IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SECOND APPEAL NO. 20 of 2022 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2022 In R/SECOND APPEAL NO. 20 of 2022 =====================================================

VAGHRI BUCHIBEN PUJABHAI Versus STATE OF GUJARAT =====================================================

Appearance:

MR VICKY B MEHTA(5422) for the Appellant(s) No. 1 MS. HEMALI D. SONI, AGP for the Respondent(s) No. 1 =====================================================

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

ORAL ORDER

1. This Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 01.12.2021 passed by the 5^th Additional District Judge, Palanpur in Regular Civil Appeal No. 18 of 2019, which has confirmed the judgment and decree passed by the Principal Senior Civil Judge, Palanpur at Banaskantha in Regular Civil Suit No.127 of 2011 dated 24.04.2019. The suit of the plaintiff has been dismissed, which is confirmed by the first appellate Court.

2. This Second Appeal raising the multiple grounds, poses the following question of law as substantial questions of law:-

“A. Whether the Ld. Appellate Court has materially erred in not framing points of determination in accordance with the provisions of Order 41 Rule 31 of the CPC while deciding the Civil Appeal?

B. Whether, in the facts and circumstances of the case, the Ld. Appellate Court was justified in confirming the Judgment and order/decree dtd: 19/04/2019 passed by the Principal Senior Civil Judge, Palanpur in Regular Civil Suit No: 127 of

2011?

C. Whether Ld. Appellate Court was justified in deciding the appeal by not relying upon the document though Exhibited by the trial court but not appreciated while deciding the Regular Civil Suit no: 127 of 2011?

D. Whether in the facts and circumstances of the case, the Ld. Trial Court has committed grave error while decided the suit of the plaintiff without framing the issue of possession?”

3. Heard learned advocate Ms. Neha Ladhani appearing for learned advocate Mr. Vicky B. Mehta for the appellant and learned AGP Ms. Hemali D. Soni appearing for the State.

4. The factuals aspects of the case in brief are as under:-

4.1 That the plaintiff is residing at the land bearing Survey No.40, 11- Acre -12 Guntha situated at village Pedagada, Taluka Palanpur, District Banaskantha, which is known as ‘Bhokhariwalu’ since 1956-57 to 1960 and thereafter, since 1960-61 to 2008-09, it is running in the name of Government Waste (Gauchar Dhohvalu).

4.2 That, the said land is running at first Gaucher head and thereafter the Government Waste land as per entry No.79/117. The plaintiff has cultivated in this Survey No.40 since 1973-74 and plaintiff is in possession of this land since 45 years.

4.3 That, the plaintiff’s name was entered in 7/12 Panipatrak since 1979-80 and without any obstruction, plaintiff is cultivating the said land and earning their livelihood. That plaintiff has paid the revenue fine/ education cess in Government. The plaintiff is coming from backward Vaghari Community and is cultivating in Survey No.40 since long time and no attempt is made by Government to dispossess the plaintiff, therefore plaintiff is owner by way of adverse possession.

4.4 That, before filing the suit plaintiff has given a notice under Section-80 to defendant. The summons/notices vere served upon the defendant and the defendant has appeared through his advocate and has submitted written statement vide Exh.24. The defendant has denied the averments made by the plaintiff in their plaint. In Exh.12, the defendant has inter-alia stated that the land Survey No.40 at village- Pedagada, Taluka Palanpur is entered in the ‘Gauchar’ land by way of Entry No.117 under the Section-38 of the Land Revenue Code.

4.5 That, it is stated by the defendant that plaintiff has encroached the disputed land since 1979-80 to 2000-01 as per village form No.12. It is further stated that the revenue fine received by