IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SECOND APPEAL NO. 182 of 2024 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2024 In R/SECOND APPEAL NO. 182 of 2024 ==========================================================

THAKOR POPATJI VERSIJI & ORS.

Versus RAMJIJI KHUMAJI THAKOR ==========================================================

Appearance:

MS SHACHI G MATHUR(3069) for the Appellant(s) No. 1,2,3,4 ==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 15/12/2025

ORAL ORDER

1. This Second Appeal under section 100 of Civil Procedure Code, 1908 (for short ‘CPC’) challenges judgment and decree passed by learned Additional District Judge, Banaskantha (Deesa) in Regular Civil Appeal No.33 of 2013, whereby, learned Appellate Court has confirmed the judgment and decree dated 12.09.2013 passed by learned Civil Court, Shihori in Regular Civil Suit No.13 of 2008.

2. Plaintiff – Thakor Ramjiji Khumaji filed suit for declaration and permanent injunction on the ground that he is owner of Survey No.418 of Village Tervada ad-measuring 7 acres and 44 guntas (for short ‘suit land’). It is stated that suit land has been purchased by the plaintiff’s father by way of Registered sale deed dated 29.06.1957 from Muslim family. Firstly, his father and then plaintiff is in possession of suit land, however, he apprehended that defendant who is holding agricultural field adjacent to plaintiff’s suit land might disturb possession of plaintiff and encroach upon suit land as defendants are head strong persons. Upon such averments, plaintiff filed suit for declaration and permanent injunction. Firstly to declare that plaintiff is owner and occupier of suit land and secondly, by issuing permanent injunction, defendants be restrained from entering into suit land.

2.1. Suit was contested by defendants claiming that suit land is ancestral property purchased in the name of father of the plaintiff as he was Khatedar. After permitting the parties to lead evidence, learned Trial Court framed issue at Exh.19. Thereafter, learned Trial Court was pleased to decree the suit in favour of the plaintiff by issuing necessary declaration and permanent injunction.

2.2. Being aggrieved by judgment and decree dated 12.09.2013, the appellants preferred Regular Civil Appeal No.33 of 2013 before the learned Additional District Judge, Banaskantha at Deesa. In his brief reasons, learned Sessions Judge, dismissed the appeal vide judgment dated 11.12.2023.

3. Being aggrieved by judgment dated 11.12.2023, the appellants are before this Court by was of Second Appeal under 100 of CPC raising following questions as substantial question of law :-

“a) Whether the appellate Court has committed error of law in framing the issue under Order 41 Rule 31 of the Code of Civil Procedure, 1908?

(b) Whether the learned Appellate Court has committed an error of law in confirming judgment and decree passed by the Ld. Civil Judge, Shihori?

(c) Whether the learned Appellate Court has committed error of law in framing issue No.1 and 2 particularly when the above two issues are already decided by the Ld. Trial Court and in absence of independent issue whether the Ld.

Appellate Court is justified in confirming the decree?

(d) Whether the Ld. Appellate court has committed an error of law in confirming the decree without discussing the evidence produced by the parties in the trial court?

(e) Whether the Ld. Courts below have committed an error of law in holding that the plaintiffs are in possession in absence of finding on the aspect of settled possession?

(f) Whether the Ld.Courts below have committed grave error of law while not discussing anything on the aspect of settled possession ?

(g) Whether the Ld. Courts below has committed grave error of law while not framing an issue in respect of joint ownership ?”

4. If we summarize case of the parties, the plaintiff claims that suit land has been purchased by his father from Muslim family. Firstly, his father and then plain