Gujarat High Court
Gulmamadbhai Ismailbhai Patani vs Priteshbhai Rameshchandra Bhatt on 30 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 7 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SECOND APPEAL NO. 7 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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GULMAMADBHAI ISMAILBHAI PATANI
Versus
PRITESHBHAI RAMESHCHANDRA BHATT
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Appearance:
MR PREMAL S RACHH(3297) for the Appellant(s) No. 1
MR YOGEN N PANDYA(5766) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 30/09/2025
ORAL JUDGMENT
1. The present Second Appeal has been filed under Section 100
of the Code of Civil Procedure, 1908 (for short "the Code")
challenging the judgment and decree, dated 02.08.2023,
passed by Additional District Judge, Jamnagar, in Regular
Civil Appeal No.122 of 2022, whereby the Appellate Court
has dismissed the said appeal and confirmed the judgment and
decree dated 10.08.2022 passed by 2nd Additional Senior Civil
Judge, Jamnagar in Regular Civil Suit No.144 of 2016.
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2. For the sake of brevity and convenience the parties are referred
to as per their original status as that in the suit.
3. The brief facts arising in the Second Appeal are that the
plaintiff filed a suit for declaration of ownership with respect
to the suit property and also sought for a declaration as well as
perpetual injunction against the defendant. The relief that have
been sought by the plaintiff in the suit are to declare that the
plaintiff is the owner and possessor of the suit property and to
restrain the defendants from taking away the possession of the
suit property without due process of law and to restrain the
defendants from causing any obstruction, any hindrance to the
plaintiff's peaceful enjoyment of the suit property.
4. It is the case of the plaintiff, that the plaintiffs are in settled
possession of the suit property and somewhere around 20 th
February 2016, the defendant came and threatened the plaintiff
and therefore, the suit is filed to restrain the defendants from
acting without due process of law to evict the plaintiff from
the suit property. The plaintiff relied on the certificate issued
by the Gram Panchayat Village- Naghedi dated 15.03.2016.
5. The defendant appeared in the said suit and filed written
statement, vide Exhibit 14 and also filed the counter claim
with relief to declare that the plaintiff is not the owner of the
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suit property and that the alleged possession of the suit
property of the plaintiff is illegal and for a permanent
injunction restraining the plaintiffs from causing any
obstruction/ hindrance to the defendant's peaceful enjoyment
of the suit property.
6. The Trial Court framed issues vide Exhibit 41 on 05.12.2019,
which reads as under:
"1. Whether the Plaintiff proves he is the owner of the suit
property?
2. Whether the Plaintiff proves that he possesses and
occupies the suit property since last seventeen years in a
manner as seen and known by the world?
3. Whether the Defendants prove that the possession of the
Plaintiff over the suit property is illegal?
4. Whether the Plaintiff is entitled to relief as sought?
5. Whether the Defendants are entitled to relief as sought?
6. What order? What decree?"
7. The plaintiff examined witnesses vide Exhibits 48, 52, 53. The
defendant examined witness vide Exhibit 67 and after taking
into consideration the oral evidence, documentary evidence
and giving finding on all the issues, the Trial Court dismissed
the suit of the plaintiff and the counter claim filed by the
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defendant vide Exhibit 14, was allowed and declared that, the
plaintiff's possession over the suit property as mentioned in
Chhapa Lekh No.31/1998, dated 06.06.1942, is illegal, and
further restrained the plaintiffs, his servants and power of
attorney holders in interfering and causing interference to the
defendant's access into the suit property.
8. The said order was challenged by the plaintiff, by filing
Regular Civil Appeal No.120 of 2022, whereby, the order
passed on the plaint and the counterclaim was challenged by
the plaintiff and after reappreciating the evidence, the First
Appellate Court dismissed the said appeal and confirmed the
judgement and decree passed by 2nd Additional Senior Civil
Judge, Jamnagar in Regular Civil Suit No.144 of 2016, hence
the present Second Appeal.
9. Learned advocate for the plaintiff has argued that the Trial
Court and the Appellate Court have failed to take into
consideration that no relief seeking possession of the suit
property has been sought by the defendant in the counterclaim
and therefore, the Trial Court and the First Appellate Court
could not have allowed the said counterclaim and declared that
the plaintiff's possession over the property as illegal and
restrained the plaintiffs from making house and interfering and
causing hindrance to the defendant's access in the suit
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property.
10. The learned advocate for the plaintiff has also argued
that the Trial Court and the Appellate Court have erred in not
believing the settled long possession of the plaintiff for more
than 17 years. Moreover, it has also been argued that the
Appellate Court has not framed any point for determination in
accordance with Order 41 Rule 31 of the Code.
11. Learned advocate for the plaintiff has also argued that
though the said First Appeal had been filed challenging the
order passed below Exhibit 1 i.e. the plaint and the judgement
and decree passed on the counter claim vide Exhibit 14, the
Court has not taken into consideration the fact of the counter
claim and the judgement and decree passed below Exhibit 14,
and even if the point of determination are taken into
consideration, the Appellate Court has not taken into
consideration, the point of determination with respect to the
issue of counter claim that were raised before the Trial Court,
i.e. "Whether the defendant proved that the plaintiff is in
illegal possession of the property", and "whether the defendant
was entitled for the relief as sought for the counter claim."
12. The learned advocate for the plaintiff has relied on the
judgement reported in 2024 (5) SCC 282, in the case of
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Vasantha (Dead) Through Legal Heirs Vs. Rajalakshmi @
Rajam (Dead) Thr. Lrs., wherein the Hon'ble Apex Court
has held that, if the plaintiff is not in possession of the
property, the plaintiff ought to have amended the plaint for
relief of recovery of possession and in the present case also,
the present defendant though has filed a counter claim for a
declaration that plaintiff is not the owner of the suit property
and that the defendant is the owner of the suit property and
that the alleged possession of the plaintiff is illegal and has
also sought for a relief that the plaintiff should not interfere
and cause obstruction to the defendant's entering in the suit
premises, but the fact remains the defendant has not sought for
any relief for seeking possession of the suit property from the
plaintiff and in view of the fact that the Trial Court and the
Appellate Court have held that the plaintiff is in possession of
the property, unless and until the possession was sought by the
defendant, the Court could not have granted the counter claim
and rejected the plaint and therefore, it has been argued that
there are substantial questions of law which are formulated in
the Second Appeal and therefore the Second Appeal is
required to be admitted on the following substantial questions
of law:
"A. Whether the Appellate Court has erred,
in the facts and circumstances of the present
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case, in not interfering with the erroneous
and improper judgment and order passed by
the Trial Court, while exercising powers
u/s.96 of CPC.
B. Whether the courts below have erred in
not appreciating the evidence, oral as well as
documentary, produced by the appellant in
its true perspective while passing the
impugned order.
C. Whether the courts below have erred in
law and facts in ignoring vital evidence while
passing the impugned judgments and orders
on consideration of irrelevant facts and non-
consideration of relevant facts.
D. Whether the Appellate Court has erred in
not framing issues as required under Order
41 Rule 31 of Code of Civil Procedure?
E. Whether the Ld. Judge has rightly arrived
at a conclusion that the orig. defendant is the
rightful owner of the land in question?
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F. Whether the Ld. Judge has misinterpreted
the scope and ambit of provisions of S.96 of
CPC while passing the impugned order.
G. Whether the Ld. Judge has erred in
holding that the appellant herein is not the
legal owner of the property in question."
13. Per contra, learned advocate for the defendant has
argued that the Trial Court and the Appellate Court have taken
into consideration the fact that the plaintiff has failed to prove
that plaintiff was in possession of the suit property and the
possession that was alleged to exist, is also as a tresspasser in
the property. Moreover, the fact that the plaintiff had filed a
suit for seeking protection of his possession of the suit
property and the fact that the plaintiff has miserably failed to
prove the said fact of him having possession of the suit
property, it was not necessary for the defendant to seek relief
of possession from the plaintiff. The fact also remains that, it
is not the case of the defendant that, the plaintiff is in
possession of the suit property and the fact that the Trial Court
and the First Appellate Court has held that the defendant is the
owner of the property, and the Trial Court has gone to an
extent that the plaintiff being a tresspasser could not be
protected and therefore also, the order that has been passed by
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the Trial Court and confirmed by the First Appellate Court is
as per law and requires no interference.
14. Moreover, learned advocate for the defendant has also
argued that there are concurrent findings of the Trial Court and
First Appellate Court. Moreover, if the issues that were framed
by the Trial Court, if the same are taken into consideration, the
first issue that was framed, was with respect to the fact that
whether the plaintiff proves that the plaintiff is the owner of
the property and the Trial Court and the First Appellate Court
have held that the plaintiff has not been able to prove the said
fact that the plaintiff is the owner of the property. Therefore
also, while reappreciating the evidence, the First Appellate
Court has taken into consideration all the issues and has come
to the conclusion that the plaintiff is not the owner of premises
and that the plaintiff has failed to prove that he is owner by
possession of the disputed property since 17 years and
therefore, in view of the said fact, the present Second Appeal
is required to be dismissed.
15. Having heard learned advocate for the parties, this Court
will have to consider the issues that were framed by the Trial
Court, if the same are taken into consideration, the first issue
that was framed by the Trial Court was with respect to the fact
that, whether the plaintiff proves that the plaintiff is the owner
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of the property and the Trial Court and the First Appellate
Court have held that the plaintiff has not been able to prove the
said fact, that the plaintiff is the owner of the property.
16. The second issue that was framed was with respect to
whether the plaintiff proves that plaintiff is in possession of
the suit property for the last 17 years in the knowledge of the
world at large and issue no.3 and 5 are with respect to the
counter claim, the issue was that whether the defendant proves
that the possession of the plaintiff is illegal and whether the
defendant is entitled for the relief as prayed for. The fact
remains that the Trial Court having come to the conclusion
that the plaintiff is not the owner of the property, and that the
plaintiff is not in possession of the suit property for the last 17
years to the knowledge of the world at large, the fact remains
that the Court has held that the defendant is the owner of the
property and that the plaintiff is not the owner of the property
there is nothing on record to show and prove that the plaintiff
is in possession of the property. Moreover, even the alleged
possession of the plaintiff has also not been proved by the
plaintiff. The plaintiff has been miserable in proving the fact
that the plaintiff is the owner of the property and in settled
possession of the suit property.
17. From the documentary evidence, the defendant has
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successfully established that he has title over the suit property
which he has got from his ancestor i.e. deceased Tapubhai.
From the facts, it can be established that the tax receipts which
were produced by the plaintiff were pertaining to the house
and not the open land i.e. a suit property, which is
admeasuring about 3000 square feet. The Trial Court has
rightly come to the conclusion that there is nothing on record
to prove the fact that the plaintiff has become the owner of the
property. Moreover, the plaintiff is trying to prove that he is in
possession of the property, but the fact remains that there is
nothing on record to prove the same that the plaintiff is in
possession of the property since last 17 years. Therefore, the
said judgment of Vasantha (Dead) Through Legal Heirs Vs.
Rajalakshmi @ Rajam (Dead) Thr. Lrs.(Supra) will not be
applicable to the facts of the present case.
18. The First Appellate Court while disposing the Civil
Appeal has taken into consideration the fact that plaintiff is not
the owner of the property and is not in possession of the
property since last 17 years. The plaintiff has tried to rely on
the copy of Aadhaar Card produced at Exhibit 91, Ration Card
at Exhibit 92, Receipt of tax of Gram Panchayat at Exhibits 93
to 95, but the said fact cannot prove the title and possession of
the plaintiff on the suit land. The plaintiff has tried to prove his
case by leading oral evidence, but the fact that the plaintiff is
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in possession of the property has not been proved by any
sufficient documentary evidence. The plaintiff in his cross-
examination had stated that he has purchased the suit property
from Gandabhai Bharwad about 17 years ago, but no
documentary evidence to support the said fact has been
produced by the plaintiff. The fact also remains that though in
point of determination, the First Appellate Court has not raised
the issue that were stated in the counter claim, but the fact
remains that while disposing of the said appeal, the First
Appellate Court has taken into consideration the entire facts of
the matter, including the fact stated in the counter claim, more
particularly the fact that the plaintiff has not proved that the
plaintiff is the owner of the property and that the plaintiff is in
possession of the property since last 17 years.
19. Moreover, the Appellate Court has also taken into
consideration that the plaintiff has not produced any document
to prove his ownership and possession in the suit property and
in view of the fact that plaintiff having failed to prove his
ownership in the suit property, the Trial Court and the
Appellate Court have rightly held that the alleged possession
of a plaintiff in the suit premises to be illegal and the fact that
the plaintiff having failed to seek relief by way of protection of
his possession, in view of the judgement passed in the case of
Maria Margarida Sequeria Fernandes and Others Vs.
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Erasmo Jack de Sequeria (Dead) in Appeal No.2968 of
2012 (Arising out of SLP (C) No.15382 of 2009) decided on
21.03.2012, wherein it has been held that, if the plaintiff has
filed a suit for protection of his possession and if he fails to
prove the said fact, it will not be necessary for the defendant to
seek a relief of possession, in view of the fact that due process
of law is done and it will not be necessary for him to file a
separate suit seeking possession of the property. The Hon'ble
Apex Court has held that it will not be necessary, as to who
has filed the suit, it could be the person in possession of the
property to seek protection of his possessions and if, he fails to
prove his case to seek protection of his possession, it will not
be necessary for the owner,(defendant) to file a separate suit
seeking possession, in view of the fact that due process of law
is complied, when the plaintiff seeking protection of his
possession fails to prove his case.
20. 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
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Appeal as the same is devoid of any merit both on facts and
law and the same is dismissed.
21. In view of the disposal of the main Second Appeal, the
connected Civil Application does not survive and the same is
accordingly disposed of.
(SANJEEV J.THAKER,J)
URIL RANA
