Gujarat High Court
Basil Trust Through Its Trustee ... vs Vadodara Municipal Corporation ... on 24 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL No. 20 of 2023
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Basil TRUST THROUGH ITS TRUSTEE ARAYALLAMMOTTIL MATHAI
MATHEW
Versus
VADODARA MUNICIPAL CORPORATION THROUGH ITS MUNICIPAL
COMMISSIONER & ANR.
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Appearance:
MR ABHISST THAKER for MR.NANDISH H THACKAR(7008) for the
Appellant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 24/11/2025
ORAL ORDER
1. By way of this second appeal filed u/s 100 of the Code of
Civil Procedure, 1908, the appellant - original plaintiff
challenges Judgment and decree dated 06.02.2020 passed by
Learned 15th Additional District Judge, Vadodara in Regular
Civil Appeal No. 105/2018, whereby learned first appellate
Court has dismissed the appeal filed u/s 96 of the Code, in
turn, learned first appellate Court has confirmed the judgment
and decree passed in Regular Civil Suit No.1975 of 1993, by
which, learned trial Court has dismissed the suit.
2. For brevity of convenience, parties are referred to as per
their original status before the lower Court.
3. Factual matrix of the case are as under:-
3.1 The plaintiff is Basil Trust (Plaintiff), a public trust
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having registration under the Bombay Public Trust Act. The
defendants are the Vadodara Municipal Corporation (VMC)
and the State Government. The plaintiff filed regular civil suit
No. 1975 of 1993 before the learned senior civil court vadodra
against the VMC and State Government for the relief of
declaration and permanent injunction on the pleading that
land bearing survey No. 50 situated on Tandalja Road,
Vadodara was owned by Mr. Thakorbhai Amin. In the year
1976, he obtained construction permission No. 111 of 75-76
to construct building on the land of survey No. 50.
Subsequently, land bearing survey No. 50 was sold to the
Basil Trust along with construction permission. The Basil
Trust constructed ground floor in 1976 and obtained
completion certificate. Thereafter, the first floor construction
was carried out and completed with the completion certificate
on 12th october 1979. Further construction was carried out in
1985 and 13 cabins were constructed, completion certificate
of which has been obtained on 4th March, 1986.
3.2 It was the case of the Basil Trust before the learned Civil
Court that on north east side of land bearing survey No. 50,
open unused land exist since more than 30 years and
subsequent to that Tandalja Road exists on east west. The
Basil Trust is using unused land since 1975 - 1976 to park the
vehicles, including the bicycles of around 2000 students who
are studying in the school. The plaintiff Trust apprehended
that the VMC and the State Government shall not permit them
to use the unused land for parking under the guise of
approved TP scheme on the area. The Corporator of the VMC
firstly have filled the pond and then facilitated some people in
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making kachcha hut thereon and thus, now the plaintiff trust
apprehended that the open land would also be grabbed by the
Corporator of the VMC and thereby would faciitate some
builders in constructing commercial building.
3.3 Therefore, the plaintiff filed the suit with the declaration
that, in a land which is used for parking by the plaintiff, the
VMC and / or the State Government has no right to carry out
any construction and further, they have no right to interfere
with the plaintiff's possession. Accordingly, declaration and
permanent injection was sought.
3.4 The suit was dismissed by the learned trial court by
passing judgment and decree on 10th January 2018.
3.5 Challenge by way of first appeal u/s 96 of the Code was
made to the learned appellate court praying to quash the
judgment and decree passed by the learned trial court by
filing Regular Civil Appeal No. 105 of 2018, and to grant
prayer made in the civil suit.
3.6 The learned 15th Additional District Judge, Vadodara by
judgment and decree dated 6th February, 2020 dismissed the
first appeal.
3.7 Being aggrieved and dissatisfied by the concurrent
findings arrived at by the learned courts below, the plaintiff
filed present second appeal on various grounds, raising
following questions of law, as substantial questions of law:-
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"(1) Whether the trial court and thereafter the
Appellant Court have committed grave legal error in
law by coming to a the conclusion that the suit is
barred as the statutory notice under the BPMC Act is
not given to the respondents?
(2) Whether the trial Court was in error of law while
coming to the conclusion that there was no cause of
action for appellant plaintiff per as the averments
made in the plaint?
(3) Whether the Trial Court was of law in coming to
conclusion that the Possession and undisputed usage
could not be proved by the plaintiff in view of Section
104 to 108 of the in error Evidence Act?
(4) Whether the appellant has proved his continuous
possession property since of last more the suit than
30 years. Thus, the prescribed title of the suit
property ought to have been decided by the
competent Civil Court?
5) Whether the discretion exercised by the Appellate
Court and the Trial Court has sound and judicious in
the circumstances of the case?"
4. Learned advocate Mr. Abhisst Thaker appearing for the
plaintiff in order to admit second appeal mainly raised two
contentions. Firstly, he would submit that the learned Courts
below have committed serious error in believing that the suit
of the plaintiff trust was not maintainable against the VMC
without issuing statutory notice under Section 487 of the
Gujarat Provincial Municipal Corporation Act Act 1949 (in
short "the Act"). He would further submit that since the
plaintiff was challenging illegal act of the VMC, there is no
reason to issue statutory notice under the Act to the VMC. He
relied upon the judgment of the Bombay High Court in case of
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Vasant Krushant Vanjare Vs. The Municipal Corporation of the
City of Pune rendered in Second Appeal No.804 of 2001. He
would further submit that the Bombay High Court, in the
aforesaid judgment held that it is not mandatory to issue
statutory notice under section 487 of the Act in every case. He
would further submit that, admittedly, in the present case, act
of the VMC to facilitate some builders to carry out
construction upon unused plot without following any due
procedure of law or observing any legal formalities is
absolutely illegal act and therefore, no notice u/s 487 of the
Act is required to challenge such action on the part of the
VMC.
4.1 Secondly, learned advocate Dr. Abhisst Thaker would
submit that the learned courts below totally misread the
evidence on record so also the cause of action set out by the
plaintiff trust. He would further submit that none came to
quarrel with the aspect that the plaintiff trust is in possession
of the disputed land and using the same for the purpose of
parking of the vehicle, yet the learned courts below have
wrongly believed that the plaintiff trust failed to prove the
possession over the unused open land. He would further
submit that this is a complete misreading of the evidence on
record.
4.2 Upon above submissions, learned advocate Dr. Abhisst
Thaker request to admit this appeal on the aforestated
substantial questions of law.
5. For admission of the appeal, I have heard extensively
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learned advocate, Dr. Abhisst Thaker for the plaintiff and also
perused the concurrent findings of facts recorded by the
learned courts below by impugned judgment and decree.
6. At the outset, what could be noticeable on reading the
cause title of the civil suit, that this suit has been filed by the
Basil Trust, claimed to be public trust registered under the
Bombay Public Trust Act. Thus, root issue arise that whether
the plaintiff proves that the plaintiff trust is registered Public
Trust. The plaintiff trust produced the documentary evidence
from Exh. 78 to 85 and closing pursis was produced at Exh.
90. On going through all these documents, what could be
found that at nowhere, the plaintiff has produced registration
certificate issued by the Charity Commissioner through which
it could be established that the plaintiff is a registered public
trust under the Bombay Public Trust Act. The very
foundational fact are missing in the pleadings of the plaintiff.
The pleadings lack basic fact that on which date, the plaintiff
trust was registered, by which number registration has been
recorded, who are the trustees of the plaintiff trust. All these
aspects are missing in the pleadings, as well as in the
evidence.
7. Order XXXI of the CPC deals with suits by or against
trustees, executors, and administrators. Order XXXI, Rule 1
and 2 of the Code reads as under:-
"1. Representation of beneficiaries in suits concerning
property vested in trustees, etc. In all suits
concerning property vested in a trustee, executor or
administrator, where the contention is between the
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persons beneficially interested in such property and a
third person, the trustee, executor or administrator
shall represent the persons so interested, and it shall
not ordinarily be necessary to make them parties to
the suit. But the Court may, if it thinks fit, order them
or any of them to be made parties.
2. Joinder of trustees, executors and administrators.
Where there are several trustees, executors or
administrators, they shall all be made parties to a suit
against one or more of them:
Provided that the executors who have not proved their
testator's will, and trustees, executors and
administrators outside 2[India), need not be made
parties."
8. Plain reading of the aforesaid provision of law indicates
that trust alone has no locus to file the suit, trust is admittedly
not a legal entity. It is represented by the beneficiaries of the
trust or trustees and joinder of all the trustees are necessary.
In absence of any trustee as a party, trust independently
cannot file suit, and thus only on this ground, civil suit filed by
the plaintiff trust was needed to be rejected.
9. The learned appellate Court frame the issue on pleadings
of the party as under:-
"(1) Whether the plaintiff prove that defendant no. 1
Whether not have the legal right to construct a
community hall or commercial complex on the land
situated on the north side of the school plot situated
in Res. No. 50 and on the west side of Tandalja
Vadodara Road?
(2) Whether the defendant prove that the plaintiff's
claim is liable to be dismissed for want of compliance
with the statutory notice?
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(3) Whether the defendant prove that, at the time of
obtaining the construction permit for the construction
of the plaintiff school, the plan was approved showing
extra parking space for cars, scooters, bicycles, etc.?
(4) Is the plaintiff entitled to the relief sought in the
suit?
(5) What order? And decree?"
10. Issue Nos.1 and 4 are answered in negative and 2 and 3
in affirmative. Thus the plaintiff's suit was dismissed.. It was
held by the learned appellate court that the plaintiff's suit is
barred by statutory notice under section 487 of the Act.
Learned advocate Dr. Abhisst Thaker submitted that statutory
notice may be waived in the peculiar facts and circumstances,
it is not of the mandatory nature.
11. Let refer section 487 of the Act as under:-
"(1) No suit shall be instituted against the
Corporation or against the Commissioner, or the
Transport Manager, or against any municipal officer
or servant, in respect of any act done or purported to
be done in pursuance or execution or intended
execution of this Act or in respect of any alleged
neglect or default in the execution of this Act :-
(a) until the expiration of one month next after notice
in writing has been, in the case of the Corporation,
left at the chief municipal officer and in the case of
the Commissioner or of the Transport Manager or of
a municipal officer or servant delivered to him or left
at his office or place of abode, stating with reasonable
particularity the cause of action and the name and
place of abode of the intending plaintiff and of his
attorney advocate, pleader or agent, if any, for the
purpose of such suit, nor (b) unless it is commenced
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within six months next after the accrual of the cause
of action.
(2) At the trial of any such suit-
(a) the plaintiff shall not be permitted to go into
evidence of any cause of action except such as is set
forth in the notice delivered or left by him as
aforesaid;
(b) the claim, if it be for damages, shall be dismissed
if tender of sufficient amends shall have been made
before the suit was instituted or if, after the
institution of the suit, a sufficient sum of money is
paid into Court with cost.
(3) Where the defendant in any such suit is a
municipal officer or servant payment of the sum or of
any part of any sum payable by him in, or in
consequence of the suit, whether in respect of costs,
charges, expenses, compensation for damages or
otherwise, may be made, with the previous sanction
of the Standing Committee or the Transport
Committee from the Municipal Fund or the Transport
Fund, as the case may be."
12. The provision starts with negative stipulation that no
suit shall be instituted against the corporation or against the
commissioner in respect of any act done or purported to be
done in pursuance or execution or intended execution of this
Act and the same has been challenged by the plaintiff. Thus,
if act of corporation or its officer is put to challenge, the
statutory notice under section 487 of the Act is required. In
these circumstances, notice u/s 487 of the Act is statutory as
well as mandatory. In order to avoid issuance of notice u/s 487
of the Act, the plaintiff with strong prima facie case, requires
to prove that purported act of corporation and its officer put
in challenge is grossly illegal and in violation of principles of
nature justice or provision of law.
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13. The Coordinate Bench of this Court in case of
Shantaben Pratapbhai Mali Vs. Ahmedabad Municipal
Corporation, rendered in First Appeal No. 3734 of 2024,
in regards to statutory nature of the notice u/s 487 of the
Code held in para 26 as under:-
"26. So far as the contention of plaintiff that before
the institution of suit, plaintive gave a statutory
notice dated 12.10.2015 exhibit 33 to the defendant.
If the notice exhibit 33 and the contents of notice are
perused, it transpires that the mandatory
requirements as contemplated under Section 487 of
the Bombay Provincial Municipal Corporation Act and
not complied with. Section 487 of the Bombay
provincial Municipal Corporation Act deals with the
requirement of a notice before filing suit against
municipal corporation or its officers. It mandates that
a notice must be given to the corporation or the
concerned officers before instituting suit. This notice
should clearly state the cause of action and details of
the plaintiff. In the present case nothing is found in
the notice exhibit 33 satisfying the mandatory
requirements of section 487 of the Bombay Provincial
Municipal Corporation Act. A suit is not maintainable
without requisite statutory notice under section 487
of the Bombay provincial Municipal Corporation Act.
Even if, such contention of want of service of
statutory notice is not raised by Corporation in the
written statement, such question can be addressed by
the Court of it's own motion and decide the suit
accordingly."
14. Now coming to the facts of the case, what could be
noticed that the plaintiff apprehended that the open land on
north east side of the land bearing survey No. 50 might be
used by the Corporator of the VMC or VMC to facilitate some
builders for carrying out commercial construction. The
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plaintiff is totally silent how the plaintiff apprehend it about
the intended construction. Going through the judgment and
decree passed by the learned courts below, it appears that
unused open land situated on north east side of land bearing
survey No. 50 on Tandalja Road are part of TPS No. 22, which
is now implemented. The said land is kept reserved for the
purpose of commercial development. This is coming out from
the written statement filed by the VMC at Exh. 21. Thus, it is
accepted position that the plaintiff under the camouflage of
cause of action that it is using the disputed land for the
purpose of parking should not be disturbed, indirectly is
challenging implementation of the Town Planning Scheme No.
22, which is approved and implemented. Admittedly, the civil
court has no jurisdiction to decide the legality and validity of
the approved Town Planning Scheme and even, no challenge
to approved town planning scheme is maintainable before the
civil Court. Thus by clever drafting, the plaintiff has filed the
suit claiming the right in regards to the open land reserved
for commercial purpose in TPS No.22. This is no less than
challenge implementation of the TPS.
15. It is noticeable that the plaintiff trust has previously
applied to the Collector to lease or regularize the disputed
land, but the Collector explicitly declined both requests and it
is discern from Exh. 82. In the aforesaid premises, according
to this court, the learned Courts below have not committed
any error in interpreting the evidence in context of the
provisions of law. Apt to note that though no different
argument was canvassed by learned advocate for the plaintiff
before the learned appellate court, yet the learned appellate
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court has referred and re-analyzed the entire evidence on
record and was pleased to dismiss the appeal.
16. As far as judgment of the Bombay High Court relied
upon by learned advocate for the plaintiff, it was a case where
the corporation has given demolition notice of short period of
four days. Therefore, the petitioner therein had no time to
issue notice u/s 487 of the Code and therefore, considering
the factual aspect of that case, the Bombay High Court
believed that to challenge action of the corporation, issuance
of statutory notice is deemed to be waived. The judgment
would not render any help to the case on hand as the facts of
that case is different from the present case.
17. Recently, the Hon'ble Apex Court in case of Mrugendra
Indravadan Mehta And Others Versus Ahmedabad Municipal
Corporation reported in 2024 (0) INSC 401 addressed this
issue. The relevant para is 14 and 27, which reads as under:-
"14. Perusal of the impugned judgment reflects that the High
Court noted the contentions of both parties and then
extracted the issues framed by the Trial Court in extenso.
The High Court, however, did not frame the points that arose
for determination in the appeal, in terms of Order 41 Rule 31
CPC. The High Court then referred to the arguments
advanced on behalf of the parties and started the discussion
on merits from para 5.1 of the judgment. The High Court
observed that compensation had been paid for the shortfall
of 974 sq. mts. @ Rs. 25/- per sq. mt. and noted that it was
not in dispute that the said compensation amount had been
accepted without protest. The High Court also noted that the
plaintiffs had not challenged the second varied Town
Planning Scheme No. 6, Paldi, under which they were
allotted Final Plot No. 187, admeasuring 2278 sq. mts., in
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lieu of the originally allotted Final Plot No. 463, admeasuring
3890 sq. yds. The High Court also took note of the fact that
the plaintiffs supported the second varied scheme before the
Division Bench of the High Court in Special Civil Application
No. 3980 of 1992 and concluded that they could not make
out a grievance with regard to the non- delivery of the
remaining 974 sq. mts. of land.
27. This being the legal position vis-a-vis the Act of 1976, it
was contended before us by the plaintiffs that the impugned
judgment of the High Court is liable to be set aside on the
short ground that no points for determination were framed
therein, as required by Order 41 Rule 31 CPC. Reliance was
placed on Malluru Mallappa (Dead) through Lrs. vs.
Kuruvathappa and others, (2020) 4 SCC 313 wherein this
Court observed that the first appellate Court is required to
set out the points for determination, record the decision
thereon and give its own reasoning. It was further observed
that, even when the said Court affirms the judgment of the
Trial Court, it has to comply with the requirements of Order
41 Rule 31 CPC as non-observance thereof would lead to an
infirmity in its judgment. However, it may be noted that no
absolute proposition was laid down therein to the effect that
failure to frame points for determination, in itself, would
render the first appellate Courts judgment invalid on that
ground."
18. Let also explain scope of second appeal firstly. Let refer
Section 100 of the Code as under:-
"(1) Save as otherwise expressly provided in the body
of this Code or by any other law for the time being in
force, an appeal shall lie to the High Court from every
decree passed in appeal by any Court subordinate to
the High Court, if the High Court is satisfied that the
case involves a substantial question of law.
(2) An appeal may lie under this section from an
appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum
of appeal shall precisely state the substantial
question of law involved in the appeal.
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(4) Where the High Court is satisfied that a
substantial question of law is involved in any case, it
shall formulate that question.
(5) The appeal shall be heard on the question so
formulated and the respondent shall, at the hearing
of the appeal, be allowed to argue that the case does
not involve such question:
Provided that nothing in this sub-section shall be
deemed to take away or abridge the power of the
Court to hear, for reasons to be recorded, the appeal
on any other substantial question of law, not
formulated by it, if it is satisfied that the case involves
such question.]"
19. The High Court in order to admit second appeal is
required to be satisfied that substantial questions of law is
involved in the case and having so satisfied has to formulate
that question. Existence of a substantial question of law is
sine-qua-non for the exercise of jurisdiction under the
provisions of section 100 of the Code. The second appeal does
not lie on the ground of erroneous findings of facts based on
appreciation of the relevant evidence. [See: Union of India v.
Ibrahim Uddin, (2012) 8 SCC 148].
20. In Govindaraja v. Mariamman, AIR 2005 SC 1008,
the Hon'ble Apex Court held that the scope of exercise of the
jurisdiction by the High Court in second appeal under section
100 is limited to the substantial question of law. To be a
substantial question of law it must be debatable, not
previously settled by law of the land or a binding precedent
and answer to the same will have a material bearing of the
party before the Court.
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21. Recently, the Hon'ble Apex Court in case of Gurbachan
Singh (Dead) Through Lrs Versus Gurcharan Singh
(Dead) Through Lrs And Others, 2023 (20) SCC 104, in
para 7, 14 and 15 held as under:-
"7. The parameters of an appeal under Section 100,
CPC passing muster are well established. The section
itself dictates that such an appeal shall only be
maintainable when the case involves a substantial
question of law or that the appellate decree has been
passed ex parte. the latter, obviously is not the case.
This court has, in a multitude of decisions, expounded
on what may be termed as a substantial question of
law to satisfy the requirements of section 100.
14. The principles of law cited herein may be
undoubtedly good law, but, however, in the
considered view of this court, they do not hold in the
case put forward by the Appellant. A perusal of the
witness statements of DW-3 as duly recorded by the
High Court, (the court also relies on the cross
examination portions of DW-4 although the same do
not form part of the record before this court.) shows
that father of the Appellant had indeed partitioned
the property during his lifetime. In such situation
selling a part of his share in an undivided property, is
a question that does not arise. Reliance on Shyam
Sunder (supra) does not support the case of the
Appellant as there is nothing on record to reflect any
effort having been made by him to substitute himself
in place of the Respondents in buying the 4 marlas of
land from Faqir Singh in order to keep a stranger,
namely Gurcharan Singh from entering into family-
owned property. Had the Appellant made any such
effort and the same would be reflected from record,
then it could have been argued that he has a right to
exclude the Respondents.
15. As already noted above, another ground of
objection taken by the Appellant is the fact of the
impugned judgement entering into a reappreciation
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of evidence. While it is true that ordinarily, in second
appeal, the court must not disturb facts established
by the lower court or the first appellate court.
However, it is also equally well recognised that this
rule is not an absolute one or in other words, it is not
a rule set in stone."
22. Applying the aforesaid ratio to the facts of the present
case, no case is made out for admission of the second appeal,
as no substantial questions of law arise in the appeal.
23. Accordingly, second appeal fails and stands dismissed at
admission stage.
24. Consequently, CA, if any, does not survive and stands
disposed of accordingly.
25. Registry is directed to return back the R & P, if any, to
the concerned Court forthwith.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
