[Cites 3, Cited by 0]
Gujarat High Court
Administrator vs Ramubhai Kamalgiri Gauswami on 27 January, 2026
NEUTRAL CITATION
C/SA/165/2009 ORDER DATED: 27/01/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 165 of 2009
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ADMINISTRATOR
Versus
RAMUBHAI KAMALGIRI GAUSWAMI & ORS.
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Appearance:
MS ARCHANA R ACHARYA(2475) for the Appellant(s) No. 1
MR MR PRAJAPATI(1532) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 27/01/2026
ORAL ORDER
1. Present second appeal u/s 100 of the Code of Civil
Procedure, 1908 (in short "the Code") challenges the
judgment and decree dated 7.1.2009 passed by the learned
Additional District Judge & Presiding Officer, 5 th Fast Track
Court, Palanpur in Regular Civil Appeal No.34 of 2008,
whereby the learned appellate Court reversed the judgment
and decree dated 8.8.2008 passed by the learned Principal
Civil Judge, Danta in Regular Civil Suit No.105 of 1998 and
decreed the suit in favour of the respondents - original
plaintiffs by restraining the appellants - defendants from
taking or disturbing the possession of the property being
House No.11/103 and 11/104 within the area of Ambaji
Panchayat (in short "suit property") from the original plaintiffs
without due process of law.
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C/SA/165/2009 ORDER DATED: 27/01/2026
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2. For the sake of convenience and brevity, parties are
referred to as per their original status before the learned trial
Court.
3. Brief facts of the case are as under:-
3.1 The plaintiffs filed Regular Civil Suit No.105 of 1998
before the learned trial Court seeking permanent injunction
on the averments that the plaintiffs are in possession of the
suit property. The plaintiffs are residing there and carrying
out business of selling rope way trolley since last more than
30 years. The plaintiffs are regularly paying house tax and
other taxes to the Panchayat and since the plaintiffs are in
possession of the suit property since last more than 30 years,
the plaintiffs cannot be evicted without following due process
of law.
3.2 In substance, the plaintiffs filed the suit to protect their
possession and not to dispossess them without following due
process of law, against the defendants being Administrator of
Arasuri Ambaji Devsthan Trust (in short "trust") and Gram
Panchayat, Ambaji, whereby the defendant No.1 is
undisputedly owner of the suit property.
3.3 The learned trial Court after fixing the issue and after
permitting both the parties to lead evidence, was pleased to
dismiss the suit by judgment and decree dated 8.8.2008.
Being aggrieved, the plaintiffs preferred Regular Civil Appeal
No.34 of 2008 before the learned appellate Court, Palanpur.
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C/SA/165/2009 ORDER DATED: 27/01/2026
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3.4 By judgment and decree dated 7.1.2009, the learned
appellate Court allowed the appeal and reversed the judgment
and decree passed by the learned trial Court and decreed the
suit in favour of the respondents - original plaintiffs by
restraining the appellants - defendants from taking or
disturbing the possession of the suit property.
3.5 Hence, present second appeal.
4. Vide order dated 4.9.2009, the Coordinate Bench of this
Court has framed following substantial questions of law.
"1) Whether in the facts and circumstances of the
case, the first appellate Court committed error in
recording finding that the suit land was given to the
grandfather of the plaintiffs by Panchayat?
(2) Whether in the facts and circumstances of the
case, the first appellate Court committed error in
recording finding that the plaintiffs were in legal
possession of the suit property?
(3) Whether in the facts and circumstances of the
case, the first appellate Court committed error in
interpreting map Exhs-162 and 163?"
5. Heard learned advocate Ms. Archana Acharya for the
appellant and learned advocate Mr. MR Prajapati for the
respondent No.1. Though served, none appears for the
respondent Nos.2 to 5.
6. The learned trial Court has framed following issues:-
"1. Whether the plaintiff prove that the house No.
NEUTRAL CITATION
C/SA/165/2009 ORDER DATED: 27/01/2026
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11/103, Ambaji Panchayat, in which the plaintiff is
claiming, is a property of the elders and has been in
possession for more than 30 years?
2. Whether the plaintiff proves that the defendants
are trying to take possession of the disputed property
by force?
3. Does the defendant prove that the plaintiff's
encroachment on the disputed premises constitutes
an obstruction to the defendant?
4. Is the plaintiff entitled to the compensation
sought?
5. What is the order and decree?"
7. Issue Nos.1 and 2 are answered in negative, issue No.3
in affirmative and vide issue Nos.4 and 5, the learned trial
Court dismissed the suit.
8. The reason for dismissal of the suit could be seen that
the plaintiffs mainly relied upon the tax receipt issued for the
year 1993-1994 in a suit, which was filed in the year 1998 to
claim that the plaintiffs are in settled possession of the suit
property since last more than 30 years. The learned trial
Court referred to the oral deposition of the plaintiffs' witness
at Exh.85, documentary evidence at Exh.99, another
deposition of the plaintiffs' witness at Exh.125, so also
Exhs.162 and 163 being Panchkyas of the suit property.
While analyzing the evidence of the plaintiffs, the learned trial
Court recorded that in no uncertain terms, the plaintiffs
admitted that the suit property belongs to the defendants. In
Assessment Register at Exh.99, it is clearly states that
kachcha construction in House No. 11/104 is an
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encroachment. The learned trial Court also believed that the
plaintiffs have hopelessly failed to prove that they are in
possession of the suit property since last more than 40 to 45
years. Lastly, it is held by the learned trial Court that
trespassers have no right to obtain any injunction or to
protect their possession against true owner. This proposition
has been held by the learned trial Court referring the
judgment of the Hon'ble Apex Court in case of Premji Ratansey
Shah Versus Union Of India, 1994(5) SCC 547.
9. Learned advocate Ms. Archana Acharya would submit
that the learned appellate Court has committed serious error
in reversing the judgment and decree without giving any
cogent reasons. She would further submit that the learned
appellate Court is swayed away by the order of status quo
operating in favour of the plaintiffs. However, the status quo
order has been passed on prima facie observation and it does
not influence final outcome, which is to be recorded after
recording evidence. Therefore, she submits that the learned
appellate Court has committed manifest error in reversing the
judgment and decree without any reason. The learned
appellate Court has no reason to believe that the plaintiffs
have been put into possession by the Panchayat, whereas, the
Panchayat records indicate that the plaintiffs are encroachers.
9.1 Upon above submissions, learned advocate Ms. Archana
Acharya prays to allow this second appeal by quashing and
setting aside the judgment and decree passed by the learned
appellate Court and restoring the judgment and decree passed
by the learned trial Court.
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10. On the other hand, learned advocate Mr. MR Prajapati
for the respondent NO.1 would submit that the learned
appellate Court has rightly passed the judgment and decree in
favour of the plaintiffs. He would further submit that the
plaintiffs are in vacant and peaceful possession of the suit
property since long and even their possession has been
recorded in the Assessment Register by the Panchayat and
therefore, the plaintiffs even if are trespassers, cannot be
evicted by force as such eviction is against the rule of law.
10.1 Upon above submissions, learned advocate Mr. Prajapati
prays to dismiss the second appeal.
11. Having perused the judgment and decree passed by the
learned trial Court vis-a-vis the judgment and decree of the
learned appellate Court, what appears on record that the
learned appellate Court has swayed away by the fact that
status quo order was passed in favour of the plaintiffs and
secondly, the learned appellate Court held that the Panchayat
records possession of the plaintiffs and that the plaintiffs are
paying the tax and therefore, the possession of the plaintiffs
has been established.
12. It is an admitted position that there is kachcha
construction on the suit property belongs and owns by the
defendants. The plaintiffs have encroached upon the suit
property and status of the plaintiffs is not more than that of
trespassers. The learned trial Court has heard them and did
not believe the case of the plaintiffs.
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13. What also to be noted that the learned appellate Court
referred and considered the revenue entry mutated by the
Panchayat being entry u/s 135 of the Land Revenue Code, as
it was a land given by the Panchayat to attract people to live
in the vicinity much prior to the tourism was not developed
and the Panchayat was entering names of individual on the
Panchayat records to attract people to habitat in the village,
where the famous Ambaji temple is located. However, I am
afraid to find any support in the pleadings and therefore, such
finding of the learned appellate Court turned as perverse and
inapt.
14. At this juncture, I may also refer to para 79 of the
judgment in the case Maria Margarida Sequeira Fernandes
and Ors. v. Erasmo Jack De Sequeira (Dead) through Lrs.,
reported in (2012) 5 SCC 370 of the Supreme Court in regards
to the phrase "due process of law" held as under:-
"79. Due process of law means that nobody ought to be
condemned unheard. The due process of law means a
person in settled possession will not be dispossessed except
by due process of law. Due process means an opportunity to
the defendant to file pleadings including written statement
and documents before the court of law. It does not mean the
whole trial. Due process of law is satisfied the moment
rights of the parties are adjudicated upon by a competent
court."
15. In the present case, according to this Court, the learned
appellate Court being final fact finding Court has committed
serious error in allowing the appeal.
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C/SA/165/2009 ORDER DATED: 27/01/2026
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16. At this juncture, learned advocate Ms. Acharya submits
that as of now, the plaintiffs are also not living in the suit
property and they have handed over the possession to some
third party.
17. In wake of above discussions, this Court finds substance
in the second appeal. The substantial questions of law are
answered in favour of the appellants - original defendants.
18. Resultantly, the second appeal is hereby allowed.
Impugned judgment and decree dated 7.1.2009 passed by the
learned Additional District Judge & Presiding Officer, 5 th Fast
Track Court, Palanpur in Regular Civil Appeal No.34 of 2008
is hereby quashed and set aside and judgment and decree
dated 8.8.2008 passed by the learned Principal Civil Judge,
Danta in Regular Civil Suit No.105 of 1998 is hereby
confirmed and restored.
19. Registry is directed to return back the R & P, if any, to
the concerned Court forthwith.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
