Gujarat High Court
Shantaben D/O Ramaji Meraji vs State Of Gujarat on 27 September, 2019
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SA/2/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 2 of 2019
==========================================================
SHANTABEN D/O RAMAJI MERAJI ...APPELLANTS
Versus
STATE OF GUJARAT ...RESPONDENTS
==========================================================
Appearance:
MR MEHUL S. SHAH, SENIOR ADVOCATE with
MS AMBIKA SHARMA, ADVOCATE for
MR ANKIT SHAH, ADVOATE for the Appellants (Original Plaintiffs)
MR SWAPNESHWAR GOUTAM, Assistant Government Pleader
for the Respondents (Original Defendants)
==========================================================
CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 27/09/2019
CAV JUDGMENT
1. This Second Appeal is filed by the original plaintiffs and is directed against the judgment and decree passed by the 9th Additional District Judge, Ahmedabad (Rural) dated 29.09.2018 in Regular Civil Appeal No.26 of 2017, whereby the Appellate Court below has rejected the appeal filed by the original plaintiffs. The plaintiffs had approached the Trial Court [the Senior Civil Judge, Ahmedabad (Rural)] by filing Regular Civil Suit No.392 of 2010 for declaration and permanent injunction. The 4th Additional Senior Civil Judge, Ahmedabad (Rural), partly allowed the suit of the plaintiffs vide judgment and decree Page 1 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019 C/SA/2/2019 CAV JUDGMENT dated 22.02.2017, restraining the defendants from disturbing the possession of the plaintiffs over the suit property and further granting permanent injunction restraining the defendants from entering in the suit property and further restraining them from taking the possession of the suit property from the plaintiffs and also restraining them from allotting the suit property to any third party. The Trial Court however did not grant the declaration qua the ownership of the plaintiffs over the suit property, as prayed for. The original plaintiffs therefore filed appeal before the District Court, to the extent the suit was dismissed. There was no appeal by the original defendants challenging the decree of the Trial Court, to the extent the suit was allowed. The 9th Additional District Judge, Ahmedabad (Rural) dismissed the said appeal being Regular Civil Appeal No.26 of 2017 vide judgment and decree 29.09.2018. It is this judgment and decree which is under challenge by the original plaintiffs in this appeal.
2. This appeal was admitted by this Court (Coram : Hon'ble Mr.Justice B.N.Karia) vide order dated 01.05.2019. While admitting this appeal, the following substantial questions of law were framed by the Court.
A. Whether the Courts below erred on law in rejecting part of the suit and the appeal holding that the original plaintiffs / appellants could not be granted a relief of declaration of ownership on the basis of adverse possession as 'adverse possession' could only be used as a defence ?
Page 2 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019 C/SA/2/2019 CAV JUDGMENT B. Whether the impugned judgments are wholly erroneous and perverse as the same are based on the judgment in the case of Gurudwara Sahib (supra) which is per incurrium ?
3. Heard Mr.Mehul S. Shah, learned senior advocate for the appellants (original plaintiffs) and Mr.Swapneshwar Goutam, learned Assistant Government Pleader for the respondent - State Authorities (original defendants).
4. Learned Senior advocate for the appellants has submitted that, the plaintiffs are in possession of the suit land since more than 30 years. The said possession is continuous and uninterrupted. It is submitted that considering the material on record, the Trial Court rightly granted the injunction in favour of the plaintiffs, restraining the defendants from disturbing the possession of the plaintiffs over the suit property in any manner. It is further submitted that though the trial Court has accepted the claim of the plaintiffs over the suit land, including that of ownership of the plaintiffs, still the declaration to that effect is not granted and thereby fell in error, which needs to be corrected. It is further submitted that, both the Courts below have clearly recorded findings in favour of the plaintiffs but has denied relief on erroneous application of law. It is submitted that, the said error, which is a substantial question of law, be answered in favour of the appellants and the appeal be allowed. In support of his submissions, learned senior advocate for the appellants has relied on the following authorities.
Page 3 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019 C/SA/2/2019 CAV JUDGMENT(1) Decision of Supreme Court of India recorded on Civil Appeal No.7764 of 2014 in the case of Ravinder Kaur Grewal Vs. Manjit Kaur dated 07.08.2019.
(2) (2017) 9 SCC 579 - State of Uttarkhand Vs. Mandir Sri Laxman Sidh Maharaj.
(3) (2016) 13 SCC 165 - Lakshmanan Vs. G. Ayyasamy.
(4) (2019) 2 SCC 684 - Akhil Bhartvarshiya Marwadi Agarwal Jatiya Kosh Vs. Brijlal Tribrewal.
(5) 1985 (2) GLR 741 - Sumra Abu Haji Vs. Himmatsinhjijuvansinhji Jadeja.
(6) 1981 (2) SCC 103 - Kshitish Chandra Bose Vs. Commissioner of Ranchi.
(7) 1970 (3) SCC 802 - State of West Bengal Vs. Dalhousie Institute Soceity.
(8) 1982 (2) SCC 134 - Govt of Andhra Pradesh Vs. Thummala Krishna Rao.
(9) AIR 1934 PC 23 - Secy. of State Vs. Debendra Lal Khan.
Page 4 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019 C/SA/2/2019 CAV JUDGMENT5. On the other hand, Mr. Swapneshwar Goutam, learned Assistant Government Pleader for the respondent - State Authorities (original defendants) has submitted that, the Courts below have rightly held that the plaintiffs were not entitled for the declaration qua the ownership over the suit property, as prayed for by them. It is submitted that this appeal be dismissed. Learned Assistant Government Pleader has made submissions even to the extent that, the injunction also ought not to have been granted by the Courts below in favour of the plaintiffs. In support of his submissions, learned Assistant Government Pleader has relied on the following decisions.
(1) 1981 (2) SCC 103 - Kashitish Chandra Bose Vs. Commissioner of Ranchi.
(2) 2010 (2) SCC 461 - Mandal Revenue Officer Vs. Goundla Venkaiah.
(3) 2007 (9) SCC 641 - Des Raj Vs. Bhagat Ram.
(4) 2007 (3) SCC 569 - Krishnamurthy S. Setlua Vs. O.V. Narsimha Setty.
(5) 2006 (6) SCC 271 - Gian Dass Vs. Gram Panchayat, Village Sunner Kalan.
(6) 2007 (6) SCC 59 - P.T. Munichikkanna Reddy Vs. Revamma.
(7) 2000 (3) SCC 708 - Roop Singh Vs. Ram Singh.
(8) Decision of the Supreme Court of India recorded Page 5 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019 C/SA/2/2019 CAV JUDGMENT on Civil Appeal Nos.10501 & 10502 of 2014 in the case of Prabhakar Gones Prabhu Navelkar Vs. Saradchandra Suira Prabhu Navelkar.
(9) 2011 (10) SCC 404 - State of Haryana Vs. Mukesh Kumar.
6. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds as under.
6.1 The Trial Court had, on the basis of the pleadings before it, framed the following issues and on the basis of the evidence led before it, answered them as under.
1. Whether the plaintiffs prove that they are in continuous and uninterrupted possession of the suit property from last 30 years ?
(In affirmative)
2. Whether the plaintiffs prove that they have become owner of the suit property by virtue of adverse possession ?
(In affirmative)
3. Whether the plaintiffs prove that they are entitled to get the relief as prayed for ?
(Partly in affirmative)
4. What Order? Decree?
Page 6 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019 C/SA/2/2019 CAV JUDGMENT6.2 The relevant part of the reasons recorded by the Trial Court (i) to grant relief and (ii) to deny relief are as under.
"9. Issue Nos. 1 and 2Issue No.1 and 2 are inter- related, hence in order to avoid repetition of facts and law and for the purpose of brevity, they are discussed and decided together.
9.1 ...
9.7 ...Thus it can be believed that the plaintiffs are cultivating the suit property without permission of the defendants from the year 1966-67. The suit property is vested in Government in the year 1961. The plaintiff's ancestor Ramaji Meraji and after his death the plaintiffs are cultivating the suit property till date continuously and undisturbed. Initially it was cultivated with permission but from the year 1966-67 it is being cultivated without the permission. Hence, it can be said that from such period the possession of the plaintiffs have become adverse to the defendants. Such adverse possession has continued till date i.e. for more than 30 years. Hence, it can be said that the possession of the plaintiffs over the suit property has perfected into title. The plaintiffs have become owner of the suit Page 7 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019 C/SA/2/2019 CAV JUDGMENT property by virtue of adverse possession. Thus the plaintiffs have proved that they are in continuous and uninterrupted possession of the suit property from last 30 years. The plaintiffs have also proved that they have become owner of the suit property by virtue of adverse possession. Hence, issues no. 1 and 2 are answered in affirmative.
Issue No.3 10.1 The plaintiffs have prayed for the relief of declaring them as owner of suit property by virtue of adverse possession.
The plaintiffs have also prayed for directing the defendants to mutate the names of the plaintiffs in the revenue records. As discussed above, the plaintiffs have proved that they have become owner of the suit property by virtue of adverse possession. But it is to be considered that whether a declaration to that effect can be given or not. It is well settled principle that adverse possession can be used as a shield and not as a sword. The learned advocate for the plaintiffs has relied on the judgment of Sumra Abu Haji Vs. Himatsinhji Juvansinhji Jadeja, 1985 (2) GLR 741 and argued that the Hon'ble Court has observed in the said judgment that on the completion of the Page 8 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019 C/SA/2/2019 CAV JUDGMENT period of limitation the title of the original owner is extinguished and the person who is in adverse possession acquires title on the immovable property and such person can maintain a suit for declaration and injunction even against the true owner.
10.2 Having considered the above arguments on behalf of the plaintiffs and the judgment supra, the same cannot be accepted. This Court relies upon the unreported judgment of Hon'ble Supreme Court in the case of Gurudwara Sahib vs. Gram Panchayat Village Sirthala and another Civil Appeal No. 8244/2013 in which the Hon'ble Supreme Court has observed that "even if the plaintiff is found to be in adverse possession it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant then it can use this adverse possession as a shield / defence.
10.3 As observed by Hon'ble Supreme Court above, a declaration that the plaintiffs have become owner of the suit
property by virtue of adverse possession can not be granted. Consequently, no order can be passed to mutate the names of the plaintiffs in revenue record. The other Page 9 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019 C/SA/2/2019 CAV JUDGMENT judgments relied on by the plaintiff as mentioned in para of this judgment are also not helpful to the plaintiff because the facts in the said judgments are different from the facts of the present case. The judgment of Hon'ble Supreme Court in the case of Gurudwara Sahib (supra) is one which has been delivered later in time of the judgment relied on by the plaintiff. Hence, the observations made by Hon'ble Supreme Court in the judgment (supra) has to be relied on. Hence the relief of declaration of ownership by virtue of adverse possession cannot be granted.
10.4 The plaintiffs have also prayed for permanent injunction restraining the defendants from disturbing the possession of the plaintiffs over the suit property and also restraining the defendants from entering in the possession of the suit property. The plaintiffs have also prayed for restraining the defendants from taking the possession of the suit property from the plaintiffs and also restraining the defendants from allotting the suit property to any third party. As discussed above, the plaintiffs have proved that they are in adverse possession from last 30 years. Their possession has been perfected into title. Hence an order of injunction as prayed for Page 10 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019 C/SA/2/2019 CAV JUDGMENT by the plaintiffs can be passed. Thus the plaintiffs are entitled to get the relief of permanent injunction against the defendants. As regards to relief of desecration, it cannot be allowed. Hence, issue no.3 is answered partly in affirmative as to relief of injunction only.
As answer to issue no.4 final order is
passed as under :
FINAL ORDER
1. The suit of the plaintiffs is hereby partly allowed.
2. A permanent injunction is hereby granted restraining the defendants from disturbing the possession of the plaintiffs over the suit property i.e. the land bearing old survey no. 193 block no. 208 admeasuring 15176 sq. mts. Situated in the sim of Mouje Lilapur, Taluka Dascroi, District Ahmedabad.
3. A permanent injunction hereby granted restraining the defendants from entering in the suit property and also restraining from taking the possession of the suit property from the plaintiffs and also restraining from allotting the suit property to any third party.
Page 11 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019 C/SA/2/2019 CAV JUDGMENT4. Other reliefs prayed by the plaintiffs are hereby rejected."
6.3 Thus, the Trial Court denied the relief of declaration qua the ownership of the plaintiffs over the suit property only on the ground that, the same could not have been done in view of the decision of the Supreme Court of India in the case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala reported in (2014) 1 SCC 669.
7.1 The Appellate Court below also concurred with the said line of reasoning of the Trial Court. As noted above, there was no appeal by the original defendants - State Authorities before the District Court challenging the relief (injunction) granted by the Trial Court in favour of the plaintiffs. The decree of the Trial Court and the findings thereof attained finality so far the defendants are concerned. The original plaintiffs had filed appeal before the District Court to the extent declaration qua the ownership over the suit property, as prayed for was denied. The Appellate Court below framed following points for determination and answered them as under.
"(1) Whether the plaintiffs are entitled to get relief of declaration as prayed in the suit ?
(In negative) (2) Whether judgment and decree of the Ld. Trial Court is perverse, illegal and against the provision of Law and required Page 12 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019 C/SA/2/2019 CAV JUDGMENT to be interfered ?
(In negative)"
7.2 The reasons recorded by the Appellate Court below to dismiss the appeal are the same which the Trial Court had recorded. The relevant part of the reasons recorded by the District Court, are as under.
"26. So, looking to the findings of the Ld. Trial Court it transpires that the respondents have not challenged the judgment and decree passed by Ld. Trial Court, which means that they have accepted that the appellants are in adverse possession of the suit land. The issue whether adverse possession of the appellant / plaintiff had matured into their ownership involves the question of Law and it is settled that no declaration of title can be sought on the basis of adverse possession. Hence Ld. Trial Court has rightly relied upon the case of Gurudwara Sahib Sannauli Vs. Gram Panchayat Village Sirthala & Anr. So, there is no reason to interfere in the judgment and order passed by Ld. Trial Court, hence, I answer point No.1 and 2 in negative and in accordance with the decision of point no.1 and 2, I decide issue no.3 as under and pass following order:
O R D E R Page 13 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019 C/SA/2/2019 CAV JUDGMENT
(i) The present Regular Civil Appeal is hereby rejected.
(ii) No order as to costs.
(iii) Decree be drawn accordingly.
(iv) R & P be sent back immediately to the Ld. Trial Court.
The order is declared today on this 29th day of September, 2018 under my hand and seal."
7.3 Thus, the Appellate Court below also denied the relief of declaration qua the ownership over the suit property to the plaintiffs only on the ground that, the same could not have been done in view of the decision of the Supreme Court of India in the case of Gurudwara Sahib (supra).
8.1 It is in the above factual background, this Court needs to consider the substantial questions of law, which are quoted above. Both the questions being inter-connected, are considered together by this Court.
8.2 The only ground to deny the relief of declaration qua the ownership over the suit property, as prayed for by the plaintiffs by the Courts below is the decision of the Supreme Court of India in the case of Gurudwara Sahib (supra). The said decision is held to be not a good law by the Supreme Court. Reference in this regard needs to be made to the decision of the Supreme Court of India in the case of Ravinder Kaur Grewal versus Manjit Kaur (Civil Appeal No. 7764 of 2014) dated 07.08.2019.
Page 14 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019 C/SA/2/2019 CAV JUDGMENTThe relevant part of the said decision reads as under.
"61. Resultantly, we hold that decisions of Gurudwara Sahab v. Gram Panchayat Village Sirthala (supra) and decision relying on it in State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj (supra) and Dharampal (dead) through LRs v. Punjab Wakf Board (supra) cannot be said to be laying down the law correctly, thus they are hereby overruled. We hold that plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff."
8.3 In view of above, both the questions of law need to be answered in favour of the appellants - original plaintiffs holding that, both the Courts below erred on law in rejecting part of the suit and the appeal holding that the original plaintiffs / appellants could not be granted a relief of declaration of ownership on the basis of adverse possession as 'adverse possession' could only be used as a defence. It also needs to be held that, the impugned judgments are therefore erroneous and perverse as the same are based on the judgment in the case of Gurudwara Sahib (supra) which is declared as not a good law by the Supreme Court of India. On conjoint consideration of the above, this Court finds that, the issue No.3 Page 15 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019 C/SA/2/2019 CAV JUDGMENT framed by the Trial Court as quoted in para:6.1 above, needs to be answered in affirmative. This Court finds that, after having answered the issues No.1 and 2 in affirmative, the issue No.3 was also required to be answered in affirmative. The same is accordingly answered in affirmative. Resultantly, this appeal needs to be allowed.
9. There is an additional reason to allow this appeal. In the present case, on behalf of the appellants, number of decisions were cited before the Courts below to contend that the decision in the case of Gurudwara Sahib (supra) would not be applicable, but other decisions, which are referred above, would be applicable. From record it transpires that, the arguments on behalf of the appellants before the Courts below were, in substance, the same, which are now in the form of the reasons recorded by the Supreme Court in the case of Ravinder Kaur Grewal (supra), as to why the decision in the case of Gurudwara Sahib (supra) could not have been followed in preference to other earlier decisions of the Supreme Court of India, including that by the larger Bench. Reference in this regard needs to be made to the decisions of the Supreme Court of India in the cases of (i) 1981 (2) SCC 103 - Kshitish Chandra Bose Vs. Commissioner of Ranchi and (ii) 1970 (3) SCC 802 - State of West Bengal Vs. Dalhousie Institute Society, which are referred to and discussed by the Supreme Court of India in Para:10 and 16 respectively, while recording the judgment in the case of Ravinder Kaur Grewal (supra). It is a matter of record that the plaintiffs had already agitated before both the Courts below that it is these decisions viz. (i) 1981 (2) SCC 103 - Kshitish Chandra Bose Vs. Commissioner of Ranchi Page 16 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019 C/SA/2/2019 CAV JUDGMENT and (ii) 1970 (3) SCC 802 - State of West Bengal Vs. Dalhousie Institute Society, which would be applicable in the facts of this case and not the decision of the Supreme Court of India in the case of Gurudwara Sahib (supra). This is an additional reason to hold that both the Courts below fell in error while following the decision in the case of Gurudwara Sahib (supra) in the present case. This Appeal therefore needs to be allowed on this count as well.
10. The judgments cited by the learned Assistant Government Pleader would not take the case of the State authorities any further, in the facts and the reasons recorded above. The argument of learned Assistant Government Pleader to the effect that, even the relief (of permanent injunction) which is granted by the Courts below could not have been granted, needs to be rejected considering the fact that the original defendants have not challenged the judgment and decree of the Trial Court, even before the District Court. Defendants can not be permitted to contend against the judgment and decree which is accepted by them. In totality, this Appeal needs to be allowed.
11. For the above reasons, the following order is passed.
11.1 This appeal is allowed.
11.2 The judgment and decree passed by the 4th Additional Senior Civil Judge, Ahmedabad (Rural) in Regular Civil Suit No.392 of 2010 dated 22.02.2017, as confirmed by the 9 th Additional District Judge, Ahmedabad (Rural) vide judgment Page 17 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019 C/SA/2/2019 CAV JUDGMENT and decree dated 29.09.2018 in Regular Civil Appeal No.26 of 2017, has stood confirmed to the extent the suit is allowed, restraining the defendants from disturbing the possession of the plaintiffs over the suit property and further, granting permanent injunction restraining the defendants from entering in the suit property and further restraining them from taking the possession of the suit property from the plaintiffs and also restraining them from allotting the suit property to any third party. The said judgment and decree is modified to the extent, it did not grant the declaration qua the ownership of the plaintiffs over the suit property, as prayed for by the plaintiffs.
11.3 In view of the findings of both the Courts below (which has attained finality) to the effect that, the possession of the plaintiffs over the suit property has perfected into title, it is held and declared that, the appellants - original plaintiffs have become the owners of suit property. It is ordered that, necessary entry in this regard shall be made in the record of the defendants. The Regular Civil Suit No.392 of 2010 in the Court of Senior Civil Judge, Ahmedabad (Rural) is decreed by granting all the reliefs, including the declaration qua the ownership of the plaintiffs over the suit property, as above.
11.4 Decree be drawn accordingly.
(PARESH UPADHYAY, J) MOBHATI/PS/03 Page 18 of 18 Downloaded on : Sun Sep 29 00:18:00 IST 2019