PGVCL City Division vs Alimamad Karim (Deleted) Through Hasam Haji Abu Ravalia

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2016 Supreme(Guj) 1873

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Z.K. SAIYED, J.
PGVCL City Division - Appellant
Vs.
Alimamad Karim (Deleted) Through Hasam Haji Abu Ravalia & Ors. - Respondents
Second Appeal No. 90 of 2012 With Civil Application No. 12281 of 2014 In Second Appeal No. 90 of 2012
Decided On : 07-09-2016

Important Points

IMPORTANT POINT: (1) It is well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi.
(2) The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.
(3) Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.

Subject

Property Law - ADVERSE POSSESSION

Act Referred

BOMBAY LAND REVENUE CODE : S.37(2)
CIVIL PROCEDURE CODE : S.100
CONSTITUTION OF INDIA : Art.12, Art.136
EASEMENTS ACT : S.58, S.60, S.62
ELECTRICITY SUPPLY ACT : .
LIMITATION ACT : Art.58, Art.110, Art.113, S.27, Art.65

Headnote

Code of Civil Procedure, 1908—Section 100—Present second appeal is filed against the judgment of dismissal of suit passed by the trial court which was confirmed by the appellate court—It is contended that the appeal involves substantial questions of law and need to be decided by this court—The plea of ownership by succession and prescription (adverse possession) are mutually exclusive pleas, destructive of each other and hence cannot be allowed to form part of the same cause of action—Taking of alternate pleas is allowed but a party cannot take mutually inconsistent or destructive pleas—Adjudication of the appellant's title by the competent civil courts amounts to ‘due process of law’ and no further injunction may be granted to protect their unlawful possession—A decision of a case cannot be based on grounds outside the pleadings of the parties—No evidence is permissible to be taken on record in absence of the pleadings in that respect.

Result—Application dismissed.

Advocates Appeared:
For the Appellant : Mr. Mihir Thakore for Ms. Lilu K. Bhaya
For the Respondent: Mr. P.C. Kavina for Mr. Maulin G. Pandya, Mr. Muralin Devnani, Mr. Bipin Bhatt

JUDGMENT :

Z.K. Saiyed, J.

By way of present Second Appeal preferred under Section 100 of the Code of Civil Procedure, the appellant, who is original plaintiff, challenges the judgment and order dated 23.5.2011 passed by the learned Additional District Judge, Porbandar, (hereinafter referred to as the “Appellate Court”) in Regular Civil Appeal No. 9 of 2011, confirming the judgment and decree dated 28.2.2005 passed by the learned Civil Judge, (S.D), Porbandar, (hereinafter referred to as the “Trial Court”) in Regular Civil Suit No. 262 of 1985, whereby the learned trial Judge has dismissed the suit filed by the appellant herein-original plaintiff. (The parties of the present matter are referred as per their original status before the lower Court).

2. The facts of the present case are as under:

The appellant herein is a statutory body constituted under the Electricity Supply Act 1848. The land admeasuring about 4500 to 4600 Sq. Yrd. known as Ravaliya in Porbandar City near Hanuman Chawk and on this land, admeasuring 259 Sq. Mtr. a sub station was constructed by the Porbandar State in the year 1935, which was originally owned by Mr. Memon Haji Moti Haji Isaq Ravaliya and on upper its part, a “Musafir Khana” was constructed, remaining land was kept open. It is also the case of the appellant herein that later on, this open land was plotted and there was sub station on one of the plot No. “D” since year 1935, which is called as “Fuvara Sub Station” and till today, the possession and enjoyment of the said plot is kept with the appellant since than 70 years and by this way, the appellant became owner of the said plot by way of adverse possession. It is also the case of the appellant that the respondent Nos. 1 to 3 have the ownership of the said plot and the respondent No. 5 has no any right to pass any order, but the revenue authority has transferred the tile of this plot of respondent No. 7 and respondent No. 6 issued him the construction permission. Thus, the respondent Nos. 7 to 9 have started illegal construction on the plot. Therefore, the appellant has filed Regular Civil Suit No. 262 of 1985 for declaration and permanent injunction, wherein the lower Court has framed the following issues at Exhibit 61:

1. Whether the plaintiff, the electricity Board process that the suit land Plot No. 269-00-00 Sq. Yrd. is of exclusive and absolute ownership of the plaintiff as a successor in title of the erstwhile State of Porbandar and United State of Saurashtra as alleged in plaint para 5, 6 and 10?

2. Whether the plaintiff proves that since, A.D. 1935, the suit land is in possession of the plaintiff openly as of right as an owner without interruption and so plaintiff has become its owner and the principle of prescription as alleged?

3. Whether the plaintiff proves that the order dated 11.0.68 of the City Survey officer, confirmed by the superior authorities, is nullity as alleged?

4. Whether, the plaintiff proves that the defendant No. 1 to 3 and 10 have lost right of ownership in the suit land by being out of possession since A.D. 1935 and the principle of prescription as alleged?

5. Whether the plaintiff proves that transfer of the suit land in favour of defendant Nos. 7, 8 and 9 is invalid as alleged?

6. Whether the defendant No. 7 to 9 prove that they are bonafide purchasers or value without notice of the suit land as alleged in written statement para 9, Exh.54?

7. Whether the defendant No. 7 to 9 prove that the suit is barred by estople of as alleged in para 12 and 17 of the written statement Exh.54?

8. Whether it is proved that the decision dated 11.10.86 given by the City Survey Officer and confirmed by superior authority, about ownership of the suit land of defendant No. 1, 2, 3 and 10, barred the trial of this suit by this Court on principle res-judicata as alleged?

9. Whether it is proved that the suit barred by limitation as per articles 58, 110, 113 of the Limitation Act as alleged in the written statement para 9 of Exh.54?

10. Whether the d