Gujarat High Court
Govind Sadhuram Vatvani vs Sundar Hukmatray Karamchandani on 15 October, 2025
NEUTRAL CITATION
C/SA/487/2024 JUDGMENT DATED: 15/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 487 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SECOND APPEAL NO. 487 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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GOVIND SADHURAM VATVANI
Versus
SUNDAR HUKMATRAY KARAMCHANDANI
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Appearance:
MALAY S PATEL(8901) for the Appellant(s) No. 1
MR MANISHKUMAR MANGILAL(12953) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 15/10/2025
ORAL JUDGMENT
1. The present second appeal is filed challenging the judgement
and decree, passed by 9th Additional District and Sessions
Judge, Vadodara, in Regular Civil Appeal No.217 of 2018,
whereby the judgment and decree passed in Regular Civil Suit
No.1006 of 2011, by Principal Senior Civil Judge, Vadodara
has been confirmed, by an order dated 12.05.2018.
2. For the sake of brevity and convenience, the parties are
referred to as per their original status as that in the suit.
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3. The brief facts arising in the present Second Appeal are that
the plaintiff filed civil suit claiming that by virtue of registered
sale deed dated 24.04.1975, the father of the plaintiff had
become the owner of Block No.B3, Room No.11, admeasuring
122.5 square yard and defendant by registered sale deed dated
04.06.1997 has become the owner of Block No.B3, Room
No.12, admeasuring 122.5 square yard property and it was the
case of the plaintiff that the defendants are trying to encroach
upon the property that belongs to the plaintiff and though the
defendant is owner of only 122.5 square yard, the defendant is
not entitled to claim any right over and above the 122.5 square
yard. the defendant has encroached upon the property that
belongs to the plaintiff and therefore, a relief was sought
before the Court to declare that the defendant is not entitled to
claim any right over and above the 122.5 square yard property
that has been owned by the defendant by virtue of sale deed
dated 04.06.1997 and in the said suit, the plaintiff had also
sought for relief for restraining the defendant from occupying
any of the premises other than 122.5 square yard and had also
sought for a relief directing the defendants to demolish the
illegal construction that has been made in the suit property and
for demarcation of the plaintiff and the defendant's property.
4. In the said suit the defendant had filed his appearance vide
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Exhibit 14 and the Trial Court framed issues vide Exhibit 42
as under:-
"1.Whether the Plaintiff proves that the area of
the house properties, being Room No. 11 and
12 of the Plaintiff and the Defendant, is 122.5
sq. yards for each property, as per the
records? (Original Issue No. 1 is amended as
per the order vide Exhibit-43).
2. Whether the Plaintiff proves that the portion
at the back of the Plaintiff's house, which is on
the East and North side, and which bears City
Survey No. 4179 Paiki, has been under the
Plaintiff's ownership, possession, and
enjoyment from the very beginning?
3. Whether the Plaintiff proves that the
Defendant has illegally constructed the
structure at the back of the Plaintiff's house
during the pendency of this suit, and that this
construction is carried out by the Defendant
in breach of the assurance and guarantee
given in their reply, and the same is therefore
liable to be removed?
4. Whether the Defendant proves that the
Plaintiff's sale deed is not legal, and that there
is no specific measurement of any property
mentioned in it, and that the Plaintiff has no
use and possession over the property?
5. Whether the Defendant proves that the
Defendants have not created any title or
carried out any construction on the Plaintiff's
property?
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6. Whether the Plaintiff is legally entitled to get
the relief sought in the suit?
7. What order and what decree?"
5. The plaintiff had examined his power of attorney vide Exhibit-
51. The defendant had examined himself vide Exhibit 66 and
after considering the oral evidence and documentary evidence,
the Trial Court partly allowed the said suit and held that the
plaintiff and the defendant are owners of 122.5 square yard
property and restrained the defendants from entering into the
property of the plaintiff other than 122.5 square yard, owned
by the defendant. The said order was challenged by the
plaintiff by filing Regular Civil Appeal No.217 of 2018 and
after re-appreciating the evidence, the First Appellate Court
passed an order, whereby issue nos.2 to 4 of the said order
passed by the Trial Court in Civil Suit No.106 of 2011 dated
12.05.2018 was confirmed and directed the defendant that the
construction that has been made by the defendant during the
pendency of the suit to be removed by the defendants failing
which the the Court Commissioner be appointed to remove the
said construction and directed the City Survey Department to
demarcate the property of the plaintiff and defendant.
Aggrieved by the said order, the present Revision Application
is filed.
6. The learned advocate for the defendant has mainly argued that,
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as per the surveyor's report, the plaintiff's house property
no.11 and defendant's house property no.12 are admeasuring
122.5 square yards wherein, as per the City Survey No.4179,
the land in question is open and occupied by both the parties.
7. It has been argued that the Trial Court and the First Appellate
Court have not rightly appreciated the evidence on record and
therefore, the present second appeal is required to be admitted
on the following substantial question of law:
"1. Whether finding and observation in judgement
of Ld. Appellant court as regard to Acceptibility and
validity of exhibited evidence examination without
material witnesses is erroneous illegal and
perverse?
2. Whether the Ld. Appellant court properly decided
that the suit is not barred by non joinder to
necessary parties?
3. Whether the Ld. Appellant court gave proper and
legal reasoning on the defendant is entitled for
prayed relief?
4. Whether finding and observation in judgement of
Ld. First appellate court as regard to suit is not
barred relating to limitations act is erroneous
illegal and perverse?
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5. Whether finding and observation in judgement of
Ld. Appellant court as regard to so called illegal
construction and is erroneous illegal and perverse?
6. Whether finding and observation in judgement of
Ld. First appellate court as regard to Judgement
and decree passed by Ld. Trial court are erroneous
illegal and perverse?
7. Whether the findings Ld. First appellate court as
regard to measurement of land and such findings
are baseless and not supporting by any cogent
evidence?
8. Whether the finding of the Ld. First Appellant
court regarding the settled law of discretion of civil
court to grant or relief for specific performance is
legal?
9. Whether the finding of the Ld. Appellant Court
regarding principles of delay latches is legal or
erroneous?
10. On such other and further question of law as
may be framed at the time of hearing of this
appeal."
8. Per contra, learned advocate for the plaintiff has argued that, if
the entire evidence is taken on consideration, the Trial Court
and the First Appellate Court have held that the defendant's
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have encroached upon the property that belongs to the
plaintiff.
9. Moreover, it has also come on record that the defendants have
made construction on the property that does not belong to the
defendant, if the oral evidence and the documentary evidence
is taken into consideration, the fact is very clear that the
defendant has not made construction in the property that
belongs to the plaintiff and has encroached upon the land i.e.
admeasuring 122.5 square yards which belongs to the plaintiff
and therefore, in view of the concurrent finding of the Trial
Court and the First Appellate Court, the present Second
Appeal is required to be rejected.
10. Having heard learned advocate for the parties and having
considered the judgment and decree passed by the Trial Court
and confirmed by the First Appellate Court, the fact remains
that it has come on record vide exhibit 35, i.e. the Court
Commissioner's Report that the plaintiff is in possession of
76.32.50 square meters land and that the possession of the
defendant is 155.87.50 square meter land and therefore,
admittedly, the defendant has encroached upon the property
that belongs to the plaintiff. Moreover, if the cross-
examination of the defendant, vide Exhibit-66, is taken into
consideration, the defendant has stated that he has never given
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anything in writing that he will not encroach upon the land that
belongs to the plaintiff, and he has also stated that he is ready
to occupy the premises stated in his sale deed. Therefore, it
can be clearly established that the defendant has encroached
upon the land that belongs to the plaintiff.
11. Moreover, the fact also remains that there is illegal
construction that was made by the defendant when the plaintiff
was out of country. The Court Commissioner's Report vide
Exhibit-35 is very clear that there is an encroachment by the
defendant on the suit property, the said Court Commissioner's
Report has not been challenged by the defendant nor have they
filed any objections to the said Court Commissioner's Report.
12. 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
appellants have failed to prove their case before the learned
Trial Court as well as before the First Appellate Court. This
Court does not find any substance in the present Second
Appeal as the same is devoid of any merit both on facts and
law and the same is dismissed.
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13. In view of the disposal of the main second appeal the
Civil Application does not survive and the same is accordingly
disposed of.
Sd/-
(SANJEEV J.THAKER,J)
URIL RANA
