Gujarat High Court
Narendrakumar Punjabhai Bhanghi vs Babubhao Kalabhai Bhanghi on 6 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 20 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
✔
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NARENDRAKUMAR PUNJABHAI BHANGHI
Versus
BABUBHAO KALABHAI BHANGHI & ORS.
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Appearance:
MR AM PAREKH(562) for the Appellant(s) No. 1
MR MR PRAJAPATI(1532) for the Respondent(s) No. 1,2,3
RULE SERVED for the Respondent(s) No. 4,5,6
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 06/11/2025
ORAL JUDGMENT
1. Coordinate Bench of this Court, vide order dated 13.06.2007,
was pleased to admit the Second Appeal, formulating the following
substantial question of law for consideration:-
"Whether on the facts and in the circumstances of the case,
contrary to the documentary evidence on record, the Court
below was justified; in upholding the possession of the
defendant of the suit land and in refusing the relief to the
plaintiffs ?"
A. IMPUGNED JUDGMENT AND DECREE:-
2. Present second appeal essentially challenges the judgment and
decree delivered in Regular Civil Appeal No.16 of 2003 by the 2nd
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Additional District Judge, Himmatnagar at Sabarkantha whereby
the judgment and decree passed by the learned trial Court in Regular
Civil Suit No.65 of 1996 has been upturned and suit was dismissed.
For the convenience, parties are referred to their original status
before the learned trial Court.
B. LITIGATION HISTORY:-
3. The appellant, who is the original plaintiff, instituted Regular
Civil Suit No. 65 of 1996 before the learned Civil Judge (J.D.),
Prantij, seeking a decree of permanent injunction to restrain the
defendants from interfering with his lawful possession over the
agricultural land bearing Survey No. 171/01, Block No. 283, situated
at Village Pallachar, Taluka Prantij, District Sabarkantha. It was the
case of the appellant that the suit land was originally granted to his
progenitor, viz. Punjabhai Jivabhai (father of the appellant), under
the Bhoomidān scheme, and the necessary mutation entries were
duly made in the revenue records. After the demise of Punjabhai
Jivabhai, the appellant's name came to be recorded as the lawful
occupant and cultivator of the said land, which he claims to have
been personally cultivating ever since.
3.1. It was further the case of the appellant that the defendants,
being the sons of his paternal uncle and residents of the same village,
attempted to dispossess him from the suit land. Consequently, the
appellant was constrained to file the aforesaid civil suit seeking
injunctive relief. The learned Civil Judge (J.D.), Prantij, after
appreciation of the evidence, decreed the suit in favour of the
appellant vide judgment and order dated 13.03.2002. However,
being aggrieved thereby, the defendants preferred Regular Civil
Appeal No. 16 of 2003 before the learned District Judge,
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Sabarkantha at Himatnagar, which came to be allowed by judgment
dated 13.10.2006, thereby setting aside the decree of the trial court.
The appellant, feeling crestfallen and dissatisfied with the said
appellate order, has preferred the present Second Appeal.
C. SUBMISSION OF THE APPELLANT:-
4. Learned advocate for the appellant submitted that the learned
Appellate Court gravely erred in relying solely upon oral evidence
while completely disregarding unimpeached documentary evidence
on record. It is further submitted that the learned Appellate Court, in
a manifest error of law and appreciation of evidence, chose to place
undue reliance upon the oral depositions at Exhibits 72, 73, and 74,
while simultaneously ignoring the documentary corpus adduced by
the appellant at Exhibits 51, 52, and 53 to 66. The said documents,
including the revenue entries No. 1045 dated 26.08.1954 and No.
5624 for the year 1986-87, indubitably demonstrate that the name of
the appellant's father was duly entered in the revenue records, which
entries remained unchallenged at any point of time.
4.1. Learned advocate for the appellant submitted that the learned
Appellate Court misdirected itself in law by attaching undue
significance to the appellant's employment and ignoring the legal
possession and cultivation through agents. The finding of the
Appellate Court that the appellant was not in possession merely
because he was serving in Ahmedabad is perverse and unsustainable.
It is a settled position of law that ownership or lawful cultivation of
agricultural land through labourers or agents does not cease merely
because the owner is employed elsewhere. The appellant had
established cultivation through others, and the revenue records bear
testimony to the continuity of his lawful possession. The learned
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Court below, in overlooking this crucial aspect, has rendered a
judgment that suffers from a manifest non-application of mind and
legal perversity.
4.2. That the impugned judgment suffers from non-consideration
of vital evidence and failure to conduct essential procedural inquiry.
The learned Appellate Court has, in a most cavalier manner, ignored
the fact that no Court Commissioner was appointed, nor any
panchnama was drawn to establish actual possession. In absence of
such substantive proof from the opponents, the finding that they
were in possession is rendered wholly speculative and in vacuo. The
learned Court below further failed to consider that no challenge was
ever raised by the opponents to the revenue entries standing in the
name of the appellant's predecessor. Such non-consideration of vital
and determinative evidence renders the impugned judgment
perverse, warranting interference by this Court in the exercise of its
appellate jurisdiction.
4.3. In fine, the learned advocate for the appellant would submit
that the judgment and order passed by the learned Appellate Court
are illegal, perverse, and contrary to the weight of evidence on
record. The same, therefore, deserve to be quashed and set aside, and
the decree of the learned Trial Court restored.
D. SUBMISSION OF THE RESPONDENTS:-
5. Per contra, learned advocate for the respondents submitted
that the learned First Appellate Court has, after a thorough and
holistic appraisal of the evidence on record, rightly reversed the
findings of the Trial Court. It is contended that the oral testimonies
at Exhibits 72, 73, and 74, which were found cogent and
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trustworthy, were sufficient to establish the respondents' actual and
physical possession over the suit land. The alleged documentary
evidence relied upon by the appellant neither conferred ownership
nor established actual possession, and the learned Appellate Court
has correctly appreciated this distinction. The revenue entries, even
if standing in the name of the appellant's predecessor, do not, by
themselves, confer any title or possession in absence of
corroborative proof, which was conspicuously lacking.
5.1. It is further submitted that the findings recorded by the learned
Appellate Court are based upon sound appreciation of evidence and
settled legal principles. The appellant's plea of cultivation through
agents was never substantiated by any credible witness or
documentary material. The learned Appellate Court has rightly
discarded such bald assertions. The impugned judgment, being well-
reasoned and supported by material on record, calls for no
interference in the limited scope of the second appellate jurisdiction,
which is confined to substantial questions of law and not mere
reappreciation of evidence. Thus, it is prayed to dismiss the present
Second Appeal.
E. ISSUE FOR CONSIDERATION:-
6. The issue that arises for consideration before this Court is
whether the learned Appellate Court has committed a serious error in
appreciating and weighing the documentary evidence vis-à-vis the
oral evidence on record.
F. PROCEEDING BEFORE THE LEARNED TRIAL
COURT:-
7. Perusal of the record of the Regular Civil Suit instituted by the
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plaintiff - Narendrakumar Punjabhai Bhanghi reveals that in the
plaint it has been, inter alia, averred that the plaintiff, along with
defendant Nos. 4 to 6, are the owners and occupiers of the land
bearing Survey No. 171/1, Block No. 283. It is further pleaded that
the said parcel of land had been received by the plaintiff's ancestor,
Mr. Punjabhai, under the Bhoodan scheme and that the same
constitutes his self-acquired property.
7.1. The pleadings further delineate that the defendants have been
making attempts to unlawfully encroach upon the aforesaid parcel of
land, thereby giving rise to the present cause of action. It is
specifically pleaded that on 12.10.1996, defendant Nos. 1 to 3
sought to trespass upon the subject land, which constrained the
plaintiff to institute the present suit seeking the following reliefs:-
"a. Moje Pallachar is situated within the territorial limits
of Taluka Prantij. Survey No. 171/1, Block No. 283, pertains
to the land in question. As stated in paragraph (1), the said
village and the plot described therein are in the lawful
ownership and possession of the plaintiff. Accordingly, it is
ordered that the defendants No. (1), (2), and (3), or any of
their agents, servants, or representatives, shall not enter upon
the said land, nor shall they sow chana or take any crop or
yield therefrom. A writ of permanent injunction is hereby
issued restraining the said defendants from committing any
such act or interference with the suit property.
b. Whatever expenses are incurred in the present proceedings
shall be recoverable from defendants No. (1) to (3) jointly
and severally.
c. Any other appropriate and reasonable relief or argument
concerning the present claim shall be considered as deemed
just and proper in the circumstances of the case."
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7.2. Thus, in essence, the plaintiff asserted absolute ownership and
possession over the suit property and consequently sought the relief
of permanent injunction alone, without seeking any declaratory relief
in respect of title. It becomes more important on the aspect that
defendant, on the theory of co-ownership in defence, challenged the
title of the plaintiff.
7.3. Contrariwise, the defendants, in their written statement,
contended that the Bhoodan grant had been made jointly in favour of
Kalabhai and Punjabhai, the respective ancestors of the defendants
and the plaintiff, and that ever since such grant, Kalabhai and his
heirs have been in continuous cultivation and possession of the suit
land, thereby asserting their co-ownership and proportionate share
therein.
7.4. Upon consideration of the rival pleadings of the parties, the
learned Trial Court was pleased to frame the issues at Exhibit 40,
which read thus:-
(a) Whether the plaintiff proves that the suit land was
independently acquired by the plaintiff's grandfather,
Punjabhai Jivabhai, in Budan?
(b) Whether the plaintiff proves that the suit land belongs
to Pujabhai Jivabhai Gujyan and Budan, and that the same
has been acquired by the plaintiff and defendant Nos. 4, 5,
and 6 as their residence in accordance with the stipulated
conditions?
(c) Whether the plaintiff proves that the suit property is in
the lawful possession and enjoyment of the plaintiff and
defendants Nos. 4, 5, and 6?
(d) Whether the plaintiff proves that defendants Nos. 1 to
3 threatened to illegally enter upon the suit property and
obstruct cultivation on or about 12/10/1996 and thereafter?
(e) Whether the defendants Nos. 1 to 3 prove that the suit
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land was given in Budan by Patel Kalabhai Madhabhai and
Shivarambhai Madhabhai Patel of village Pallachar to their
uncle, the father of defendants Nos. 1 to 3?
(f) Whether the defendants Nos. 1 to 3 prove that they
have half (½) ownership share in the suit land?
(g) Whether the defendants Nos. 1 to 3 prove that they are
in actual and direct possession of the suit land?
(h) Whether the plaintiff is entitled to all or any of the
reliefs as prayed for in the plaint?
(i) What order and decree?
7.5. Issue Nos. 1 to 4 and 8 were answered in the affirmative,
whereas Issue Nos. 5 to 7 were answered in the negative. The
learned Trial Court, upon such findings, was persuaded to hold that
the appellant-plaintiff had successfully established his case and,
accordingly, decreed the suit by granting a decree of permanent
injunction, restraining the defendants from entering upon the suit
property.
7.6. The rationale ascribed by the learned Trial Court in extending
such relief appears to rest predominantly upon the revenue entries
produced on record, which the Court found sufficient to uphold the
plaintiff's possession and entitlement. In doing so, the learned Trial
Court discarded the oral depositions of the witnesses at Exhibits 72,
73, and 74, and accorded undue evidentiary weight to the revenue
entries, treating them as conclusive proof of title and possession,
notwithstanding the settled legal position to the contrary.
G. PROCEEDING BEFORE THE LEARNED APPELLATE
COURT:-
8. Now, adverting to the judgment rendered by the learned First
Appellate Court in Regular Civil Appeal, it transpires that in
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paragraph 6 thereof, the learned Appellate Judge has been pleased to
formulate the following points for determination:-
A)...Whether it is proved that the physical and real
possession of suit land is with defendants Nos. 1 to 3 since
the time of deceased progenitors of both parties and they
have been cultivating the same till the suit ?
(B).... Whether it is proved that suit land was granted in
Bhoomidan to both the deceased progenitors of both the
parties?
(C)....Whether the impugned judgement and decree are
illegal, unreasonable and against the evidence of both the
parties? hence, required to be interfered with ?
(D).. What order and decree ?
8.1. The learned Appellate Court answered the first issue in the
affirmative and the second issue in the negative, and thereafter
proceeded to pass the final order, answering Issues C and D
accordingly. The learned Appellate Court recorded a categorical
finding that the actual and lawful possession of the suit land, being
the subject matter of the proceedings, vested with defendant Nos. 1
to 3 since the time of the deceased progenitors of both parties. The
learned Appellate Judge further held that on the date of institution of
the suit, actual possession of the disputed property continued to rest
with defendant Nos. 1 to 3.
8.2. In the conspectus of the aforesaid findings, the learned
Appellate Court reached the irresistible conclusion that since the
plaintiff was not in possession of the suit property, and yet had not
sought the consequential relief of possession, the suit simpliciter for
permanent injunction was not maintainable in law. Ergo, the learned
Appellate Court, while allowing the appeal, set aside the decree of
the trial court and dismissed the suit.
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H. DISCUSSION AND FINDINGS:-
9. Adverting to the factual milieu emerging from the evidence as
weighed by the learned Trial Court, it becomes pellucid that the
plaintiff-appellant was not in actual possession of the suit land, and
yet, without seeking the relief of possession, he proceeded to
maintain the suit. The evidence on record, more particularly the oral
testimonies, vociferously establish that defendant Nos. 1 to 3, and
prior to them, their ancestors, were in continuous and settled
possession of the disputed property/suit land.
9.1. The learned Trial Court, however, appears to have been
swayed by the revenue entries, attaching undue weight thereto, to
conclude that the plaintiff was in possession, albeit through some
other person. Although a revenue entry may, at best, have a prima
facie evidentiary value to indicate possession, when such possession
is squarely disputed and effectively rebutted by cogent and
conclusive oral evidence, the presumptive value of revenue entry
would parish, the relief of injunction cannot be granted.
9.2. It is a trite posit of law that a plaintiff who is not in possession
and yet seeks only an injunction without claiming possession, runs
afoul of the principles embodied under Section 27 read with Article
65 of the First Schedule to the Limitation Act, 1963. Any decree of
injunction in such circumstances would tantamount to overreaching
the statutory framework governing possessory rights.
9.3. In Vinay Krishna v. Keshav Chandra & Another, (1993)
Supp (3) SCC 129, a three-Judge Bench of the Hon'ble Apex Court,
while adverting to the scope and ambit of Section 42 of the erstwhile
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Specific Relief Act, 1877--which is pari materia with Section 34 of
the Specific Relief Act, 1963--categorically held that where the
plaintiff is not in possession of the property in question, it is
incumbent upon him to seek consequential relief of possession. The
Court observed that, in view of the express bar engrafted in the
proviso to the said provision, a suit simpliciter for declaration
without the consequential relief of possession would not be
maintainable, and the plaintiff ought to amend the plaint so as to
incorporate such relief.
9.4. This aureate enunciation of law has been subsequently
reaffirmed by the Hon'ble Supreme Court in Union of India v.
Ibrahim Uddin [(2012) 8 SCC 148], wherein a two-Judge Bench,
while reiterating the legal proposition laid down in Vinay Krishna
(supra), underscored that a plaintiff who is not in possession of the
suit property cannot maintain a suit for mere declaration or
injunction sans a concomitant prayer for possession. Relevant paras
are as under:-
"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 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
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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.
58. In the instant case, the suit for declaration of title of
ownership had been filed, though Respondent 1-plaintiff was
admittedly not in possession of the suit property. Thus, the
suit was barred by the provisions of Section 34 of the
Specific Relief Act and, therefore, ought to have been
dismissed solely on this ground. The High Court though
framed a substantial question on this point but for unknown
reasons did not consider it proper to decide the same."
9.5. In Venkataraja and Others v. Vidyane Doureradjaperumal
(Dead) through Legal Representatives [(2014) 14 SCC 502], the
Hon'ble Supreme Court lucidly expounded the underlying rationale
of Section 34 of the Specific Relief Act, 1963, by observing that the
raison d'être of the proviso appended thereto is to obviate
multiplicity of proceedings. It was further eloquently enunciated that
a mere declaratory decree, sans any consequential relief, would in
most cases remain non-executable and nugatory. The Court, on facts,
noted that the plaint was never amended to incorporate a prayer for
recovery of possession, and hence, the suit was held to be ex facie
non-maintainable.
9.6. This aureate enunciation has been reiterated in subsequent
pronouncements of the Hon'ble Apex Court, notably in Akkamma
and Others v. Vemavathi and Others [2021 SCC OnLine SC 1146],
where the same principle was re-affirmed with equal emphasis.
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9.7. Likewise, in Executive Officer, Arulmigu Chokkanatha
Swamy Koil Trust, Virudhunagar v. Chandran and Others [(2017)
3 SCC 702], a coordinate Bench of the Hon'ble Supreme Court,
adverting to Section 34 of the Specific Relief Act, 1963, held that
where the plaintiff is admittedly not in possession and has sought
only declaratory relief without a concomitant prayer for recovery of
possession, the suit is manifestly untenable in law. It was, therefore,
rightly concluded that the trial court had committed no error in
dismissing the suit as one bereft of maintainability, having sought a
bare declaration divorced from any executable relief.
9.8. Recently, the Hon'ble Apex Court in case of Vasantha
(DEAD) Thr. LR. v. Rajalakshmi @ Rajam (DEAD) THR. Lrs.;
2024 INSC 109 after serving the catena of judgment in Para 33 has
held as under:-
"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."
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10. Thus, applying the aforesaid principle of law, it becomes
manifest that the plaintiff, being fully aware of the fact that
defendant Nos. 1 to 3 were in possession of the subject land, did not
advert to seeking the consequential relief of possession, either at the
initial stage or even at any subsequent juncture. The plaintiff, while
asserting his possession, confined his prayer merely to a decree of
permanent injunction.
10.1. The learned Appellate Court, upon an elaborate and reasoned
discussion, has observed that the entire oral evidence vetted on the
touchstone of cross-examination unambiguously favours the version
of defendant Nos. 1 to 3, establishing that they have been in
continuous possession of the disputed land, such possession having
devolved from their progenitor. It was, therefore, incumbent upon
the plaintiff to seek the consequential relief of possession, failing
which the suit was rendered inherently defective and not
maintainable in law.
10.2. The plaintiff himself, in his deposition, has candidly admitted
that defendant No. 1 was in possession of the suit property and had
even sought to transfer possession thereof to defendant No. 2,
thereby unequivocally demonstrating that the plaintiff was not in
actual and physical possession of the subject land. Ergo, we find no
merit in the submission advanced by the learned advocate for the
respondent on this score.
10.3. It is further noted that upon the demise of the life-estate holder
in 2004, no endeavour was made by the original plaintiff to amend
the plaint to incorporate the prayer for recovery of possession. The
admitted position that the property in question was granted under
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Bhoomidan to one Kalabhai, the real brother of the plaintiff's
ancestor, however in defense, it is countenanced that it was the joint
family whereby ancestor of the defendants are co-owners, further
fortifies the conclusion that the plaintiff, in absence of a prayer for
possession, could not have maintained the suit for injunction
simpliciter.
10.4. In view of the prevenient ratiocination, this Court is of the
considered opinion that the learned Appellate Court has committed
no error, much less any perversity, in according primacy to the oral
evidence tested on the anvil of cross-examination over the
documentary evidence in the form of revenue entries. The factual
milieu, as delineated from the record, indubitably indicates that the
defendants are in lawful possession.
10.5. In fine, the appellant has miserably failed to put forth any
affirmative assertion or substantial question of law warranting
interference of this Court in second appellate jurisdiction. Learned
appellate Court thus has not committed any error giving primacy to
unimpeachable oral evidence against documentary evidence in form
of revenue entry. Before parting with the judgment, let me refer to
the recent pronouncement on the subject matter in the case of S.
Santhana Lakshmi & Ors. v. D. Rajammal, 2025 INSC 1197,
wherein, it has been observed as under:-
"10. It is also significant that though the plaintiff did not
have possession, she had not claimed recovery of possession.
While asserting a Will and title on its strength, there should
have been a declaration of title sought, especially when the
contention of the defendant was that he came into the
property as a co-owner and then occupies it with absolute
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rights, making valuable improvements. The defendant also
did not seek to get a declaration on the basis of an
arrangement entered into with the father and the other
brother or seek a partition on the strength of a counter claim.
11. In the above circumstances, we cannot but find the 'Will'
is proved but the right of the testator to bequeath the
property is still under a cloud. Even if the title is established,
there should have been a recovery of possession sought by
the plaintiff. The ill-drafted plaint and the clear admissions
made in the witness box ought to have restricted the trial
court and the High Court from granting an injunction against
the interference of peaceful enjoyment of the property,
especially when the possession was admitted to be with the
defendant, in the pleadings as also the oral evidence. The
injunction against alienation is perfectly in order since the
defendant too has not sought for a declaration of title.
12. The learned Senior Counsel for the plaintiff sought for
agitating the cause afresh. We are of the opinion that since a
stalemate is created; with the ownership not having been
declared in favour of either of the parties, also considering
the relationship, we reserve liberty to either of the parties to
seek declaration of title and consequential possession or
recovery of possession, if they desire, which proceedings
will be instituted within a period of three months from today.
If a fresh proceeding is initiated then the same would be
considered afresh untrammelled by the findings in the
present proceedings, which shall not govern the rights of the
parties. However, we make it clear that no alienation shall be
made by both parties or the subject property encumbered."
I. CONCLUSION:-
11. Accordingly, for the foregoing reasons, the present second
appeal stands DISMISSED.
(J. C. DOSHI,J)
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12. After the pronouncement of the judgment in open Court, the
learned advocate appearing for the appellant made a fervent request
that the interim relief, which the appellant has been enjoying since
the year 2007, be continued for a further period of four weeks to
enable the appellant-plaintiff to avail the remedy before the Higher
Forum.
13. The said request, being reasonable and made to safeguard the
appellant's right of further recourse, is acceded to.
14. Accordingly, the interim relief granted earlier shall remain
operative for a period of four weeks from today.
(J. C. DOSHI,J)
MANISH MISHRA
