are sufficient enough to grant an
injunction. In this view of the matter, the Court is of the opinion that
interim relief deserves to be granted by allowing the Appeal from Order.
The court below has not appreciated the material in true perspective and
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as such, the High Court was constrained to allow the parties to cooperate
in the process of ascertaining of status, measurement and situation of
land. Once that has been done pursuant to the High Court's order and in
the presence of all the parties to the proceeding, there is hardly any
reason not to accept the stand of the appellant. However, be that as it
may, since the detailed circumstances regarding merit of main suit
proceedings are not to be discussed or examined at length as if it
tantamounts to be a trial of the suit, this Court is not specifically opining
anything on merit. Resultantly, the present Appeal from Orders deserve to
be allowed to the aforesaid extent.
20. Normally, the interim order to the full effect is not to be granted.
However, in view of this peculiar set of circumstance and in view of the
specific assurance having been given by way of undertaking in writing
and it has been specifically found that there is an encroachment to the
extent what has been mentioned in relief clause, the Court is inclined to
grant the interim relief as prayed for in Para.8(A) of application Exh.5.
This is more so, in view of the fact that once the encroachment is
established, the same has to be removed. However, since the main suit
proceedings are pending for adjudication, this vacation of portion of land
which is found to be encroached would be purely subject to the result of
the suit proceedings and the appellant also will not claim any equity till
final disposal of the suit towards the land in question as mentioned in the
relief clause 8(A). Accordingly, the Appeal from Orders are allowed with
aforesaid clarification and the impugned orders dated 31.8.2018 passed
below Exh.5 are hereby quashed and set aside with aforesaid
clarification and directions. Parties to act accordingly. Consequently, the
relief prayed for in application Exh.5 in terms of Para.8(A) is granted."
29. The defendant carried the order passed in appeal from
order before the Hon'ble Apex Court and the Apex Court passed
the following order on 19.11.2019;
"After hearing the learned senior counsel for the parties, we are not
inclined to delve into the merits of the decision of the High Court. We
are informed that the suits are at the stage of framing of issues. We
are also informed that there might not be many witnesses to be
examined from either side. Therefore, we direct the Trial Court to
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finally decide the suits expeditiously, in any event, not later than three
months from today. The parties are directed not to seek
adjournments. The trial court shall decide the Suit without being
influenced by the observations made by the High Court in the
impugned judgment.
Mr. Harin Rawal, learned senior counsel for the respondents
submits that two days after the order was passed on 20.09.2018 by
the High Court, the Appellant mortgaged the property. He also
submitted that the Appellant has resorted to rectification of the
records also. We make it clear that the matter pertaining to the
mortgage and rectification shall be subject to final decision of the
suit. We have not expressed any opinion on the merits of the matter.
The Appellant is restrained from carrying on any further
construction till the disposal of the suit. Interim order dated
19.07.2019 shall continue till the disposal of the Suit.
The Special Leave Petitions are, accordingly disposed of.
Pending application, if any stand disposed of."
30. Learned Trial Court has framed issues and thereafter,
plaintiff examined the Authorized Signatory of the company,
Mr. Girishchandra Pravinchandra Ramaiya at Exhibit-61 and 59
and also examined the officer from district and Revenue
Records at Exhibit-96 and 87. Plaintiffs examined Registrar
from the Sub-Registrar's office at Exhibit-102 and 92. Court
commissioner was also examined by plaintiff at Exhibit-132.
Defendant examined director, Mr.Harshadkumar Mohanlal Patel
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at Exhibit-155 & 139 in respective suits. After considering the
evidence, learned Tribunal allowed the suits by directing
defendant to remove the construction.
31. In disputes with regard to location of lands, the party who
asserts encroachment done by other party, who is also a title
holder of his land has to first establish his title which includes
exact location and identification of his land. Initial burden is on
respondent-plaintiff that appellant-defendant has encroached
upon his ownership land. It appears that plaintiff and defendant
both are having registered sale deeds in their favour. Encroacher
is not supposed to prove his legal possession over the alleged
encroached area / location till the onus is discharged by party
who asserts encroachment discharges its burden. Position would
have been different if appellant-defendant is not having a
registered title in its favour, the burden would have been on
defendant to prove his legal possession and a right to remain in
possession.
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32. In the present case, as per the respective stands of plaintiff
and defendant, lands of plaintiff and defendant are situated at
different location.
33. When both the parties are setting up their rights of
ownership and possession over the land which they have
purchased through respective registered sale deeds, question
would definitely be touching to the title of the properties in
question. As per maps prepared by DILR, it appears that almost
enitre lands of defendant is found overlapping the lands of
plaintiff, in such circumstances, the question is related to the
location and identification of lands and also with regard to the
title of the properties. The plaintiff under such circumstances
was required to file suit for a relief of declaration of title of their
lands and also was required to question the legality of registered
sale deeds of the defendant. The prayers which are sought for in
the plaint are to the extent of removal of encroachment and
restoring possession of encroached land to the plaintiffs. In such
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type of controversy, when both the parties are claiming
possession of their respective lands through their respective
registered sale deeds and more, particularly when a dispute is
cropped up with regard to identification, boundaries, and
location of the properties, it is for the plaintiff to discharge the
onus of proving encroachment to the exact location of the lands
which plaintiff has purchased. It also appears from the record
that defendant has produced previous registered sale deeds of
the lands of plaintiff and it is found that in all the registered sale
deeds boundaries of lands differ from each other. Plaintiff has
not examined previous title holders of the lands to prove the
exact location and boundaries of the properties of the plaintiff.
Once that onus is discharged by plaintiff, then the burden to
rebut the same would shift on defendant. Plaintiff has averred in
plaint that upon visit by the engineer of plaintiff on the site,
plaintiff found that defendant has encroached upon the lands and
has constructed an industrial shed and constructed a fencing and
a compound wall. It is also an undisputed fact that when the suit
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was filed almost more than 95% of the construction was
completed by defendant. The construction was done after due
permission and sanctions from competent Authority. There is no
explanation forthcoming from plaintiff's side as why did they
not raise any dispute of encroachment when defendant started
with the construction.
34. So far as report of Court Commissioner produced at
Exhibits-134 and 135 is concerned, it is found that the
Commissioner in his oral deposition has admitted that he has not
taken measurement of the defendant's land bearing Survey
No.334/88. When a Court Commissioner is appointed by Court
in a dispute which pertains to the boundaries, location,
identification of the lands, local Court Commissioner must first
ascertain the revenue records of the land in question, and
thereafter, has to prepare report after visiting the site of dispute
and after verifying the exact position, location, boundaries of the
land and after taking into consideration of registered sale deeds
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of the owners of the surrounding lands, recording the statements
of the neighbouring land owners has to prepare a detail report
and sketch of disputed land. The Court Commissioner in his
deposition has also admitted that he has not taken care to see the
revenue records and has only visited the place of plaintiff and
inspected the lands of the plaintiff and prepared report and map.
The commissioner's report Exhibit-134 and a map prepared by
him at Exhibit-135 do not inspire any confidence and the same
cannot be relied upon in the present case. Even on perusal of the
map, Exhibit-135 Court Commissioner has not mentioned the
location of land bearing Survey No.334/88. It appears from the
oral deposition of Court Commissioner that the said report is
prepared at the instance of Panchas who are not admittedly
owners of the surrounding lands.
35 The oral deposition of the person from DILR office has
stated in his deposition that while preparing the report, pursuant
to the order passed by this Court, has not taken into
consideration the map of 2014. Which is not exhibited in the
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present case, but admittedly available in the records of
government. A report/map of 2014 though produced by
defendant is not exhibited, but the witness has admitted that
while preparing the report Exhibit 99 and 100 dated 04.10.2018
has not taken into consideration map of 2014. The report is not
supported by any of the village records. The report also
indicates that report is prepared in absence of the extract of
village forms by relying upon the sale deeds of lands in
question. When the sale deeds of the plaintiff with regard to
boundaries of the lands are not consistent with each other,
reliance upon such sale deed would lead to a situation that if the
report Exhibit 100 and 99 is relied upon, it would be fatal for
the defendant in losing its lands in absence of any prayer for
cancellation of sale deed and if defendant is directed to remove
construction from the portion of land which belonged to his
ownership. Plaintiff would succeed in getting registered sale
deed of defendant cancelled or unenforceable without there
being any prayers. The plaintiff did not examine the owners of
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the surrounding lands as witnesses and also did not examine
predecessor-in-title to establish exact location and identification
its lands. When dispute of boundaries is cropped up in the cases
where the report of DILR is not conclusive in its nature, it
would not be appropriate to rely upon such report in arriving at a
conclusion that which party has encroached upon the lands of
other party.
DISPUTE WITH REGARD TO LOCATION
36 Now if three maps which are on record, Exhibit-100, 72
and a map of 2014 are seen, all maps are prepared by DILR
authorities. Exhibit-72 is a map prepared by DILR on 25 th May
2012. It transpires that in 2012 map measurement of Survey
Nos.334 and 336 are recorded in the measurement sheet. As per
measurement sheet, Ganeshbhai Becharbhai Bharwad is the
owner of 1-61-88 hecter are sq.mtrs of land. Jayantibhai
Rajabhai Baraiya is the owner of 0-60-70 hector are sq. mtrs of
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land and Vipul Kumar Narottamdas Gandhi and others are
owners of land ad measuring about 2-42-81 hector are sq. mtrs
of land. As per the measurement sheet, the total area of Survey
No.334 is 336-60-90. If Map Exhibit-72 is considered, it is
mentioned in the report by the concerned Government authority
that since the measurement is of part of Survey No.334, the
same is not confirmed. Admittedly in 2012 map, there is no
specific reference of Survey Nos.334/12, 334/84 and 334 /86. In
Exhibit-99 it is mentioned that as per the revenue record,
measurement of Survey No.334/12, 334/86, 334/84 is 45,936 sq.
mtrs. Whereas as per mark '"ABCDEFGOINA" measurement
of the three Survey numbers is 46,539 sq. mtrs. There is
significant change in measurement and the measurement does
not sync with measurement found in revenue record. Further,
the District Inspector Land Records, Gandhinagar has
mentioned in its report that the subdivision of survey number
334 are found in Village Form number 7 but no such record is
rectified in the records of DSO. It is further found that the DILR
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officers has referred only the sale deeds of the plaintiffs and has
relied upon the map Exhibit 72 while preparing the
measurement Exhibit-99 and Exhibit-100. Admittedly, while
preparing the map and report exhibit 99 and 100 respectively,
DILR authorities have not taken into consideration the map of
2014, which was already available with them. Even the officer
of the DILR has also admitted the fact that while preparing
Exhibit 99 and 100 he has not considered the report of 2014. In
2014 map, defendant's survey number 334/88 is mentioned
which is ad measuring about 16,646 sq. mtrs and the same is
found in almost middle of the part of survey number 334.
Whereas in the map Exhibit 99 location of defendant's survey
number 334/88 is found slightly on the eastern side of the edge
of survey number 334. In both the maps of 2012 and 2018,
location of alleged encroachment is not found at the same place.
Thus, report exhibit 99 and 100 prepared by DILR authority is
not accurate and a conclusive piece of evidence to hold that
defendant has encroached into the lands of plaintiffs survey
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number. Except the measurement sheet, and map prepared by
DILR, no other material is found on record to establish and
prove that defendant has encroached upon the land of plaintiff.
More particularly, when the suit was filed, almost 95% of the
construction work was completed, which was as per sanctioned
plans and after obtaining necessary permissions from relevant
authority. Section 83 of Indian evidence act deals with the
presumption as to maps or plants made by Authority of
government. As per section 83 maps and plans purporting to
have been made by the authority shall be presumed to have been
made and be accurate.. The presumption under this section is not
conclusive and is rebuttal. onus of proving such a map as
accurate lie on the party who wants to rely on the said map or
plan. It has to be proved that the said map or plan or survey
report is accurate by examining the person who actually
prepared it. undisputedly plaintiff in the present case has not
discharged the burden of proving the accuracy of map and report
exhibit 99 and 100. The author of the map has not been
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examined by plaintiff, which was required to prove the accuracy
of the map.
37. For convenience and better understanding of DILR and the
map prepared by authorities and produced at Exhibit-72,
Exhibit-99 and Exhibit-100 and the measurement sheet of 2014
are translated into English language from Gujarati version and
the translated version is reproduced hereunder;
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Map of 2012
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Map of 2014
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Map of 2018
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SPCS No. 39/18
Office of Settlement Commissioner and Director of Land Records, State of
Gujarat, Gandhinagar
Near Kha-5 Circle, Sector 14, Gandhinagar - 382016.
Office Phone No. (079) 23229090
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Sr. No. D.I.LR./Hon'ble Gujarat High Court/Appeal No. 213/2018 and 214/2018
Date :- 22/10/2018
To,
Government Pleader,
Legal Department,
Gujarat High Court,
Ahmedabad.
Subject :-Report of measurement of the lands bearing survey Nos.
334/12, 334/84, 334/86 and 334/88 situated at moje
Bhamsara, Taluka - Bavla, District - Ahmedabad.
Ref. :- As per the order dated 20/09/2018 passed in the Appeal
Nos. 213/2018 and 214/2018 by Hon'ble Gujarat High
Court.
Apropos the subject and reference cited above, it was directed to prepare
the report and submit the same after measuring the lands bearing survey nos.
334/12, 334/84, 334/86 and 334/88 situated at moje Bhamasara, Taluka - Bavla,
District - Ahmedabad.
In connection with the same, both parties remained present at this office
on 26/09/2018 and fixed 04/10/2018 for the measurement. Pursuant to the same,
D.I.L.R., Ahmedabad, and D.I.L.R., Gandhinagar, were appointed by this office
for the measurement .
On 04/10/2018, in the presence of both D.I.L.R.s and Assistant D.I.L.R.
(Consolidation) of this office as well as both parties, measurement was carried
out.
The complete report of the aforesaid measurement is prepared in
accordance with the order dated 20/09/2018 of the Hon'ble Gujarat High Court
and the same is forwarded herewith to be produced before Hon'ble High Court.
Therefore, it is humbly requested to bring this report to the notice of Hon'ble
High Court.
Sd/- (illegible)
Settlement Commissioner and Director of
Land Records, Gandhinagar, State of Gujarat.
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Encl. :-
The report in respect of the measurement by both D.I.L.R.s along with
complete map and documentary evidences through Deputy Director,
Ahmedabad.
Deputy Director of Land Records
"Amdavad Jilla Mojani Seva Sadan"
Bhimjipura, Next to Jyotisangh, New Vadaj,
Ahmedabad.
Email ID:- [email protected]
Phone No. (079) 27647829
Fax No. (079) 27647829
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Sr. No. DSO/Bavla/Bhamsara/G.H.A. No. 213/18
Date :-20/10/2018
To,
The Settlement Commissioner and
Director of Land Records,
State of Gujarat,
Ahmedabad.
Subject :- To measure the lands bearing survey nos. 334/12,
334/84, 334/86 and 334/88 situated at moje Bhamsara,
Taluka - Bavla, District - Ahmedabad.
Ref. :- (1) Your Letter No. D.I.L.R./Hon'ble Guj. High
Court/Appeal No. 213/2018 dated 27/09/2018.
(2) The report dated 19/10/2018 of District Inspector
Land Records, Ahmedabad.
Apropos the subject and reference cited above, it is respectfully stated
that you have issued direction to give opinion in respect of the possession after
considering four boundaries of different documents and to prepare measurement
sheet after measuring the lands bearing survey nos. 334/12, 334/84, 334/86 and
334/88 situated at moje Bhamsara, Taluka - Bavla, District - Ahmedabad, in the
presence of District Inspector of Land Records, Ahmedabad, District Inspector of
Land Records, Gandhinagar and Mr. Modi, Assistant D.I.L.R. of your office. As
per your direction, the measurement work has been completed in the presence
of all the parties on 04/10/2018. Their opinion in respect of the possession after
considering four boundaries of different documents is submitted vide letter
under reference at sr. no. (2).
The area of the land bearing Survey No. 334 situated at moje Bhamsara,
Taluka-Bavla, is very large, wherein there are many paiki Hissas numbers. But,
paiki hissas numbers have not been measured. Therefore, in absence of the
survey records, it is not possible to decide as to where real possession of the
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each paiki hissa is situate. It does not appear that the four boundaries of the sale
deeds, which have been produced, are not considered properly while preparing
the deeds. Measurement of three possession of said three hissas have been done
in 2012. Accordingly, two deeds of Lila Ship Recycling Pvt. Ltd. and one deed of
Sarvang Shiping Recycling Pvt. Ltd. appears to have been in consistency. But, at
the time of present measurement, Bhailalbhai Bhagubhai, Hetalben
Akshaykumar and Gopi Paper Mart (India) Pvt. Ltd. have shown their possession
over the land in question.
As District Inspector of Land Records, Ahmedabad and Gandhinagar,
have prepared a detailed report, the same is enclosed herewith in original. It is
requested to do the needful after considering the same.
Sd/-(illegible)
Deputy Director of Land Records
Ahmedabad
District Inspector of Land Records, Ahmedabad
"Amdavad Jilla Mojani Seva Sadan"
Bhimjipura, Next to Jyotisangh, New Vadaj,
Ahmedabad.
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Sr. No. D.I.L.R./Scrutiny-2/Bavla/Bhamsara/G.H.A. No. 213/18
Date :- 17/10/2018
To,
The Settlement Commissioner and
Director of Land Record,
State of Gujarat,
Ahmedabad.
Subject :- To measure the lands bearing survey nos. 334/12, 334/84,
334/86 and 334/88 situated at moje Bhamsara, Taluka -
Bavla, District - Ahmedabad.
Ref. :- (1) Your Letter No. D.I.L.R./Hon'ble Guj. High
Court/Appeal No. 213/2018 dated 27/09/2018
Apropos the subject and reference cited above, it is respectfully stated
that you have directed this office and D.I.L.R., Gandhinagar, to measure the
lands bearing survey nos. 334/12, 334/84, 334/86 and 334/88 situated at moje
Bhamsara, Taluka - Bavla, District - Ahmedabad and to complete measurement
work in the presence of Mr. D.J. Modi, Assistant D.I.L.R. of your office. Pursuant
to the same, after making necessary preparation for measurement, concerned
parties were given the date of measurement as 04/10/2018. The actual
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possession as shown by all the parties have been measured in their presence and
measurement sheet has been prepared. The explanation of measurement sheet is
as under :-
(1) Bhailalbhai Bhagubhai has shown to have his possession over the land
bearing survey no. 334/paiki and having the mark A,B,C,D, J,N,A in the
measurement sheet. Area is hec. 01-52-93 sq.m.
(2) Hetalben Akshaykumar Patel has shown to have her possession over the land
bearing revenue survey no. 334/paiki and having the mark G,H,I,N,J,M,L,G in the
measurement sheet. Area is hec. 01-20-00 sq.m.
(3) Gopi Papermart (India) Pvt. Ltd. has shown to have its possession over the
land bearing survey no. 334/paiki and having the mark D,E,F,G,L,M,J,D in the
measurement sheet. Its area is hec. 01-66-46 sq.m.
(4) As per the record of this office, total area of the land bearing survey no. 334,
situated at moje Bhamsara is hec. 336-60-90 sq.m.
(5) Bhupendrasinhji Sahebsinhji was occupier of majority of land bearing survey
no. 334 and different paiki lands were transferred by him by way of sale and
tenancy right. The land bearing survey no. 334/88 paiki was a Government land.
The Deputy Collector, Dholka, rented out the land for cultivation in 1968 and
1987. The different lands of paiki of survey no. 334 are being transferred at the
different times. As all these sale is of paikis, their survey records have not been
prepared by this office.
(6) It is stated by Bhailalbhai Bhagubhai that the land mentioned in Point No.
1 has been purchased by him through two different registered sale deeds. He
purchased land admeasuring Hec. 0-80-93 Sq. Mtrs of Survey No. 334/66 paiki
vide registered sale deed no. 1273 dated 25/04/2016. The four boundaries
thereof are mentioned as under:-
East:- Field of Ishabhai Kachrabhai
West:- Land of Survey No. 334 paiki
North:- Kachchha road
West:- Land of Survey No. 334 paiki.
It is stated that another land admeasuring Hec. 0-72-00 Sq. Mtrs
of Survey No. 334/2 paiki was purchased vide registered sale deed No. 3859
dated 21/12/2015. The four boundaries thereof are mentioned as under:-
East:- Survey No. 336 - Field of Ishabhai Kachrabhai
West:- Land of Survey No. 334 paiki
North:- Kachchha road
West:- Land of Survey No. 334 paiki.
Thus, same four boundaries are mentioned in both the above mentioned
registered sale deeds. It is mentioned in the registered sale deed that land of
Ishabhai Kachrabhai bearing Survey No. 336 is located in the East of his land.
However, in the East of the land mentioned by them as occupied, Survey No. 337
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is located and not Survey No. 336. A kachchha road is located in the North of
land belonging to Mr. Bhailalbhai Bhagubhai, which is correct. However, as per
the second sale deed, no other kachchha road is located in the North. Thus, the
sale deeds and possession of Mr. Bhailalbhai Bhagubhai are not consistent
according to four boundaries.
(7) The land mentioned in Point No.(2) has been purchased by Hetalben
Akshaykumar vide registered sale deed no. 1967 dated 24/05/2018, wherein
Survey No. 334/34 paiki is mentioned. But, no four boundaries are mentioned in
this sale deed. 'As per the government map' is only written therein. Thus, as four
boundaries are not mentioned in this sale deed, it cannot be ascertained as to
whether possession is according to the sale deed or not.
(8) The land mentioned in Point No.(3) bearing Survey No. 334/88 paiki has
been purchased by Gopi Paper Mart (India) Pvt. Ltd. vide registered sale deed
no. 64 dated 05/01/2017. The four boundaries thereof are mentioned as under:-
East:- Land of Survey No. 336 paiki
West:- Land of Survey No. 334/88 paiki
North:- Road leading towards Shital Varsha
West:- Land of Survey No. 334/88 paiki.
During measurement, possession shown by Gopi Paper Mart (India) Pvt.
Ltd., there exist Survey No. 336 along with Survey No. 335 on East, which is not
mentioned in the sale deed. Road leading to Shital Varsha is shown in the North
of the lands, but the road leading towards Shital Varsha is situated in the South.
Land of Survey No. 334/88 is shown in the West and South. However, possession
is shown by Hetalben Akshaykumar on the West and Survey No. 334/34 paiki is
mentioned in the sale deed. Gopi Paper Mart (India) Pvt. Ltd. executed
rectification sale deed vide registered sale deed no. 3356 dated 27/08/2018 and
following changes were made in the four boundaries.
North:- Land of Survey No. 334/88 paiki
South:- Road leading to Shital Varsha.
Possession of land belonging to Bhailalbhai Bhagubhai is mentioned in
the North of land of Gopi Paper Mart as per possession, which are mentioned as
Survey No. 334/2 paiki and Survey No. 334/66 paiki in sale deed. Whereas, as
per rectification in sale deed of Gopi Paper Mart, land of Survey No. 334/88 is
located in the North.
Thus, the possession shown by Bhailalbhai Bhagubhai, Hetalben
Akshaykumar and Gopi Paper Mart, during measurement are not totally
consistent with four boundaries mentioned in the sale deed.
(9) Licensee Surveyor Mr. Prakash R. Bhavsar had measured the same
land, which is mentioned under their possession by the above mentioned three
occupants on 25/05/2012. Copy of that measurement sheet has been obtained
from record of this office and enclosed herewith. As per the measurement sheet,
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land marked as "ABKDEINA" bearing Survey No. 334 paiki has area of Hec. 1-61-
88 Sq. Mtr., which was occupied by Ganeshbhai Becharbhai Bharvad.
Ganeshbhai Bharvad sold his land to Jayantibhai Rajabhai Baraiya and others
vide registered sale deed no. 2643 dated 25/07/2011 and Lila Ship Recycling Pvt.
Ltd. purchased this land from them vide registered sale deed no. 765 dated
11/03/2015. The four boundaries are mentioned as under in the deed of Lila Ship
Recycling Pvt. Ltd.
East:- Cultivable land of Survey No. 337 paiki
West:- Cultivable land of Survey No. 334 paiki
North:- Existing road and thereafter cultivable land of Survey No. 334 paiki
South:- Non-cultivable land of Survey No. 334/86
It is found that above mentioned four boundaries are consistent with
measurement carried out in the year 2012. It appears that a mistake is
committed in writing survey no. 337 instead of Survey No. 336 in the East.
(10) As per the measurement of the year 2012, the land marked as
"BCDKB" of Survey No.334 Paiki admeasuring Hectare 0-60-70 sq.mtrs was
under possession of Jayantibhai Rajabhai Baraiya. Leela Ship Recycling Pvt. Ltd.
had purchased the said land vide registered sale-deed No.765 dated 17/03/2018,
wherein Survey No.334/84 is shown. In the said Survey Number, the four
boundaries are shown as under.
East: Uncultivated land bearing Survey No.337 Paiki.
West: Land bearing Survey No.334/12.
North: Cultivable land bearing Survey No.334 Paiki.
South: Land bearing Survey No.334/12 and 334/86.
The above-mentioned four boundaries appear to be consistent with the
measurement done in the year 2012.
(11) As per the measurement done in the year 2012, the land shown in
the map vide Mark "E,F,G,H,I,E" was under possession of Vipulkumar
Narottamdas Gandhi and Others. The area thereof is measured to be Hectare 2-
42-81 sq.mtrs. Vipulkumar Narottamdas Gandhi had sold out the said land vide
registered sale-deed No.1760 dated 15/06/2012 to Ashokbhai Gordhanbhai
Baraiya, wherein Survey No.334/86 has been shown. The four boundaries are
shown as under in this sale-deed.
East:- Land bearing Survey No.336.
West:- Land bearing Survey No.334.
North: Land bearing Survey No.334/12.
South: Existing road.
Above-mentioned four boundaries are consistent with the location.
Ashokbhai Gordhanbhai Baraiya has sold out the said land vide registered sale-
deed No.736 dated 17/02/2018 to Sarvang Shipping Services Pvt. Ltd. In this
sale-deed, the four boundaries are shown as under.
East: Land bearing Survey nos. 335 and 336.
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West: Land bearing Survey No.334/Paiki.
North: Land bearing Survey No.334.
South: Existing road leading to Sarla village.
As per boundaries shown in both sale-deeds, the boundaries of two sale-
deeds is uniform with the aforesaid boundaries of land, which was purchased by
Ashokbhai Gordhanbhai Baraiya and subsequently sold by Ashokbhai
Gordhanbhai Baraiya and also consistent with the location.
On the basis of the measurement conducted on 25/05/2012, the
documents executed by the Shipping Company are consistent with the location
shown at present, but in this land, at the time of present measurement,
Bhailalbhai Bhaguben, Hetalben Akshaykumar and Gopi Paper Mart (India) Pvt.
Ltd. have shown their separate possessions over this land, but the four
boundaries shown in their sale-deeds do not appear to be consistent with the
location.
In the instant measurement case, considering the aforementioned
facts and details, the outer boundaries are being found and available in
accordance with the borders and boundaries shown in the measurement
conducted in the year 2012. In the instant case, upon verification of the record
in respect of measurement of the Survey No.334 Paiki, it transpires that the
measurement of the hissa has not been conducted at the time of handing over
the possession, but since the Honourable High Court has directed to fix the
"identification and demarcation" after conducting measurement of the land in
dispute, after obtaining the copies of the registered sale-deeds from the office of
the Sub-Registrar, study of the four boundaries shown in each of the
aforementioned sale-deeds has been conducted. At the same time, the details of
possession as per the measurement conducted in the year 2012 have been taken
into consideration.
Thus, as per the measurement conducted in the year 2012, it
prima facie appears that the land marked as "A,B,C,D,E,F,G,O,I,N,A" was
purchased by Leela Shipping Recycling Pvt. Ltd. and Sarvang Shipping Services
Pvt. Ltd. through different sale-deeds and land marked as - 'D,E,F,G,L,M,J,D", it
appears that Gopi Paper Mart (India) Pvt. Ltd. has at present carried out
construction of the factory on the said land.
Sd/- illegible (22/10/2018) Sd/- illegible (22/10/2018)
District Inspector, Land Records (I/c) District Inspector, Land Records,
Gandhinagar Ahmedabad
Copy forwarded with compliments to:-
Deputy Director of Land Records, Ahmedabad
2/- With a request to do the needful considering the above-mentioned report.
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38. If Exhibit-72 and Exhibit-99 are compared, it appears that
in Exhibit-100, Mark A,B,C,D, J, N,A is referred to as the land
in possession of Bhailalbhai Bhagubhai. A reference of the
measurement sheet of 25.05.2012 is made and as per 2012
measurement-sheet, mark A,B,K,D,E,I,N,A is the land which is
purchased by Leelasheep Recycling Private Limited (plaintiff-
respondent) from its erstwhile owner, now if this mark
A,B,K,D,E,I,N,A is seen in the measurement map of 2018
(Exhibit-99), it is part of the land of Bhailalbhai Bhagubhai. In
Exhibit-99 on the eastern site of mark CDEF Survey No.337,
Survey No.336 and 335 are mentioned. Whereas in the
measurement sheet of 2012 (Exhibit-72) on the eastern side of
Survey No.334 settlement Commissioner has not mentioned
Survey No.335. In the map of 2014, on eastern side of survey
No.334, there appears to be a highway road of Ahmedabad to
Bagodara and Survey No.335 and 336 are mentioned but
reference of Survey No.337 is missing. Thus, on comparing
three maps the location, boundaries of the land in question do
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not sync with each other which raises doubt about accuracy of
maps / plans. It appears that the land Mark as marked
A,B,C,D,J,N,A, and marked as A,D,K,D,E,I,N,A are
overlapping when DILR report of 2018 is relied upon by the
plaintiff, such measurement of identification of the boundaries
and location of the plot has to be very clear and unambiguous.
When all the three reports do not indicate the exact situation,
location and identification of the boundaries of Survey
Nos.334/82, 334/84, 334 /86 and 334/88, reliance cannot be
placed upon to resolve the dispute of alleged trespass being
committed by defendant-appellant. Further, in 2018 report
location of Survey No.334/88 is not identified which was the
work allotted to the authority as per order dated 20.09.2018
passed by Co-ordinate Bench of this Court.
39. In the decision of Anathula Sudhakhar (supra), plaintiff
filed a suit for a relief of permanent injunction to restrain the
defendant from interfering with their possession. The trial Court
decreed the suit. The First Appellate Court allowed the appeal
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by holding that defendant was in possession of the suit property
and the plaintiffs had not made out either title or possession over
the suit property. The defendant clearly set up a case of title in
himself. In the second appeal, the High Court restored the
judgment and decree passed by trial Court. High Court held that
plaintiff had established their title by inferring that possession
was presumed to be with the plaintiff as possession follows title.
In paragraph No.13.3, 14, 15, 16 and 21 the Hon'ble Supreme
Court has observed as under;
13.3. Where the plaintiff is in possession, but his title to the
property is in dispute, or under a cloud, or where the defendant
asserts title thereto and there is also a threat of dispossession from
defendant, the plaintiff will have to sue for declaration of title and
the consequential relief of injunction. Where the title of plaintiff is
under a cloud or in dispute and he is not in possession or not able to
establish possession, necessarily the plaintiff will have to file a suit
for declaration, possession and injunction.
14. We may however clarify that a prayer for declaration will be
necessary only if the denial of title by the defendant or challenge to
plaintiff's title raises a cloud on the title of plaintiff to the property. A
cloud is said to raise over a person's title, when some apparent defect
in his title to a property, or when some prima facie right of a third
party over it, is made out or shown. An action for declaration, is the
remedy to remove the cloud on the title to the property. On the other
hand, where the plaintiff has clear title supported by documents, if a
trespasser without any claim to title or an interloper without any
apparent title, merely denies the plaintiff's title, it does not amount to
raising a cloud over the title of the plaintiff and it will not be
necessary for the plaintiff to sue for declaration and a suit for
injunction may be sufficient. Where the plaintiff, believing that
defendant is only a trespasser or a wrongful claimant without title,
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files a mere suit for injunction, and in such a suit, the defendant
discloses in his defence the details of the right or title claimed by
him, which raises a serious dispute or cloud over plaintiff's title, then
there is a need for the plaintiff, to amend the plaint and convert the
suit into one for declaration. Alternatively, he may withdraw the suit
for bare injunction, with permission of the court to file a
comprehensive suit for declaration and injunction. He may file the
suit for declaration with consequential relief, even after the suit for
injunction is dismissed, where the suit raised only the issue of
possession and not any issue of title.
15. In a suit for permanent injunction to restrain the defendant from
interfering with plaintiff's possession, the plaintiff will have to
establish that as on the date of the suit he was in lawful possession of
the suit property and defendant tried to interfere or disturb such
lawful possession. Where the property is a building or building with
appurtenant land, there may not be much difficulty in establishing
possession. The plaintiff may prove physical or lawful possession,
either of himself or by him through his family members or agents or
lessees/licensees. Even in respect of a land without structures, as for
example an agricultural land, possession may be established with
reference to the actual use and cultivation. The question of title is not
in issue in such a suit, though it may arise incidentally or
collaterally.
16. But what if the property is a vacant site, which is not physically
possessed, used or enjoyed? In such cases the principle is that
possession follows title. If two persons claim to be in possession of a
vacant site, one who is able to establish title thereto will be
considered to be in possession, as against the person who is not able
to establish title. This means that even though a suit relating to a
vacant site is for a mere injunction and the issue is one of possession,
it will be necessary to examine and determine the title as a prelude
for deciding the de jure possession. In such a situation, where the
title is clear and simple, the court may venture a decision on the
issue of title, so as to decide the question of de jure possession even
though the suit is for a mere injunction. But where the issue of title
involves complicated or complex questions of fact and law, or where
court feels that parties had not proceeded on the basis that title was
at issue, the court should not decide the issue of title in a suit for
injunction. The proper course is to relegate the plaintiff to the
remedy of a full-fledged suit for declaration and consequential
reliefs.
21. To summarize, the position in regard to suits for prohibitory
injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not
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have possession, a suit for declaration and possession, with or
without a consequential injunction, is the remedy. Where the
plaintiff's title is not in dispute or under a cloud, but he is out of
possession, he has to sue for possession with a consequential
injunction. Where there is merely an interference with plaintiff's
lawful possession or threat of dispossession, it is sufficient to sue for
an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with
possession, normally the issue of title will not be directly and
substantially in issue. The prayer for injunction will be decided with
reference to the finding on possession. But in cases where de jure
possession has to be established on the basis of title to the property,
as in the case of vacant sites, the issue of title may directly and
substantially arise for consideration, as without a finding thereon, it
will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for
injunction, unless there are necessary pleadings and appropriate
issue regarding title [either specific, or implied as noticed in
Annaimuthu Thevar (supra)]. Where the averments regarding title
are absent in a plaint and where there is no issue relating to title, the
court will not investigate or examine or render a finding on a
question of title, in a suit for injunction. Even where there are
necessary pleadings and issue, if the matter involves complicated
questions of fact and law relating to title, the court will relegate the
parties to the remedy by way of comprehensive suit for declaration of
title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and
appropriate issue relating to title on which parties lead evidence, if
the matter involved is simple and straight-forward, the court may
decide upon the issue regarding title, even in a suit for injunction.
But such cases, are the exception to the normal rule that question of
title will not be decided in suits for injunction. But persons having
clear title and possession suing for injunction, should not be driven
to the costlier and more cumbersome remedy of a suit for
declaration, merely because some meddler vexatiously or wrongfully
makes a claim or tries to encroach upon his property. The court
should use its discretion carefully to identify cases where it will
enquire into title and cases where it will refer to plaintiff to a more
comprehensive declaratory suit, depending upon the facts of the
case.
40. In the case of Mary Pushpam (supra), it has been
observed in paragraph No.22 and 23, which is as under;
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"22. In order to test the above argument, we carefully examined the judgment
of the trial court as also the first appellate court. What is discernible is that
nowhere it is recorded the actual boundary or the measurements of the
property in possession of the mother of the appellant (defendant therein). The
respondents-plaintiff therein had based her case on the ground that they had
purchased 8 cents of open piece of land and the defendant therein had raised
construction over some adjoining land, and had trespassed over part of her
purchased land as such decree of possession be granted.
"23. We are unable to appreciate the said argument of the respondents. Suit
for possession has to describe the property in question with accuracy and all
details of measurement and boundaries. This was completely lacking. A suit
for possession with respect to such a property would be liable to be dismissed
on the ground of its identifiability. Further, it may be noted that if the
construction by the defendant were not made over 8 cents of purchased land,
then the plaintiff therein would not have a claim to possession of the same. The
argument thus has to be rejected not only on facts but also on legal grounds
as discussed above.
41. In the case of the Tehsildar, Urban Improvement Trust
And Anr (supra), it has been observed in paragraph Nos21.1, 29
and 30, which is as under;
21.1 Further a suit simpliciter for injunction may not be maintainable as the
title of the property of the plaintiff/respondent was disputed by the appellants/
defendants. In such a situation it was required for the respondent/plaintiff to
prove the title of the property while praying for injunction. Reference can be
made to the judgment of this Court in Anathula Sudhakar v. P. Buchi Reddy
(Dead) by Lrs. and Oars.
29. As recorded by the Trial Court, the respondents/plaintiffs had not been
able to prove the document on the basis of which they were claiming a right of
possession of the property in question. Even if the aforesaid document is
considered, the sale was clearly violative of Rule 266 of the 1961 Rules, under
which aforesaid alleged lease deed/sale deed has been issued in favour of the
respondents/plaintiffs. In terms of Rule 266 of the 1961 Rules, only in certain
specified situation, the land could be transferred by way of sale on private
negotiation, namely, where any person has a plausible claim of title to the
land and auction may not fetch reasonable price or it may not be the
convenient mode for disposal of land or where such a course is regarded by
the Panchayat necessary for advancement of Scheduled Castes and Scheduled
Tribes or other Backward Classes. Another situation envisaged is where the
person is in possession of land for more than 20 years but less than 42 years.
Nothing was produced on record to show that the due process required for
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leasing out/sale of the land in favour of the respondents/plaintiffs by private
negotiation was followed. Gram Panchayat from whom the land was taken
was not impleaded as party to admit or deny the allegations made by the
respondents/plaintiffs in the plaint.
30. For the reasons, mentioned above, we find merit in the present appeals.
The same are accordingly allowed. The impugned judgments of the High
Court as well as the First Appellate Court are set aside and that of the Trial
Court is restored. Resultantly, the suits are dismissed.
42. In the case of Vasantha (dead) Thr. Lr. (supra), it has
been observed in paragraph Nos.24, 26, 28, 29, 30, 31 and 33,
which are as under;
24. We now proceed to examine whether the suit for declaration simpliciter
was maintainable in view of Section 34 of the SRA, 1963.
26. The learned senior counsel for the appellant has contended that it has
been settled by the Courts below that the appellant has been in possession of
the subject property since 1976. In view of the proviso to Section 34, the suit
of the plaintiff could not have been decreed since the plaintiff sought for
mere declaration without the consequential relief of recovery of possession.
28. We now proceed to examine the law on this issue. As submitted by the
learned Senior Counsel for the appellant, in Vinay Krishna v. Keshav
Chandra [Vinay Krishna v. Keshav Chandra, 1993 Supp (3) SCC 129] (two-
Judge Bench), this Court while considering Section 42 of the erstwhile
Specific Relief Act, 1877 to be pari materia with Section 34 of SRA, 1963
observed that the plaintiff's not being in possession of the property in that
case ought to have amended the plaint for the relief of recovery of possession
in view of the bar included by the proviso.
29. This position has been followed by this Court in Union of India v.
Ibrahim Uddin (2-Judge Bench), elaborated the position of a suit filed
without the consequential relief. It was observed:
"55. The section provides that courts have discretion as to declaration of
status or right, however, it carves out an exception that a court shall not
make any such declaration of status or right where the complainant, being
able to seek further relief than a mere declaration of title, omits to do so.
56. In Ram Saran v. Ganga Devi [(1973) 2 SCC 60] this Court had
categorically held that the suit seeking for declaration of title of ownership
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but where possession is not sought, is hit by the proviso of Section 34 of the
Specific Relief Act, 1963 and, thus, not maintainable. In Vinay Krishna v.
Keshav Chandra [1993 Supp (3) SCC 129] this Court dealt with a similar
issue where the plaintiff was not in exclusive possession of property and had
filed a suit seeking declaration of title of ownership. Similar view has been
reiterated observing that the suit was not maintainable, if barred by the
proviso to Section 34 of the Specific Relief Act. (See also Gian Kaur v.
Raghubir Singh [(2011) 4 SCC 567)
57. In view of the above, the law becomes crystal clear that it is not
permissible to claim the relief of declaration without seeking consequential
relief.
30. In Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead) thr. LRs
(2-Judge Bench), the purpose behind Section 34 was elucidated by this
Court. It was observed that the purpose behind the inclusion of the proviso is
to prevent multiplicity of proceedings. It was further expounded that a mere
declaratory decree remains non-executable in most cases. This Court noted
that the suit was never amended, even at a later stage to seek the
consequential relief and therefore, it was held to be not maintainable. This
position of law has been reiterated recently in Akkamma and Ors. v.
Vemavathi and Ors. (2-Judge Bench)
31. This Court in Executive Officer, Arulmigu Chokkanatha Swamy Koil
Trust, Virudhunagar v. Chandran and Others (2-Judge Bench) while
reversing the High Court decree, observed that because of Section 34 of the
SRA, 1963, the plaintiff not being in possession and claiming only
declaratory relief, ought to have claimed the relief of recovery of possession.
It was held that the Trial Court rightly dismissed the suit on the basis that
the plaintiff has filed a suit for a mere declaration without relief for
recovery, which is clearly not maintainable.
33. Adverting to the facts of the present case, on a perusal of the plaint, it is
evident that the plaintiff was aware that the appellant herein was in
possession of the suit property and therefore it was incumbent upon him to
seek the relief which follows. Plaintiff himself has stated that defendant no. 1
was in possession of the subject property and had sought to transfer
possession of the same to defendant no.2, thereby establishing that he
himself was not in possession of the subject property. We are not inclined to
accept the submission of the learned counsel for the respondent on this issue.
We note that after the death of the life-estate holder in 2004, there was no
attempt made by the original plaintiff to amend the plaint to seek the relief of
recovery of possession. It is settled law that amendment of a plaint can be
made at any stage of a suit34, even at the second appellate stage.
43. In the case of Union of India (supra), it has been observed
in paragraph Nos.84, 85, 85.1, 85.6, 85.12 and 85.13, which are
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as under;
84. In view of the above, we are of the considered opinion that the
appellate courts dealt with the case in an unwarranted manner giving
a complete go-by to the procedure prescribed by law. The appellate
courts examined the title of the Government instead of Respondent 1-
plaintiff. Such a course was not warranted. The title of the
Government cannot be disputed. In any event possession of the
Government for decades is not disputed. The plaintiff shifted the case
from time to time but failed to prove his title.
85. To sum up, in view of the above discussion, we reach the
following conclusions:
85.1 The first appellate court as well as the High Court committed a
grave error in shifting the burden of proof on the Union of India,
appellant-Defendant 1, though it could (sic should) have been
exclusively on Respondent 1-plaintiff to prove his case.
85.6 The court cannot travel beyond the pleadings as no party can
lead the evidence on an issue/point not raised in the pleadings and in
case, such evidence has been adduced or a finding of fact has been
recorded by the court, it is just to be ignored. Though it may be a
different case where in spite of specific pleadings, a particular issue is
not framed and the parties having full knowledge of the issue in
controversy lead the evidence and the court records a finding on it.
85.12. The suit was barred by the proviso to Section 34 of the
Specific Relief Act, for the reason that Respondent 1-plaintiff,
admittedly, had not been in possession and he did not ask for
restoration of possession or any other consequential relief.
85.13. The first appellate court as well as the High Court recorded a
finding that the Union of India failed to prove its title over the suit
land. The said courts did not realise that this was not the issue to be
determined, rather the issue had been as to whether Respondent 1-
plaintiff was the owner of the suit land.
44. In the case of State of Gujarat (supra), it has been
observed in paragraph Nos.3 and 13, which are as under;
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3. In a civil suit for declaration of title over immovable property
and permanent injunction on certain facts or propositions asserted
by the plaintiff/plaintiffs, when they are denied or at least not
admitted by the defendants, the question on the burden of proof
arises. In the present case, all plaintiffs No. 1 to 7 came to the Court
for declaration that they are the owners of Survey No. 295 of
village Bhabhar Navavas, which according to them was
admeasuring 3 acres 32 gunthas and 88 cents. They positively
averred in the plaint that after survey settlement in the revenue
record since 1954, the area of the said land was shown as 1 acre and
23 gunthas, but their assertion was that such area was simply
approximately written. They have claimed ownership over the suit
land by averring that Jagirdar Thakor Balvantsingh Kaluji had
mortgaged the said Survey No. 295 with possession by registered
deed for Rs. 500/- for a period of 10 years to plaintiff No. 1 and
deceased Parshottam Chunnilal, who is represented by plaintiffs
No. 2 to 7, being his heirs and legal representatives. It is their case
that since execution of the said mortgage deed dated 22nd July,
1954, they are in possession of Survey No. 295. The said registered
mortgage deed dated 22nd July, 1954 executed by Thakor
Balvantsingh Kaluji is produced along with the list of documents at
Exhibit 4/1 and the same is exhibited at Exhibit 47.
13. This Court must at once clarify that the question of burden of
proof or onus probandi is certainly important in the early stage of a
case. It may also assume importance where no evidence at all is led
on the question in dispute by either side. In such a contingency, the
party on whom the onus lies to prove certain facts must fail if facts
are not proved. In the present case, when ownership over Survey
No. 295 was asserted by the plaintiffs and when specific issues to
that effect were framed, and when plaintiffs have never claimed
title on the basis of their possessory title, they having failed in
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discharging their burden of proving their title, they must fail. It is
true that in cases where evidence has been led by the contesting
parties on the question in issue, abstract considerations of onus are
out of place and truth or otherwise of the case must always be
adjudged on the evidence led by the parties. Vide
MANU/SC/0106/1963 : [1963]49ITR165(SC).
45. In the case of M.Durga Singh And Others (supra), it has
been observed in paragraph Nos.16 and 17, which are as
under;
16. The Special Court dealt with all these issues and concluded that
the appellants had failed to establish that they are the owners of the
scheduled property and there was no material to establish their
ownership. It was also held that the appellants had not been able to
show that the respondents had trespassed on the suit property
without legal entitlement and were therefore land-grabbers within
the meaning of the Act.
17. What is more serious is that the Special Court concluded that
there is no certainty about the land alleged to have been grabbed
by the respondents. The location of the land was not clear, the area
was not clearly identified, the description of the land was very
vague, no measurements of the land were given and the boundaries
of the land were also not clear.
46. In the case of Ramasami Reddy And Ors (supra). it has
been observed in paragraph Nos.2, 13, 17 and 18 which are as
under;
2. The averments made in the plaint are as follows:-
(i) One Bangarammal purchased the suit properties from one
Desugan for valuable consideration as per the registered sale deed
dated 27.10.1969 and that she was in possession and enjoyment of
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the same. The land in the third item of the suit property is a
poramboke land which belongs to the Government and the same
was vested with Paranji Panchayat Board. The said Bangarammal
and her husband Senebukan were in enjoyment of the third item of
the property. Under these circumstances, the Panchayat Board at
Paranji in its Resolution dated 30.06.1970 had given their "No
objection" for assignment of the said land to the said Senebukan,
husband of Bangarammal and she used the said land to have access
to her lands described as items 1 and 2. The said Bangarammal was
in possession and enjoyment of the suit properties to the
knowledge of the defendants who are the adjacent land owners.
(ii) Bangarammal and her daughter jointly sold the suit properties
to the plaintiff viz., Ramaswami Reddy for valuable consideration
as per the registered sale deed dated 02.09.1992 and delivered
possession of the same to the plaintiff. Since then the plaintiff is in
possession and enjoyment of the suit properties and the defendants
are also aware of the same. The defendants have no manner of any
right, interest or title over the suit properties. From 30.10.1992, the
defendants colluded together and high handedly attempting to
interfere with the plaintiff's peaceful possession and enjoyment of
the suit properties. Therefore, the plaintiff filed the suit for
permanent injunction restraining the defendants and their men from
interfering with the plaintiff's peaceful possession and enjoyment
of the suit properties in any manner and directing the defendants to
pay the costs to the plaintiff. Therefore, the plaintiff has prayed for
decree.
13. It is well settled dictum of the Apex Court that a person who
files a suit for injunction, must prove his prima facie title, legal
possession and balance of convenience and if injunction is not
granted, irreparable loss will be caused to him. In the case on hand,
except the sale deed under Ex.A1, the first appellant/plaintiff has
not filed any document to show that he is in possession and
enjoyment of the suit property.
17. According to the learned counsel for the respondents,
boundaries will prevail over the extent. He has also relied upon the
decision of this Court reported in 2000 (3) MLJ 327 (Ramaiya
Asari v. Ramakrishna Naicker alias Kollimalai Naicker and
another), wherein it was held that the boundaries will prevail over
the extent. So it is appropriate to extract para-15, which reads as
follows:
"15. The same principle has been enunciated in The
Church of South India Trust Association through its
power of Attorney Agents Rev. C.E. Soundiraraj v. Raja
Ambrose, (1978) 2 M.L.J. 620. In the second of the
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decisions it is stated that the subject-matter of the grant
would depend on the intention of the parties as
expressed in the relevant conveyance deed. Where the
deed sets out the extent and measurements correctly,
there can be no difficulty in determining the subject-
matter of the grant. But where no measurements are
given or the extent mentioned in the deed is either vague
or is only a rough and ready approximation, one has to
look to other indications in the deed in order to fix the
identity of the property which is the subject of the grant.
If the deed in question sets out the boundaries of the
property conveyed, then these boundaries will have to
be accepted as a clear reflection of the intention of the
grantor and they will conclude not only the exact
positioning of the property conveyed, but also its true
extent. The boundaries given in the deed will also, in
such cases, prevail over the measurement given in the
deed, if these are given as approximations. "
18. Considering the facts and circumstances of the case, I am of
the considered opinion, the suit filed by the first appellant/plaintiff
itself is not maintainable without prayer for declaration of title as
per the dictum laid down in MANU/SC/7376/2008 : 2008 SC 2033
(Anathula Sudhakar v. P.Buchi Reddy (dead) by legal heirs and
others). It is the duty of the appellants to prove that the plaintiff is
having prima facie title and legal possession. But the appellants
have not filed any single document to prove that the first appellant/
plaintiff is in possession of the suit property. So I am of the view,
the Courts below are right in dismissing the suit for injunction
after considering that the plaintiff has not proved his possession
and title to the suit property. Therefore, the appellants herein are
not entitled to any relief. The substantial question of law is
answered accordingly.
47. In the case of Chennadi Jalapathi Reddy (supra), it has
been observed in paragraph Nos.9, 10, 11 and 13, which are as
under;
9. As mentioned supra, the High Court mainly relied upon the
opinion evidence of DW 2, the handwriting expert, who opined
that the signature of the first defendant on the agreement of sale,
Ext. A-1 did not tally with his admitted signatures.
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10. By now, it is well settled that the court must be cautious while
evaluating expert evidence, which is a weak type of evidence and
not substantive in nature. It is also settled that it may not be safe to
solely rely upon such evidence, and the court may seek
independent and reliable corroboration in the facts of a given case.
Generally, mere expert evidence as to a fact is not regarded as
conclusive proof of it. In this respect, reference may be made to a
long line of precedents that includes Ram Chandra v. State of
U.P. [Ram Chandra v. State of U.P., AIR 1957 SC 381 : 1957 Cri
LJ 559] , Shashi Kumar Banerjee v. Subodh Kumar
Banerjee [Shashi Kumar Banerjee v. Subodh Kumar Banerjee,
AIR 1964 SC 529] , Magan Bihari Lal v. State of Punjab [Magan
Bihari Lal v. State of Punjab, (1977) 2 SCC 210 : 1977 SCC (Cri)
313] and S. Gopal Reddy v. State of A.P. [S. Gopal Reddy v. State
of A.P., (1996) 4 SCC 596 : 1996 SCC (Cri) 792]
11. We may particularly refer to the decision of the Constitution
Bench of this Court in Shashi Kumar Banerjee [Shashi Kumar
Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529] , where it
was observed that the evidence of a handwriting expert can rarely
be given precedence over substantive evidence. In the said case,
the court chose to disregard the testimony of the handwriting
expert as to the disputed signature of the testator of a will, finding
such evidence to be inconclusive. The court instead relied on the
clear testimony of the two attesting witnesses as well as the
circumstances surrounding the execution of the will.
12. On the other hand, in Murari Lal v. State of M.P. [Murari
Lal v. State of M.P., (1980) 1 SCC 704 : 1980 SCC (Cri) 330] ,
this Court emphasised that reliance on expert testimony cannot be
precluded merely because it is not corroborated by independent
evidence, though the Court must still approach such evidence with
caution and determine its creditworthiness after considering all
other relevant evidence. After examining the decisions referred to
supra, the Court was of the opinion that these decisions merely
laid down a rule of caution, and there is no legal rule that
mandates corroboration of the opinion evidence of a handwriting
expert. At the same time, the Court noted that Section 46 of the
Evidence Act, 1872 (hereinafter "the Evidence Act") expressly
makes opinion evidence open to challenge on facts.
In Alamgir v. State (NCT of Delhi) [Alamgir v. State (NCT of
Delhi), (2003) 1 SCC 21 : 2003 SCC (Cri) 165] , without referring
to Section 46 of the Evidence Act, this Court reiterated the
observations in Murari Lal [Murari Lal v. State of M.P., (1980) 1
SCC 704 : 1980 SCC (Cri) 330] and stressed that the court must
exercise due care and caution while determining the
creditworthiness of expert evidence.
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13. In our considered opinion, the decisions in Murari
Lal [Murari Lal v. State of M.P., (1980) 1 SCC 704 : 1980 SCC
(Cri) 330] and Alamgir [Alamgir v. State (NCT of Delhi), (2003)
1 SCC 21 : 2003 SCC (Cri) 165] strengthen the proposition that it
is the duty of the court to approach opinion evidence cautiously
while determining its reliability and that the court may seek
independent corroboration of such evidence as a general rule of
prudence. Clearly, these observations in Murari Lal [Murari
Lal v. State of M.P., (1980) 1 SCC 704 : 1980 SCC (Cri) 330]
and Alamgir [Alamgir v. State (NCT of Delhi), (2003) 1 SCC 21 :
2003 SCC (Cri) 165] do not go against the proposition stated
in Shashi Kumar Banerjee [Shashi Kumar Banerjee v. Subodh
Kumar Banerjee, AIR 1964 SC 529] that the evidence of a
handwriting expert should rarely be given precedence over
substantive evidence.
48. In the case of Kurella Naga Druva (supra), plaintiff claim
to be the owner of suit property having purchased under a
registered sale. The defendant offered plaintiff to manage the
suit land by identifying suitable persons to cultivate the land.
Suit land was given on lease by plaintiff to various persons
suggested by defendant from time to time. The defendant
offered the plaintiff to take the suit land on lease on annual rent.
Defendant was cultivating the land as a tenant. Plaintiff after
issuing a notice filed a suit demanding payment of agreed rent
and possession of the land. Defendant in defence contained title
by adverse possession and further challenged that plaintiff was
never in possession and the sale deed in favour of plaintiff was a
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nominal deed. A specific issue was framed whether the
defendant had acquired title by adverse possession. It was also
observed by the apex court that merely by defendant that he had
preferred his title by adverse possession does not mean that a
cloud is raised over the plaintiff title and the plaintiff who is the
owner should file a suit for declaration of title.
The facts in the present case are totally different from the
facts which was before the apex court. Therefore, the said
decision is not helpful to the plaintiff-respondent.
49. In the case of Muddasani Venkata (supra), the
controversy was totally on a different footing. In paragraph
Nos.2 and 3, controversy narrated, which is reproduced.
"2. The plaintiff filed a suit before the trial Court for possession of
disputed property and mesne profits based upon the title. It was
averred in the plaint that Veeraiah and Balaiah were sons of late
Rajaiah. Both the sons predeceased their father Rajaiah. Plaintiff is
son of Veeraiah and Yashoda is wife of the said late Balaiah. After
the death of Rajaiah, the property was given as widow's estate to
Yashoda. It was to be reverted to the plaintiff after the death of
Yashoda. Yashoda enjoyed the property in her lifetime. However,
after her death, Smt. Gandla Buchamma, surviving sister of late
Balaiah succeeded to the property and sold it to plaintiff vide
registered sale deed dated 25-4-1981 and also delivered the
possession. Thereafter on 12-6-1981 the defendants forcibly evicted
the plaintiff from the property.
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3. The defendants in their written statements contended that Balaiah
was the absolute owner of the property and after his death Yashoda
became the absolute owner of the property. She was in possession of
the property. It was not to be reverted back to the plaintiff after the
death of Yashoda. Yashoda after death of her husband, as per
authority given by her late husband, had adopted Defendant 3
Sarojana when she was aged 12 years and thereafter she resided in
the house of Yashoda as her daughter. Thus, Buchamma did not
succeed to the property. The adopted daughter Defendant 3
succeeded to property by inheritance. The defendants had no
knowledge of the registered sale deed. Buchamma was not in
possession and had no authority to sell the property to the plaintiff."
Since the Courts held that the plea raised prima facie did
not raise any cloud over plaintiff's title and unless there is a
serious cloud over the title of plaintiff, there is no need to file a
suit for declaration of title. The suit for possession was
maintainable. Therefore, the said decision is not helpful to the
plaintiff-respondent.
50. In the case of K. M. Krishna Reddy (supra), the
controversy between plaintiff and defendant was not related to
title of the property, but the defendant admitted title of plaintiff's
father to the suit property. The dispute was with regard to
allotment of share under family settlement. The plea of
defendant was adverse possession against the plaintiff, which
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presupposes that applicant was owner in a suit solicited for a
perpetual injunction based on title, defendant pleases perfection
of his title by adverse possession against plaintiff or his produce,
cannot be said that there is any dispute about title of plaintiff
and therefore it was held that plaintiff did not claim in
declaration of title in cases where issues involved in such suit,
whether plaintiff has proved that he was in possession on the
date of institution of the suit and whether the defendant has
proved that he has perfected his title by adverse possession.
Therefore, the said decision is not helpful to the plaintiff-
respondent.
51. In the case of Mahendranath Parida (supra), the question
was with regard to appointment of court commissioner under
order 26, rule nine of the code of civil procedure. The
application for appointment of court commissioner was rejected
by the trial Court by holding that the same was premature and if
it was considered necessary, commissioner would be appointed
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after evidence was closed under the afforded controversy, the
Orissa High Court held that under no circumstances, can local
investigation be sought after the evidence is closed. The
appointment of court commissioner should be done before the
parties adduced evidence and thereafter The impure order was
vacated and a survey knowing commissioner was directed to be
appointed. Therefore, the said decision is not helpful to the
plaintiff-respondent.
52. In the case of Sulemankhan S/o Mumtajkhan and Others
(supra), it has been observed by the Bombay High Court that in
suit involving boundary dispute between parties, court must
ascertain that a map is drawn to the appropriate scale by
competent government official from the office of TILR or DILR
switch to measure the suit property either in presence of parties
or in absence of parties. The suit property has to be properly
measured, boundaries are fixed and boundary dispute is finally
settled by producing map in the court by the plan maker who
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can prove its genuineness by deposing in support of such
plan/map.
In the present case, Exhibit 99 and 100, which are the
measurement sheet and plan have relied upon by plaintiff is not
supported by the evidence of a plan maker who has measured
the disputed boundaries and prepared map. Therefore, the said
decision is not helpful to the plaintiff-respondent.
53. In the case of Shreepat (supra), the suit of the plaintiff
was with regard to dispute of identity of land and the court did
not get the established and decrease the suit only on the basis of
oral evidence which was not sufficient for the purpose of
establishing the identity of the land in dispute at the spot. It has
been observed that before decreeing the suit Court below should
have got the identity established by issuing a survey commission
to locate the plot in dispute.
In the present case, the exercise of identifying, measuring
the boundaries was carried out by appointing DILR. However,
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the office of DILR while preparing the measurement sheet of
2018, admittedly did not take into consideration the
measurement sheet of 2014, which was available with the office
at the time of Preparing measurement sheet of 2018. When there
are serious flaws in the measurement sheet of 2018, such
document is not a conclusive piece of evidence which can weigh
court to decree the suit. Therefore, the said decision is not
helpful to the plaintiff-respondent.
54. In the case of Kashinath S/o Ramkrishna Chopade
(supra), in paragraph Nos.8, 13, 14 and 15, the Bombay High
Court has observed as under
8. This Court has given thoughtful consideration to the contentions
canvassed by the learned counsel for the parties. It would clearly
reveal that the question of law that has been involved in this appeal
is, whether the map Ex. 32 which formed part of the decree is
admissible in evidence in view of section 83 of the Evidence Act
and whether the decree passed by the courts below on the basis of
the said map can be sustained in law.
13. Reference may also be had to the decision of the Supreme Court
in the case of Ram Kishore Sen v. Union of India, AIR 1966 SC 644
wherein if has been held in para 12 as under:
"It is true that section 83 of the Evidence Act provides that the
Court shall presume that the maps or plans purporting to be made
by the authority of the Central Government or any State
Government were so made and are accurate, but the maps or plans
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made for the purpose of any cause must be proved to be accurate.
The presumption of accuracy can thus be drawn only in favour of
the maps which satisfy the requirements prescribed by the first part
of section 83. Exh. A-1 obviously does not fall under the category of
the said map and so there can be no question of drawing any
presumption in favour of the accuracy of the said map. In fact, we
have already indicated, the learned Judge has given very good
reasons for showing that the map does not appear to be accurate.
Therefore, even if the map is held to be relevant its accuracy is not
at all established; that is the conclusion of the learned Judge and
Mr. Mukherjee has given us no satisfactory reasons for differing
from the said conclusion."
14. In view of the aforesaid legal position, it appears to be
absolutely necessary that the City Surveyor ought to have been
appointed when the question arises as to whether any
encroachment has been made or not. The appointment of City
Surveyor or Cadastral Surveyor for taking joint measurement of the
property owned by the plaintiff and defendant for the purpose of
local investigation under Order 26, Rule 9 of the Code of Civil
Procedure not only become relevant but appears to be absolutely
essential for the just decision of the case.
15. In the present case neither the City Surveyor nor any expert has
been appointed for the purpose of local investigation under Order
26, Rule 9 of the Code of Civil Procedure and though the
dimension of the property has been mentioned in the sale-deed (Ex.
47), in absence of any evidence of the person who prepared the
map it is not possible to accept that the map which formed part of
the decree is an accurate map and can be made basis for granting
relief to the plaintiff. In fact, the impugned judgments and decree
passed by the Courts below have resulted into miscarriage of
justice and in such circumstances there is no alternative except to
remand this suit to the trial Court with directions to appoint the
Commissioner/Surveyor from the office of City Surveyor, Buldana
for the purpose of local investigation under Order 26, Rule 9 of the
Code of Civil Procedure.
This decision helps the case of defendant- Appellant.
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55. Decision in the case of Dr Mahendra Prasad Shaw and
others (supra) and decision in the case of Balwantbhai
Somabhai Bhandari, (supra) is on the line of undertaking given
to the court and its compliance In the present case the
undertaking which was given by Appellant to this court at the
time of the order passed by co-ordinate bench of this court in
Appeal from order while appointing DILR office to prepare the
measurement sheet, is of not much importance as the report of
DILR is not found accurate as discussed in this order and
therefore, we are not delving into the issue of breach of
undertaking.
56. The Apex Court, in the above decision, has observed that
where the defendant asserts title over the property in question,
the plaintiff will have to sue for declaration of title and the
consequential relief of injunction. Where the title of the plaintiff
is disputed and claim for possession is purely based on title, the
validity of the sale deed is a question, such complicated question
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could properly be examined only in a title suit. In the present
case, plaintiff, from the material placed on record could not
establish that they were in possession of suit land and defendant
has trespassed into the suit land. Therefore, the said decisions
are not helpful to the plaintiff-respondent.
57. Considering the analysis of all maps and the report
prepared by DILR Authority, we are of the view that the map
and report exhibit 99 and 100 is not accurate and no reliance can
be placed upon such an inaccurate report in holding that the
defendant has committed trespass over the land of plaintiff.
Plaintiff has failed to establish the exact location and
identification of its land and has failed to establish the
boundaries of its land, and therefore the evidence on record is
not sufficient to hold that defendant has encroached upon The
land of plaintiff to the extent which is claimed in the plaint.
Resultantly, we are of the view that plaintiff has not established
its case and has not cleared the doubts about the exact
identification, boundaries, and location of its property and also
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of defendant's property. Learned trial court has committed an
error by relying upon the inaccurate map and the inconsistency
in mentioning of the boundaries of survey number 334, which is
found on record, suit of the plaintiff ought to have been rejected.
58. Resultantly, the First Appeals are allowed. The impugned
judgment and decree dated 26.08.2022 passed by learned
Principal Senior Civil Judge, Dholka in Special Civil Suit
Nos.39 and 40 of 2018 is hereby quashed and set aside. The
Special Civil Suit No.39 of 2018 and Special Civil Suit No.40 of
2018 are dismissed. No order as to costs.
59. In view of the order passed in the main matters, the
connected Civil Applications do not survive and same stand
disposed of accordingly.
60. Record and proceedings, if any, be sent to the concerned
Court.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
RINKU MALI
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FURTHER ORDER
1. After pronouncement of the judgment, learned advocate
Mr. Hriday Buch for respondent has prayed for the suspension
of the judgment and order passed by this Bench for a period of
eight weeks.
2. Against which, learned advocate Mr. Maulik S. Sheth for
the appellant has opposed the said request.
3. Request is rejected.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
RINKU MALI
