Maganbhai Govindbhai Parmar-Decd. vs Ramanbhai Gambhirbhai Patel on 20 June, 2018

[Cites 50, Cited by 0]

Gujarat High Court

Maganbhai Govindbhai Parmar-Decd. vs Ramanbhai Gambhirbhai Patel on 20 June, 2018

Bench: J.B.Pardiwala

          C/SA/143/2015                                          JUDGMENT



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/SECOND APPEAL NO. 143 of 2015

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE J.B.PARDIWALA

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1     Whether Reporters of Local Papers may be allowed to                   NO
      see the judgment ?

2     To be referred to the Reporter or not ?                            YES

3     Whether their Lordships wish to see the fair copy of the              NO
      judgment ?

4     Whether this case involves a substantial question of law              NO
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

5     Circulate this Judgment in the subordinate judiciary.

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                 MAGANBHAI GOVINDBHAI PARMAR-DECD.
                               Versus
                    RAMANBHAI GAMBHIRBHAI PATEL
==========================================================
Appearance:
MR SP MAJMUDAR(3456) for the PETITIONER(s) No. 1,2,3,4
MR. HJ KARATHIYA(7012) for the PETITIONER(s) No. 1,2,3,4
MR MP PRAJAPATI(677) for the RESPONDENT(s) No. 1
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    CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
 
                              Date : 20/06/2018 
                              ORAL JUDGMENT

1. This Second Appeal under section100 of the CPC is at the instance of the original defendants and is directed against the judgment and order dated 31/03/2015 passed by the learned 3rd Adhoc Additional District Judge, Ankleshwar, DistrictBharuch in Regular Civil Appeal Page 1 of 52 C/SA/143/2015 JUDGMENT No.20 of 2013 (old No.60 of 2004) arising from the judgment and decree dated 23/02/2004 passed by the learned Civil Judge (J.D.) Ankleshwar in Regular Civil Suit No.23 of 1999.

2. The appellants herein are the heirs of deceased Maganbhai Govindbhai Parmar - the original defendant. The respondent herein is the original plaintiff. The respondent herein filed a suit for possession of the suitproperty from the original defendant late Maganbhai Govindbhai Parmar. It is the case of the plaintiff that as a displaced person a plot bearing no.23 came to be allotted in his favour by an order passed by the Taluka Development Officer, Ankleshwar some time in the year 1970. The allotment of the plot was pursuant to a scheme of the State Government framed for the purpose of resettlement of all those persons, who had lost their land in floods. After the allotment, the plaintiff was put in possession of the plot, however, the plaintiff was not able to put up any construction on the said plot on account of his weak financial condition. According to the plaintiff, taking undue advantage of the fact that the plot allotted to him remained vacant, the defendant viz.late Maganbhai Govindbhai Parmar, who at the relevant point of time, was the Talaticummantri of the village encroached upon the same and put up illegal construction of a house. In the year 1998, when the plaintiff decided to put up construction on his plot no.23, he noticed that substantial portion of his plot had been encroached upon and unauthorised construction was put up. The plaintiff took up the issue with the authority concerned and the authority concerned informed the plaintiff that the plot no.23 allotted in his favour had been illegally encroached upon by the defendant and without any permission or sanction of plans had put up the construction of a house.

3. In such circumstances, the plaintiff had to file the regular civil Page 2 of 52 C/SA/143/2015 JUDGMENT suit for removal of the unauthorized construction and possession of the suitproperty i.e. plot no.23.

4. The defendant appeared in the suit and filed his written - statement denying the allegations levelled in the plaint. In the written statement Ex.14 the defendant took up the issue of nonjoinder of necessary party and also suppression of material facts at the end of the plaintiff.

5. Having regard to the pleadings of the parties, the trial Court framed the following issues vide Exh,17.

(1) Whether the Plaintiff proves that as his land situated at Surwadi village went in submersion, the Plaintiff was alloted land bearing Plot No. 23 and Gram Panchayat Plot No. 75 in Surwadi, by Taluka Development Officer, (Special) Ankleshwar, for rehabilitation by the Government?

(2) Whether the Plaintiff proves that direct possession of Plot No. 23 was handed over to the Plaintiff along with boundary stones?

(3) Whether the Plaintiff proves that as his financial condition was weak, construction was not made on the plot and as the plot remained open and the mark and boundaries of the plot were destroyed, the Defendant had, by taking disadvantage of the same, made construction on the plot?

(4) Whether the Plaintiff is entitled to get the claim as per his demand?

(5) Whether the suit is barred by the Nonjoinder of Parties?

(6) Whether the Defendant proves that he has become owner of the plot in suit by registering a saledeed from the Plaintiff?

(7) Whether the Defendant proves that he has made house on the plot in suit by getting permission from the Panchayat?

(8) Whether the Defendant proves that he is having possession of the plot in dispute by 'adverse possession'?

Page 3 of 52

            C/SA/143/2015                                              JUDGMENT




        (9) What order and what decree?

6. The issue framed by the trial Court referred to above came to be answered as under: (1) In the affirmative.

(2) In the affirmative.

(3) In the affirmative.

(4) In the affirmative.

(5) In the negative.

(6) In the negative.

(7) In the negative.

(8) In the negative.

(9) As per final order.

7. The trial Court on overall appreciation of the oral as well as documentary evidence accepted the case of the plaintiff and answered the first four issues referred to above in the affirmative, whereas, the issues nos.4, 5, 6, 7 and 8 came to be answered in the negative. The trial Court accepted the case of the plaintiff that the plot no.23 had been allotted to the plaintiff by the Taluka Development Officer, Ankleshwar and such allotment was evident from the documentary evidence on record. The trial Court also recorded a finding that upon allotment, the plaintiff was put into possession of the same. The trial Court also recorded the findings that taking advantage of the fact that the plot no.23 remained open and vacant, the otherside encroached upon the same and put up unauthorized construction. The trial Court recorded the finding that the defence of the defendant that the plot no.23 was Page 4 of 52 C/SA/143/2015 JUDGMENT purchased by him from the plaintiff was a dishonest one.

8. It appears that the defence of the defendant in the suit was twofold. He first asserted that the plot no.23 was purchased from one Balubhai Gumanbhai and thereafter, the construction was put up, but he could not establish anything in this regard. In the alternative, the defendant also pleaded adverse possession.

9. The findings of the trial Court as regards the issues nos.1 and 2 are as under: Issues No.1 & 2:

(8) To prove the aforesaid issue, the plaintiff has clearly stated in his plaint that, he is the resident of Survadi village. The land owned and possessed by him got submerged in flood and therefore the plaintiff was alloted the grazing land of plot No.23, property No.25 situated in Survadi village which is known as Faliya by the Government for the rehabilitation under the scheme of landless farmers. The Taluka Development Officer handed over its actual possession to the plaintiff after earmarking its boundary. Since then the possession of the plaintiff has continued and he has been paying its taxes. Looking to its four side boundaries, the Public road to the east, public road to the west, Plot No.24 to the North, Plot No.22 to the South. The eastwest length of that plot is 26.50 meter and North South length is 7.50 meter. The said plot is in total admeasuring to 199 meter.

The Plaintiff has stated the above fact in his deposition vide Exhibit63. He has also produced the extract of form No.8 vide Exhibit67 and the rough map vide Exhibit68, the certificate of Survadi Gram Panchayat vide Exhibit202, the receipts of the taxes of the Panchayat paid by the plaintiff in respect of Plot No.73, property No.75 are produced from Exhibit69 to 73. It is clarified from this fact that, plaintiff was alloted the land of plot No.23, property No.25 situated in Patel Faliya of Survadi village for the rehabilitation against the land which submerged in flood and the possession of the said land was held by the plaintiff which is clearly transpired from the receipts of the Panchayat tax and from the extract form No.8A and from the certificate vide Exhibit202.

On the other hand, the Respondent has clearly stated in his reply with Page 5 of 52 C/SA/143/2015 JUDGMENT respect to disputed plot and in his deposition vide Exhibit208 that, he purchased the disputed plot from Balubhai Gumanbhai by paying the price of Rs.2500/ and he has also produced the documentary evidences. The said plot was alloted to his mother from Balubhai Gumanbhai in front of the school against the land submerged in flood and against which the disputed plot was obtained by Balubhai Gumanbhai from Gambhirbhai means the father of the Plaintiff and the same was sold to the present defendant at the price of Rs.2500/, and the possession thereof is held by the defendant.

From the above facts, the defendant impliedly admits that, the disputed plot was owned by the father of the present Plaintiff but in interchange the plot of the mother of Balubhai was alloted to Gambhirbhai, the father of the plaintiff but its transfer entry was not made in the Panchayat office. Further, the respondent constructed the house on the disputed plot in 1980. it may be proved from its previously paid tax bills or light bills, if any, that, the disputed plot No.23, property No.75 was owned by the plaintiff and it was under his possession which is also proved from the certificate of the Panchayat and this court does not find any just and reasonable reason for disbelieving the fact of Plaintiff because the respondent has impliedly admitted that, the said disputed plot No.23, property No.75 was sold to the respondent in 1980 which was obtained by Balubhai Gumanbhai in interchange. But, the respondent has produced the extract of form No.8A of plot No.144 and other receipts and sale deed only to show that, the possession of plot No.23, property No.75 which was sold to him but from those documents it is not proved that, the property No.75, plot No.23 was owned by the respondent. Therefore, this court does not find any reasonable ground for disbelieving the fact of the Plaintiff because the plot No.23, property No.75 which is alloted to the plaintiff by Taluka Development Officer, Ankleshwar and the certificate thereof was also issued by the Panchayat office. Looking to this fact, it is clearly proved that, Taluka Development Officer has handed over the actual possession of plot No.23 to the Plaintiff of the suit and it was alloted to him. Therefore, answers to Issue No.1 & 2 are given in affirmative.

10. The findings of the trial Court as regards the issue no.3 are as under: Issue No. 3 (9) The plaintiff has stated in his plaint and in the deposition of exhibit no. 63 on oath that the plot was allotted to him in 1970 and the boundaries were demarcated by lime and stones, and as his financial condition was not sound, he did not construct thereon till 1998. When he went to construct in this regard, boundaries were Page 6 of 52 C/SA/143/2015 JUDGMENT not there and therefore, he made application to Survadi Gram Panchayat. In this connection, Survadi Gram Panchayat issued certificate that defendant has constructed therein. Therefore, plaintiff instituted the present suit.

In connection with aforesaid facts, defendant has stated in the written statement and deposition of exhibit no. 208 on oath that he has constructed after seeking permission of Gram Panchayat; he purchased suit plot from Balubhai Gumanbhai paying Rs. 2500/ and constructed thereon after seeking permission from Survadi Gram Panchayat, but defendant has constructed on the plot no. 144, and it prima facie appears from the evidences produced by the plaintiff that plot no. 23 belongs to the defendant. The defendant is Talati cum Mantri. As financial condition of the plaintiff was not sound, he did not construct for many years. Moreover, it is not mentioned in the application produced by the defendant as to on which plot construction is to be erected and as to on which property construction is to be erected. It appears from the certificate that if he had constructed on plot no. 144, Gram Panchayat would have clearly stated in the certificate that he has constructed on plot no. 144, but defendant has constructed on plot no. 23, property no. 75, and he has just constructed. The document at exhibit no. 209 clearly shows that if defendant had constructed house since 1980, he would have tax receipts, but no such receipts are produced. It means that taking benefit of ignorance of plaintiff, defendant has constructed on plot no. 23, property no. 75. Why has the defendant mentioned about plot no. 144 in village form no. 8A? He has mentioned in his documentary evidences that he has constructed in Adivasi street, but he does not show about property no. 75, plot no. 23. Plot no. 22 and 23 are situated around the place where defendant has constructed. Either the residents thereof or neighbours have not been examined. It means that he has illegally constructed on plot no. 23, property no. 75. At the present stage, it appears to be believable from the plaint of the plaintiff and his deposition that as his financial condition was weak, construction was not erected on the plot and the boundary marks were erased as children used to play thereon. It clearly appears that taking benefit thereof, defendant has constructed thereon. Therefore, reply to issue no. 3 is given in affirmative.

11. The findings of the trial Court as regards the issue no.5 are as under: Issue No. 5 (10) The defendant has clearly stated in the written statement of exhibit no. 14 that suit is barred by nonjoinder of parties. Thereafter, Page 7 of 52 C/SA/143/2015 JUDGMENT learned advocate for Defendant has also stated in the argument that suit of the plaintiff is barred by misjoinder of parties. He has not stated any facts at all in oral evidence. The plaintiff has not joined Survadi Gram Panchayat and Taluka Development Officer as defendants. The defendant has infringed the rights of plaintiff. He has constructed on the plot of the plaintiff and deprived him of his possession. Therefore, plaintiff has instituted suit in respect of possession. Looking to the fact of nonjoinder of parties raised by the Defendant, it does not appear that suit of the Plaintiff is barred by mis joinder of parties. Therefore, I hold issue no. 5 in negative.

12. The findings of the trial Court as regards the issue no.6 are as under: Issue No. 6 (11) In order to prove aforesaid fact that the Defendant has stated in the written statement of exhibit no. 14 that Balubhai Gumanbhai purchased plot no. 23, property no. 75 in place of his mother's plot and became owner. Thereafter, after obtaining permission, construction has been erected. He has peaceful and direct possession of it for 19 years, but Defendant has not caused entry in respect of exchange of plot between Balubhai Gumanbhai and Gambhirbhai made in the Panchayat or anywhere, and no documentary evidence has been produced to that effect. He does not state in the deposition about the plot number owned by Balubhai's mother so that Defendant can state truthful fact. If transaction is made in respect of the exchange, it can be said till entry is made that plaintiff holds illegal possession of plot owned by Balubhai Gumanbhai's mother. Balubhai Gumanbhai has not given any notice to the plaintiff in order to obtain possession of the plot owned by his mother. The defendants witness Chanchalben states that deed has been executed. She does not state as to in respect of which plot, the deed was executed. This Court believes that as there is no documentary evidence in respect of the fact that Defendant directly purchased plot from the Plaintiff, he does not succeed in proving the said issue. Therefore, I hold issue no. 6 in negative and that the plaintiff holds illegal possession of plot owned by Balubhai Gumanbhai's mother. Balubhai Gumanbhai has not given any notice to the plaintiff in order to obtain possession of the plot owned by his mother. The defendants witness Chanchalben states that deed has been executed. She does not state as to in respect of which plot deed was executed. This Court believes that as there is no documentary evidence in respect of the fact that Defendant directly purchased plot from the Plaintiff, he does not succeed in proving the said issue. Therefore, I hold issue no. 6 in negative.

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C/SA/143/2015 JUDGMENT

13. The findings of the trial Court as regards the issue no.7 are as under: Issue no.7:

12. To prove the aforesaid issue, the respondent has produced extract of 8A of plot no.144 regarding purchase of disputed plot, referred to in the statement and deposition, purchased from Balubhai Gumanbhai and construction was done in it. Sale deed and possession receipt of Balubhai Gumanbhai are produced. Both documents of respondent do not contain documentary evidence to conclude that plot no.23 or property no.75 was either occupied or sold.

Neither tax bill nor light bill has been produced. The respondent has carried our construction in plot no.23 and property no.75 by obtaining permission. But, document of 8A is produced for plot no.144. Plaintiff has also mentioned the said fact in his suit application and deposition that the respondent has carried out construction in plot no.23 and property no.75 without permission. Therefore, it is clearly proved to be illegal and without permission. Hence, I hold the Issue no.7 in negative.

14. The findings of the trial Court as regards the issue no.8 are as under: Issue no.8:

13. The respondent has mentioned in his statement and deposition that he has purchased the plot. He carried out construction in plot no.23 and property no.75 by possession receipt in 1980. He should have produced permission for plot no.23 but the same was not produced. Secondly, the sale deed is not for plot no.23. Thirdly, if he holds the possession for 19 years, he has not produced panchayat tax bill or any other bill. Therefore, it can be assumed that the respondent in the case became owner by way of adverse possession. The documents of panchayat produced at Ex209 shows that construction was carried out recently. Looking to the facts of plaintiff, he submitted application to panchayat to know the facts of construction carried out by the respondent. It was revealed on 06011999 that the respondent in the case has carried out the construction in the property and in this regard, plaintiff examined officer of DLR at Ex192 as well as talati cummantri. Both of them have corroborated the facts of the said plaintiff and they have clearly stated that the respondent of the case has carried out the construction recently. Looking to all these facts, if the respondent had possession for 19 years, he has not produced any Page 9 of 52 C/SA/143/2015 JUDGMENT clarification as to why panchayat tax has not been paid. Secondly, owners of plot no.22 and plot no.24 located adjacent to the said property were not examined. It can be held from that if the respondent had the possession of the disputed plot, nearby owners would have come forward to corroborate the same. No such person was examined.

Considering the said document, it does not appear that the respondent became owner by way of adverse possession. The court is in agreement with principles held in the judgments of the Supreme Court and other judgments produced by the plaintiff in his corroboration and as, the Issue no.8 is not proved, I hold it in negative.

15. The findings of the trial Court as regards the issues nos.4 and 9 are as under: Issues nos.4 and 9 :

14. As per the discussion of facts, the plaintiff has proved that the respondent has carried out construction in plot no.23 bearing property no.75 owned by the plaintiff. He has also admitted the same in his deposition at Ex208. The construction carried out in plot no.23 bearing property no.75 is illegal. The respondent has stated in his statement that he had purchased the disputed plot from Balubhai Gumanbhai by paying Rs.2500 on 10041980. Whereas, the sale deed or possession receipt produced are not for plot no.23, property no.75. He has produced extract of 8A for plot no.144. Despite that, the defendant and witness Chanchalben have carried out construction in the disputed plot without obtaining permission from panchayat. Secondly, the certificate issued by the panchayat dated 06011999 clearly indicates that construction was carried out recently. Whereas, as per the respondent, construction was carried out 19 years ago. But, no documentary evidence such as tax or light bill has been produced. The certificate produced by the plaintiff states that the construction was carried out recently. Hence, it is not proved that the defendant has been living there for 19 years. Owners of the adjacent plots were not examined and it cannot be assumed that the respondent has been living for 19 years and has become owner by way of adverse possession. Looking to the judgments produced by advocate for the plaintiff, the respondent has carried out construction in plot no.23 and property no.75 illegally and without permission. This court agrees with the case of the plaintiff that the construction was carried out recently. The plaintiff has prayed to remove the construction carried out illegally and without permission in plot no.23 under possession of the plaintiff. The respondent has infringed upon right of ownership of the plaintiff by carrying out construction in the plot owned by the plaintiff. The plaintiff gets the right to remove the said construction from the plot as the the said respondent has carried out construction without obtaining permission. This court believes that the plaintiff gets Page 10 of 52 C/SA/143/2015 JUDGMENT the right to get the prayer granted to remove the construction carried out by the respondent in plot no.23 and property no.75. Hence, I hold the Issue no.4 in affirmative...."

16. The suit came to be decreed in favour of the respondent herein - original plaintiff. The Civil Court passed the following decree: :: Final Order ::

The suit of the plaintiff is allowed.

The order is hereby passed directing the respondent to remove the construction from the disputed plot no.23, property no.75 located in Patel Faliya, mauje Survadi village at his own expense and hand over the possession of the plot to the plaintiff.

17. Being dissatisfied with the judgment and decree passed by the trial Court, the appellants herein - original defendants preferred a Regular Civil Appeal No.20 of 2013 [Old No.60 of 2004] in the Court of the learned 3rd Adhoc Additional District Judge, Ankleshwar, District Bharuch. The first appellate Court upon reappreciation of oral as well as documentary evidence concurred with the findings recorded by the trial Court and affirmed the judgment and decree by dismissing the appeal.

18. The relevant findings recorded by the first appellate Court are as under: (9) With regard to arguments canvassed by both the parties, the plaintiff has come to know about the issue of limitation in 1998 and he went to the spot to see as to where his plot is situated. He made application to seek permission for construction on 24/11/1999. As Panchayat measured, plaintiff came to know that defendant has constructed on his plot. The permission for construction a house has not been granted to the defendant on 06/01/1999, but he has constructed on the plot. The plaintiff has informed the Collector in this regard. After construction erected in 1980, plaintiff has instituted a suit after 19 years. The Government has allotted, but has not transferred title. The brother of the defendant has not been joined as a party. Panchayat or Government has not been joined as a party. As per Page 11 of 52 C/SA/143/2015 JUDGMENT examinationinchief of the plaintiff, as old land situated in Survadi submerged in the water, new land was allotted. As per para 4 of plaint, he cannot state as to which exact plot he owns. He has been paying taxes since 1970, but does not have the receipts. The boundary marks have disappeared on the spot. The village form no. 8 showing plot no.23 and property no.75 has been produced vide exhibit no.67. The rough map has been produced vide exhibit no.68. The deposition of Talati has been recorded vide exhibit no.201. The certificate dated 06/01/1999 of Survadi Gram Panchayat has been produced vide exhibit no.202. The exhibit no.69 to 73 are tax receipts wherein plot no.23 and property no.75 have been mentioned. The trial court has accepted the receipts and village form no.8A. The defendant had purchased the plot from the father of plaintiff. The defendant has possession of it. It has been impliedly accepted that the disputed plot belonged to the father of the plaintiff and in the exchange, plot of Balubhai's mother was given to Gambhirbhai, father of plaintiff. But, entry in respect of the said exchange of plots has not been mutated in the record of Panchayat. The house of defendant has been constructed on the said plot since 1980. The water tax and light bill have been paid. The trial court has believed the ownership and possession of plaintiff from the certificate of Gram Panchayat. The plaintiff has produced certificate of Survadi Gram Panchayat vide exhibit no. 202 wherein plot no. 23 has been shown and its present assessment number is 75 and Government has allotted the said plot for rehabilitation in 1970. The said plot is open in the record of Gram Panchayat, but Maganbhai Govindbhai has constructed pucca house on the said plot. Gram Panchayat Survadi has not granted permission or he has not obtained the same. The defendant has produced true copy of application, addressed to Talati cum Mantri, seeking permission for construction, vide exhibit no. 211 wherein it has not been mentioned as to on which plot construction is to be raised and property number is also not mentioned. Panchayat has granted permission on 01/12/1980 vide exhibit no. 214 wherein only measurements have been shown, but plot number or property number has not been shown. Plot no. 144 is shown for construction in village form no. 8, which is situated in Divasi Faliya and plot no. 22 and 23 are situated surrounding it and residents of the said plot have not been examined. The document has been executed on the stamp paper before Sub Registrar, Ankleshwar on 10/04/1980 and the same is produced vide exhibit no. 209 wherein defendant Maganbhai Govindbhai is vendee and Balubhai Gumanbhai is vendor. This document does not contain any plot number or property number Only the size of plot and quadrilateral direction is mentioned. Subregistrar registered this document. As per the evidence produced by defendant, he gave the plot belonging to mother of Balubhai to Gambhirbhai father of plaintiff. Possession receipt is produced vide Exhibit- 210, Balubhai Gumanbhai had handed over the possession of land to Maganbhai Govinbhai, it Page 12 of 52 C/SA/143/2015 JUDGMENT does not contain any plot number. Original defendant, in his deposition given before court vide Exhibit - 208, stated that he obtained the land in dispute from Balubhai Gumanbhai for Rs. 2,500/, the said plot, situated in front of the school, was obtained by his mother from Balubhai Gumanbhai in exchange of the land which submerged. This land was obtained from the father of plaintiff and defendant is the occupant at present. But as discussed above, plot number is not mentioned in the registered document produced vide Exhibit - 209. Plot number or property number is not mentioned in the possession receipt produced at Exhibit - 210. Plot number is not mentioned the permission sought from Panchayat. Whenever any person seeks permission for construction in his property, he must invariably mention the plot number and property number clearly. Whereas, although defendant had not mentioned the plot or property number, it is difficult to make out as to how can Panchayat grant permission for construction. Original defendant has not produced allotment letter as per the submission made by him in respect of property number 75 which is plot number 23 of the plaintiff. Therefore, it can not be believed that he obtained the plot in flood relief. But, as per the certificate provided by Panchayat produced vide Exhibit - 202, plot number 23 , assessment number 75, was alloted in the year 1979 by Government for rehabilitation. At present, Maganbhai Govindbhai has constructed on this land without permission. Upon perusal of Government records, this certificate was given by Talati - cum - Mantri, Gram Panchayat at Surwadi. Against the said certificate, plaintiff has not given any evidence showing the fact that he is the owner of plot number 23, property number 75. It can not be taken in consideration that there is no entry in respect of exchange of plot in the record of Panchayat. But, as per record and certificate of Panchayat, it does not get proved that plot number 23, property number 75 belongs to original defendant and the plot belongs to plaintiff. Certificate of Panchayat is produced to the effect that plot belongs to the plaintiff. As per article 64 and 65 of the Limitation Act, plaintiff must institute the suit within 12 years. Though the plot was allotted to the plaintiff in 1970, the suit has been instituted in 1999. In this regard, as per pleading of plaintiff, it has been mentioned in paragraph - 4 of the plaint that plaintiff went to the spot for construction on 20/11/1998 but as boundary marks were not visible, the exact place was not being decided. Plaintiff made application in the Panchayat on 24/11/1998 and sought information. Accordingly, as plaintiff came to know about non - existence of boundary marks of his plot in 1998, he made application in Panchayat and permission has been granted to the plaintiff for construction on 06/01/1999. No construction has been raised on the said plot since 1970. But, due to weak financial condition, the plaintiff could not carry out the construction and the physical possession of the plot was handed over to each beneficiary after placing stones at the place and making Page 13 of 52 C/SA/143/2015 JUDGMENT demarcation. In the Panchayat record, the plot has been registered in the name of the plaintiff as per the certificate. On the basis of the evidence produced by the plaintiff, it can be believed that defendant has carried out construction work on the plot of plaintiff, even though, 'plot no.23 property no.75' is not mentioned or is blank, in the Panchayat record and in the permission for construction given by the Panchayat. Defendant has argued that physical possession lies with them but, in each case of property, plaintiff should prove the title and possession of property. Defendant has produced the tax receipts to claim his possession over the disputed property and the construction thereon since 1980. But, defendant has not produced any registered sale deed or panchayat record which prove his ownership. As per the established principles of title and possession, the defendant has physical possession but, he does not have ownership right and title. Looking to panchayat record regarding the title of plaintiff, it is believed that the defendant does not possess legal title as compared to the plaintiff. The defendant has made an argument regarding non joinder of panchayat or Government as the party to suit but, the plaintiff has produced Talaticummantri as a witness for the panchayat and produced certificate of plot. Such argument cannot be considered that panchayat or Government is not a party to the suit and as per the established principles of CPC, the plaintiff has the right to join any party in the suit. During the trial of the suit, if the defendant comes to know about the lacuna of nonjoinder of party, he should file an application to join panchayat or Government as a party. But, no such application has been filed by the defendant. As per the written arguments of original defendant, an application at Exh.29 has been filed in the appeal seeking permission to produce valuation report. In connection with that application, judgment delivered in the case of Maganlal Chimanji v/s Prajapati Samji Himmatji reported in GLR 2000 (1) page no.336 has been produced. Valuation report prepared by Government Approved Valuer has been produced along with it. Said application was fixed for hearing by my predecessor Judge but, any order was not passed below that application. But, in the final order of this appeal, it seems just to decide while considering the provisions of law. In this regard, reply of the defendant has been produced vide Exh.14 wherein no dispute is there regarding valuation of property. Therefore, this dispute cannot be raised in the appeal. Moreover, suit of the plaintiff was filed in 1999 and original defendant has produced valuation report which is not produced and exhibited in this case. But, while considering the date, report was prepared on 03 022005. When a valuer prepares the report of the property after six years, there may be rise in the valuation due to rise in market price. Defendant has not produced any evidence or fact regarding no increase in market value. When the plaintiff filed the suit in 1999 before 6 years, the value of property might be less and suit value was determined accordingly and produced Court fee. Suit value was Page 14 of 52 C/SA/143/2015 JUDGMENT determined Rs.21,000/. As per the provision of old law, Civil Court had the jurisdiction to try cases with the limit of Rs.2,00,000/. It is believed that the Civil Court has tried the suit as per the jurisdiction therefore, the said decision cannot be taken into consideration. The argument made by the advocate for the defendant is rejected in this regard.

19. Being dissatisfied with the judgment and order passed by the first appellate Court, the appellants - original defendants - heirs of the original defendant are here before this Court with this Second Appeal under Section100 of the CPC.

20. The appellants have formulated the following questions of law as the substantial questions of law.

(A) Whether both the courts below have committed substantial error of law in not properly interpreting and by misinterpreting the documents produced by the appellants below Exh.209 (registered saledeeds), Exh.210 (possession receipt), Exh.211 (application for development permission) and Exh.214 (order granting permission for development)?

(B) Whether both the courts below committed substantial error of law in not appreciating that the suit of the plaintiff was barred by the nonjoinder of the necessary parties?

(C) Whether both the courts below have committed substantial error of law in not appreciating the plea of the appellants regarding adverse possession relying upon the documents produced?

(D) Whether first appellate Court has committed substantial error of law in not framing the points of determination as per the Page 15 of 52 C/SA/143/2015 JUDGMENT provisions of the Order 41 Rule 31 of the Code of Civil Procedure, 1908?

(E) Whether both the courts below have committed substantial error of law in not appreciating that the sale deed in favour of the appellants was not challenged and therefore, the suit was hit by the provisions of Section 34 of the Specific Relief Act?

21. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether any substantial question of law is involved in the present Second Appeal.

SECTION100 CPC:

22. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a Second Appeal does not lie on question of facts or of law.

23. In State Bank of India & Ors. v. S.N. Goyal, AIR 2008 SC 2594, the Supreme Court explained the terms "substantial question of law" and observed as under:

"The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. ..... any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case." (Emphasis Page 16 of 52 C/SA/143/2015 JUDGMENT added) Similarly, in Sir Chunilal V. Mehta & Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314, this Court for the purpose of determining the issue held: "The proper test for determining whether a question of law raises in the case is substantial, would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties....." (Emphasis added)

24. In Vijay Kumar Talwar v. Commissioner of Income Tax, New Delhi, (2011) 1 SCC 673, this Court held that, a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. It will, therefore, depend on the facts and circumstance of each case, whether a question of law is a substantial one or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." (See also: Rajeshwari v. Puran Indoria, (2005) 7 SCC 60).

25. The Court, for the reasons to be recorded, may also entertain a second appeal even on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. Therefore, the existence of a substantial question of law is a sinequanon for the exercise of jurisdiction under the provisions of Page 17 of 52 C/SA/143/2015 JUDGMENT Section 100 CPC. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence.

There may be a question, which may be a "question of fact", "question of law", "mixed question of fact and law" and "substantial question of law." Question means anything inquired; an issue to be decided. The "question of fact" is whether a particular factual situation exists or not. A question of fact, in the Realm of Jurisprudence, has been explained as under: "A question of fact is one capable of being answered by way of demonstration. A question of opinion is one that cannot be so answered. An answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong." (Vide:

Salmond, on Jurisprudence, 12th Edn. page 69, cited in Gadakh Yashwantrao Kankarrao v. E.V. alias Balasaheb Vikhe Patil & ors., AIR 1994 SC 678).

26. In Smt. Bibhabati Devi v. Ramendra Narayan Roy & Ors., AIR 1947 PC 19, the Privy Council has provided the guidelines as in what cases the second appeal can be entertained, explaining the provisions existing prior to the amendment of 1976, observing as under: "..... that miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happen not in the proper sense of the word 'judicial procedure' at all. That the violation of some principles of law or procedure must be such erroneous proposition of law that if that proposition to be corrected, the finding cannot stand, or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding, is such a question of law.

'That the question of admissibility of evidence is a proposition of law but it must be such as to affect materially the finding. The question of the value of evidence is not sufficient reason for departure from the practice......"

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27. In Suwalal Chhogalal v. Commissioner of Income Tax, (1949) 17 ITR 269, the Supreme Court held as under: "A fact is a fact irrespective of evidence, by which it is proved. The only time a question of law can arise in such a case is when it is alleged that there is no material on which the conclusion can be based or no sufficient evidence."

28. In Oriental Investment Company Ltd. v. Commissioner of Income Tax, Bombay, AIR 1957 SC 852, the Supreme Court considered a large number of its earlier judgments, including Sree Meenakshi Mills Ltd., Madurai v. Commissioner of Income Tax, Madras, AIR 1957 SC 49, and held that where the question of decision is whether certain profit is made and shown in the name of certain intermediaries, were, in fact, profit actually earned by the assessee or the intermediaries, is a mixed question of fact and law. The Court further held that inference from facts would be a question of fact or of law according as the point for determination is one of pure fact or a "mixed question of law and fact" and that a finding of fact without evidence to support it or if based on relevant or irrelevant matters, is not unassailable.

29. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by nonconsideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse. (Vide: Jagdish Singh v. Nathu Singh, AIR 1992 SC 1604; Smt. Prativa Devi (Smt.) v. T.V. Krishnan, (1996) 5 SCC 353; Satya Gupta (Smt.) @ Madhu Gupta v. Brijesh Kumar, (1998) 6 SCC 423; Ragavendra Kumar v. Firm Prem Machinary & Co., AIR 2000 SC 534; Molar Mal (dead) through Lrs. v. M/s. Kay Iron Works Pvt. Ltd., AIR 2000 SC 1261; Bharatha Matha & Anr. v. R. Vijaya Renganathan & Page 19 of 52 C/SA/143/2015 JUDGMENT Ors., AIR 2010 SC 2685; and Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC

740).

30. In Jai Singh v. Shakuntala, AIR 2002 SC 1428, the Supreme Court held that it is permissible to interfere even on question of fact but it may be only in "very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible it is a rarity rather than a regularity and thus in fine it can thus be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection." Similar view has been taken in the case of Kashmir Singh v. Harnam Singh & Anr., AIR 2008 SC 1749.

31. Declaration of relief is always discretionary. If the discretion is not exercised by the lower court "in the spirit of the statute or fairly or honestly or according to the rules of reason and justice", the order passed by the lower court can be reversed by the superior court. (See: Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg & Anr., AIR 1977 SC 747).

32. There may be exceptional circumstances where the High Court is compelled to interfere, notwithstanding the limitation imposed by the wording of Section 100 CPC. It may be necessary to do so for the reason that after all the purpose of the establishment of courts of justice is to render justice between the parties, though the High Court is bound to act with circumspection while exercising such jurisdiction. In second appeal the court frames the substantial question of law at the time of admission of the appeal and the Court is required to answer all the said questions unless the appeal is finally decided on one or two of those questions or the court comes to the conclusion that the question(s) Page 20 of 52 C/SA/143/2015 JUDGMENT framed could not be the substantial question(s) of law. There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of the final hearing of the appeal.

CONSTRUCTION OF DOCUMENTS:

33. The first submission of Mr. Majmudar, the learned counsel appearing for the appellants is with regard to the construction of documents Exhibits209, 210, 211 and 214. According to Mr. Majmudar, both the courts below misconstrued the documentary evidence produced by the appellants. According to Mr. Majmudar, there was no valid reason for the trial Court as well as for the lower Appellate Court not to hold that the appellants are the lawful owners of plot no.23 by virtue of a registered saledeed Exh.209. As regards the construction of the documents referred to above, both the courts below after due consideration of the oral evidence as well as documentary evidence has recorded concurrent findings of fact that the appellants have not been able to establish their title over the suitproperty on the strength of the registered saledeed, Exh.209.

The fate of this Second Appeal depends on the construction of the saledeed purported to have been executed by Balubhai Gumanbhai in favour of the plaintiffs, Exh.209. It is argued by the learned counsel appearing for the appellants that the construction of a document raises a question of law and hence, it would be open to the Court to consider not only the saledeed, but also, the relevant evidence on record for the purpose of finding out whether, the appellants derived any valid title over the suit plot no.23.

According to the decision of the Supreme Court in the case of Chunilal V. Mehta Vs. C.S. & M. Co. Ltd. (AIR 1962 SC 1314) it is well Page 21 of 52 C/SA/143/2015 JUDGMENT settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law. In the case of Bhusawal Municipality Vs. A.E. Co. Ltd., (AIR 1966 SC 1652) it has been laid down that "Misconstruction of a document which is not merely of evidentiary value but is one upon which the claim of a party is based would be an error of law and the High Court in second appeal would be entitled to correct it."

In view of the above decision and other decisions of the Supreme Court, it would be open to construe the saledeed Exh.209 for the purpose of finding out whether the appellants derived any valid title.

On perusal of the findings recorded by the two courts below and noted in the earlier part of the judgment, the entire case put up by the appellants appears to be farfetched and unpalatable. The case of the appellants herein is that their father Late Maganbhai Govindbhai Parmar had purchased the plot in question from one Balubhai Gumanbhai. According to their case, the father of the plaintiff viz.Gambhirbhai had exchanged his plot with the plot of Balubhai Gumanbhai. Balubhai Gumanbhai's mother was also allotted a plot and as the same was next to the plot of the plaintiff for the sake of convenience the son thought fit to request the father of the plaintiff to exchange the plot so that the mother and son could reside next to each other.

In such circumstances, it is Balubhai Gumanbhai who sold the plot in question to the plaintiffs by a registered saledeed which has been admitted in evidence at Exh.209. It is not clear from where does Balubhai Gumanbhai figure in this transaction. Both the courts below on the basis of oral and documentary evidence has recorded a clear finding that plot no.23 (property no.75) was allotted to the plaintiff by an order passed by the Taluka Development Officer, Ankleshwar some time in the Page 22 of 52 C/SA/143/2015 JUDGMENT year 1970. The record produced by the Office of the Panchayat in this regard also makes the picture clear. For the time being, let me proceed on the footing that there is a saledeed Exh.209 in favour of the plaintiffs, but the court below have recorded concurrent findings of fact that the saledeed does not make the picture clear as regards the identity of the plot in question. In the saledeed, there is no reference of any plot number or any other relevant details except the size of the plot and the quadrilateral directions therein on the basis of which it could be said that the saledeed is with respect to plot no.23 and was lawfully executed. Both the courts have recorded a concurrent finding of fact that the construction put up by the late Maganbhai Govindbhai Parmar on the plot in question is also unlawful because no permission has been granted by the authority concerned and there are no sanctioned plans in this regard on the record of the Panchayat. In my view, it cannot be said that the documents produced by the appellants have been misconstrued by the courts below. They have been looked into thoroughly and upon proper appreciation of the overall evidence on record a concurrent finding of fact has been recorded that the appellants have not been able to prove that they derived a valid title over the plot no.23, on the basis of the saledeed.

34. What is important to note is that the entire socalled transaction of exchange of the plots is not supported by any documentary evidence. It is not clear as to how the plaintiff's father exchanged his plot with Balubhai Gumanbhai. Such is not even the case of the plaintiff. Nothing in this regard is on record. Besides the same, even if such exchange is believed whether the same was lawful is a question. Whether Balubhai Gumanbhai could be said to have derived a valid title of the suitplot upon exchange of his plot with the father of the plaintiff is also a question. Whether Balubhai Gumanbhai could have transferred a valid Page 23 of 52 C/SA/143/2015 JUDGMENT title in favour of the appellants is also not clear. The appellants have not examined any witness in support of their case of exchange of the plots and purchase of the suitplot from Balubhai Gumanbhai.

35. In Tahsildar, L.A. Vs. P. Narasing Rao, 1985 (2) ALT 492 = 1985 (1) APLJ 99 (D.B.), K. Ramaswamy, J. speaking for the Division Bench expressed the view that unless the relevant recitals in the sale deed including the passing of consideration is admitted, mere marking of the document does not amount to proof that consideration recited under the document is the actual consideration paid thereunder. It was also pointed out that the "substantive evidence as to the price paid would be the testimony of the persons who had actual personal knowledge of the matter viz., the buyer and the seller or the person present at the time of settlement of bargain or payment." It was then observed:

"The recitals in the saledeed can be the evidence of the matter only if they are relevant as admissions. The nonobjection for the reception of the document evidenced cannot be regarded as tantamounting to the admission by the respondent that the price mentioned in the document were the prices really paid though of course it was open to them to have admitted that and dispensed with proof thereof. At the most, it can be said that the appellant did not dispute that the documents were in fact executed by the persons whom they purported to have been (sic) executed and nothing more."

36. I may also refer to and rely upon the decision of the Supreme Court in the case of Periyar and Pareekanni Rubber Ltd. Vs. State of Kerala (1990 AIR 2192). In that case, K. Ramaswamy, J speaking for the Division Bench of the Supreme Court referred extensively to the observations made in Tahsildar, L.A., Visakhapatnam Vs. P. Narasinga Rao (Supra) to which His Lordship was a party. It was observed:

"In proof of the sale transaction, the relationship of the parties to the transaction, the market conditions, the terms of the sale and the date Page 24 of 52 C/SA/143/2015 JUDGMENT of sale are to be looked into. These features would be established by examining either the vendor or vendee and if they are not available, the attesting witnesses who have personal knowledge of the transaction etc. The original sale deed or certified copy thereof should be tendered as evidence. The underlying principles to fix a fair market value with reference to comparable sales is to reduce the element of speculation. In comparable sales, the features are : (1) it must be within a reasonable time of the sate of notification; (2) it should be a bonafide transaction; (3) it should be a sale of land acquired or land acquired adjacent to the land acquired; and (4) it should possess similar advantages. These should be established by adduction of materials evidence by examining as stated above the parties to the sale or persons having personal knowledge of the sale transactions. The proof also would focus on the fact whether the transactions are genuine and bona fide transactions."

On a conspectus of the various decisions adverted to above, it must be taken to be settled law that someone conected with the document who is in the know of revelevant particulars contained in the document and the features of the property sold must be examined to impart credibility to the transaction and to establish its relevance. It is not enough if the certified copy of the registered saledeed is produced and marked as an exhibit without demure by the other party. Technically, in the absence of any objection, such document can at best be treated as a document legally admissible in evidence and there may be taboo to look into it, as pointed out by the Full Bench in Land Acquisition Officer Vs. N. Venkata Rao (1990 (3) ALT 305). But, from the catena of decisions adverted to above, it has emerged as a rule of prudence to insist on the examination of a party to the transaction or an attest or who can speak to the relevant facts. The underlying ratio seems to be that the oral evidence of the transaction embodied in the document lends assurance to the correctness of the recitals and bona fides of the transaction. The other side will have an opportunity to elicit the truth and information on material particulars.

37. The reason why I have referred to and relied upon the two decisions of the Supreme Court referred to above is that in the absence of the examination of the parties to the saledeeds, such saledeeds, though not challenged, have no evidentiary value and relevance to understand the exact nature of the transction. The appellants could have easily examined Balubhai Gumanbhai, however, instead of examining Page 25 of 52 C/SA/143/2015 JUDGMENT Balubhai Gumanbhai, his wife viz.Chanchalben came to be examined vide Exh.217. I inquired with the learned counsel whether Balubhai Gumanbhai is alive or was dead at the time the evidence was being recorded. However, none was able to clarify this. Chanchalben has practically no idea of the transaction and has not been able to establish anything. On the contrary, in her crossexamination, she has pleaded complete ignorance of the socalled transaction of exchange of the plots. All that Chanchalben has deposed is that on the plot sold by her husband, the appellants build a cattleshed and have erected a fence.

38. In view of the above in exercise of powers under Section100 of the CPC, it will not be appropriate for this Court to go further into the appreciation of the documentary evidence on record. The findings of the two courts below cannot be termed as perverse, warranting any interference in a Second Appeal.

NONJOINDER OF NECESSARY PARTIES:

39. The second submission of Mr. Majmudar is with regard to the non joinder of the necessary parties. According to Mr. Majmudar, the suit should have been dismissed only on the ground of nonjoinder of the necessary parties. According to him, the officials of the Panchayat as well as the Taluka Development Officer ought to have been impleaded as the defendants. I do not find any merit in this submission of Mr. Majmudar. In fact, the TalaticumMantri has been examined as a witness by the plaintiff.

40. Order 1 Rule 9 of the CPC read as under:

9. Misjoinder and nonjoinder: No suit shall be defeated by reason of the misjoinder or nonjoinder of Page 26 of 52 C/SA/143/2015 JUDGMENT parties and the Court may in every Suit deal with the matter in controversy so far as regards the right and interests of the parties actually before it.

41. Order 1 Rule 10 of CPC reads as under: Order 1 Rule 10(2) CPC empowers the court to delete or add parties to a suit at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court to effectively or completely adjudicate upon and settle all the questions involved in the suit.

42. The two provisions of the CPC referred to above make it clear that no suit shall be defeated by reason of the misjoinder or nonjoinder of parties and that the Court may at any stage of the proceedings either upon or without the application of either party and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit be added.

43. When proper parties are not included in the suit, the suit is not bad for nonjoinder, but if the parties who are not on the array of the parties in the suit who are necessary parties in whose absence no final adjudication could be made, then the suit has to be be held bad for non joinder of necessary parties. In the absence of a necessary party, no effective decree could be passed. To put it in other words, nonjoinder of proper party is not fatal, while nonjoinder of necessary party is fatal to the case.

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44. In the case on hand, it cannot be said that in the absence of the so called necessary parties, the trial Court could not have granted effective and appropriate relief as prayed for by the plaintiff.

ORDER 41 RULE 31 CPC:

45. Mr. Majmudar, the learned counsel thereafter submitted that the appellate Court failed to frame appropriate points for determination in the first appeal in accordance with the provisions of Order 41 Rule 31 CPC. According to Mr. Majmudar, Order 41 Rule 31 CPC is mandatory and compliance is necessary. He would submit that when the points of determination have not been specifically indicated, the appellate judgment becomes vulnerable.

46. An appellate judgment is expected not merely to deal with the materials and the evidence on record. but also to deal with the judgment of the trial Court in so far as it is assailed in the appellate Court. It is only in very rare cases that some criticism is not levelled or cannot be levelled against the judgment of a trial Court. In order that the higher tribunals may be satisfied and the judgment of the appellate Court may not be assailed on the ground of lack of application of mind it is expedient that the appellate judgment must indicate the points which were raised or formulated in the appeal and the arguments which were urged for or against the same and the criticisms which were levelled against the reasoning adopted by the trial Court. The judgment of an appellate Court must show that the Court had applied its mind to the facts in controversy. But it cannot be contended that in every such case, a remand must be made and the second appellate Court has no jurisdiction to decide the appeal. There are several cases in which the High Courts do find that on material questions the lower Court has Page 28 of 52 C/SA/143/2015 JUDGMENT either not applied its mind or omitted to record its decision. Such questions usually do arise specially in Second Appeals. It is a well settled law that in such a situation the second appellate Court itself determines the question. This is specifically provided for by sec. 103 of the Code of Civil Procedure 1908 and by the provisions contained in Order 41 rule

25. There is no reason why unless there are strong reasons for not doing so this Court should not follow the principles underlying these provisions of law even in a case which discloses that the lower Court had not discharged its duty of applying its mind to the determination of all the points in controversy.

47. Order 41 Rule 31 CPC provide guidelines for the appellate Court as to how the Court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate Court that the Court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate Court's judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate Court are well founded and quite convincing. It is mandatory for the appellate Court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final Court of fact, the first appellate Court must not record mere general expression of concurrence with the trial Court judgment rather it must give reasons for its decision on each point independently to that of the trial Court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in Page 29 of 52 C/SA/143/2015 JUDGMENT terms of the said provisions and the Court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146; Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380)

48. In the case of B.V. Nagesh & Anr. v. H.V. Sreenivasa Murthy, reported in JT (2010) 10 SCC 551, while dealing with the issue, this Supreme Court held as under: "The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re hearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate Court. Sitting as a Court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. [Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 and Madhukar and Others v. Sangram and Others, (2001) 4 SCC 756]"

49. In the case of G.Amalorpavam Vs. R.C.Diocese Of Madurai reported in 2006 LawSuit (SC) 178, the Supreme Court held as under:

8. The question whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 of the Code of Civil Procedure has to be determined on the nature of the judgment delivered in each case. Noncompliance with the provisions may not vitiate the judgment and make it wholly void, and may be Page 30 of 52 C/SA/143/2015 JUDGMENT ignored if there has been substantial compliance with it and the second Appellate Court is in a position to ascertain the findings of the lower Appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Or. 41 R. 31 Code of Civil Procedure. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the Appellate Court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the Appellate Court there is substantial compliance with the provisions of Or. 41 R. 31 of the Code of Civil Procedure and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower Appellate Court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower Appellate Court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the Appellate Court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Sec. 100 of the Code of Civil Procedure.

9. At this juncture it would be relevant to note what this Court said in Girijanandini Devi and Ors. V/s. Bijendra Narain Choudhary, it was noted as follows:

"........It is not the duty of the appellate court when it agrees with the view of the trial court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial court. Expression of general agreement with reasons given by the court decision of which is under appeal would ordinarily suffice."

10. The view was reiterated in Santosh Hazari V/s. Purshottam Tiwari (Deceased) by Lrs. It was held with reference to Girijanandini Devi's case (supra) as follows:

"........The Appellate Court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the Page 31 of 52 C/SA/143/2015 JUDGMENT Appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate Court. The task of an Appellate Court affirming the findings of the trial court is an easier one. The Appellate Court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice Girijanandini Devi V/s. Bijendra Narain Choudhary, AIR 1967 SC 1124. We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the Appellate Court for shirking the duty cast on it. While writing a judgment of reversal the Appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the Appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the Appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate Court is entitled to interfere with the finding of fact. Madhusudan Das V/s. Narayanibai, 1983 1 SCC 35. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the Appellate Court should not interfere with the finding of the trial Judge on a question of fact. Sarju Pershad Ramdeo Sahu V/s. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120 Secondly, while reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first Appellate Court had discharged the duty expected of it. We need only remind the first Appellate Courts of the additional obligation cast on them by the scheme of the present Sec. 100 substituted in the Code. The first Appellate Court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first Appellate Court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now Page 32 of 52 C/SA/143/2015 JUDGMENT ceased to be available to correct the errors of law or the erroneous findings of the first Appellate Court even on questions of law unless such question of law be a substantial one."

50. Let me also refer to and rely upon a full bench decision of the Allahaband High Court, in the case of Durga Thathera Vs. Narain Thathera and Anr. reported in AIR 1931 All. 597 held as under:

20. The question whether in a particular case there has been a substantial compliance with the provisions of Rule 31 is a (different one depending on the nature of (the judgment delivered in each case. A (noncompliance with the strict provisions of this rule may not vitiate the judgment (and make it wholly void, and the irregularity may be ignored if there has been a substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. Our attention has not been drawn to any reported case of this Court after the passing of the new Code, in which the case of Samin Hasan has been followed. Our answer to the question referred to us is in the affirmative.

51. I may also refer to a three Judge Bench decision of the Supreme Court in the case of Thakur Sukhpal Singh Versus Thakur Kalyan Singh reported in 1962 LawSuit (SC) 165 held as under: It is urged that the Judgement of the appellate Court has to state the points for determination, the decision thereon and the reasons for the decision, and these the appellate Court cannot do till it has gone through the record and considered the entire matter on record including the Judgement under appeal. These matters have to be in the Judgement when points in dispute between the parties are raised before the appellate Court. If no such points are raised for consideration the appellate Judgement cannot refer to the points for determination in its Judgement and, when there be no points raised for determination, there can possibly be no decision thereon and no reasons for such decision. Such is the position when the appellant does not address the Court and does not submit anything against the decision of the Court below. The memorandum of appeal does contain the grounds of objection to the decree appealed from, without any argument or narrative as laid down in subr. (2) of R. 1, Or. XLI. Such grounds cannot take the place of the points for determination contemplated by R. 31. Not unoften certain grounds of objection raised Page 33 of 52 C/SA/143/2015 JUDGMENT in the memorandum of appeal are not argued or pressed at the hearing and in that case such grounds cannot be taken to be the points for determination and are rightly not discussed in the judgement at all. It is for the appellant to raise the points against the Judgement appealed from. He has to submit reasons against its correctness. He cannot just raise objections in his memorandum of appeal and leave it to the appellate Court to give its decision on those points after going through the record and determining the correctness thereof. It is not for the appellate Court itself to find out what the points for determination can be and then proceed to give a decision on those points.

6 The Privy Council observed in Mt. Fakrunisa V/s. Moulvi Izarus: "In every appeal it is incumbent upon the appellants to show some reason why the Judgement appealed from should be disturbed; there must be some balance in their favour when all the circumstances are considered, to justify the alteration of the Judgement that stands. Their Lordships are unable to find that this duty has been discharged."

With respect, we agree with this and hold that it is the duty of the appellant to show that the Judgement under appeal is erroneous for certain reasons and it is only after the appellant has shown this that the appellate Court would call upon the respondent to reply to the contention. It is only then that the Judgement of the appellate Court can fully contain all the various matters mentioned in R. 31, Or. XLI 7 Court observed in Sengram Singh V/s. Election Tribunal, Kotah, 1755 2 SCR 1:

"Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: ......... Too technical construction of section that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it."

The provisions of R. 31 should therefore be reasonably construed and should be held to require the various particulars to be mentioned in the Judgement only when the appellant has actually raised certain points for determination by the appellate Court, and not when no such points have been raised as had been the case in the present instance when the appellant did not address the court at all.

8 The provisions of R. 30 of Or. XLI support our construction of R. 31. This rule reads:

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C/SA/143/2015 JUDGMENT "The appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce Judgement in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders. "It is to be noticed that this rule does not make it incumbent on the appellate Court to refer to any part of these proceedings in the court from whose decree the appeal is preferred. The appellate Court can refer, after hearing the parties and their pleaders, to any part of these proceedings to which reference be considered necessary. It is in the discretion of the appellate Court to refer to the proceedings. It is competent to pronounce Judgement after hearing what the parties or their pleaders submit to it for consideration. It follows therefore that if the appellant submits nothing for its consideration, the appellate Court can decide the appeal without any reference to any proceedings of the Courts below and, in doing so, it can simply say that the appellants have not urged any thing which would tend to show that the Judgement and decree under appeal were wrong.

9 In this connection, reference may be made to the provisions of sec. 423, Criminal Procedure Code, which provides the procedure to be followed by the appellate Court in disposing of criminal appeals. The relevant portion of its subsec. (1) is:

"The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal u/s. 411A, subsec. (2), or sec. 417 the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering dismiss the appeal, or may..."

The appellate Court is thus enjoined to pass the final order in the appeal after it had perused the record and heard the appellant or his pleader and the Public Prosecutor. The perusal of the record is enjoined on the Court. The Court cannot dispose of the appeal merely after hearing the appellant or his pleader and the Public Prosecutor. It has to peruse the record. In this respect, these provisions are different from the provisions of R. 30 Or. XLI of the Code of Civil Procedure and the Legislature specifically requires the perusal of the record by the appellate Court before deciding the appeal. It does not so provide in R. 30, Or. XLI of the Code of Civil Procedure.

10 The view that we take, also finds support from the object which the Legislature probably had in providing that the Judgement must Page 35 of 52 C/SA/143/2015 JUDGMENT contain the matters mentioned in R. 31. The object seems to be that the parties should know for what reasons the decision has gone against them and thereby be in a position to decide whether they should go up in appeal or revision against the judgment. If they do not know the decision and the reasons therefor, they cannot make up their mind and, even if they have no intention to go up in appeal, they may not even be satisfied about the Court considering the matter for determination properly.

11 Another object can be that the second appellate Court or the revision Court be in a position to know why the Court below came to a certain conclusion. Such knowledge is undoubtedly of great assistance to the Court. If therefore, no contention is raised by the appellant in the first appellate Court, no question of raising any contention in the next appellate Court arises and therefore, the necessity of writing a complete Judgement contemplated by R. 31 does not arise.

52. Thus, the principle discernible from the case law referred to above, is that whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 of the CPC has to be determined on the nature of the judgment delivered. Noncompliance with the provisions by itself would not vitiate the judgment and make it wholly void. If it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. The judgment of the appellate Court should reflect an honest endeavour to consider the controversy between the parties and that there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations. If all relevant aspects of the matter are gone into by the appellate Court and discussed properly, then the same would be a valid judgment even though it may not have framed the points for determination.

53. It does not appear to me in the present case that the judgment of the lower appellate Court is open to that criticism. The lower appellate Court has discussed all the points raised on behalf of both the sides as Page 36 of 52 C/SA/143/2015 JUDGMENT well as he has considered whole evidence on record in details. The issues framed by the trial Court have also been discussed in the judgment and on this score only, the judgment of the lower appellate Court cannot be said to be bad in law.

54. I may also refer to and rely upon a decision of this Court in the case of Kikubhai Parshottambhai Patel Vs. Babubhai Vallabhbhai Patel reported in 2005 (1) GLH 602. The relevant observations are as under:

17. Another point which is canvassed by Mr. Shah, learned advocate of defendants, is that under Order 41, Rule 31 of the Code, the appellate Court must have framed points for determination. According to this Court, the said contention is also without substance. In the case of Dumala Vighpara Gram Panchayat (supra), this Court has held that serious issues tried by trial Court were required to be enquired into and scrutinised by appellate Court. In that case, instead the appellate court merely considering that there was an earlier suit in which the permission for construction was granted decided the appeal in favour of the plaintiff. Therefore, the case was remitted to the trial court. The said judgment is of no assistance to the case of the defendants. Further more, the said judgment does not lay down an absolute proposition of law that nonframing of points for determination in appeal by the first appellate Court vitiates the wellreasoned judgment delivered by the first appellate Judge and hence the same cannot be considered as a substantial question of law.

18. In the case of Navinchandra Nathalal Doshi (supra) this Court has held that all the courts, including the appellate Bench of the Small Causes Court, are required to frame appropriate points for determination at the time of deciding such appeal. When the appellate court is deciding an appeal under the Bombay Rent Act, it is necessary to comply with the provisions of Order 41, Rule 31 of the Code, which also require that the points for determination are framed by the Court. The appellate Court, therefore, should take appropriate care in all such cases to frame appropriate points for determination. In fact, it is the duty of the appellate Court to see that such points for determination are framed. In the said decision this Court has also held that simply because the appellate Bench has not framed the points for determination, that itself cannot vitiate the judgment of the appellate Bench on the aforesaid point. This judgment is squarely Page 37 of 52 C/SA/143/2015 JUDGMENT applicable to the facts of the instant case and is the complete answer to the contentions raised by Mr. Suresh M. Shah, learned advocate of the defendants. It is true that in this judgment it has been held that it is the duty of the appellate Court to see that points for determination are framed. However, the said judgment has also laid down the proposition that nonframing of points for determination, that itself cannot vitiate the judgment of the appellate Court.

19. One more contention advanced by Mr. Shah, learned advocate of the defendants, is that Rule 414 of the Civil Manual also stipulates that the appellate Court should frame points for determination in appeal as framed in the trial Court but in instant case since the appellate Court has not framed points for determination and since there is a breach of the provisions of Rule 414 of the Civil Manual committed by the first appellate Judge, this matter requires consideration and this being a substantial question of law, the appeal requires to be admitted. This Court finds no substance and merit in the aforesaid contention raised by Mr. Shah. According to this Court, Rule 414 of the Civil Manual is based on Order 41 Rule 31 of the Code and since this Court has held that nonframing of points for determination by itself would not vitiate the wellreasoned judgment of the appellate Court, the aforesaid contention is also required to be rejected and accordingly it is also rejected.

PLEA OF ADVERSE POSSESSION:

55. Mr. Majmudar further submitted that the courts below committed a serious error in not accepting the plea as regards the adverse possession. According to Mr. Majmudar, the courts below committed a serious error in taking the view that the alternative plea of adverse possession alongwith the plea of possession under title is mutually opposed and destructive. Mr. Majmudar submitted that whenever the defendant claims that he himself is the owner of the property and nobodyelse has the ownership over the property under title, it is permissible in law for him to say in the alternative that the possession was hostile and in denial of the title of the true owner. It is submitted that there is a specific pleading with proof to satisfy the requirements constituting the right of adverse possession and the courts below were not justified in rejecting the claim of adverse possession concurrently.

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56. I would like to answer the submission of Mr. Majmudar as regards plea of adverse possession keeping in mind the following questions.

(1) Whether the claim of the adverse possession can be pleaded alternatively in the pleadings with the plea of possession under title as the true owner of the disputed land?

(2) Whether the person who pleads that the claim of adverse possession must identify and acknowledge the true owner of the property under dispute and disclose it in his pleadings.

(3) Whether the person who claims adverse possession must know that he has been possessing and enjoying the land of the true owner against his right and interest?

(4) Whether the claim of adverse possession is sustainable against an unknown true owner of the land?

57. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Nonuse of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is Page 39 of 52 C/SA/143/2015 JUDGMENT adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See: S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567)

58. The physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128).

59. The appellants - original defendants have taken contradictory pleas. On one hand they claimed to be the owners of the plot in question by placing reliance on the saledeed Exh.209 and on the other by acquiring title by adverse possession. The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.

60. The Supreme Court in the case of Mohan Lal Vs. Mirza Abdul Gaffar, reported in (1996) 1 SCC 639 held as under: Page 40 of 52 C/SA/143/2015 JUDGMENT "As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant....."

61. In the aforesaid context, I may also refer to and rely upon a recent pronouncement of the Supreme Court in the case of Dagadabai (Dead) by L.Rs. Vs. Abbas @ Gulab Rustum Pinjari, Civil Appeal No.83 of 2008, decided on 18th April, 2017. In the said case, the Bombay High Court took the view that it is permissible for a party in the suit to take alternative plea of being owner of the property in question having a valid title and in the alternative, on account of an adverse possession. The second appeal was admitted by Bombay High Court on the following substantial question of law.

"Whether in the facts and circumstances of the present case, the defendant(appellant herein) perfected his title to the suit land on account of adverse possession and the alternative plea ought to have been allowed by the Courts below, particularly, when there were disputes regarding the mutation proceedings after the death of Rustum Pinjari and the intention of the defendant to get his name mutated was writ large to show his hostile attitude."

62. The Supreme Court while quashing and setting aside the judgment of the Bombay High Court held as under:

14) In our considered opinion, the High Court erred in admitting the second appeal in the first instance and then further erred in allowing it by answering the question framed in defendant's favour. This we say for more than one reason as detailed below.

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15) First, when the Trial Court and the First Appellate Court concurrently decreed the plaintiff's suit by recording all the findings of facts against the defendant enumerated above, then, in our opinion, such findings of facts were binding on the High Court.

16) It is also for additional reasons that the findings were neither against the pleadings nor evidence and nor against any provisions of law. They were also not perverse on facts to the extent that no average judicial person could ever record. In this view of the matter, we are of the opinion that the second appeal did not involve any question of law much less substantial question of law within the meaning of Section 100 of the Code to enable the High Court to admit the appeal on any such question much less answer it in favour of the defendant.

17) Second, the question which was formulated by the High Court did not involve any question of law much less substantial question of law within the meaning of Section 100 of the Code requiring interference in the first Appellate Court's judgment.

18) Third, the plea of adverse possession being essentially a plea based on facts, it was required to be proved by the party raising it on the basis of proper pleadings and evidence. The burden to prove such plea was, therefore, on the defendant who had raised it. It was, therefore, necessary for him to have discharged the burden that laid on him in accordance with law.

19) When both the Courts below held and, in our view, rightly that the defendant has failed to prove the plea of adverse possession in relation to the suit land then such concurrent findings of fact was unimpeachable and binding on the High Court.

20) Fourth, the High Court erred fundamentally in observing in Para 7 that, "it was not necessary for him (defendant) to first admit the ownership of the plaintiff before raising such a plea".

21) In our considered opinion, these observations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally wellsettled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.

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22) It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it.

23) In this case, we find that the defendant did not admit the plaintiff's ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the instance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by adverse possession against the plaintiff.

63. In view of the settled position of law as discussed above, the plea of adverse possession as raised by the appellants should fail.

SECTION34 OF THE SPECIFIC RELIEF ACT, 1963:

64. Let me now deal with the last submission of Mr. Majmudar as regards Section34 of the Specific Relief Act. The submission is that as the plaintiff failed to challenge the saledeed Exh.209, the trial Court could not have allowed the suit and granted the decree of possession. To put it in other words, according to Mr. Majmudar as soon as the written statement was filed and the defendants placed on record the saledeed Exh.209, then in such circumstances, the plaintiff should have amended the plaint and ought to have prayed for cancellation of the saledeed Exh.209.

65. Before dealing with this point, I find it necessary to refer to Sec.34 of the Specific Relief Act and the same reads as under:

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C/SA/143/2015 JUDGMENT Section 34 of the Specific Relief Act, 1963: "34. Discretion of court as to declaration of status or right.Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation.A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee".

66. The Section provides that the courts have discretion as to the declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so.

67. In Ram Saran & Anr. Vs. Smt. Ganga Devi, AIR 1972 SC 2685, the Supreme Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of Specific Relief Act, 1963 and, thus, not maintainable.

68. In Vinay Krishna Vs. Keshav Chandra & Anr., AIR 1993 SC 957, the Supreme Court dealt with a similar issue where the plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (See: Gian Kaur v. Raghubir Singh, Page 44 of 52 C/SA/143/2015 JUDGMENT (2011) 4 SCC 567).

69. This Section speaks about declaration of status or rights. The object of the Section is to provide a perpetual bulwark against adverse attacks on the title of the plaintiff, where a cloud is cast upon it and to prevent further litigation by removing the existing cause of controversy.

It provides remedy to a person against all persons who not only claim an adverse interest to his own, but against all those who may do so, and it is intended that all such claims may once and for all be determined in one suit. For the application of this provision, it is essential that the plaintiff must have a present interest in some legal character or right to property, though it may not be one of immediate enjoyment of the property.

70. The proviso to Section34 of the Specific Relief Act is imperative and makes it obligatory on every court not to make any declaration in cases where the plaintiff being able to seek further relief, omits to do so. A suit should be dismissed if the plaintiff, being able to seek further relief, omits to do so. Therefore objection to the maintainability of a suit on the ground that it does not seek consequential relief, must be taken up with promptitude.

71. The proviso becomes available only when the plaintiff is able to seek further relief against the defendant. The phrase 'further relief' refers to a relief:

(i) that naturally flows from the relief of declaration, and

(ii) that which is not automatically granted to the plaintiff by the declaration.

Such further relief should be available to the plaintiff at the Page 45 of 52 C/SA/143/2015 JUDGMENT institution of the suit and it should complete the claim of the plaintiff. The object is to avoid multiplicity of suits, in relation to the legal right to property which the plaintiff is entitled to. It must be a relief ancillary to the main relief, and not one in the alternative. If the further relief is remote and not connected in any way with the cause of action, it need not be claimed. In such an event the suit would not be barred by Sec.34 of the Specific Relief Act.

72. The distinction between Sec.34 of the Act on the one hand and Sections 37 and 38 on the other, is that in the case of the former the Court cannot grant a declaratory relief where further relief is capable of being granted. In the latter case there is no such restriction, and injunction can be granted without any prayer for declaration, although in many cases declaration is inherent in the grant of injunction. For deciding the nature of the suit the entire plaint has to be read, and not merely the relief sought.

73. The question whether the further relief is consequential upon the declaration depends upon the facts and circumstances of a case. The Court should not compel the plaintiff to claim such relief or deem such relief to have been claimed. On perusal of the pleadings, if the Court were to come to the conclusion that the plaintiff should have asked for further relief, it shall refuse to grant the declaration. It cannot compel the plaintiff to add a prayer. Nor can it refuse to admit the plaint on the ground that further relief is not claimed.

74. Mr. Majmudar, the learned counsel appearing for the appellants relied on the judgment of the Apex Court in the case of Vishwambhar and others Vs. Laxminarayana (dead through) L.Rs and another reported Page 46 of 52 C/SA/143/2015 JUDGMENT in AIR 2001 SC 2607 wherein at para9 it is held that: "9. On a fair reading of the plaint, it is clear that the main fulcrum on which the case of the plaintiffs was balanced was that the alienations made by their motherguardian Laxmibai were void and therefore, liable to be ignored since they were not supported by legal necessity and without permission of the competent Court. On that basis the claim was made that the alienations did not affect the interest of the plaintiffs in the suit property. The prayers in the plaint were inter alia to set aside the sale deeds dated 14111967 and 24101974, recover possession of the properties sold from the 23 respective purchasers, partition of the properties carving out separate possession of the share from the suit properties of the plaintiffs and deliver the same to them. As noted earlier, the trial Court as well as the first appellate Court accepted the case of the plaintiffs that the alienations in dispute were not supported by legal necessity. They also held that no prior permission of the Court was taken for the said alienations. The question is in such circumstances are the alienations void or voidable? In Section 8(2) of the Hindu Minority and Guardianship Act, 1956, it is laid down, inter alia, that the natural guardian shall not, without previous permission of the Court, transfer by sale any part of the immovable property of the minor.

In subsection (3) of the said section it is specifically provided that any disposal of immovable property by a natural guardian, in contravention of subsection (2) is voidable at the instance of the minor or any person claiming under him. There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from the purchasers. As 24 noted earlier in the plaint as it stood before the amendment the prayer for setting aside the sale deeds was not there, such a prayer appears to have been introduced by amendment during hearing of the suit and the trial Court considered the amended prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold then a suit without such a prayer was of no avail to the plaintiffs. In all probability realizing this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. Unfortunately, the realization came too late. Concededly, plaintiff No.2 Digamber attained majority on 5th August, 1975 and Vishwambhar, plaintiff No.1 attained majority on 20th July, 1978. Though the suit was filed on 30th November, 1980 the prayer seeking setting aside of the sale deeds was made in December, 1985. Article 60 of the Limitation Act, prescribes a period of three years for setting aside a transfer of Page 47 of 52 C/SA/143/2015 JUDGMENT property made by the guardian of a ward, by the ward who has attained majority and the period is to be computed from the date when the ward attains majority. Since the limitation started running from the dates when the plaintiffs 25 attained majority the prescribed period had elapsed by the date of presentation of the plaint so far as Digamber is concerned. Therefore, the trial Court rightly dismissed the suit filed by Digamber. The judgment of the trial Court dismissing the suit was not challenged by him. Even assuming that as the suit filed by one of the plaintiffs was within time the entire suit could not be dismissed on the ground of limitation, in the absence of challenge against the dismissal of the suit filed by Digamber the first appellate Court could not have interfered with that part of the decision of the trial Court. Regarding the suit filed by Vishwambhar it was filed within the prescribed period of limitation but without the prayer for setting aside the sale deeds. Since the claim for recovery of possession of the properties alienated could not have been made without setting aside the sale deeds the suit as initially filed was not maintainable. By the date the defect was rectified (December, 1985) by introducing such a prayer by amendment of the plaint the prescribed period of limitation of seeking such a relief had elapsed. In the circumstances the amendment of the plaint could not come to the rescue of the plaintiff."

75. The above was a case where additional reliefs were claimed by way of amendment to the prayer column beyond the time prescribed for claiming such relief and therefore, the suit came to be dismissed. As such, the ratio laid down in the said judgment has no application to the facts of this case.

76. In the case on hand, the plaintiff preferred a suit seeking recovery of the possession of the suit plot said to have been encroached upon by the defendants. This suit is on the basis that the subjectplot came to be allotted in favour of the plaintiff by the Taluka Development Officer in accordance with law. The documents in this regard are on record. The revenue authorities have also supported the case of the plaintiff so far as the allotment of the subjectplot in his favour is concerned. However, the plaintiff has not sought for cancellation of the saledeed said to have Page 48 of 52 C/SA/143/2015 JUDGMENT been executed by Balubhai Gumanbhai. This aspect of the matter has been discussed in the earlier part of the judgment. Therefore, the question for consideration is, whether it is necessary to seek cancellation of the instrument when the suit for possession of the property is based on title derived by the plaintiff through the order of allotment passed by the Taluka Development Officer?

77. There is a clear and well marked distinction between a suit for cancellation of a deed affecting certain property and a suit for declaration that a particular document is inoperative as against the plaintiff. A suit for cancellation must be brought by a person, who was a party to the deed or by a person who is otherwise bound by it in law. But a person who is neither party to the deed nor bound by it need not sue for its cancellation. Where the plaintiff seeks to establish title in himself but, cannot do so without removing an insuperable obstacle to such a deed to which he may be a party, he must get it cancelled. However, when he seeks to establish a title and finds himself threatened by a transaction between some parties, his remedy is to get a declaration that the decree or deed or transaction is invalid so far as he is concerned. When a person is a party to the deed, he can get over the effect of such deed, only in a manner provided under the Indian Contract Act, especially when the third party interests are created. But when he is eonominee party but in law is not a party to such deed, he can seek a declaration that such a deed is not binding on him, when no third party interest is created.

78. In the aforesaid context, I may refer to a Division Bench decision of the Rajasthan High Court in the case of Sukhlal Vs. Devilal, RLW 1954 Pg.136. Wanchco C.J. [As His Lordship Then was] speaking for the Page 49 of 52 C/SA/143/2015 JUDGMENT bench observed as under: "There is a difference between a suit for the cancellation of an instrument and one for a declaration that the instrument is not binding on the plaintiff, when the plaintiff seeks to establish, a title in himself and cannot establish that title without removing an insuperable obstacle such as a decree or a deed to which he has been a party or by which he is otherwise bound then quite clearly he must get that decree or deed cancelled or declared void in toto and his suit is in substance a suit for the cancellation of the decree or deed notwithstanding the fact that the suit may have been framed as a suit for a declaration. On the other hand, when the plaintiff is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties, he is not in a position to get that decree or deed cancelled in toto. The proper remedy in such a case is to get a declaration that the decree or deed is invalid so far as he himself is concerned, and, therefore, he may sue for a declaration to that effect and not for the cancellation of the decree or the deed. [See: 'Vellayya Konar v. Ramaswami Konar', AIR 1939 Mad 894]."

79. In the case on hand, the plaintiff has nothing to do with the sale deed. He does not figure in the saledeed. The entire explanation offered by the defendants as to how the saledeed came to be executed has been outright rejected. The plaintiff has been able to prove that he is the lawful owner of the suitplot and has a valid title. In my view, if a particular document is void, the person affected by the said document can very well ignore the same and file a suit seeking substantive relief, which may be available to him without seeking any declaration that the document is void or any consequential relief of cancellation of the same.

80. Thus, the requirement of proviso to Section34 is complied with. For this reason, I am of the view that the suit is not hit by Section34 of the Specific Relief Act.

81. At this stage, it is apposite to state that the contention as regards Section34 of the Specific Relief Act seems to have been raised for the Page 50 of 52 C/SA/143/2015 JUDGMENT first time in this Second Appeal. A plea to the effect that further relief though available, was not asked for, should be raised at the earliest time so that the plaintiff can seek an amendment at that point of time itself.

82. In this regard, I may refer to and rely upon a decision of the Supreme Court in the case of Mst. Rukhmabai Vs. Lala Laxminarayan and Others. reported in AIR 1960 SC 335. I may quote the relevant observation as under:

30. The next question raised by the learned Counsel for the appellants is that the suit should have been dismissed in limine as the plaintiff asked for a bare declaration though he was in a position to ask for further relief within the meaning of S.42 of the Specific Relief Act. The proviso to S.42 of the said Act enacts that "no Court shall make any such declaration when the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so". It is a wellsettled rule of practice not to dismiss suits automatically but to allow the plaintiff to make necessary amendment if he seeks to do so. The learned Counsel for the appellant contends that in the plaint the cause of action for the relief of declaration was given as the execution of the partition decree through the Commissioner appointed by the Court and, therefore, the plaintiff should have asked for a permanent injunction restraining the appellant from interfering with his possession. The appellant did not take this plea in the written statement; nor was there any issue in respect thereof, though as many as 12 issues were raised on the pleadings; nor does the judgment of the learned District Judge disclose that the appellant raised any such plea. For the first time the plea based on S.42 of the Specific Relief Act was raised before the High Court, and even then the argument advanced was that the consequential relief should have been one for partition: the High Court rejected the contention on the ground that the plaintiff, being in possession of the joint family property, was not bound to ask for partition if he did not have the intention to separate himself from the other members of the family. It is not necessary in this case to express our opinion on the question whether the consequential relief should have been asked for; for, this question should have been raised at the earliest point of time, in which event the plaintiff could have asked for necessary amendment to comply with the provisions of S. 42 of the Specific Relief Act. In the circumstance, we are not justified in allowing the appellant to raise the plea before us.

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C/SA/143/2015 JUDGMENT

83. Thus, the contention as regards Section34 of the Specific Relief Act also fails.

84. In the overall view of the matter, I have reached to the conclusion that this Second Appeal should fail and is hereby dismissed.

(J.B.PARDIWALA, J) aruna Page 52 of 52

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