Gujarat High Court
Lhs Of Decd. Ishvarbhai Maganbhai Nai ... vs Gram Panchayat, Jalotra on 10 October, 2025
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Reserved On : 11/09/2025
Pronounced On : 10/10/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 380 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 380 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
NO
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LHS OF DECD. ISHVARBHAI MAGANBHAI NAI MAFATLAL ISHAVARLAL
NAI
Versus
GRAM PANCHAYAT, JALOTRA
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Appearance:
MR TUSHAR CHAUDHARY(5316) for the Appellant(s) No. 1
MR.DIPEN F CHAUDHARI(6740) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1. The present Second Appeal has been filed under section 100 of the
Code of Civil Procedure, 1908 ('cpc', for short) challenging the
judgement and decree, passed by 2nd Additional District Judge,
Banaskantha at Palanpur, in Regular Civil Appeal No.68 of 2024 dated
31.07.2025, whereby the judgement and decree, dated 30.09.2024, passed
by the Principal Civil Judge, Vadgam in Regular Civil Suit No.3 of 2020,
has been confirmed.
2. For the sake of the parties are referred to as per the their original
status as that of in the suit.
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3.1 The brief facts arising in the present Second Appeal are that the
plaintiff claimed that the plaintiff is in possession of the suit property i.e.
open land and in the said open land, the plaintiff is occupying 6' x 8'
cabin for the last 30 years and in the said wooden cabin, the plaintiff is
doing business of selling Bidi, Chocolate etc. and in the year 1978-79 and
in the year 1981-82, the plaintiff has paid rent to the defendant with
respect to the suit property and though the plaintiff has stated that by way
of adverse possession, he has become owner of property, but the relief
that has been sought in the plaint is only for injunction pursuant to the
notice, dated 04.02.1993, that was issued to the plaintiff by the defendant,
under the Panchayat Act, to remove the cabin from the suit premises, in
view of the fact that the said cabin is on the Government road and,
therefore, the suit that has been filed by the plaintiff is only for
injunction. The defendant appeared in the said suit and along with other
contention that the defendant does not have any right in the suit property
and that the plaintiff has encroached upon the road, the contention was
also taken that before filing the suit, notice under the provisions of
Section 270 of the Panchayat Act has not been issued to the defendant
and, therefore, the suit was required to be rejected.
3.2 The trial Court framed issues vide Exh.51, which read as under:
(i) Whether the plaintiff proves that except the land for bus-stand in
the village, he has been carrying on business in open land in 6 X 8
cabin of his possession since more than last 30 years ?
(ii) Whether plaintiff proves that he has become owner by virtue of
adverse possession and defendant is not entitled to evict the
plaintiff from his possession?
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(iii) Whether defendant proves that suit filed by the plaintiff is barred
by Law ?
(iv) Whether plaintiff is entitled for the reliefs sought for ?
(v) What judgment and decre ?"
3.3 The plaintiff examined himself vide Exh.74 and defendant
examined himself vide Exh.85 and after taking into consideration the
plaint and the documents annexed with the plaint and oral evidence and
after giving findings on all the issues, the trial Court dismissed the said
suit.
3.4 Aggrieved by the said judgement and decree, plaintiff filed Regular
Civil Appeal No.68 of 2024 and after re-appreciating the evidence, the
First Appellate Court dismissed the said suit and confirmed the
judgement and decree passed in the Regular Civil Suit No.3 of 2020.
Hence, the present appeal.
4.1 Learned advocate for the plaintiff has mainly argued that the
plaintiff is in possession of the property, since very long time and notice
that has been issued by the defendant is not as per provisions of law.
Moreover, the said notice produced vide Exh.81, issued by the defendant
also does not state that under what provisiosn of Panchayat Act, the
notice has been given.
4.2 Learned advocate for the plaintiff has also argued that the suit
property is the only property which the plaintiff owns for him and his
family income and the plaintiff is occupying the said premises since last
more than 35 years and, therefore, the trial Court could not dismiss the
said suit and the first appellate Court could not have confirmed the
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judgement and decree passed by the trial Court. Hence the present Second
Appeal is required to be admitted on the on the following substantial
question of law.
"(A) Whether learned courts below erred in not properly
considering the materials on record ?
(B) Whether learned courts below erred in not considering the
oral evidence below exh-85 in the favour of appellant ?
(C) Whether learned Trial Court erred in no considering the
documentary evidence below exh-69 in favour of the
appellant ?
(D) Whether learned courts erred in considering the suit of the
palintiff is barred by Section 270 of Panchayats Act ?
(E) Whether trial court erred in not declaring the appellant in
possession of suit land since last 30 years ?
(F) Whether learned trial court erred in not granting permanent
injunction in favour of the appellant ?
(G) Whether Trial Court erred in dismissing the suit of the
appellant ( original Plaintiff)?
(H) Whether Ld.appellate court erred in confirming the judgment
passed by the Ld.Civil Judge ?"
5.1 Having heard learned advocate for the plaintiff and on perusal of
the judgment and decree passed in Civil Suit and Regular Civil Appeal,
fact remains that it is an admitted position that the property on which the
plaintiff is doing business and occupying premises do not belong to the
plaintiff and it is the plaintiff's case that they have been paying rent to the
defendant till the year 1982-83. Moreover, it has come on record that the
disputed cabin of the plaintiff is on the public road and thereby there is an
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encroachment created by the plaintiff which causes hindrance to the
public bypassers and, therefore, the plaintiff is in illegal possession of the
land and the same does not belong to the plaintiff. The fact also remains
that vide Exh.81 in the year 1993, the defendant has already informed the
plaintiff to remove the encroachment on the suit property. Though the
plaintiff has tried to put forward his case on the ground of adverse
possession, neither there are any pleading with regard to the adverse
possession, nor there is any relief claimed by the plaintiff to declare the
plaintiff as owner by way of adverse possession. Though the plaintiff has
tried to rely on rent receipts but the same does not corroborate any other
evidence to show that the plaintiff has been a tenant of the property and
that the plaintiff has any right on the suit property. The fact also remains
that the suit that has been filed by the plaintiff is against Gram Panchayat,
Jalodhara. It is apt to refer Section 270 of the Panchayat Act, which reads
as under:-
"270. (l) No action shall be brought against any panchayat or
any member, officer, servant or agent of a panchayat or any
member of a committee of a panchayat acting under its
direction, in respect of anything in good faith done under this
Act or under any rule or bye-law made thereunder.
(2) No action shall be brought against any panchayat or any
member, officer, servant or agent of such panchayat or any
member of a committee of a panchayat acting under its
direction for anything done or purporting to have been done by
or under this Act, until the expiration of one month next after
notice in writing has been left or delivered at the office of the
panchayat, and also at the residence of the member officer,
servant or agent thereof against whom the action is intended to
be brought; the notice shall state the cause of action, the nature
of the relief sought; the amount of compensation claimed and
the name and place of abode of the person who intends to bring
the action.
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(3) Every such action shall be commenced within six months
after the accrual of the cause of action, and not afterwards.
(4) If any panchayat or person to whom the notice under sub-
section (2) is given shall, before an action is brought, tender
sufficient amount to the plaintiff, and pay into Court the
amount so tendered, the plaintiff shall not recover more than
the amount so tendered; the plaintiff shall also pay all costs
incurred by the defendent after such tender."
5.2 Therefore also as per the said provisions of the Act, even if there is
intended execution under the Act as per Section 270 of the Panchayat
Act, the same requires notice to be given under the provisions of Section
270 of the Act and that having not been done in the present case, the suit
could not have been filed without issuance of the said notice.
6. It is required to be noted that in Second Appeal, the scope is very
limited and the Court cannot re-appreciate the evidence. In the case of
Navaneethammal v. Arjuna Chetty reported in 1996 (6) SCC 177, the
Hon'ble Apex Court has observed as under:-
"11. This Court, time without number, pointed out that
interference with the concurrent findings of the courts
below by the High Court under Section 100 CPC must
be avoided unless warranted by compelling reasons. In
any case, the High Court is not expected to
reappreciate the evidence just to replace the findings of
the lower courts."
7. In the case of Jaichand (Dead) through Lrs and Other v.
Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the
Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100 CPC, the
High Court cannot interfere with the findings of fact
arrived at by the first Appellate Court which is the final
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Court of facts except in such cases where such findings
were erroneous being contrary to the mandatory
provisions of law, or its settled position on the basis of
the pronouncement made by the Apex Court or based
upon inadmissible evidence or without evidence."
8. Therefore, also the plaintiff has miserably failed to show that there
is any substantial question of law involved in the present appeal and the
substantial question of law which has been suggested in the memo of
appeal are also not substantial question of law and on facts and the said
factual aspect has well been considered by the Trial Court and the First
Appellate Court.
9. Under the circumstances, this Second Appeal is devoid of any
substantial question of law. Both the learned Trial Court and first
appellate Court have rightly decided the issue between the parties in the
right perspective and as stated above no substantial question of law arises
in the present appeal. The plaintiffs have failed to prove their case before
the learned trial Court as well as before the first appellate Court. This
Court does not find any substance in the present Second Appeal as the
same is devoid of any merit both on facts and law and the same is
dismissed at admission stage. In view of the order passed in the Second
Appeal, the Civil Application does not survive and the same is
accordingly disposed of. The connected civil application/s, if any, shall
stand disposed of accordingly.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
