The burden of proof lies with the person claiming adverse possession, and the requirements of clear, continuous, and hostile possession as per Article 65 of the Limitation Act must be met.

ORDER :

1. Heard learned advocate Mr. M.M. Kharadi for the appellants and learned advocate Mr. Rajesh K. Shah for the respondents–caveators.

2. Mr. Kharadi submitted that Regular Civil Suit no.30/20 was filed by the plaintiffs stating that they are in possession of the property for about more than 84 years on the suit land as a tenant and at the same time, they claimed the ownership of the property and has made a prayer to declare them as owner and injunction sought against the present appellants for not creating any encumbrance on the suit land or to execute any deed of mortgage or gift deed or execute any sale transaction and further the injunction has been prayed to restrict the present appellants as defendants and/or by the agent, assignee or others for creating obstruction in the agricultural land. Mr. Kharadi submitted that the suit itself was not maintainable and hence, the defendants had moved an application under order 7 Rule 11 of CPC for rejection of the plaint as the tenancy right was terminated and order was passed by the revenue authority to hand over the possession to the original owner and hence, by way of entry no.9985, the possession was handed over to the appellants as being the owner of the land from the year 1967. Mr. Kharadi submitted that the plaintiffs cannot claim the possession on the land as owner when they have urged the case of being a tenant on the land. Mr. Kharadi submitted that both the claims cannot run together and the Trial Court thus having observed the bar in jurisdiction of the Civil Court under Section 85 of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as “the Act”) has rejected the claim and has further observed that the plea of adverse possession is barred by law of limitation. The order was challenged by the plaintiffs before the learned Appellate Court and the learned Appellate Judge while allowing the appeal has quashed and set aside the order of the learned Principal Civil Judge, Anklav dated 9.3.2021 below Exh.12. Aggrieved by the same, the defendants as owner of the land are before this Court.

3. Mr. Kharadi submitted that the learned Appellate Court is required to frame the issues as mandated under Order 41 Rule 31 of CPC. Mr. Kharadi has relied upon the decision in the case of K. Karuppuraj v. M. Ganesan, (2021) 10 SCC 777. Mr. Kharadi submitted that names of the heirs were mutated in the year 2002 and 2014 while no objection was raised by the plaintiffs. Had the plaintiffs made their title absolute by way of adverse possession, they would have certainly raised an objection to such an entry.

4. Countering the arguments, learned advocate Mr. Shah for the respondents–caveators submitted that after termination of the tenancy right, the possession was never handed over to the original owner and the plaintiffs continued in the possession of the land and have made a claim affecting their rights as owner by way of adverse possession. Advocate Mr. Shah submitted that necessary documents were produced on record to prima facie show the possession of the land from the year 1931-32, with all entries as well as the notice issued under Section 32 of the Act and also the bills of the pump installed in the land, water bill, other receipts and even the receipts of cultivation of tobacco, revenue receipts and also the affidavits of the neighbours were produced on record to support the claim of adverse possession. Mr. Shah submitted that the learned Appellate Court has rightly observed that had the issue be considered under the tenancy right then the Civil Court was supposed to refer the same to the competent authority and till then, the suit was ordered to be stayed.

5. Perused the judgments of both the Courts. The learned Trial Court observing the bar to the maintainability of the suit has rejected the plaint. It is required to be noticed that the learned Trial Court was conscious of the fact that the plea of adverse possession was raised by the plaintiffs, however,