Gujarat High Court
Arjanbhai Talshibhai vs State Of Gujarat on 21 March, 2024
NEUTRAL CITATION
C/SA/317/2022 JUDGMENT DATED: 21/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 317 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/SECOND APPEAL NO. 317 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ARJANBHAI TALSHIBHAI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR HJ DHOLAKIA(5862) for the Appellant(s) No. 1
MS. PALAK K DALAL(10011) for the Appellant(s) No. 1
for the Respondent(s) No. 4
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MS ADITI S RAOL(8128)
for the Respondent(s) No. 5
MR ADITYA JADEJA, AGP for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 21/03/2024
ORAL JUDGMENT
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1. This Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (`CPC' for short) being aggrieved and dissatisfied with the common order and decree dated 16.4.2021 passed by the learned Principal District Judge, Bhavnagar in Regular Civil Appeal No.57 of 2017 and allied matters as well as the judgment and decree dated 1.7.2017 passed by the learned 8 th Additional Chief Judicial Magistrate, Bhavnagar in Regular Civil suit No.450 of 2009 by suggesting the following substantial questions of law:
"1. Whether the Appellant proves the order passed by the respondents in the ceiling case as well as in the remand application, are illegal void ab initio and not binding on the appellant.
2. Whether the Appellant proves that the suit is in his possession since the year 1954-55.
3. Whether the Appellant proves that he has become the owner of the suit land by virtue of the Sale Deed executed in his favour by Dr.Virbhadrasinh Krushnakumarsinhji.
4. Whether the Appellant proves that he has become the owner of the suit land on the basis of adverse possession.
5. Whether the Appellant proves that the respondents are not having any right, title or interest in the suit land.
6. Whether the Appellant is entitled to get permanent injunction as prayed for.Page 2 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024
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7. Whether the Appellant proves that he is entitled to get his name mutated in the revenue records with respect to the subject land.
8. Whether the respondents prove that the subject land is barred by Law of Limitation.
9. Whether the respondents prove that this Court does not have the jurisdiction to entertain the present Appeal."
2. Heard learned advocates for the parties. 2.1 Learned advocate Mr.Dholakiya for the appellant has submitted that the land bearing survey no.33,114 admeasuring Acre 6.00 10.00 gunthas is under dispute; that the revision application was proceeded in compliance of the provisions of The Gujarat Agricultural Lands Ceiling Act, 1960 (`the Ceiling Act' for short), wherein the order was passed on 30.1.1994 wherein the land in question was kept free from agricultural ceiling limit; that the ceiling case no.76-77 was initiated before the Mamlatdar and Agricultural Commission (respondent no.3), where declaration by Maharaja was given but was not considered; that the Maharaja Bhavnagar preferred Revision Application No.9 of 1981 before the Collector in which the collector, by way of order dated 20.7.1981, dismissed the order dated 23.3.1981 and remanded it to the respondent no.2-Mamlatdar and Agricultural Commission. He submitted that as the respondents were Page 3 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined trying to vacate the possession from the farmers, the farmers and the appellant were compelled to prefer Regular Civil Suit before the Civil Court, Bhavnagar along with application for temporary injunction, which came to be rejected against which the Civil Miscellaneous Appeal was preferred wherein stay till final disposal was granted.
2.2 Learned advocate for the appellant has submitted that the ancestors/family of the appellant are in constant and uninterrupted possession of the disputed land since 1954-55; that they used to carry out agricultural activity on the said land but later on, the lands were developed by his ancestors; that as the said lands were waste lands, the Maharaja sold the lands to the ancestors of the appellant at a cheaper rate for carrying out agricultural activities by executing Satakhat in their favour; that in the month of March, 1974, Dr.Virbhadrasinhji (son of Krushnakant ji) also decided to sell the suit lands and the adjoining lands to the respective possessors at Rs.101.00 per vigha and for this purpose he executed POA in the name of eight persons and the POA accepted Rs.75 per vigha from the ancestors of the appellant, other farmers also paid the earnest money and common receipts accepting such money were issued to them; the application for mutating their names was preferred by the appellant and other farmers which was rejected with a Page 4 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined remark that their names can only be mutated on the basis of registered sale deed and not on the basis of Satakhat and therefore the name of Dr.Virbhadrasinh continued to be on the revenue record; that the proceedings with respect to the suit land were carried under the provisions of the Ceiling Act in the year 1962-63 without the knowledge of the appellant and they were not given any notice nor were heard even though they were in possession; even the Maharaja Dr.Virbhadrasinji declared that the land admeasuring about 4000 vighas was in possession of the farmers since the time of their forefathers and it was sold to those farmers by executing a Satakhat; that the representation made by Dr.Virbhadrasinji was also not considered and order was passed declaring the land in question as government vested surplus and further to hand over the possession to the government; the revision application was preferred by Maharaja Bhavnagar which was dismissed and the matter was remanded back to the Mamlatdar and Agricultural Commissioner; in remand proceedings also the same facts as to the possession and confirmation of Satakhat were mentioned but that also came to be turned down on the basis that no such sale deed was executed and therefore farmers could not get any rights and therefore held the suit lands as `government vested surplus' lands; therefore, the appellant filed the civil suit, to be rejected against which the Page 5 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined Civil Miscellaneous Appeal was preferred wherein stay till final disposal was granted. Despite the stay being in existence, the respondents were illegally trying to vacate the possession and therefore the appellant was compelled to send a legal notice under Section 80 of CPC and thereafter preferred Regular Civil Suit, whichw as dismissed vide the impugned order, which was carried in appeal, which was also dismissed.
2.3 Referring to the above factual situation, learned advocate Mr.Dholakia for the appellant has submitted that it is admitted in the deposition of Taluka Mamlatdar that in the village form 7/12, the name of the ancestors of the petitioner is shown as possessors of the suit land; that if any person has surplus land, then he is given a choice as to which land he intends to keep and which land he intends to let go, but the same was not done; that as per the Saurashtra Land Reforms Act, the possessor also have to be issued notice which is not done in this case; though there was an order of Mamlatdar to the effect that noone's name is to be entered in the revenue record without the permission of the competent officer, still the name of the government came to be entered in the revenue record.
2.4. He has submitted that the learned trial Court has Page 6 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined held that the civil court has no jurisdiction. Thereafter, the Court has considered the other aspects of the matter and has given the finding on other issues framed in the matter which is erroneous and therefore he prays to allow this appeal as the Court has committed patent error in law and the findings which are given on the other issues can be considered are not required at all once the court has come to the conclusion that the civil court has no jurisdiction. He contended that the petitioner has not been made party in the ceiling case though they were cultivating and in possession of the land since long and therefore the said order passed by the concerned authority of the state government under the ceiling Act is ab initio void. The petitioner did not have knowledge about the order passed in the ceiling case since they were not made a party. He has further submitted that no panch rojkam to show that the government has taken the possession of the land from any Maharaja and in fact, they are in actual possession till date and cultivating the land. The name of the government is entered into the revenue record and he has submitted that the name of the appellants is still shown as possessor in 7/12 extract and amount of lease and education cess has been paid by the appellant. The tax is also paid by the farmers who are in possession from the year 1978 till the date and sale transaction has taken place before the amendment of the Ceiling Act. Therefore, in Page 7 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined view of this, this is a fit case where the Court should exercise the powers by interfering with the concurrent findings of the learned Courts below as they have committed gross error. Therefore, he prays that the Court may frame the appropriate substantial questions of law and allow this appeal.
3. Per contra, learned senior advocate Mr.Mehta with learned advocate Ms.Raol has strongly objected to the contentions and has submitted that there is no substantial question of law as arising from the appeal and therefore the appeal is required to be dismissed. He submitted that the civil court does not have the jurisdiction to settle, decide or deal with any question which is passed under the Ceiling Act and therefore the suit is expressly barred under Section 47 of the Ceiling Act read with Section 9 of CPC; he submitted that as regards the prayer that the possession of subject land is on the basis of a unregistered Satakhat, the Satakhat is neither a document of title nor a deed of transfer of property by sale as Section 54 of the Transfer of Property Act mandates registration of sale document under Section 17 of the Registration Act, which has not been done in the present case; that the appellant cannot claim consequential prayer for possession without filing a suit for specific performance; that the learned trial Court has rightly given findings on all the Page 8 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined issues in view of Order 14 Rule 2 of CPC which mandates the trial court to pronounce on all the issues in order to avoid the possibility of remanding back the matter after the decision on preliminary issues; that the concurrent findings of fact have been arrived by the learned courts below and though this Court has power to review the concurrent findings of fact, ordinarily they should be interfered with only in exceptional cases, where the findings are such that "it shocks the conscience of the Court or by disregard to the forms of legal process or some violation of some principles of natural justice or otherwise substantial and grave injustice has been done", which is the case in the present case and therefore, no interference by this Court is required. He, therefore, prayed to dismiss this appeal as there is no gross error committed by the learned courts below in dismissing the suit and the appeal.
4. I have considered the submissions made at the bar, perused the material placed on record including the impugned judgments.
5. The relevant provisions for deciding this appeal are as under:
"Section 47 of the Ceiling Act reads as under:Page 9 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024
NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined "47. No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar, Tribunal, Collector, the Gujarat Revenue Tribunal or the State Government."
6. Section 17 of the Registration Act reads as under:
"17. Documents of which registration is compulsory.--
(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of Page 10 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
[(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
[(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 (48 of 2001) and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] (2) Nothing in clauses (b) and (c) of sub-section (1) applies to-- (i) any composition deed; or Page 11 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) 1 [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court 2 [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject- matter of the suit or proceeding]; or
(vii) any grant of immovable property by 3 [Government]; or
(viii) any instrument of partition made by a Revenue-Officer; Page 12 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024
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(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or 4 [(xa) any order made under the Charitable Endowments Act, 1890 (6 of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue- Officer.
[Explanation.--A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the 1st day of Page 13 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined January, 1872, and not conferred by a will, shall also be registered."
7. Section 54 of the Transfer of Property Act reads as under:
54. "Sale" defined.--"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-
promised.
Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.
8. Order 14 Rule 2 of CPC reads as under:
"[2. Court to pronounce judgment on all issues.--(1) Page 14 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if the issue relates to--
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.]"
9. Section 9 of CPC reads as under:
"9. Courts to try all civil suits unless barred.--The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
[Explanation I].--A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. [Explanation II].--For the purposes of this section, it is Page 15 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.]"
10. Section 65 of the Limitation Act reads as under:
65. For possession Twelve years. When the of immovable possession of the property or any defendant becomes interest therein adverse to the based on title. plaintiff.
Explanation.--For the purposes of this article--
(a)where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, Page 16 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined reversioner or devisee, as the case may be, falls into possession; (b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies; (c)where the suit is by a purchaser at a sale in execution of a decree when the judgmentdebtor was out of possession at the date of the sale, Page 17 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession.
11. It transpires from the record that essentially the present appellant has claimed the prayers in the suit as under:
"(1) To declare that the orders passed by the defendants under the Gujarat Agricultural Land Ceiling Act are void ab initio as they are passed without joining the plaintiffs as party and without giving opportunity of hearing or representing with regard to the land bearing R.Survey No.31, 108 of Acre 4.03, 5.00 gunths.
(2) To pass a decree in favour of the plaintiffs and against the defendants confirming that the plaintiffs are in legal and physical possession and occupation continuously from 1954-55 of the Mithapur R.Survey No.31, 108 admeasuring Acre 4.03, 5.00 gunthas respectively.Page 18 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024
NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined (3) To pass a decree in favour of the plaintiffs and against the defendants declaring that the plaintiffs are in owners of the land of Mithapur village bearing R.Survey No.31, 108 admeasuring 4.03 and 5.00 gunthas respectively by virtue of sale given by Dr.Virbhadrasinhji Krushkumarsinhji and alternatively to declare that the plaintiffs are in possession by way of adverse possession.
(4) To grant permanent injunction against the defendants that the defendants or their heirs may not leave the physical possession of the disputed R.Survey No.31, 108 admeasuring Acr.4.03 and 4.00 gunthas respectively and the plaintiffs may not be stopped from cultivating, taking the crops etc. (5) An order be passed to enter the name of the plainitffs in the revenue records with regard to the land of R.Survey No.31, 108 admeasuring 4.03 and 5.00 gunthas respectively with regard to the possession, occupation and ownership and the mutation entry be made in that regard accordingly. (6) Any other and further relief that may be deemed fit and proper in the interest of justice be granted."
12. The prayers in the other suit are identical. It transpires that the first prayer in the prayer clause pertains to the challenge to the orders passed by the state Page 19 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined government authorities under the provisions of the Ceiling Act on the ground that the plaintiff is not made party to that proceedings. The other prayers in the suit are on the basis of agreement to sale executed in favour of the plaintiff by the erstwhile owner and that was claimed as sale by the plaintiff in the suit and also alternatively prayed for the ownership on the basis of adverse possession. Both the Courts have considered the claims in detail. The learned trial Court has, in its judgment, discussed the entire issue involved in the proceedings. It is also relevant to note that in the suit, defendant nos.1 to 4 have appeared through learned AGP and filed common written statement vide Exh.21 and denied most of the facts stated by the plaintiff in the suit. There is specific contention that no cause of action has arisen in favour of the plaintiff for filing the present suit. It is also stated that the suit is barred by law of limitation and it is also contended that the civil court does not have jurisdiction to entertain the present suit in view of Section 47 of the Ceiling Act read with Section 9 of CPC other contentions are also raised regarding factual aspect.
13. Thereafter, the learned trial Court has framed the issues as under:
"1. Whether the plaintiff proves that the order passed by Page 20 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined the defendants in the Ceiling Case No.76/77 on dated 23.03.1981 and the order passed on 16.09.1982 in the remand application are illegal void ab initio and not binding on the plaintiff?
2. Whether the plaintiff proves that the suit land is in his possession since the year 1954-55?
3. Whether the plaintiff proves that he has become the owner of the suit land by virtue of the sale deed executed in his favour by Dr.Virbhadrasinh Krushnakumarsinhji?
4. Whether the plaintiff proves that he has become the owner of the suit land on the basis of adverse possession?
5. Whether the plaintiff proves that the defendants are not having any right, title or interest in the suit land?
6. Whether the plaintiff is entitled to get permanent injunction as prayed for?
7. Whether the plaintiff proves that he is entitled to get his name mutated in the revenue records with respect to the suit land?
8. Whether the defendants prove that the suit is barred by Law of Limitation?
9. Whether the defendants prove that this Court does not have the jurisdiction to entertain the present suit?
10. Whether the plaintiff is entitled for the relief(s) as prayed for?
11. What order and decree?"
14. The answers to the said issues are replied by the Page 21 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined learned trial Court as under:
"1. In Negative.
2. In Negative.
3. In Negative.
4. In Negative.
5. In Negative.
6. In Negative
7. In Negative.
8. In Negative.
9. In Affirmative
10. In Negative.
11. As per final order."
15. The parties have also produced the documentary as well as oral evidence as follows as stated in paragraph 6 of the judgment.
16. Oral evidence led by the plaintiff:
Sr.No. Exhibit No. Particulars of the document
1. Exh.31 Affidavit as examination-in-chief of the plaintiff
2. Exh.47 Affidavit as examination-in-chief of one Bhagwanbhai Ranchodbhai Documentary evidence filed by the plaintiff:
Sr.No. Exhibit No. Particulars of the document
1. Exh.33 Village form no.7/12 of the suit land Page 22 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined
2. Exh.34 Revenue entry no.260
3. Exh.35 Power of Attorney executed by the Maharaja in favour of Baldevbhai Karsanbhai and others
4. Exh.36 Receipt issued by the Maharaja towards accepting payment against the suit land.
5. Exh.37 Order passed in Revenue Revision Application No.30/73
6. Exh.38 Order passed by the defendant no.3 in the Ceiling Case No.76/77.
7. Exh.39 Order passed by the defendant no.2 in the Revision Application No.9/81.
8. Exh.40 Order passed by the defendant no.3.
9. Exh.41 Receipt issued towards payment of tax towards the suit land.
10. Exh.42 Order passed below injunction application in the Regular Civil Suit No.364/84.
11. Exh.43 Order passed in the civil Misc.Appeal No.164/84.
12. Exh.44 Statutory notice issued to the defendants.
13. Exh.45 Receipt issued towards sending the notice.
14. Exh.46 Acknowledgment slip towards the notice received by the defendants.
Oral Evidence Led by the defendants:
Sr.No. Exhibit No. Particulars of Document
1. Exh.49 Affidavit as examination-in-chief of the Taluka Mamlatdar namely Natvarlal Laljibhai Damor Documentary evidence led by the defendants:
Sr.No. Exhibit No. Particulars of Document
1. Exh.51 Order passed in the Ceiling Case No.76/77
2. Exh.52 Vakalatnama dated 06.06.1983 of the advocate Shri B.H.Upadhyay Page 23 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined 3, Exh.53 Vakalatnama of the advocate Shri Manubhai Vyas
4. Exh.54 Certified copy of the village form no.7/12 for the year 2004-05.
5. Exh.55 Copy of the Village form no.7/12 for the year 2006-07, 2007-08 and 2008-09.
6. Exh.56 Copy of the entry no.386 and 475.
17. Thereafter, the Court have given the detailed reasons by holding that the suit is barred by jurisdiction as civil court has no jurisdiction under Section 9 of CPC, in addition to that, the Court has also found that the further prayers prayed in the suit and other contentions raised in the suit by the plaintiff are also not believed and the Court has come to the conclusion that though the Court has believed that the suit can be considered to be filed within the prescribed period of limitation, but the Court has ultimately come to the conclusion that no agreement, contract, sale deed etc. in terms of writing has been produced by the plaintiff in support of his claim and therefore the Court has referred to Section 17 of the Registration Act whereby the Court has found that it is compulsory for the parties to register document which is valued for more than Rs.100/-. In the present case, nothing in terms of writing has been produced by the plaintiff and hence also it cannot be said that the ratio of judgments which are cited at the bar by the plaintiff are helpful to the plaintiff. By giving all the Page 24 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined findings, the Court has come to the conclusion that the plaintiff has no case and therefore the suit is dismissed.
18. The appeal is preferred by the plaintiff whereby the lower appellate Court has considered all the contentions raised and also framed points of determination as provided under Order 41 Rule 31 of CPC and has reappreciated the entire evidence. The Court has affirmed the findings of the learned trial Court and regarding the plea of adverse possession, the Court has specifically found that the claim of adverse possession against government which has been vested with the rights over the property on the basis of enactment of a particular Act and in enforcement thereto, by following the entire proceedings, the government has been vested with the right over the property and therefore the claim of the plaintiff with respect to adverse possession against the government is not sustainable. Moreover, the plaintiff has not claimed against the erstwhile owner who is having title prior to the land is entered into the name of the government but such claim was not raised at relevant point of time and in absence of any sufficient evidence in support of the said contention placed on the record, the Court has said that merely claim of the long possession will not amount to adverse possession and accordingly the Court has dismissed the appeal by giving findings on other issues including the Page 25 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined issue that civil court has no jurisdiction.
19. While looking to the first prayer, it itself speaks that the plaintiff has sought to challenge the order passed by the revenue authorities under the provisions of the Ceiling Act by which the land of erstwhile owner is vested in the government. In view of Section 47 read with Section 9 of CPC, the Court has not committed any error by holding that the civil court has no jurisdiction to try the said suit where such prayer is sought. It is needless to say that if the plaintiff is at all aggrieved by the said orders, there is provision of appeal under the Act as well as it can be challenged by way of appropriate petition under Article 226/227 of the Constitution of India but when there is an express bar of the suit and the suit itself is not maintainable, the court has not committed any error in giving findings and dismissing the suit on that ground.
20. Further, a reference is required to be made to deal with the contention raised by the appellant that when the court has found that the civil court has no jurisdiction then the court should not discuss other issues. Normally, the court can frame such issue as preliminary issue but that is not barred in the facts and circumstances. The court can also decide other aspects as looking to the prayer sought in the Page 26 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined plaint, the court has thought it fit to frame issues from the pleadings of the parties and thereafter decide the issues.
21. As regards the plea of adverse possession and also the claim of the prayers on the basis of sale transaction entered into by the erstwhile owner in favour of the respective plaintiff, the Section 54 of the Transfer of Property Act where sale is defined mandates registration of the sale document under Section 17 of the Registration Act. Even assuming that some agreement to sale is entered into by the plaintiff, it does not confer any absolute title in favour of the plaintiff and therefore considering the fact that no document, no written contract is produced on the record to support such execution of agreement to sale which is otherwise also required to be registered in view of Section 17 of the Registration Act and therefore also the court has rightly come to the conclusion on this aspect.
22. With regard to adverse possession as the plaintiff has claimed that they are in possession since 1974, it is fruitful to refer to the judgments in the cases of :
"(1) Kesar Bai V/s Genda Lal and Another, reported in 2022(10) SCC 217, paragraphs 7 and 8, which read as under:Page 27 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024
NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined "7. Having gone through the impugned judgment and order passed by the High Court as well as the First Appellate Court and even that of the learned Trial Court, it appears that the original plaintiffs prayed for a declaration and claimed the title/ownership on the basis of the Sale Deed dated 31.08.1967 (Ex.P.1). Simultaneously, the plaintiffs also claimed the title by adverse possession. All the Courts below have negated the claim of the original plaintiffs of ownership on the basis of the registered Sale Deed dated 31.08.1967 (Ex.P.1.) Therefore, the only claim on behalf of the plaintiffs was the plea of adverse possession. So far as the plea of adverse possession is concerned, the High Court has specifically framed a substantial question of law (reproduced hereinabove) and as such has held the same in favour of the appellant - original defendant No. 1. The High Court has specifically observed and held that the plea of ownership based on sale deed and plea of adverse possession, both, are contrary to each other and the plaintiffs cannot be permitted to take both the pleas at the same time. Therefore, even as per the High Court, the claim of the plaintiffs on the basis of the adverse possession was not tenable.
8. In that view of the matter and once the substantial question of law on adverse possession was held in favour of the appellant - original defendant No.1 and the title/ownership claimed on the basis of the Sale Deed dated Page 28 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined 31.08.1967 (Ex.P.1) was negated by all the Courts below, thereafter the possession/alleged possession of the plaintiffs could not have been protected by passing a decree of permanent injunction in favour of the plaintiffs. Under the circumstances, the High Court has materially erred in dismissing the appeal and confirming the judgment and order passed by the First Appellate Court."
(2) Ram Nagina Rai And Another V/s Deo Kumar Rai (Deceased) By Legal Representatives and Another, reported in (2019)13 SCC 324, paragraphs 13, 16, 22 and 23, which read as under:
"13. This Court, while discussing the law relating to adverse possession in P.T.Munichikkanna Reddy V. Revamma held that, to assess a claim of adverse possession, a two-pronged enquiry is required viz. application of the limitation provisions, and the specific positive intention to 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 the adverse user must be communicated at least 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 Page 29 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined possessor must be hostile enough to give rise to a reasonable notice to the actual owner.
22. In light of the above observations of this Court, we find that there is no absolute requirement to deem the mere possession of the suit property by the defendants to amount to adverse possession over the suit property. This would be in clear violation of the basic rights of the actual owner of the property. There is nothing on record to show that the defendants' permissive possession over the property became adverse to the interest of the real owner, at any point of time. On the contrary, the records reveal that the permissive possession of the defendants continued till the filing of the suit."
23. The defendants have relied upon certain paid tax receipts and khatian extracts. The trial court has, on facts, specifically found that these documents do not disclose the khatian and plot number, and even the tax receipts do not relate to the suit house. Also, the chaukidari receipts (A-1 to A-16) do not contain the khatian of the suit house. These receipts have been unfortunately believed to prove that the defendants are in adverse possession of the disputed land. Even assuming that those documents relate to the suit house, they, at the most, depict the possession of the defendants and not their adverse possession." Page 30 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024
NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined (3) In the case of Uttam chand (Dead) Through Legal Representatives V/s Nathu Ram (Dead) Through Legal Representatives and Others, reported in (2020)11 SCC 263 , the Hon'ble Apex Court has held in paragraphs 11 to 16 as under:
"11. In T. Anjanappa [T. Anjanappa v. Somalingappa, (2006) 7 SCC 570] , this Court has set aside the finding of the High Court that the defendants claiming adverse possession do not have to prove who is the true owner. If the defendants are not sure who the true owner is, the question of them being in hostile possession as well as of denying the title of the true owner does not arise. The Court held as under: (SCC pp. 574-75, paras 12-14) "12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse Page 31 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.
13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them:
'24. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owners.' (See Vidya Devi v. Prem Prakash [Vidya Devi v. Prem Prakash, (1995) 4 SCC 496] , SCC p. 504, para 24.)
14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title.
Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession:
'14. ... Adverse possession means a [hostile possession] which is expressly or impliedly in denial of title of the true owner. Under Article 65 [of the Page 32 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined Limitation Act] burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title.
One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. (See Annasaheb Bapusaheb Patil v. Page 33 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024
NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined Balwant [Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543] , SCC p. 554, paras 14-15.)'"
12.In Kurella Naga Druva Vudaya Bhaskara Rao [Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma, (2008) 15 SCC 150], the payment of tax receipts and mere possession for some years was found insufficient to claim adverse possession. It was held that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff's title will not be sufficient.
The Court held as under: (SCC p. 158, para 19) "19. The defendant claimed that he had perfected his title by adverse possession by being in open, continuous and hostile possession of the suit property from 1957. He also produced some tax receipts showing that he has paid the taxes in regard to the suit land. Some tax receipts also showed that he paid the tax on behalf of someone else. After considering the oral and documentary evidence, both the courts have entered a concurrent finding that the defendant did not establish adverse possession, and that mere possession for some years was not sufficient to claim adverse possession, unless such possession was hostile possession, denying the title of the true owner. The courts have pointed out that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff's title will not be sufficient and he had to show that his possession was also hostile to the title and Page 34 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined possession of the true owner. After detailed analysis of the oral and documentary evidence, the trial court and the High Court also held [Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Janikamma, 2006 SCC OnLine AP 842 : (2009) 3 ALD 416] that the appellant was only managing the properties on behalf of the plaintiff and his occupation was not hostile possession."
13. In Brijesh Kumar v. Shardabai [Brijesh Kumar v. Shardabai, (2019) 9 SCC 369 : (2019) 4 SCC (Civ) 509] , the Court held as under: (SCC p. 374, para 13) "13. Adverse possession is hostile possession by assertion of a hostile title in denial of the title of the true owner as held in M. Venkatesh [M. Venkatesh v. BDA, (2015) 17 SCC 1 : (2017) 5 SCC (Civ) 387] . The respondent had failed to establish peaceful, open and continuous possession demonstrating a wrongful ouster of the rightful owner. It thus involved question of facts and law. The onus lay on the respondent to establish when and how he came into possession, the nature of his possession, the factum of possession known and hostile to the other parties, continuous possession over 12 years which was open and undisturbed. The respondent was seeking to deny the rights of the true owner. The onus therefore lay upon the respondent to establish possession as a fact coupled with that it was open, hostile and continuous to the knowledge of the true owner. The respondent-plaintiff failed to discharge Page 35 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined the onus. Reference may also be made to Chatti Konati Rao v. Palle Venkata Subba Rao [Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 : (2012) 1 SCC (Civ) 452] , on adverse possession observing as follows: (SCC p. 322, para 15) '15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law.' "
23. As to whether the plaintiff can claim title on the basis of adverse possession, this Court in a judgment Ravinder Kaur Grewal v. Manjit Kaur [Ravinder Kaur Grewal v. Manjit Kaur, Page 36 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined (2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453] has held as under:
(SCC p. 777, para 60) "60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession."
24. The matter has been examined by a Constitution Bench in M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das [M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, Page 37 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined (2020) 1 SCC 1] wherein, it has been held that a plea of adverse possession is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts possession adverse to the title of the other. The Court held as under: (SCC pp. 703-706, paras 1142-1143 & 1147-1150) "1142. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit 4 ought to be cognizant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established. 1143. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous possession which meets the requirement of being nec vi nec claim and nec precario. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to Page 38 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. Reading Para 11( a), it becomes evident that beyond stating that the Muslims have been in long, exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter of details or evidence. A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence.
*** 1147. In Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038] , R.S. Sarkaria, J. speaking for a three-Judge Bench of this Court noted that the concept of possession is "polymorphous" embodying both a right (the right to enjoy) and a fact (the real intention). The learned Judge held: (SCC p. 278, para 13) '13. ... It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic Page 39 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined ever suffered from too much theorising it is that of "possession". Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Edn., 1966) caused by the fact that possession is not purely a legal concept. "Possession", implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid.)' These observations were made in the context of possession in Section 29(b) of the Arms Act, 1959.
1148. In P. Lakshmi Reddy v. L. Lakshmi Reddy [P. Lakshmi Reddy v. L. Lakshmi Reddy, 1957 SCR 195 : AIR 1957 SC 314] , Jagannadhadas, J. speaking for a three-Judge Bench of this Court dwelt on the "classical requirement" of adverse possession: (AIR pp. 317-18, para 4) '4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario . (See Secy. of State for India in Council v. Debendra Lal Khan [Secy. of State for India in Council v. Debendra Lal Khan, 1933 SCC OnLine PC 65 : (1933-34) 61 IA 78] IA at p. 82.) The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.' The Court cited the following extract from U.N. Mitra's Tagore Law Lectures on the Law of Limitation and Prescription : (AIR p. 319, para 7) Page 40 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined '7. ... "An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (Angell, Sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession." ' [ 6th Edn., Vol. I, Lecture VI, at p. 159] This Court held: (AIR p. 319, para 7) '7. ... Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.' 1149. In Karnataka Board of Wakf v. Union of India [Karnataka Board of Wakf v. Union of India, (2004) 10 SCC 779] , S. Rajendra Babu, J. speaking for a two-Judge Bench held that: (SCC p. 785, para 11) Page 41 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined '11. ... 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.' The ingredients must be set up in the pleadings and proved in evidence. There can be no proof sans pleadings and pleadings without evidence will not establish a case in law. 1150. In Annakili v. A. Vedanayagam [Annakili v. A. Vedanayagam, (2007) 14 SCC 308] , this Court emphasised that mere possession of land would not ripen into a possessory title. The possessor must have animus possidendi and hold the land adverse to the title of the true owner. Moreover, he must continue in that capacity for the period prescribed under the Limitation Act."
25. In the present case, the defendants have not admitted the vesting of the suit property with the Managing Officer and the factum of its transfer in favour of the plaintiff. The defendants have denied the title not only of the Managing Officer Page 42 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined but also of the plaintiff. The plea of the defendants is one of continuous possession but there is no plea that such possession was hostile to the true owner of the suit property. The evidence of the defendants is that of continuous possession. Some of the receipts pertain to 1963 but possession since November 1963 till the filing of the suit will not ripe into title as the defendants never admitted the appellant-plaintiff to be the owner or that the land ever vested with the Managing Officer. In view of the judgments referred to above, we find that the findings recorded by the High Court that the defendants have perfected their title by adverse possession are not legally sustainable. Consequently, the judgment and decree passed by the High Court is set aside and the suit is decreed. The appeal is allowed."
26. At this stage, with regard to Section 54 of the Transfer of Property Act, it is relevant to refer to the judgment relied on by learned senior advocate Mr.Shah in the case of Venigalla Koteswaramma V/s Malampati Suryamba and Others, reported in 2021 (4) SCC 246, more particularly, paragraph 40, which reads as under:
"40. Apart from the above, it is also fundamental, as per Section 54 of the Transfer of Property Act, 1882, that an agreement for sale of immovable property does not, of itself, create any interest in or charge on such property. [ Vide Bank of India v. Abhay D. Narottam, (2005) 11 SCC 520] A person having an agreement for sale in his favour does not Page 43 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined get any right in the property, except the right of obtaining sale deed on that basis [ Interestingly, in the present case, the vendee or his legal representatives, claiming under the agreement for sale dated 5-11-1976 (Ext. B-10), did not seek specific performance of the alleged agreement.] . For ready reference, we may reproduce Section 54 of the Transfer of Property Act that reads as under:
"54."Sale" defined.--"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised.
Sale how made.--Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.--A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property."Page 44 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024
NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined It goes without saying that the alleged agreement for sale did not invest the vendee with title to, or any interest in, the property in question; and the alleged agreement for sale did not invest the vendee with any such right that the plaintiff could not have maintained her claim for partition in respect of the properties left by Annapurnamma without seeking declaration against the agreement. Therefore, this plea about non-maintainability of suit for want for relief of declaration against the said agreement for sale remains totally baseless and could only be rejected."
27. The judgment in the case of (3) Wander Ltd. And Anr. V/s Antox India Pvt.Ltd. Reported in 1990 Supp SCC 727, it is held in paragraph 14 as under:
"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the Page 45 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. In Printers (Mysore) Private Ltd. v. Pothan Joseph [(1960) 3 SCR 713 : AIR 1960 SC 1156] : (SCR 721) "... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942 AC 130] '...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'."
The appellate judgment does not seem to defer to this principle." It is also fruitful to refer to the judgment of the Hon'ble Apex Court in the case of Suraj Land and Industries Pvt.Ltd. V/s State of Haryana reported in 2012(1) SCC 656, paragraphs 16, 18 and 19 as under:
"Scope of an agreement of sale
16. Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam [(1977) 3 SCC 247] observed: (SCC pp. 254-55, paras 32-33 & 37) Page 46 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined "32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Ram Baran Prasad v. Ram Mohit Hazra [AIR 1967 SC 744 : (1967) 1 SCR 293] .) The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.
33. In India, the word 'transfer' is defined with reference to the word 'convey'. ... The word 'conveys' in Section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership.
***
37. ... that only on execution of conveyance, ownership passes from one party to another...."
18.It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
19.Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable Page 47 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject-matter."
28. With regard to the point of jurisdiction, it is fruitful to refer to the case of Rajender Singh v. Vijay Pal reported in (2008) 4 SCC 36, it is held in paragraphs 3 and 4 as under:
"3. We have heard Mr Gupta, the learned counsel appearing for the appellant and Mr Namboodiry, the learned counsel appearing for the respondents. We have examined the impugned judgment of the High Court as well as of the courts below. The High Court in the impugned judgment held that Section 185 of the Act could not be applied in view of the nature of the reliefs claimed in the suit and, therefore, the suit shall be heard on merits on the other issues. In view of the stand taken by us, as noted hereinafter, and considering the facts and circumstances of the case and the allegations made in the plaint, we are, prima facie, satisfied that this appeal can be disposed of by directing the trial court to decide the suit not only on the other issues on merits but also on the issue regarding the Page 48 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined jurisdiction of the civil court to entertain the suit in view of Section 185 of the Act.
4. Such being the stand taken by us at this stage, we are not going into the merits of the judgment of the High Court as well as of the courts below. The trial court shall now commence the trial of the suit and decide the same on merits on all issues, including the issue whether the civil court has the jurisdiction to try the said suit in view of the bar of Section 185 of the Act. While deciding the suit, the trial court shall not be influenced by any of the observations made by us or in the impugned judgment by the High Court or by the courts below. The trial court shall decide the suit within a year from the date of communication of this order to it. With this modification in the order of the High Court, the appeal is thus disposed of. There will be no order as to costs."
29. Section 100 of CPC reads as under:
"[100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate Page 49 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
30. It is fruitful to refer the judgment in the case of Gurbachan Singh (Dead) Through Lrs Gurcharan Singh (Dead) Through Lrs and Others.reported in 2023 SCC Online SC 875 paragraphs 7, 14 and 15 which are reproduced as under:
"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that Page 50 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed v. J. Kamala (2- Judge Bench), it was observed:--
"27. In HeroVinoth v. Seshammal [HeroVinoth v. Seshammal, (2006) 5 SCC 545], this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545] are set out hereinbelow : (SCC p. 554, para 21) "21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means-- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with--technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope Page 51 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)
(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case.
In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969] : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314], AIR p. 1318, para 5) '5. ... when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some Page 52 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.'
28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way." (Emphasis supplied)
14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgment entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are:--
"(i) the courts below have ignored material evidence or acted Page 53 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
31. It is also fruitful to refer to the judgment of the Hon'ble Apex Court in the case of Nazir Mohamed vs J. Kamala reported in (2020)19 SCC 57, wherein, it is observed in paragraphs 22, 23, 32, 33.2, 33.3, 55 and 56 as under:
"22. A second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal. It was not open to the Respondent-Plaintiff to re-agitate facts or to call upon the High Court to reanalyze or re-appreciate evidence in a Second Appeal.
23. Section 100 of the CPC, as amended, restricts the right of second appeal, to only those cases, where a substantial question of law is involved. The existence of a "substantial question of law" is the sine qua non for the exercise of jurisdiction under Section 100 of the CPC.Page 54 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024
NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined
32.2 In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam, AIR 1963 SC 302. An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter.
33.2 The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
33.3 A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law Page 55 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
55. When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of Section 100 of the CPC."
34. Considering all these judgments and considering the fact that both the courts have given cogent and convincing reasons, have dealt with each aspect of the matter and prayers claimed in the plaint, framed proper issues and points of determination and thereafter given proper findings which are found in accordance with law, no perversity or illegality is committed by the learned courts below in giving the finding on the issues and therefore there is no substantial question of law arising for consideration of this court.
35. In view of the above position of law and as discussed earlier, no substantial question of law is arising for Page 56 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024 NEUTRAL CITATION C/SA/317/2022 JUDGMENT DATED: 21/03/2024 undefined consideration in this second appeal therefore, this appeal is dismissed at the admission stage itself, with no order as to cost.
36. As the appeal itself is dismissed, civil application is not required to be considered and hence it is disposed of.
(SANDEEP N. BHATT,J) SRILATHA Page 57 of 57 Downloaded on : Fri Apr 05 21:15:54 IST 2024