[Cites 12, Cited by 0]
Gujarat High Court
Bharatbhai Magjibhai Patel vs Chunilal Mervanbhai Patel on 8 May, 2026
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Reserved On : 29/04/2026
Pronounced On : 08/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1153 of 2003
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BHARATBHAI MAGJIBHAI PATEL & ORS.
Versus
CHUNILAL MERVANBHAI PATEL & ORS.
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Appearance:
MR BS PATEL(602) for the Appellant(s) No. 1,2,4,5,6,7,8,9
MR CHIRAG B PATEL(3679) for the Appellant(s) No. 1,4,5,6,7,8,9
MRS RANJAN B PATEL(646) for the Appellant(s) No. 2
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Defendant(s) No. 2,4
MR JV JAPEE(358) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No.
2.1,2.2,2.3,2.4.1,2.4.2,2.4.3,2.4.4,2.5,2.6,2.7,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
The Judgment is being structured in the following
conceptual framework to facilitate the discussion:
Sl. Particulars Page Nos.
No.
FOR THE RESPECTIVE PARTIES
FOR THE APPELLANTS
FOR RESPONDENT NO.1
THE CHALLENGE:
1. The unsuccessful plaintiffs of Special Civil Suit
No.199 of 2000 (old No.127 of 1997), have preferred the
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present First Appeal under Section 96 of the Code of Civil
Procedure 1908 (For short 'the CPC') assailing the impugned
judgment and decree dated 30 th April, 2003, whereby, the
learned Civil Judge (S.D), Gandevi, dismissed the plaintiffs'
suit.
2. For the sake of brevity and convenience, the
parties are referred to their original status and position to the
learned Trial Court.
THE FACTS:
3. The brief facts borne out of the record are that the
plaintiffs filed the suit for permanent injunction against the
defendants, inter alia, contending that they are the owners
and occupiers of the immovable property bearing Block No.
410, Survey No.417, admeasuring 3 acres and 36 gunthas,
situated at village Panikhadak, Old Taluka: Chikhli
(hereinafter referred to as "the suit property"). The Revenue
Entry No.327 dated 10th November 1976, certified on 1st
February, 1997, reflects the plaintiffs as the owners and
occupiers of the suit property.
3.1 It is further the case of the plaintiffs that a school,
hostel, and playground exist on a portion of the land bearing
Block No.410, and that the school and hostel were
constructed on land given by the plaintiffs. The plaintiffs also
stated that they were cutting grass from the open land. Upon
apprehending that the defendants intended to trespass upon
the suit property and cause damage to the standing crops of
tuvar and rice, the plaintiffs filed the suit for declaration as in
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negative terms, permanent injunction, seeking the following
reliefs in paragraph 9 of the plaint:
"9(a) Be pleased to declare that the Defendants have no
right or authority in the property described
hereinbelow.
(b) We, the Plaintiff, pray that a permanent injunction
may be granted in favour of the Plaintiff and against
the Defendant that, the Defendant himself or through
his servant, agents, associates, shall not perform or
cause to be performed any acts that may cause
hindrance, obstruction in the peaceful and the actual
possession of the Plaintiff, neither shall he trespass
nor cause to be trespassed into the possession thereof
and neither shall he damage or cause to be damaged
the crop (property) of the Plaintiff.
(c) Be pleased to award the entire cost of this suit from
the Defendants.
(d) Be pleased to grant any such other and further reliefs
that may deem appropriate and reasonable to the
Honorable Court in view of the evidence on record and
merits of this suit."
3.2 Upon service of summons, the defendants appeared
and filed their written statement at Exhibit 54, raising various
contentions, including that the suit is not maintainable; that it
is barred by limitation; and that it suffers from non-joinder
and misjoinder of necessary parties, as the school, which is
being run by a trust, has not been impleaded. It was further
contended that one Mr. Nagjibhai and Vasiben had earlier
filed Civil Suit in the Court of Civil Judge, Senior Division,
Gandevi, in respect of the suit property, which came to be
dismissed, and therefore, the present suit is barred by the
principles of res judicata. The defendants also alleged that the
plaintiffs had not approached the Court with clean hands. An
important defence raised was that the suit property had been
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partitioned among the plaintiffs, defendants, and their
ancestors, and defendants hold 1/2 share in Survey No.417,
admeasuring 1 acre and 8 gunthas. It was further contended
that corresponding revenue entries were mutated and the
defendants are in actual possession of the said portion.
Therefore, it was contended that the plaintiffs, under the
guise of seeking permanent injunction, cannot dispossess the
defendants without seeking the relief of possession.
3.3 The learned Trial Court framed issues, upon rival
pleading, permitted both parties to lead evidence, and
ultimately dismissed the suit. The dismissal was mainly on the
ground that the plaintiffs had admitted the defendants'
possession over the suit land since 6th December 1996, as
reflected in Exhibits 141, 142, and 143, which contained
admissions by the plaintiffs. The learned Trial Court further
held that the plaintiffs had not initiated any criminal
proceedings for alleged trespass and therefore could not
subsequently claim that the defendants were in illegal
possession. It was also observed that the school and hostel are
constructed on the suit land, and the school children use the
adjacent ground as a playground. Since the school or the trust
running it was not made a party, the suit suffered from non-
joinder of necessary parties. The learned Trial Court thus
observed that the plaintiffs had failed to prove their actual
and peaceful possession of the suit land.
APPEARANCE OF LEARNED ADVOCATES FOR THE RESPECTIVE
PARTIES:
4. I have heard learned advocate Mr. Chirag Patel
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appearing for the appellants - original plaintiffs and learned
advocate Mr. Himanshu Japee appearing for the respondent -
No.1. Though served, none appeared for rest of the
defendants.
SUBMISSION OF LEARNED ADVOCATE FOR THE APPELLANTS:
5. In addition to his oral submissions, learned
advocate Mr. Chirag Patel has tendered written submissions
along with the relevant citations. His submissions, in brief, are
as follows:
5.1 That the appellants are the original landowners
and mainly rely upon four documents on record, namely
Village Form Nos.7/12 and 6, and the order dated 1 st May,
1999 passed by the Mamlatdar, Chikhli in RTS Case No. 2 of
1999.
5.2 That the aforesaid documents are part of the
record and exhaustively deal with the issue of title and
possession of the suit land. The revenue records indicate that
the names of the defendants or their forefathers were
erroneously entered in village form No.6 pursuant to Mutation
Entry No.58 dated 28th March, 1957. This error was
subsequently corrected by the Mamlatdar in RTS Case No.2 of
1999, and the names of the defendants and their ancestors
were removed. The said order has not been challenged and
has therefore attained finality, thereby establishing the
plaintiffs' ownership and possession.
5.3 That the plaintiffs and defendants are not related,
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even remotely, and hence the theory of partition is wholly
baseless.
5.4 That the school and hostel were constructed on
land voluntarily given by the plaintiffs for the benefit of the
village, and the existence of the school on the suit land is not
in dispute. It is submitted that the defendants attempted to
dispossess the plaintiffs, necessitating the filing of the suit for
perpetual injunction. In view of Section 38(3) of the Specific
Relief Act, 1963, the plaintiffs are entitled to such injunction
where the defendants invade or threaten to invade the
plaintiffs' right to enjoyment of the property.
5.5 That the learned Trial Court committed a serious
error in dismissing the suit solely on the basis of certain
statements made in criminal proceedings. It is therefore
prayed that the present First Appeal be allowed and the
impugned judgment and decree be quashed and set aside, and
decree for perpetual injunction be granted.
5.6 That the learned Trial Court has committed serious
and manifest error in dismissing the suit solely on the basis of
certain statements made in the criminal proceedings.
5.7 Ultimately, learned advocate Mr.Chirag Patel
prayed that present First Appeal be allowed and the impugned
judgment and decree be quashed and set aside and that a
decree for perpetual injunctions be granted.
5.8 In support of his submissions, he has relied upon
the following decisions:-
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(i) State of Haryana & Anr. Vs. Amin Lal (Since
Deceased) through his Lrs & Ors. reported in
(2024) SCC Online SC 3368, (Para 8.2);
(ii) Fakirbhai Bhagwandas & Anr. Vs. Maganlal
Haribhai & Anr. reported in AIR 1951 Bombay
380, (Para 11);
(iii) Abdulrahman Vs. Egmal Seikh & Ors. reported
in (2016)3 Gauhati Law Reporters 760, (Paras 9 &
10);
(iv) Agmogimdala Vemlata Ramga Rao Vs.
Indukuru Ramchandra Reddy (Dead) by Legal
Representatives & Ors. reported in (2017)7 SCC
694, (Paras 25 & 35);
(v) Seth Ramdayal Jat Vs. Laxmi Prasad reported in
AIR 2009 Supreme Court 2463, ( Paras 18 & 19);
SUBMISSION OF LEARNED ADVOCATE FOR RESPONDENT NO.1:
6. Per contra, learned advocate Mr.Japee mainly
submitted that, the entire land bearing Survey No.417
belongs to the school, which comprises the school building,
hostel, and open playground used by students. He submitted
that this is borne out from the plaintiffs' own pleadings. It is
further submitted that, in absence of the school or the trust
managing it being impleaded as a party, the suit is not
maintainable.
6.1 He further submitted that, in the criminal
proceedings, the plaintiffs have unequivocally admitted that
the defendants are in possession of the suit land. Such
admission establishes that the defendants are in peaceful
possession, and therefore a suit for permanent prohibitory
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injunction simplictor is not maintainable. The plaintiffs ought
to have sought the relief of possession.
6.2 On these arguments, learned advocate Mr. Japee
supported the impugned judgment and decree and prayed for
dismissal of the present First Appeal.
THE ANALYSIS:
7. I have heard learned advocates for both the sides
and perused the impugned judgment and decree as well as
the record and proceedings, before addressing the rival
submissions, it would be apposite to refer to the judgment of
Hon'ble Supreme Court in the case of C.Venkat Swamy Vs.
H.N.Shivnna reported in (2018) 1 SCC 604 regarding the
scope of a First Appeal. In paras 11 and 12, the Hon'ble
Supreme Court held as under:-
"11. It is a settled principle of law that a right to file first
appeal against the decree under Section 96 of the Code is a
valuable legal right of the litigant. The jurisdiction of the
first Appellate Court while hearing the first appeal is very
wide like that of the Trial Court and it is open to the
appellant to attack all findings of fact or/and of law in first
appeal. It is the duty of the first Appellate Court to
appreciate the entire evidence and arrive at its own
independent conclusion, for reasons assigned, either of
affirmance or difference.
12. Similarly, the powers of the first Appellate Court while
deciding the first appeal are indeed well defined by various
judicial pronouncements of this Court and are, therefore, no
more res integra. It is apposite to take note of the law on this
issue.
8. In the earlier judgment in Santosh Hazari Vs.
Purshottam Tiwari (Deceased) by L.Rs. reported in (2001)3
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SCC 179, the Hon'ble Supreme Court, with regard to the
jurisdiction of the Appellate Court, held (at pages 188-189)as
under:--
".........the appellate court has jurisdiction to reverse or
affirm the findings of the trial court. First appeal is a
valuable right of the parties and unless restricted by
law, the whole case is therein open for rehearing both
on questions of fact and law. The judgment of the
appellate court must, therefore, reflect its conscious
application of mind and record findings supported by
reasons, on all the issues arising along with the
contentions put forth, and pressed by the parties for
decision of the appellate court......while reversing a
finding of fact the appellate court must come into close
quarters with the reasoning assigned by the trial court
and then assign its own reasons for arriving at a
different finding. This would satisfy the court hearing a
further appeal that the first appellate court had
discharged the duty expected of it............"
9. The aforesaid view was followed by three-Judge
Bench decision of this Court in Madhukar & Ors. Vs. Sangram
& Ors. reported in (2001) 4 SCC 756. In the case of H.K.N.
Swami v. Irshad Basith, reported in (2005), 10 SCC 243, the
Apex Court observed (at page 244) as under:
(SCC para 3) "3. The first appeal has to be decided on facts
as well as on law. In the first appeal parties have the right to
be heard both on questions of law as also on facts and the
first appellate court is required to address itself to all issues
and decide the case by giving reasons. Unfortunately, the
High Court, in the present case has not recorded any finding
either on facts or on law. Sitting as the first appellate court
it was the duty of the High Court to deal with all the issues
and the evidence led by the parties before recording the
finding regarding title."
10. Thus, a First Appeal is a valuable statutory right of
the appellants. The First Appellate Court is required to
consider both questions of fact and law, and the parties have a
right to be heard on both. The appellate court must deal with
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all issues and assign reasons for its findings. In fact, under the
jurisdiction of a First Appeal, the factual and legal issues
raised before the learned Trial Court are open for
reconsideration before the First Appellate Court. In this
background, it is the plaintiffs' case that they are the owners
and occupiers of land bearing survey No.417, Block No.410,
admeasuring 3 acres and 36 gunthas. Out of this land, a
portion has been allotted for the construction of a school and
hostel, and on the remaining part, plaintiffs have constructed
their house. The plaintiffs received threats from the
defendants that they might encroach upon the suit property.
Therefore, the plaintiffs were constrained to file the suit
seeking a perpetual injunction. In this factual backdrop, the
learned Trial Court framed the following issues:
"1. Whether Plaintiff proves that disputed property
bearing block number 410 is owner and occupied by
plaintiff?
2. Whether Plaintiff Proves that 3 acre 15 guntha land
own disputed land is given to school and hostel and
plaintiff has right to cut the natural grass from the open
land?
3. Whether Plaintiff proves that the defendant are
trying to take illegal possession.
4. Whether Suit suffers because of non joinder of
parties?
5. Whether Suit is time proved?
6. Whether defendant proves that defendant had
possession over 1 acre 8 guntha land from the disputed
property ?
7. Whether Plaintiff is entitled to relied asked ?
8. What order and decided?
11. All the issues are answered in the negative. Thus,
the plaintiffs were not held to be the owners and occupiers of
the suit land. While dismissing the suit, the learned Trial
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Court did not believe the case of the present plaintiffs as
owners and occupiers of the suit land. In these circumstances,
and considering the rival submissions of both parties, the
questions arise for consideration in this appeal are whether
the plaintiffs have successfully proved their entitlement to a
permanent injunction restraining the defendants from
interfering with their possession of the suit land bearing
Survey No. 417? and whether they have established their title
over the said land? What order?
12. Before adverting to the documents that became
instrumental to negate the plaintiffs' claim for relief,
reference may be made to Exhibits 126, 104, and 108. All
three documentary evidence are revenue entries/orders
passed by the Mamlatdar in revenue proceedings. It is true
that the names of the defendants' ancestors were recorded in
the revenue records of the suit land. However, in RTS Case
No.2 of 1999, the Mamlatdar found that the names of the
defendants' ancestors had been wrongly mutated in respect of
Survey No.417. It was further observed and held by the
Mamlatdar that, based on the facts gathered from the District
Inspector of Land Records, Jalalpur, and the Sub-Registrar,
Chikhli, no valid entry had been made in the name of the
defendants, nor did they possess any right, title, or interest in
the said land. Therefore, the entries regarding possession of
the defendants in the village record appeared to have been
made without any supporting evidence and were liable to be
cancelled. Accordingly, by judgment and order dated 1st May
1999, the Mamlatdar directed the cancellation of the entry
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showing possession of the defendants' ancestors in Survey
No.417, Block No.410. The effect of this order was reflected in
village form No.6, vide Entry No.951, produced at Ex.104.
13. It is pertinent to note that although the defendants
were affected by the said order, they did not challenge it
before any higher forum, and thus the order attained finality.
Learned advocate Mr.Japee could not produce any evidence or
make any submission to show that the order passed by the
Mamlatdar had been challenged.
14. In view of the above, it stands established that the
plaintiffs are the owners and occupiers of land bearing Survey
No.417, Block No.410. The defendants have failed to bring
any evidence on record to disprove this title. Needless to state
that possession always follow the title unless contrary is
proved. In the absence of any contrary evidence, the defence
of the defendants that there was a partition and they have a
half share in the land is wholly remain unsupported. Learned
advocate Mr. Japee could not point out any material on record
to show that the plaintiffs and defendants are related or
connected in any manner, nor any partition took place
between them at any point of time.
15. In the case of State of Haryana and Anr. Vs. Amin
Lal (since deceased) through his Lrs. & Ors. (supra), in para
8.2, the Hon'ble Supreme Court held as under:-
"8.2 The plaintiffs relied on jamabandi entries to establish
their ownership. The jamabandi for the year 1969-70
(Exhibit P1) records the name of Shri Amin Lal as owner to
the extent of half share. Revenue records are public
documents maintained by government officials in the regular
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course of duties and carry a presumption of correctness
under Section 35 of the Indian Evidence Act, 1872. While it
is true that revenue entries do not by themselves confer title,
they are admissible as evidence of possession and can
support a claim of ownership when corroborated by other
evidence."
16. Vide order dated 15th April 2026, this Court called
for a report from the Mamlatdar or the concerned Deputy
Collector to ascertain who is in possession of the suit land,
along with certified copies of the latest revenue entries.
Pursuant thereto, the Mamlatdar, Khergam, District Navsari,
through the Principal District & Sessions Judge, Navsari,
submitted a report dated 19.04.2026, which is taken on
record.
17. According to the report, the land is situated in the
Phaliya area near Panikhadak High School. Upon physical
inspection, it was found that the total land admeasures 4-91-
52 Hectares-Ares-Square Meters. Out of this, Sanskar Vidya
Mandir Panikhadak High School is constructed on 1-55-52
Hectares-Ares-Square Meters. The co-owners, as per the
records, are in possession of the said land. Further inspection
of the land admeasuring 3 acres and 36 gunthas revealed the
presence of houses belonging to account holders reflected in
the 7/12 extract, namely: Thakorbhai Maganbhai, Vallabhbhai
Gagjibhai, Ramabhai Maganbhai, Bharatbhai Maganbhai,
Ashwinbhai Maganbhai, Satishbhai Maganbhai,
Dharmeshbhai Dhirubhai Thakaria, Ratilal Laghubhai Patel,
Ishwarbhai Laghubhai Patel, and Ganeshbhai Lallubhai Patel.
Agricultural land under their joint occupation is also situated
in the said block.
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18. Mr. Chunilal Mervanbhai Patel, PW-1 for the
defendants, in his examination-in-chief at Exhibit 150,
deposed that Survey No.417 admeasures 3 acres and 36
gunthas, and that upon partition, he received 1 acre and 8
gunthas. However, in cross-examination, he admitted that the
lands bearing Survey Nos. 400, 412/1, 414, 422/1, and 417
have been recorded in the name of Sukhala Ukadiya (ancestor
of the plaintiffs) as owners and occupiers in village records
since 1982. He further admitted that there exists no mutation
entry evidencing partition and that no revision or appeal was
filed against the Mamlatdar's order.
19. To negate the plaintiffs' suit, the learned Trial
Court relied upon the judgment at Exhibit 143 passed by the
Judicial Magistrate First Class in Criminal Miscellaneous
Application No.1762 of 1998. However, the reliance on
criminal proceedings to determine possession in civil
proceeding is wholly misplaced. Proceedings in criminal
matters cannot be treated as conclusive proof in civil disputes
where issues of title and possession must be independently
established by evidence. Moreover, any statement recorded
during criminal investigation, if not duly confronted in civil
proceedings, cannot be treated as an admission.
20. In view of the above, according to this Court, the
learned Trial Court has committed a manifest error in
believing that the defendants are in possession of the suit
property. The latest revenue records produced by the
plaintiffs establish their title, and the entries stand in their
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favour. In the absence of any contrary evidence adduced by
the defendants, the presumption of title remains in favour of
the plaintiffs. Aspect of possession follows such title. respect
of possession follows such title. Accordingly, the plaintiffs are
entitled to the relief of permanent injunction restraining the
defendants from interfering with their possession or
threatening their rights over the suit property.
THE CONCLUSION:
21. In view of the foregoing reasons, the present First
Appeal stands allowed. The impugned judgment and order is
hereby quashed and set aside. Relief in terms of para 9(a) and
9(b) of the plaint is granted. Accordingly, declaration and
perpetual injunction is issued. Decree be drawn accordingly.
No order as to costs. R & P, if any, be sent back to the
concerned Court.
22. Connected Civil Application, if any, does not
survive and stands disposed of accordingly.
(J. C. DOSHI,J)
MANOJ
