FA/951/1983 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 951 of 1983 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= VIRAMBHAI VARVABHAI Versus VIJAY JITENDRAKUMAR SHAH & OTHERS ========================================================= Appearance : Mr. Dhaval Barot, learned advocate for the appellant. Mr. Yogesh Kanade, learned advocate for the respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 07 / 03 / 2008 ORAL JUDGMENT The present appeal is directed against the judgment FA/951/1983 2/17 JUDGMENT and order dated 30th June 1982 passed by learned Judge, City Civil Court, Court No. 13, Ahmedabad in Civil Suit No. 2590 of 1979. The present respondent, [hereinafter referred to as the plaintiff] filed the aforesaid Civil Suit No. 2590 of 1979 against the present appellant [hereinafter referred to as the defendant] praying for possession of the suit shed and also for possession of the land of the suit shed and also for permanent prohibitory injunction restraining the defendant from tethering the cattle on the suit land and from transferring the suit land to anyone else. As per the case of the plaintiff one Manubhai Govindbhai Patel had purchased the suit bungalow by registered deed dated 21.02.1958 from Ramanlal Manilal Gandhi and others. It is the case of the plaintiff that the said Manubhai had purchased the suit bungalow as a benamidar of the original plaintiff and as such, she became the owner of the suit bungalow since then. The said Manubhai has also executed a registered deed of assignment dated 17.07.1973 declaring that he was only a benamidar of the plaintiff, and as such she became the absolute owner of the suit bungalow since then. It is the case of the plaintiff that there was a marginal land to the west of her suit bungalow and the said marginal land admeasures 10' east-west and 18' FA/951/1983 3/17 JUDGMENT north-south. She had constructed a kachha shed without any wall, door or window on the marginal land. The shed on the land and the land in front of the shed are the subject matter of the suit filed by the plaintiff. According to the plaintiff, she allowed the defendant's father Jakshibhai to reside in the shed as her licencee out of sheer sympathy for the defendant's father. It is the case of the plaintiff that the defendant was residing in Behrampura in the land of one Jekha Maharaj and he started coming to the suit shed when his father Jakshibhai was sick. After death of Jakshibhai, the defendant started residing in the suit shed for performing obsequial ceremony of his father and thereafter the defendant continued to reside in the suit shed with the permission of the plaintiff. However, the defendant started quarelling with the plaintiff and therefore the plaintiff revoked the licence by serving a notice dated 28.05.1979. The defendant gave an evasive reply on 06.06.1979 to the notice served on him and raised a contention in the reply that his father had purchased the land. As the defendant did not comply with the requirement of the suit notice and did not hand over the possession of the suit shed and suit land, the plaintiff filed the aforesaid Civil Suit praying for actual possession of the suit shed and land. FA/951/1983 4/17 JUDGMENT The defendant resisted the suit by filing written statement and denied the plaintiff's title over the suit land and suit shed, and contended that his father, Jakshibhai, had purchased the land from Manubhai for an amount of Rs.1,000/- in the year 1958 and paid the amount of Rs.1000/- in cash to Manubhai in the presence of witness. The defendant further contended that Manubhai had delivered actual possession of the suit land and shed to the defendant's father, and he in turn constructed the suit shed on the land and started tethering cattle on the suit land and used to store miscellaneous articles on the remaining portion of the suit land. The defendant thus contended his father was in possession of the suit shed and land since 1958. The defendant denied that his father was a licencee of the plaintiff and in the alternative he had pleaded the title of the suit land by adverse possession. On the basis of the pleadings of the parties, the learned trial Judge framed issues, vide Exh. 38. After considering the pleadings of both the sides and the evidence on record of the case, the learned Judge held that the plaintiff has established the ownership of the suit property in question. It is also held by the FA/951/1983 5/17 JUDGMENT learned Judge that the defendant was a licencee and therefore the plaintiff was entitled to recover vacant possession of the suit property from the present appellant. With regard to adverse possession, the learned Judge held that the defendant has failed to prove by adducing evidence about the ownership of the suit land by adverse possession. The learned Judge, after considering the deposition adduced by the plaintiff at Exh. 60 and the evidence of Gunwantrai Krupashankar Acharya at Exh. 75, held that ration card was issued in the name of the defendant and his family members at the address of Jekhidas Maharaj chawl near Behrampura for the years 1976 to 1980. It is held by the learned Judge that there was nothing on the record to show that father of the defendant had paid an amount of Rs.1000/- in cash to Manubhai as purchase price of the suit land, and, therefore he was not entitled to claim the possession of the suit land. Even the defendant had not obtained any receipt of writing in respect of the purchase of the suit land from Manubhai, even though he was very much conscious about the necessity of the same. The suit land was never mutated in the name of either the defendant or his father in the municipal records or in the revenue records, and, therefore, the FA/951/1983 6/17 JUDGMENT learned Judge held that the defendant had miserably failed to establish the ownership of the suit land in question. Even the defendant, as per the findings given by the learned trial Judge, had miserably failed to establish his title over the suit shed and land by adverse possession, and, therefore, the learned Judge passed a decree for possession in favour of the plaintiff and directed the defendant to handover the peaceful and vacant possession of the suit shed and suit land to the plaintiff. Being aggrieved by the aforesaid judgment and decree passed by the learned Judge, the appellant, original defendant, has filed the present appeal. Learned advocate for the appellant-original defendant contended that the learned Judge has passed the judgment and decree contrary to the evidence on record of the case and has miserably failed to appreciate the evidence on record of the case in its true perspective. He further submitted that even the issues framed by the learned Judge are not properly framed for deciding the real issues involved in the suit between the parties. The learned Judge has misread the evidence of the witness at Exh. 101 and 103. The evidence adduced by the witness on behalf of FA/951/1983 7/17 JUDGMENT the appellant-original defendant ought to have been appreciated by the learned Judge in its true perspective, and after considering the evidence on record, the learned Judge ought to have held that since the defendant was in occupation of the land from 1958 and since the defendant has established his title of the suit land and suit shed, he could not have been dispossessed. He further submitted that the learned Judge committed an error in holding that the defendant had not examined Manubhai in order to prove the payment of Rs.1000/- and therefore the version given by the witness on behalf of the defendant requires to be discarded. The learned Judge has also miserably failed to consider the alternative plea of adverse possession raised by the defendant and as the defendant was in possession of the suit shed and suit land since more than 12 years, the learned Judge ought to have held that the defendant had become the owner by adverse possession. Learned advocate further submitted that the trial Court has not considered the entire gamut of oral deposition and documentary evidence while allowing the suit filed by the original plaintiff and has therefore erred in directing the defendant to handover possession of the suit land and suit shed to the plaintiff. He therefore submitted that the appeal may be allowed by quashing and setting the impugned judgment and order. FA/951/1983 8/17 JUDGMENT As against the aforesaid submissions, learned counsel for the present respondent-original plaintiff vehemently submitted that the learned trial Judge had considered the oral deposition adduced by the witnesses on behalf of the plaintiff as well as defendant in its proper perspective while allowing the suit filed by the plaintiff for possession. Learned advocate submitted that the defendant could not produce any documentary evidence in support of his contention that his father had purchased the suit land and suit shed for Rs.1000/- from Manubhai, and since no documentary evidence was produced, the contention raised by the defendant was rightly rejected by the learned trial Judge. The learned advocate submitted that even necessary entries in the municipal and government records were not produced by the defendant to show that the suit land and shed was mutated in the name of his father in the municipal and government records. Thus, since the appellant could not produce the necessary record to show his possession of the suit land and shed, the learned Judge has rightly decreed the suit of the plaintiff and ordered the defendant to handover the vacant and peaceful possession of the suit land and shed to the plaintiff. Learned advocate further submitted that even the alternative prayer of adverse possession was considered by FA/951/1983 9/17 JUDGMENT the learned Judge and while considering the alternative prayer, the learned Judge has rightly held that the suit land and shed were purchased by the benamidar of the plaintiff and he never transferred possession to the father of the defendant. Even no evidence was adduced to show the payment of Rs.1000/- as a purchase price by father of the defendant to Manubhai. As there was absolutely no evidence on record to show either the defendant or his father claimed adverse possession over the suit land and suit shed, they could not be held to be owner by adverse possession of the suit properties. The learned advocate submitted that the learned Judge has thus, after considering the evidence on record, rightly decreed the suit filed by the plaintiff for possession and directed the defendant to handover vacant and peaceful possession of the suit land, and therefore the appeal requires to be dismissed. Learned advocate for the respondent-original plaintiff has relied on the following judgments: 1. NAVNEETAMMAL vs. ARJUNA CHETTY reported in (1996) 6 SCC 166. 2. THE STATE BANK OF TRAVANCORE vs. ARVINDAN KUNJU PANICKER reported in AIR 1971 SC 996. FA/951/1983 10/17 JUDGMENT 3. RAYSING HURJI BHIL & ORS. vs. VANIBEN MANJIBHAI & ORS. Reported in AIR 2007 GUJARAT 69. Learned advocate for the respondent-original plaintiff submitted that in the case of NAVNEETAMMAL [supra], the Apex Court considered a case pertaining to a suit for recovery of land from the tenant where the tenant came up with a plea of adverse possession. The land was leased to the defendant in 1935 by original owner and the defendant continued after expiry of the lease. The land was sold to the plaintiff and the vendor issued a notice to defendant intimating him about the fact of the sale. In his reply in 1957, the defendant for the first time denied his status as a tenant and set up a title in himself by stating that he had surrendered the land after expiry of the lease and thereafter re-entered and continued in possession thereof in his own right. The Supreme Court held that further continuance was only permissive and will not give cause for prescribing title by adverse possession. Learned advocate submitted that in the facts and circumstances of the case, the Apex Court held as under in paragraph 25 of the judgment: “25. We have seen on facts that an attempt was made by the defendant-respondent that he had FA/951/1983 11/17 JUDGMENT surrendered the suit property after expiry of the lease and thereafter re-entered the suit land and continued in possession in his own right. However, this case was not accepted by the trial court as well as by the appellate court for well- founded reasons as noticed above. That being the position, the possession by the defendant on the facts as found by the first appellate court, in this case, after the expiry of the lease, further continuance was only permissive and will not give cause for prescribing title by adverse possession. .... “ Learned advocate for the appellant-original plaintiff submitted that the original plaintiff allowed the defendant's father Jakshibhai to reside in the shed as her licencee out of sheer sympathy for the defendant's father. It is the case of the plaintiff the defendant was residing in Behrampura in the land of one Jekha Maharaj and he started coming to the suit shed when his father Jakshibhai was sick. After death of Jakshibhai, the defendant started residing in the suit shed for performing obsequial ceremony of his father and thereafter the defendant continued to reside in the suit shed with the permission of the plaintiff. However, the defendant started FA/951/1983 12/17 JUDGMENT quarelling with the plaintiff and therefore the plaintiff revoked the licence by serving a notice dated 28.05.1979. Ration card was issued in the name of the defendant and his family members at the address of Jekhidas Maharaj chawl near Behrampura for the years 1976 to 1980. In these facts and circumstances, learned advocate for the plaintiff submitted that the defendant is not entitled to claim title by adverse possession. Relying on the judgment of the Apex Court in the case of State Bank of Travancore [supra], learned advocate submitted that the Supreme Court has held that when a person is in permissive possession of a property his possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of the owner for a period of 12 years or more. He submitted that in the instant case till 06.06.1979, which was in reply to plaintiff's notice dated 28.05.79, neither the defendant nor his father claimed adverse title over the suit land and in the circumstances, the defendant can never be considered to have become owner of the suit land by adverse title. Relying on the judgment in the case of Raysing Hurni FA/951/1983 13/17 JUDGMENT Bhil [supra], learned advocate for the original plaintiff submitted that the plea of adverse possession and part performances are mutually destructive. One cannot be allowed to say on one hand that he admits title of owner and at the same time asserts title by adverse possession. He further submitted that in the instant case, the defendant has not at all proved that on what particular date he asserted their hostile title and looking to the evidence on record the defendant has not at all proved title by adverse possession. This Court has heard Mr. Mr. Dhaval Barot, learned advocate for the appellant-original defendant and Mr. Yogesh Kanade, learned advocate for the respondent- original plaintiff at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case as well as the entire evidence on record. On re-appreciation and re-evaluation of the deposition adduced by the plaintiff as well as the defendant, it is clear that the suit land was purchased by one Manubhai as a benamidar of the plaintiff from the requisite amount on her behalf and it was given to the said Manubhai by her father. The deposition adduced by FA/951/1983 14/17 JUDGMENT the plaintiff, vide Exh.60 and the evidence of of Gunwantrai Krupashankar Acharya at Exh. 75 makes it abundantly clear that the defendant and his family members were residing at the address of Jekhidas Maharaj chawl, near Behrampura for the years 1976 to 1980. I have also considered the deposition adduced by the defendant Exh.85 and one Vasantbhai Popatlal Mehta, Exh.104 with regard to the possession of the suit land by the defendant since 1957 and 1958. The evidence recorded on behalf of the defendant, Galabhai at Exh. 101 and Harjibhai, Exh. 103 are also taken into consideration by me. The learned trial Judge, in view of the aforesaid evidence on record of the case has rightly held that the suit land was purchased by one Manubhai as benamidar of the plaintiff and the defendant was not in possession of the same. Therefore, the contention raised by the learned counsel for the appellant with regard to possession of the suit land and shed since 1958 is without any substance and the same is liable to be rejected. Even the defendant has not prima facie proved that the amount of Rs.1000/- was paid by father of the defendant to purchase the suit land or suit shed and since the version given by the defendant was highly contradictory, the same was rejected by the learned Judge, and it does not call for any interference in this appeal. The defendant has not produced the receipt or the FA/951/1983 15/17 JUDGMENT writing in respect of the purchase of the suit land for an amount of Rs.1000/-, and, therefore, that argument was also rightly rejected by the learned Judge. Thus, the learned advocate, in my considered view, has not shown from the record of the case that the defendant was in possession of the suit land since 1958. In the circumstances, the findings recorded by the learned trial Judge is unassailable. On perusal of the evidence on record, it is clear that the defendant has not taken any steps to get the suit shed and land mutated in the name of the defendant or his father in the Government and Municipal records. Even Manubhai was not examined by the defendant in order to prove that payment of Rs.1000/- was given to him by father of the defendant towards purchase price of the suit land and suit shed. The findings recorded by the learned Judge is based on the evidence on the record of the case and considering the same, it does not call for any interference in the appeal. With regard to adverse possession, the learned Judge has considered the evidence on record of the case and held that since the suit land was purchased by Manubhai as a benamidar of the plaintiff and he had never transferred FA/951/1983 16/17 JUDGMENT the title of the suit land to the father of the defendant. The defendant, on the other hand, has claimed that his father came in possession from Manubhai on payment of Rs.1000/- as a purchase price. However, the defendant has not adduced any credible evidence with regard to payment of Rs.1000/- to Manubhai, and the evidence which is adduced by the defendant is unreliable. Thus, there was absolutely no evidence on record to show that either the defendant or his father ever claimed adverse possession over the suit land or the suit shed or they ever asserted to the knowledge of the plaintiff or Manubhai that the father of the defendant or the defendant were owner of the suit shed and suit land by adverse possession. In the circumstances, the arguments advanced by the learned advocate on behalf of the defendant was rightly rejected by the learned Judge. Thus, the learned Judge, after taking into consideration the entire oral as well as documentary evidence, decreed the suit filed by the plaintiff for possession of the suit land and suit shed and directed the defendant to hand over the vacant and peaceful possession of the suit land and suit shed to the plaintiff, which, in my considered opinion, does not call for any interference in this appeal preferred by the defendant. Therefore, the FA/951/1983 17/17 JUDGMENT appeal fails, and is hereby dismissed. No order as to costs. mathew [H.B.ANTANI, J.]