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GUJARAT HIGH COURT
A.P. Thaker, J.
Navinchandra Somchand, (died) thr. his heirs and Anr. – Appellants
versus
Heirs of Somchand Bechardas and Ors. – Respondents
R/Second Appeal No. 117 of 1988 with Civil Application No. 1 of 1988 in R/Second Appeal No. 117 of 1988
Decided on 7.7.2022
Property Law – Suit for declaration, injunction and for possession – [Indian Evidence Act, 1872 – Sections 91 and 92] – Documents produced in this matter are documents relating to disposition of immovable property – There is no facts curved out by appellants-defendants to suggest that their defendant falls under any of exception of Section 92 of Evidence Act – If defendants have carried out any repair work or alteration or addition with consent of plaintiff, then possession of defendants could not be said to be an adverse possession against plaintiff who is owner of property – Defendants were permitted to use property by deceased plaintiff as defendants are his sons – Plea of adverse possession raised by defendants against their own father cannot be accepted – There is a concurrent finding of facts regarding nature of property and right of plaintiff to get possession thereof from his own son – Second Appeal dismissed. (Paras 19, 21, 23 and 25)
Result: Second Appeal dismissed.
JUDGMENT (ORAL)
A.P. Thaker, J.—The original defendants have filed the present Second Appeal under Section 100 of the Code of Civil Procedure against the judgment and decree passed by the 3rd Joint Civil Judge Junior Division, Regular Civil Suit No.350 of 1978 which came to be confirmed by the learned Assistant Judge, Surat by his judgment and decree dated 28.03.1988 passed in Regular Civil Suit No.269 of 1984.
2. The appellants are original defendant and the respondents are the original plaintiff before the Court below. For the brevity and convenience, the parties are referred to in this judgment as per their status before the lower Courts i.e. defendant and plaintiff.
3. The plaintiff has filed Regular Civil Suit No.350 of 1980 in the Court of Civil Judge Junior Division, Surat inter alia for declaration that he is the owner of the suit property as well as for possession of the suit property and for permanent injunction against the defendant. It was contended by the plaintiff that the suit property is self acquired property purchased from his personal fund; that the defendants have no right, title and interest in the suit property; that the defendant nos.1 and 2 are the sons of the plaintiff by the first wife; that on 15.06.1907, owner of the suit property Ambaram Parshottamdas the ancestor of the plaintiff and by Maniben, daughter of Parsottam Hirabhai also the ancestor of plaintiff, mortgaged it with one Vallabh Madhav.
3.1. It is also contended by the plaintiff that by registered sale deed dated 16.12.1905, exhibit-33, Amabaram Parsottamdas and Becharbhai Parsottamdas, father and uncle of he plaintiff respectively got back the suit property. That thereafter, the property has been gifted to Prabhu Haribhai son of Ambaram by his second wife Maniben who sold it by sale deed dated 08.05.1926, exhibit-33, to the plaintiff.
3.2. It is also contended that the suit property was never ancestral property and that the plaintiff was permitting the defendants to stay in some portion of it as the licensee and that the defendants are harassing the plaintiff and therefore the license was terminated by notice dated 30.03.1977. On these grounds the plaintiff filed the aforesaid suit for declaration, injunction and for possession.
4. The defendants have filed their written statement at exhibit 10 and inter alia denied the entire case of the plaintiff. They have contended that the suit property is an ancestral property over which they have got a right to stay. That in fact, the suit property originally belonged to their ancestors Parsottam Hirabhai. That the sale deed executed earlier was bogus and it was executed only with a view to defeat the creditors of Becharbhai Parsottam. It was also contended that the defendants have spent substantial amount in repairing the suit property. On all these grounds, they have prayed to dismiss the suit with cost.
5. On the basis of the pleadings of the parties, the trial Court has framed issues at exhibit 12 to the following effect:-
(i) Whether the plaintiff proves that he is full and independent owner of the suit property, before the nondh no.3181-3182 of ward no.6 in City of Surat as alleged?
(ii) Whether the Court fees paid by the plaintiff is proper?
(iii) Whether the defendants prove that the title deeds as alleged by the plaintiff in respect of the suit property are false, bogus and without consideration in order to escape from the creditors and the suit property is ancestral and they have got their shares in it as alleged?
(iv) Whether the defendants prove that they have expanded amount for repairation, alteration and extension of the suit property as alleged in the para 4 and 5 of the W.S.?
(v) Whether there is any cause of action to file this suit?
(vi) What relief the plaintiff is entitled to?
(vii) What order and decree?
6. It appears from the record that the learned trial Court has decided the issue nos.1,2 and 5 in affirmative and issue nos.3 and 4 in negative and has ultimately passed
SupremeToday
Plea of adverse possession raised by defendants against their own father cannot be accepted.
Objections to the admissibility of evidence should be raised when the evidence is tendered and cannot be raised subsequently. The plea of adverse possession must be pleaded with proper particulars an....
The burden of proof lies on the party asserting an oral sale, and clear, unimpeachable evidence is required to establish such a claim.
The burden of proof lies with the party claiming specific performance, and the evidence presented must be sufficient to establish legal rights and ownership of the property.
The judgment emphasizes the importance of valid documentation for establishing property ownership and highlights the contradictory nature of claiming adverse possession against one's own property.
The court affirmed that the state can claim adverse possession, emphasizing the necessity for plaintiffs to prove their title and possession to succeed in such suits.
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