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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.Pardiwala, Vaibhavi D. Nanavati, JJ.
Rabari Nagjibhai Maneklal – Appellant
Vs.
Nilamben Upendrabhai Shah & 2 Others – Respondent
First Appeal No. 3155 of 2017
Decided On : 03-02-2022
Civil Procedure Code, 1908 - Section 96 and 145 - Bombay Tenancy Act, 1958 - Section 63 - Transfer of Property Act, 1881 - Section 3 - Tenancy Act - Section 63, 64(8) - Gujarat Cooperative Societies Act, 1961 - Bombay Land Revenue Code - Section 211 - Evidence Act, 1872 - Sec. 114, 110, 35 - Specific Relief Act, 1963 - Section 6 - Indian Penal Code, 1860 - Sections 154 and 158 – Constitution of India, 1950 - Article 17 - Property - Registered Sale Deed - Peaceful And Vacant Possession Of Suit Land - Title Over Suit Property - Plaintiffs are absolute owners of immovable property on basis of registered sale deed - It is also ordered that Defendant No.4 is directed to demolish wall constructed and gate made by him at earliest - On failure of Defendant No.4 to perform such act, plaintiffs are free to demolish such construction at cost of defendant No.4 - Court is hereby directed to hand over peaceful and vacant possession of suit land to present plaintiffs - Whether defendants have proved their case or not - Whether, matter does not come to an end with aforesaid. a civil or a criminal case, anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of Indian Evidence Act, 1872 is one and same – Held, Having regard to overall evaluation of oral as well as documentary evidence on record, Court is of view that appellant-defendant has not been able to adduce or lead any credible documentary evidence even to establish his possession – Court have already made ourselves very clear that revenue receipts by itself do not establish either title or possession of suit property - On other hand, plaintiffs have produced evidence to establish their possession - Such evidence includes electricity bills, photographs of Khat Muhurat ceremony and other miscellaneous bills - In overall view of matter, Court is convinced that Trial Court committed no error much less any error of law in arriving at conclusion that plaintiffs have been able to establish their title over suit property and are entitled to take back possession of suit property from appellant-defendant - Right of property is now considered to be not only a constitutional or statutory right but also a human right - Receiver of suit property as appointed by Supreme Court shall now handover vacant and peaceful possession of suit property to plaintiffs - Receiver, while handing over possession of suit property to plaintiffs, shall also issue a receipt of possession - Appeal dismissed.
JUDGMENT :
J.B. Pardiwala, J.
1. This appeal under Section 96 of the Civil Procedure Code, 1908 (for short "the CPC") is at the instance of the original defendant No.4 and is directed against the judgment and decree passed by the Principal Senior Civil Judge, Kalol, District: Gandhinagar dated 11 th August, 2017 in the Special Civil Suit No.58 of 2015 instituted by the respondents Nos.1 and 2 respectively herein (original plaintiffs), by which, the suit filed by the original plaintiffs for declaration and possession came to be allowed.
2. The operative part of the impugned order reads thus;
1. The present suit of plaintiffs is hereby decreed.
2. It is held that present plaintiffs are absolute owners of immovable property i.e, Plot No.11 of Survey Block No.487 of village Rancharda, Taluka: Kalol, District: Gandhinagar, on the basis of registered sale deed having Registration No.8041 dated 15.12.2012.
3. It is also ordered that Defendant No.4 is directed to demolish the wall constructed and gate made by him at the earliest. On failure of Defendant No.4 to perform such act, plaintiffs are free to demolish such construction at the cost of defendant No.4.
4. Receiver of Court is hereby directed to hand over the peaceful and vacant possession of suit land to the present plaintiffs and he is also directed to submit a detailed report of action taken with Panchnama, photographs etc.
5. Permanent injunction not to interfere in any manner is enjoyment of this plot is also granted in favour of plaintiffs and against Defendant No.4.
6. Defendant No.4 is hereby directed not to create any obstacle of any type in use of suit property directly or indirectly.
7. Parties are directed to bear their own cost.
8. Decree to be drawn up accordingly."
3. The appellant herein, original defendant No.4, being aggrieved and dissatisfied with the aforesaid judgment and order, has come up before this Court with the present appeal.
4. This appeal came to be admitted vide order passed by a Coordinate Bench dated 18th September, 2017. The order passed in the Civil Application No.12006 of 2017 for interim relief reads thus;
1. Rule returnable on 7th November, 2017. Mr. Manav A. Mehta, learned advocate waives service of notice of rule for respondent No.1 and Mr. Shashvat U. Shukla, learned advocate waives service of notice of rule for respondent No.2.
2. Heard, Mr. Ansin Desai, learned senior counsel assisted by Mr. Jayprakash Umot, learned advocate for the applicant, and Mr. Mihir Joshi, learned senior counsel assisted by Mr. Manav Mehta, learned advocate for the respondent No.1 and Mr. Shashvat A. Shukla, learned advocate for the respondent No.2.
3. Mr. Ansin Desai, learned advocate has submitted that by registered sale deed dated 12.09.1981 varsangji purchase the subject land from Ranchodji Chanduji. Therefore, by a registered sale deed dated 22.01.1985 Aakar Co-operative Society v. subject land from Varsangji, and therefore, on 30.10.1993 Saurabji Modi and Seela Modi were allotted the subject plot. The subject plot came to be purchased by the appellant by registered sale deed dated 26.06.1994 from Chanduji and heirs of Ranchodji.
4. The contesting respondent has purchased the subject plot by registered sale deed dated 15.12.2012 from Saurabji Modi and Seela Modi. According to his submission, Revenue Entry No.3353 came to be mutated in the name of the appellant, which was challenged by filing RTS Appeal which was dismissed on 29.10.1996. Revision against the dismissal of the RTS Appeal is also filed on 17.11.2005, Special Secretary also dismissed the Appeal on 22.05.2013. All these orders challenged by filing Special Civil Application, wherein notice is issued and parties are directed to maintain status quo. He has also urge that the original owners applied for N.A. Permission on 08.04.1982 which was granted by the
A plaintiff must establish their own ownership in a suit for title and possession, as entries in revenue records do not confer title.
Entries in revenue records create a presumption of ownership that must be rebutted by the opposing party; mere claims of adverse possession without supporting ownership evidence are insufficient.
In a suit for declaration of title, the burden lies on the plaintiffs to substantiate ownership with clear evidence; mere possession is inadequate for claims. Title must be proven, not presumed.
A claim of title and adverse possession cannot coexist; plaintiffs must establish their title to succeed in a suit for declaration.
Point of law: The principle of lis pendens is still settled principle of law. In this connection, the Full Bench of the Allahabad High Court in Ram Peary, AIR 1978 All 318] has considered the scope o....
In property disputes, the burden of proof lies with the plaintiffs to substantiate their claims with valid evidence, as mere possession or revenue entries are insufficient to establish title.
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