IMPORTANT POINTS
(1) Adverse Possession – Mere long possession will not create any right by way of adverse possession – There should be element of definite refusal of right of ownership or title as well as hostile possession.
(2) Second appeal – When no substantial question of law is formulated, but a Second Appeal is decided by High Court, Judgment of High Court is vitiated in law.

JUDGMENT (ORAL)

This second appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (‘CPC’ for short) praying for quashing and setting aside the judgment and decree dated 2.2.2016 passed by the 2nd Additional District Judge, Navsari in Regular Civil Appeal No.102 of 2005 confirming the judgment and decree passed in Special Suit No.67 of 1983 decided on 27.3.1986 by the learned Civil Judge, Senior Division, Navsari.

2. This second appeal is filed in the year 2016 and still pending for admission. It also transpires that the matter is adjourned from time to time for one reason or another and after almost eight years, the matter is taken up for consideration at admission stage and heard.

3. Learned advocate Mr.Khubchandani for learned advocate Mr.Vyas is appearing on caveat for some of the respondents and therefore he is also heard in this matter. The parties are referred to in this appeal by their original status for the sake of convenience.

4. The appellants are the original defendants and the respondents are the original plaintiffs, who had filed the suit for recovery of the actual, peaceful and vacant possession of the property described in the plaint para 1, from the defendants for the recover of mesne profit for the use and occupation of the said property at the rate of Rs.200/- per month and also the cost of the suit. The said suit was decreed in favour of the plaintiff. The appellants-original defendants challenged the same by filing first appeal before this Court, which was sent back to the district Court, on coming into force of Gujarat Civil Courts Act, 2005 for decision as the claim was less than Rs.5,00,000/-. Thereafter, the appeal was renumbered as Regular Civil Appeal No.102 of 2005 and after hearing both the sides, the learned 2nd Additional District and Sessions Judge, Navsari dismissed the same by order dated 2.2.2016 and therefore this second appeal is filed by suggesting the following substantial questions of law:—

“(A) Whether the learned lower appellate court has substantially and materially erred in law in dismissing the appeal preferred by the present appellant in the facts and circumstances of the case?

(B) Whether the learned lower appellate court had erred in law as well as in facts in not entertaining the application for framing of issues given vide Exh.120?

(C) Whether both the courts below have materially and substantially erred in law and in facts in not properly constructing the documents, at Exh.49 - Notice and its reply at Exh.50, wherein a Specific Contention, as to oral gift was taken by the present appellants and thereby a gave miscarriage of justice has been caused to the appellants?

(D) Whether both the courts below have substantially erred in law as well as in facts in not properly construing the contents of Exh.52, r/w, the provisions of S.123 of the Transfer of Property Act?

(E) Whether the appellate judge has substantially erred in law as well as in facts, in discussing and answering the issue not raised by the trial court, despite the application at Exh.120 given for framing of Additional Issue, by the present appellant, and thereby grave and substantial error of law has been committed by the learned Appellate Judge?”

5. Heard learned advocates for the parties. 5.1 Learned advocate Mr.Bhatt for the appellant- original defendants has submitted that the possession of the defendants of the suit property as described in the said notice was since the year 1917 when the deceased Morar Daji asked his daughter Jamnaben and her husband to stay with them and the husband expired later in the year 1919 and thereafter the said property continued to be occupied by the said Jamnaben and her son Ratilal Tribhovandas, which the learned trial Court has failed to appreciate; that the defendants and their ancestors were continuously in possession of the suit property since 1917 and there is no evidence on the record of the case worth the name to show that the origin of the possessio