Gujarat High Court
Rasikbhai Naranbhai Patel vs Moladiya Bhurabhai Ghanabhai on 25 July, 2023
NEUTRAL CITATION
C/AO/98/2023 ORDER DATED: 25/07/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 98 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/APPEAL FROM ORDER NO. 98 of 2023
==========================================================
RASIKBHAI NARANBHAI PATEL
Versus
MOLADIYA BHURABHAI GHANABHAI
==========================================================
Appearance:
MR MANISH BHATT, SR.ADVOCATE assisted by MR JAY KANSARA FOR
M/S WADIAGHANDY AND CO(5679) for the Appellant(s) No. 1
for the Respondent(s) No. 2
MR MALAYKUMAR S PATEL(8901) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 25/07/2023
ORAL ORDER
1. This appeal has been filed at the instance of the appellant against the order passed by the learned Judge, Court No.22, City Civil & Sessions Court, Ahmedabad whereby the learned Judge was pleased to restrain the original defendant - appellant herein from dispossessing, transferring the suit land to third party or creating disturbances in possession of the plaintiffs during the pendency and till final disposal of the suit.
Page 1 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined
2. The facts leading to the filing of this appeal may be summarized as follows: -
2.1 The original plaintiffs have filed Civil Suit (CCC) No.1158 of 2022 for declaration and permanent injunction against the defendant. In the said suit, it is the case of the plaintiffs that the plaintiffs have been residing in land bearing Survey No.281/2, T.P.Scheme No.26, Final Plot No.225 admeasuring 7821 square meters situated at mauje Vasna, Taluka Sabarmati, District Ahmedabad (hereinafter referred to as the "disputed suit property") since 1987 and doing farming in the suit land and supporting them and their family. It is the case of the plaintiffs that since the disputed suit property was lying vacant, they built a hut in the suit land and started living there and also started sowing the suit land and got earnings from the crops. It is also the case of the plaintiffs that they have also got electricity connection at the hut in the disputed suit property and the said fact is within the knowledge of the defendant. It is the case of the plaintiffs that since the Page 2 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined defendant and his agents are threatening the plaintiffs and trying to dispossess the plaintiffs, the plaintiffs have filed the suit. The learned trial court on the interim application i.e. Notice of Motion Exh.6/7 filed by the plaintiffs granted an order of injunction, as prayed for.
3. The appellant - original defendant entered appearance and denied the material allegations made in the application for injunction by filing an affidavit and it was urged that the application for injunction must be rejected.
4. The learned trial Court by an order dated 12.4.2023 allowed the application filed by the respondents herein - original plaintiffs, inter alia, on a finding that "the plaintiffs have been successful in establishing that they have a prima facie case and balance of convenience also tilts in their favour and if the defendant is not restrained then the plaintiffs will suffer irreparable loss which cannot be compensated in terms of money and hence, the rights of the plaintiffs are required to be protected."Page 3 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023
NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined
5. Being aggrieved and dissatisfied with the order dated 12.4.2023 passed by the learned Judge, Court No.22, City Civil & Sessions Court, Ahmedabad, the appellant - original defendant has approached this Court by way of filing the present Appeal from Order.
6. Heard Mr.Manish Bhatt, learned Senior Advocate assisted by Mr.Jay Kansara and Ms.Urvi Khandelwal, advocates for M/s Wadia Ghandy and Company for the appellant and Mr.Malaykumar S.Patel, learned advocate for the respondents - original plaintiffs and examined the impugned order of the learned trial court and also the averments and contentions made in the application for injunction and the objections thereto in depth and in detail.
7. Mr.Manish Bhatt, learned senior advocate appearing on behalf of the appellant - original defendant has vehemently submitted that the learned trial Court has failed to consider the material placed on record by the Page 4 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined parties in its proper perspective and has misdirected itself whilst passing the impugned order. Mr.Bhatt has submitted that the learned trial Court has purely proceeded on inferential basis on the purported lacuna of the case of the appellant - original defendant at the time of passing the impugned order even without the respondents - original plaintiffs discharging their initial onus of proving their case and the learned trial Court has proceeded on a prima facie misconstruction of the documents filed by the respondents - original plaintiffs as well as the appellant - original defendant in the suit. Mr.Bhatt has submitted that even though the learned trial Court has observed that the bills and the article produced by the respondents original plaintiffs do not suggest any survey numbers, it has exercised its direction on the basis that the appellant - original defendant has failed to prove his possession. Mr.Bhatt has drawn the attention of this Court to the decision of the Honourable Apex Court in the case of Seema Arshad Zaheer & Ors. v/s. Municipal Corporation of Greater Mumbai & Ors., reported in (2006) 5 SCC 282 Page 5 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined wherein the Hon'ble Apex Court has observed in paragraph 32 thus :
"32. Where the lower courts act arbitrarily, capriciously and perversely in the exercise of its discretion, the appellate court will interfere. Exercise of discretion by granting a temporary injunction when there is "no material" or refusing to grant a temporary injunction by ignoring the relevant documents produced, are instances of action which are termed as arbitrary, capricious or perverse. When we refer to acting on "no material" (similar to "no evidence"), we refer not only to the cases where there is total dearth of material, but also to cases where there is no relevant material or where the material, taken as a whole, is not reasonably capable of supporting the exercise of discretion. ..."
Mr.Bhatt has submitted that in the instant case, the respondents - original plaintiffs have not produced any document and/or material worth mentioning to establish their prima - facie case on adverse possession and in fact, the learned trial Court has also recorded that the documents produced by the plaintiffs do not mention anything pertaining to the subject land and thus no material whatsoever has been produced by the respondents Page 6 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined
- original plaintiffs for enabling the learned trial Court to exercise discretion in favour of the respondents - original plaintiffs.
7.1 Mr.Bhatt has further submitted that the law on the claim of title by adverse possession is well settled by the Hon'ble Apex in catena of its decisions from time to time. Mr.Bhatt has drawn the attention of this Court to the decision in the case of Poona Ram vs. Moti Ram (dead) Through Legal Representatives and Ors., reported in (2019) 11 SCC 309 wherein the Hon'ble Apex Court in paragraph 15 has observed thus :
"15. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must Page 7 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined be (i) effective; (ii) undisturbed; and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straightjacket formula to determine settled possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on facts and circumstances of each case.
Mr.Bhatt has also drawn the attention of this Court to the decision of the Bombay High Court in the case of Surana Bothra Associates and Ors. v. Rakesh Motilal Sharma and Ors., reported in Appeal from Order No. 97890 of 2020 equivalent to (2021) 6 Mah. L. J. 406 wherein in paragraph 26, it is observed thus :
"26. ... It is settled law that a person who claims his settled possession over the disputed property, is required to prima facie establish his possession by convincing evidence and therefore, in the absence of any such evidence, inferential process adopted by the learned trial Court, while prima facie holding plaintiffs control over the property described in paragraph 3.3 was incorrect."
Mr.Bhatt, therefore, submits that in cases where the claim of title is based upon adverse possession, the requirements of making out a prima facie case are more stringent and Page 8 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined heavy onus lies upon the plaintiffs to show that they are in settled and undisturbed possession to the knowledge of the owner.
7.2 Mr.Bhatt has further submitted that in the broad category of prima facie case, it is imperative for the learned trial court to carefully analyze the pleadings and the documents on record and only on that basis the learned trial court must be governed by the prima facie case. In grant and refusal of injunction, pleadings and documents play a vital role. In support of his submission, Mr.Bhatt has placed reliance on the decision of the Honourable Apex Court in the case of Maria Margarida Sequeira Fernandes and Ors. v. Erasmo Jack De Sequeira (dead) Through Lrs., reported in (2012) 5 SCC 370, more particularly paragraphs 83 and 86 wherein it is observed thus :
"83. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and Judges Page 9 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant.
86. Ordinarily, three main principles govern the grant or refusal of injunction: (a) prima facie case; (b) balance of convenience; and (c) irreparable injury; which guide the court in this regard..."
Mr.Bhatt has further submitted that with a view to bring the correct facts on record and to resist the case of the respondents original plaintiffs, certain documents were placed on record by the appellant original defendant to establish that the claim of the respondents original plaintiffs was incorrect and that the material placed on record by them to prove the purported prima facie case was unsustainable. Placing reliance on the said documents produced by the appellant original defendants in the said suit, Mr.Bhatt submitted that the respondents original plaintiffs do not reside on the subject land as alleged or otherwise. Mr.Bhatt has further submitted that from a bare perusal of the plaint and the documents placed on record by Page 10 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined the respondents original plaintiffs, it is clear beyond any doubts that no prima facie case is made out by them to seek temporary injunction against the appellant original defendant. It is submitted that none of the documents produced by the respondents original plaintiffs even remotely indicated that they have their presence on the subject land in any manner whatsoever which is adverse to the knowledge of the appellant original defendant and on this aspect even no bare minimum dates as to when such possession became adverse has been stated. Mr.Bhatt has submitted that the learned trial Court completely overlooked the principle reiterated by the Hon'ble Supreme Court of India in the matter of Ram Nagina Rai and Anr v. Deo Kumar Rai (deceased) by Legal Representatives and Anr, reported in (2019) 13 SCC 324 wherein in paragraphs 13 and 16, it is observed thus :
"13. This Court, while discussing the law relating to adverse possession in P.T. Munichikkanna Reddy vs. Revamma [(2007) 6 SCC 59 at para 8] held that, to asses a claim of adverse possession, a two-pronged inquiry is required viz., application of the limitation provisions, and the specific positive intention to Page 11 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined dispossess on the part of the adverse possessor.
16. Thus, it is important to assess whether such intention to dispossess is apparent to the actual owner or not. The intention of adverse user must be communicated atleast impliedly to the actual owner of the property. His hostile attitude should be open to the knowledge of the real owner. It follows that the intention and possession of the adverse possessor must be hostile enough to give rise to a reasonable notice to the actual owner.
Relying upon the aforesaid decisions of the Honourable Apex Court, Mr.Bhatt has submitted that it is clear from the above pronouncement of the Hon'ble Apex Court that heavy onus lies upon the respondents original plaintiffs when it comes to prima facie establishing their alleged claim of adverse possession against the appellant original defendant.
None of the criteria laid down by the Hon'ble Apex Court have been taken into consideration by the learned trial Court whilst exercising discretion in the present matter. In fact, in flagrance violation of the principles of law, the learned trial Court proceeded to exercise discretion in the matter by taking an adverse inference against the appellant original defendant when the respondents original plaintiffs Page 12 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined have not been able to establish their purported actual settled possession on the subject land.
7.3 Mr.Bhatt has further submitted that without prejudice to the above submissions, the respondents original plaintiffs have also failed to show any balance of convenience in their favor. It is submitted that the Hon'ble Apex Court in the matter of Ram Nagina Rai (supra) in paragraph 18 has observed thus :
"18. The physical fact of exclusion, possession and animus possidendi to hold as owner, in exclusion of the actual owner, are the most important factors to prove the adverse possession. A person pleading adverse possession has no equities in his favor. Since he is trying to take away the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession."
Mr.Bhatt has further submitted that the respondents original plaintiffs have failed to show any irreparable harm that would be caused to them in case the interim relief is not granted. In support of his submissions, Mr.Bhatt has Page 13 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined placed reliance upon the decision of this Court in the case of Rahimbhai Ahemadbhai Lehari and Others v. Gujarat State Road Transport Corporation and Another, reported in 2023 SCC Online Guj 1415 wherein in paragraphs 21 and 22, it is observed thus :
"21. ... In view of the application filed under the provisions of XXXIX Rule 1 & 2 of the Civil Procedure Code, 1908, main three ingredients are required to be looked into i.e., prima facie case, balance of convenience and irreparable loss. However, it is also most important to consider that who is claiming the rights. In the instant case, admittedly the plaintiffs - present petitioners are not the owners of the suit land. Looking to the pleadings in the suit as well as in the appeal proceedings, the petitioners have claimed their right not as the owners of the suit land, but on the basis of the adverse possession, which itself proves that they are not the owners of the land in question, but they are possessing the land in question illegally and without any title. ... ... ... In fact, no documentary evidence is produced to establish their long uninterrupted possession and also no evidence about the title of the property by the plaintiffs..."
22. ... ... ... ... The appellate Court below has rightly observed in the impugned order that the possession of the petitioners is wholly unlawful possession as a trespasser and an injunction cannot be granted in favour of a trespasser or a person who gained unlawful possession. The appellate Court below has rightly considered the facts and circumstances of the case and passed Page 14 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined the impugned order."
Mr.Bhatt has further submitted that a bare perusal of the plaint and the documents produced by the respondents original plaintiffs on record, make it clear that the respondents original plaintiffs have miserably failed to produce any documentary evidence to prove their alleged long and uninterrupted possession of the subject land. Mr.Bhatt has submitted that it is clear from the above pronouncement of this Court that the learned trial Court ought to have appreciated the fact that the appellant original defendant is the true owner of the subject land and that the respondents original plaintiffs have not produced any documentary evidence to establish their long uninterrupted possession on the subject land. It is submitted that that the respondents original plaintiffs have failed to prove that irreparable harm or injury may be caused to them if interim injunction is not granted against the true and admitted owner of the subject land. In fact, irreparable harm may be caused to the appellant original defendant if the impugned order is not set aside.
Page 15 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined 7.4 Mr.Bhatt has further submitted that from a
perusal of the documents produced on record, it is evident that the respondents original plaintiffs through their power of attorney holder have failed to approach the learned trial Court with clean hands and preferred the said suit merely with an ulterior and sole motive of arm-twisting the appellant original defendant, who is admittedly the true owner of subject land and also it is clear beyond any doubts that the Power of Attorney of the respondents original plaintiffs i.e., Vijaybhai Nagjibhai Baar has, in connivance with each other, orchestrated the present suit to arm - twist the appellant original defendant to jeopardize his legitimate interest in the subject land. On the one hand, whilst objecting to the public notice of the appellant original defendant, the Power of Attorney Vijaybhai Nagjibhai Baar claims to be the owner of the subject land, whereas, in the present proceeding, the same Power of Attorney pleads a case of adverse possession on behalf of the respondents original plaintiffs. A perusal of the objections raised against Page 16 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined the public notice it is revealed that the respondents original plaintiffs are not in possession of the subject land. In fact, the person who filed objections has purportedly claimed that he is in possession of the subject land. The relevant portion of the objections dated 6 th August 2022 are reproduced hereinbelow for ready reference.
"ત્યારબાદ યુનુસભાઇ મસીદ ઉલ્લા ઓનું તા યુનસ ુ ભાઇ મસીદ ઉલ્લા ઓનું તા મસીદ યુનુસભાઇ મસીદ ઉલ્લા ઓનું તા ઉલ્લા ઓનું તા તા. ૨૦/૦૩/૨૦૧૮ ના રોજ અવસાન થયેલ અને અમો લખી ના રોજ અવસાન થયેલ અને અમો લખી અવસાન થયેલ અને અમો લખી આપનાર યુનસ ુ ભાઇ મસીદ ઉલ્લા ઓનું તા મસીદ યુનુસભાઇ મસીદ ઉલ્લા ઓનું તા ઉલ્લા ના સીધી લીટી ના વારસદ યુનુસભાઇ મસીદ ઉલ્લા ઓનું તાારો હોઈ અને વારસદારો ની રૂઇએ સદરહુ જમીન ના અને વારસદ યુનુસભાઇ મસીદ ઉલ્લા ઓનું તાારો ની રૂઇ મસીદ ઉલ્લા ઓનું તાએ સદરહુ જમીન ના સદ યુનુસભાઇ મસીદ ઉલ્લા ઓનું તારહુ જ અવસાન થયેલ અને અમો લખીમીન ના અમો સયુક ે ાર ભોગવટે દ યુનુસભાઇ મસીદ ઉલ્લા ઓનું તાાર બનેલ ં તા ત મલિલક તેમજ અવસાન થયેલ અને અમો લખી કબ્જ અવસાન થયેલ અને અમો લખીદ યુનુસભાઇ મસીદ ઉલ્લા ઓનું તા અને તેની રુઇ મસીદ ઉલ્લા ઓનું તાએ સદરહુ જમીન ના સદ યુનુસભાઇ મસીદ ઉલ્લા ઓનું તારહુ જ અવસાન થયેલ અને અમો લખીમીન યુનસ ુ ભાઇ મસીદ ઉલ્લા ઓનું તા મસીદ યુનુસભાઇ મસીદ ઉલ્લા ઓનું તા ઉલ્લા ને વેચાણ આપવાનો પુરેપુરો હક અને અધિકાર હોઈ આપવાનો પુરેપરુ ો હક અને અધિધકાર હોઈ અને વારસદારો ની રૂઇએ સદરહુ જમીન ના તે અધિધકાર ની રૂઇ મસીદ ઉલ્લા ઓનું તાએ સદરહુ જમીન ના અમો વાં તાધો લેનાર તથા ધિવજ અવસાન થયેલ અને અમો લખીયભી નાગજીભાઈ અને વારસદારો ની રૂઇએ સદરહુ જમીન ના નાઓ ને સદ યુનુસભાઇ મસીદ ઉલ્લા ઓનું તારહુ વેચાણ આપવાનો પુરેપુરો હક અને અધિકાર હોઈ કબ્જા કરાર થી આ કરાર થી આ જ અવસાન થયેલ અને અમો લખીમીન વેચાણ આપવાનો પુરેપુરો હક અને અધિકાર હોઈ આપેલ છે અને ત્યારથી અમો સદ યુનુસભાઇ મસીદ ઉલ્લા ઓનું તાર જ અવસાન થયેલ અને અમો લખીગ્યા ના મલિલક કબ્જ અવસાન થયેલ અને અમો લખીદ યુનુસભાઇ મસીદ ઉલ્લા ઓનું તા ે ાર બનેલ છીએ સદરહુ જમીન ના. અને હાલ માં તા પણ આપવાનો પુરેપુરો હક અને અધિકાર હોઈ અમો વાં તાધો લેનાર નો કબ્જ અવસાન થયેલ અને અમો લખીો ભોગવટો આ સ્થળ પર છે પર છે અને અમો એ સદરહુ જમીન ના વેચાણ આપવાનો પુરેપુરો હક અને અધિકાર હોઈ ના અવેજ અવસાન થયેલ અને અમો લખી પેટે સદ યુનુસભાઇ મસીદ ઉલ્લા ઓનું તાર જ અવસાન થયેલ અને અમો લખીગ્યા માં તા રૂ. ૧૦,૦૦,૦૦૦/- (દ યુનુસભાઇ મસીદ ઉલ્લા ઓનું તાાસ લાખ પુરા) ચૂકવી આપેલ છે ."
7.5 Mr.Bhatt has further submitted that it leaves no iota of doubts that the present suit is clearly an abuse and misuse of the process of law by POA Vijaybhai Nagjibhai Baar and the respondents original plaintiffs for undue financial gains. Mr.Bhatt has submitted that all the above contentions, even though raised before the learned trial Page 17 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined Court, have been ignored and/or neglected by the learned trial Court whilst exercising discretion. Therefore, it is most respectfully prayed that this is a fit case for interference by this Court to quash and set aside the impugned order granting temporary injunction in favor of the respondents original plaintiffs with exemplary cost.
8. On the other hand, Mr.Malay S.Patel for the respondents - original plaintiff has opposed the present Appeal from Order by contending that the original plaintiffs have a right on the suit land as they are the long-time users and possessors by virtue of adverse possession, and the original plaintiffs are having undisturbed and constant possession of the disputed suit land, and by perusing exhibited documents produced by the plaintiffs, the plaintiffs have shown a prima facie case before the learned trial Court while deciding the injunction application. Mr.Patel further submits that the original defendant and his agents are threatening the plaintiffs and trying to dispossess the plaintiffs from the suit land and the original Page 18 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined defendant has tried to sell the suit land to a third party and had published a Public Notice, and hence the original plaintiffs are constrained to file the present suit and the learned trial Court has passed the impugned order below notice of motion exh.6/7.
8.1 Mr.Patel further submits that if the revenue records of the disputed suit property are perused, then several litigation can be noticed regarding the disputed suit property and the appellant is not having continuous possession on the disputed suit property. Mr.Patel further submits that the appellant has failed to produce a single document or evidence regarding his possession of the disputed suit property before the learned trial Court and while deciding the injunction application, the learned trial Court has rightly observed that the appellant has failed to produce a single evidence of his possession, and hence the appellant is trying to mislead this Court by stating wrong facts that he is in possession since 1920, and is only trying to create a doubt on the plaintiffs' evidence and the present Page 19 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined appellant cannot make his case strong to prove his possession.
8.2 Mr.Patel further submits that the plaintiffs have established a prima facie case, balance of convenience is in their favour, and the panchnama, which was carried out in Civil proceedings initiated before the learned City Civil Court Ahmedabad in Civil Suit No. 896 of 2006 for the same disputed suit property, wherein it is completely mentioned in the report that the plaintiffs and their family are residing in the hut situated in disputed suit property, and it is sufficient to prove that the plaintiffs are having the settled possession over the disputed suit property since more than 12 years and the original defendant is having complete knowledge about the same. Mr.Patel further submits that the plaintiffs have stated the description of the constructed hut over the disputed suit property with all particular things in their plaint to prove their possession over the disputed suit property and accordingly a Court Commissioner was appointed and the Court Commission report was filed in the Page 20 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined present suit and if the Court Commissioner's report is perused along with the plaint, then it becomes clear that the original plaintiffs and their family members are the having the settled possession over the suit land. Mr.Patel further submits that the plaintiffs have produced documents and evidence on record to prove their case and while considering the documents and evidence, the learned trial Court has rightly come to the conclusion that the plaintiffs are successful in establishing that they have a prima facie case and the balance of convenience is in their favour. 8.3 Mr.Patel further submits that the issues raised by the original plaintiffs in the plaint and injunction application are clearly fair triable issues and if there are fair triable issues and a bonofide contest between parties, and to prove the prima facie case, the plaintiffs need not to establish their right or title over the disputed suit property at this stage, but they should have a fair questions to be tried, and for satisfaction regarding prima facie case, it is not necessary for the court to examine merits of the case to Page 21 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined ascertain, if the plaintiffs show fair questions, which can be raised in trial, and the learned trial court has rightly considered such settled proposition of law in its order. Therefore, the order passed by the learned trial court is correct and legal. Mr.Patel has further submitted that as per the settled law which flow from various decisions of this Court in the case of Jyantibhai M. Patel Vs. Dilipbhai B. Patel reported in 2007 (1) GLR 79 and Adani Exports LTD Vs. Hindustan Organic Chemicals Limited reported in 2000(3) GLR 2760 to prove the prima facie case, the plaintiff need not establish his right or title at this stage, but he should have a fair question to be tried and for satisfaction regarding prima facie case, it is not necessary for the court to examine merits of the case to ascertain if the plaintiffs show fair questions.
8.4 Mr.Patel has further submitted that if the injunction order will be quashed and set aside against the plaintiffs, there will be a chance of multiplicity of proceedings and the learned trial court has rightly Page 22 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined considered such settled proposition of law in its order and the learned trial Court has followed such proposition of law in its order and therefore also such order passed by the learned trial Court is legal, and correct. 8.5 Mr.Patel has further submitted that if the defendant is not restrained to sell the property then the plaintiffs will suffer irreparable loss, which can not be compensated in terms of money, and therefore the rights of the plaintiffs are required to be protected. Mr.Patel has further submitted that so far as balance of convenience and irreparable injury is concerned, right now the original plaintiffs and their family members are residing in the suit property for more than 35 years, and if the injunction is granted in favour of the original plaintiffs, there is no question of any harm or irreparable loss to the original defendant, but if the suit property is sold out by the original defendant, then definitely the original plaintiffs will suffer an irreparable loss as their right over the suit property will be defeated.
Page 23 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined 8.6 Mr.Patel has further submitted that if the
pleadings of the plaint as well as the evidence produced on record are seen, then it is clear that the original plaintiffs are have an effective and undisputed possession over the suit land, and the same is within the knowledge of the original defendant who has claimed himself as an owner. 8.7 Mr.Patel has further submitted that the duty of the court is to examine the contest while granting injunction and in the instant case, the learned trial Court has fully considered the arguments of both the sides while granting injunction, and has observed that there is bona fide contest between the parties and a fair point of trial and prima facie case of the original plaintiffs. Mr.Patel has further submitted that considering the documents produced on record, the plaintiffs have established a prima facie case, the balance of convenience is in their favour, and that the original plaintiff by showing the documents produced on record have proved their prima facie possession of the suit Page 24 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined land and have also proved that the original defendant is having knowledge about the possession of the plaintiffs for more than 12 years. Mr.Patel has further submitted that the original defendant has produced the unregistered sale cum possession agreement which was executed by the heirs of one deceased Yanusbhai Masidulla in favour of Vijay Nagjibhai Bar (Power of Attorney holder of the original plaintiffs) and has tried to show the interest of Vijay Nagjibhai Bar, but from the bare reading of plaint it has become clear that the original plaintiffs are illiterate persons and have no legal knowledge, and hence the suit was filed by the power of attorney holder. Mr.Patel has further submitted that even otherwise, the original plaintiffs are claiming their right as they have a settled adverse possession on the suit land, and by just creating doubts before the learned trial Court regarding interest of the power of attorney holder, the original defendant cannot succeed to establish their possession over the suit land.
Page 25 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined 8.8 Mr.Patel has further submitted that the original
defendant has produced the affidavit of his brother Mr.Jayeshbhai Dahyabhai Patel, who is an interested witness, and if the affidavit of Mr.Jayeshbhai is considered, he says that there is no constructed structure like hut for residing on the suit land, which is completely contrary to the Court Commissioner's report and panchanama of the present suit property, and the Commissioner's report filed in Regular Civil Suit No.896 of 2006, wherein the State of Gujarat was also a party to the suit. Mr.Patel has drawn the attention of this Court that the original defendant has tried to mislead the learned Court by pointing out one panchanama drawn by the Court Commissioner which was carried out in the year 2014 in civil suit proceedings initiated before the learned City Civil Court Ahmedabad being Civil Suit No.2538 of 2014 for the suit land whereby the original defendant tried to show that the land wherein the plaintiffs are residing is totally different land from the suit land, and has tried to confuse the learned trial Court, but at the same time the original defendant has remained Page 26 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined silent and also not stated any single averment in their petition and reply about the panchnama, which was carried out in the civil proceedings initiated before the learned City Civil Court Ahmedabad in Civil Suit No. 896 of 2006 for the same suit land, wherein it is completely mentioned in the report that the plaintiffs and their family are residing in the suit land, and it is sufficient to prove that the plaintiffs are having the possession over the suit land for more than 12 years and the original defendant is having complete knowledge about the same.
9. From perusal of the averments made in this appeal as well as having perused the material produced on record, it is an admitted fact that the appellant - original defendant is the owner of the land in question which ipso facto suggests that the respondents herein - original plaintiffs are not the owners of the land in question but the respondents - original plaintiffs are claiming right over the suit property by virtue of adverse possession by filing the suit. The respondents - original plaintiffs have also filed an application under Order 39, Rule 1 and 2 of the Code of Page 27 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined Civil Procedure, 1908 which came to be allowed vide the impugned order below the notice of motion Exh.6/7 by directing the appellant - original defendant from dispossessing, transferring the suit land to third party or creating disturbances in possession of the plaintiffs during the pendency of the suit and till final disposal of the suit, against which, the appellant - original defendant has approached this Court by way of the present Appeal from Order. It is pertinent to note that the main suit is pending for adjudication. Therefore, it would not be proper on the part of this Court to comment any factual aspect by which the rights of any party get prejudiced or the court below gets influenced.
10. At this stage, in view of the application filed under the provisions of XXXIX Rule 1 & 2 of the Code of Civil Procedure, 1908, main three ingredients are required to be looked into i.e. prima facie case, balance of convenience and irreparable loss. In the present case, admittedly, the respondents - original plaintiffs are not the Page 28 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined owners of the suit land. Looking to the pleadings in the suit as well as in the appeal proceedings, the respondents - original plaintiffs have claimed their right not as the owners of the suit land, but on the basis of the adverse possession which itself proves that they are not the owners of the land in question, but they have claimed possession on the land in question without any title. From record it can be seen that they have claimed to have put their hut on the land in question and also claiming that they are doing particular agricultural activities on the said land and have not specified any date when they encroached on the land and made their hut. It is also equally true that if the respondents - original plaintiffs have put their hut on the land in question, they were very much aware that the land on which they are putting their hut is not in their ownership and they are encroaching on the land in question which is in the ownership of the appellant - original defendant. The respondents - original plaintiffs have not produced any documentary evidence about the title of the suit property to be in their favour and are mainly relying upon the electricity Page 29 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined bills and the Court Commissioner's report in Civil Suit No.896 of 2006 but the address in the electricity bills is not the same as mentioned in the plaint. Moreover, the defendant is relying on the Court Commissioner's report in Civil Suit No.2538 of 2014 which states that there land is open to sky and there is no temporary or permanent construction on the suit land in which the original plaintiff No.1 is a panch of the Court Commissioner's report. Under these circumstances, when neither the respondents - original plaintiffs have any right, title or interest over the suit land nor have they any agreement in their favour, they can be said only to be encroachers and encroachers do not have any legal right over the suit land, more particularly when the appellant - original defendant is the owner of the suit property and hence, the plaintiffs are claiming adverse possession.
11. Having gone through to the provisions of Order XXXIX Rule 1 & 2 of the Code of Civil Procedure, 1908 under which the respondents original plaintiffs have Page 30 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined preferred the application before the learned trial Court for interim injunction, it clearly shows that there is no contract at all between the respondents - original plaintiffs and the appellant - original defendant for the land in question and the respondents - original plaintiffs are not the real owners, not any agreement holders, not the tenants and not the lawful possession holders of the land in question, and have no right to claim anything over the land in question. Only trespassing or encroaching the land does not allow or give any right to any person, though long time and more particularly when the lawful owner is the appellant - original defendant. But, at the same time, in the present case, the original plaintiffs - respondents herein are prima facie in possession of the land in question and they cannot be dispossessed without following due process of law and the main suit is at large before the learned trial Court.
12. Under the circumstances, it would be appropriate if the parties are directed to maintain status quo regarding the suit land till the final disposal of the main suit i.e. Civil Page 31 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined Suit (CCC) No.1158 of 2022 and necessary directions to expedite the suit are fiven. It is clarified that this Court has not gone into the merits of the case and the learned trial Court is directed to proceed and dispose of the Civil Suit (CCC) No.1158 of 2022 as expeditiously as possible preferably within a period of one year and not later than 18 months from the date of the receipt of the copy of this order on its own merits in accordance with law and without being influenced by this order or the order passed below Notice of Motion Exh.6/7 in Civil Suit (CCC) No.1158 of 2022. The parties are directed to cooperate with the expeditious disposal of the suit. There shall be no order as to costs. The Appeal from Order stands disposed of accordingly.
13. While parting with the order, it is clarified that this Court has examined the impugned order passed by the learned trial Judge within the limited scope of provisions of Order 43 Rule 1(r) of the Code of Civil Procedure 1908, whereas the main controversy involved in the suit is at large before the learned trial Court to be adjudicated through a Page 32 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023 NEUTRAL CITATION C/AO/98/2023 ORDER DATED: 25/07/2023 undefined full-fledge trial. Therefore, as stated above, the learned trial Judge shall not be influenced by any observations recorded in the impugned order and observations recorded by this Court herein above while deciding the suit at the end of trial. The findings recorded either by the trial Court or by this Court at inter locutory stage of the suit are tentative in its nature and the learned trial Judge shall decide the case on its merit and as per the evidence that may be led by the parties during the course of trial and decide the suit in accordance with law.
In view of the above, the Civil Application does not survive and the same stands disposed of accordingly.
(S. V. PINTO,J) H.M. PATHAN Page 33 of 33 Downloaded on : Sat Sep 16 22:48:51 IST 2023