IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SECOND APPEAL NO. 88 of 2005 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J. C. DOSHI ==========================================================

Approved for Reporting Yes No No ==========================================================

MAIYADEBEN MALABHAI MAKVANA SINCE DIED THROUGH LHR & ORS.

Versus KHETA VIRA MAKVANA ==========================================================

Appearance:

MR ADITYA MISTRI FOR MR AMAR D MITHANI(484) for the Appellant(s)

No. 1.1,1.2,1.3,1.4,1.5 MR MIHIRKUMAR PATEL FOR MS NANDITA A SUROLLIA(12060) for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 04/02/2026

ORAL JUDGMENT

1. This Second Appeal under section 100 of Code of Civil Procedure, 1908 (for short ‘CPC”) challenges legality of the judgment and decree dated 31.07.2004 passed by learned Joint District Judge, Veraval in Regular Civil Appeal No.7 of 2004, whereby, learned Appellate Court reversed the judgment and decree dated 03.01.2004 passed by learned Trial Court in Regular Civil Suit No.54 of 1995.

2. The Second Appeal was admitted on 06.03.2006 by Co- ordinate Bench of this Court by formulating following questions as substantial question of law :-

“1)Whether in absence of any registered document as envisaged under the Registration Act, 1908, Section 17 thereof the interest in the immovable property transfers to the original defendant no.2?

2)Whether to claim the title on the basis of adverse possession, any evidence was on record and whereby the decree of the appellate court can be come to be perverse?

3)Whether the Sanad issued under the provisions of the Bombay Land Revenue Code, can be termed to be the evidence of ownership in the immovable property, particularly in the Rural area?

4)Whether the judgment of the Appellate Court is legal and valid?

5)Whether the Appellate Court has considered the aspect of burden of proof, relevant to the case of a particular party?”

3. The parties are referred to as per their status before the learned Trial Court.

4. The plaintiff, Smt. Mala Vira, widow of the deceased, instituted a Regular Civil Suit before the Court of the learned Civil Judge at Veraval against the defendants, namely Daya Vira and Kheta Vira, seeking a declaration and permanent injunction along with recovery of possession in respect of immovable property admeasuring 200 sq. yards situated at Village Sidokar, quadrilateral of which are described in paragraph 3 of the plaint (hereinafter referred to as the “suit property”). The suit has been filed, inter alia, on the ground that the Sidokar Gram Panchayat issued a Sanad bearing No. 1736/56 dated 07.05.1956 in favour of the plaintiff’s late husband. It is further averred that the plaintiff’s late husband constructed a residential structure upon the suit property. Defendant No.1 is the real brother of the plaintiff’s deceased husband, and it is the case of the plaintiff that, out of love and affection, the plaintiff’s husband had permitted Defendant No.1 to occupy the suit property solely for residential purposes. It is further alleged that after the demise of the plaintiff’s husband, Defendant No.1, taking undue advantage of the situation, transferred the suit property to Defendant No.2 without executing any lawful or valid document and thereby Defendant No.2 is presently in unauthorized possession of the suit property.

4.1. Based on aforesaid averments, plaintiff filed suit for declaration and permanent injunction seeking possession from defendant nos.1 and 2.

5. Upon service of summons, Defendant No.2 appeared and filed his written statement at Exh.21 raising various objections. At the outset, the averments made in the plaint were denied in toto. Defendant No.2 contended that he has constructed a residential house upon the suit property and that the present suit has been instituted by the plaintiff with an intention to unlawfully dispossess him of the property. It is clai