(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)

1. These captioned appeals are filed by appellant-defendant Page 1 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined challenging the judgment and decree dated 26.08.2022 passed by learned Principal Senior Civil Judge, Dholka in Special Civil Suit Nos.39 and 40 of 2018.

2. Heard learned Senior Counsel Mr. Jal S. Unwalla for learned advocate Mr. Maulik S. Sheth for the appellant- defendant and learned Advocate General Mr. Kamal B. Trivedi with learned Senior Counsel Mr. Anshin H. Desai for learned advocate Mr. Hriday Buch for the respondent-plaintiff.

3. The brief facts of the case are as under:

Ahmedabad and respondent-original plaintiff (Sarvang Shipping Services Pvt. Ltd.) of First Appeal No. 6 of 2023, had filed Special Civil Suit No. 40 of 2018 for the land bearing Survey Nos.334/86 situated at Moje-Bhamsara, Tal-Bavla, District- Page 2 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025

NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined Ahmedabad before the learned Principal Senior Civil Judge, Dholka seeking relief of removal of encroachment and handing over possession of encroached land along with permanent injunction.

3.2. The respondents-original plaintiffs in both appeals were registered Private Limited Companies and having their business of Ship recycling and industrial activities. 3.3 As per the case of respondents-original plaintiffs, they were in search of land for development of its business in Ahmedabad area apart from Jamnagar and therefore during the year 2015 the respondent-companies agreed to purchase Non agricultural lands bearing Revenue Survey No.334/12 from (1) Rambhai Rajabhai Baraiya and (2) Jayantibhai Rajabhai Baraiya, Revenue Survey No.334/84 from Jayantibhai Rajabhai Baraiya and Revenue Survey No.334/86 from Ashok Gordhan Baraiya, admeasuring 3-Acre, 00-Gunthas i.e. 16,188.00 Sq.mtrs, 01-Acre, 20-Gunthas i.e. 6070.00 Sq.mtrs and 06-Acre, Page 3 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined 00-Gunthas i.e. 24,282 Sq.mtrs respectively situated at Moje- Bhamsara, Tal-Bavla, Dist- Ahmedabad.

3.4. The owners and possessors of land bearing Survey No.334/12, (1) Rambhai Rajabhai Baraiya and (2) Jayantibhai Rajabhai Baraiya had purchased the said land from one Ganeshbhai Becharbhai Bharwad vide registered sale deed No. 2463 dated 25/07/2011, the owner and possessor of land bearing Survey No.334/84, Jayntibhai Rajabhai Baraiya had purchased the said land from one Ajay Kanubhai Joshi vide registered sale deed No. 3405 dated 12/10/2011 and the owner and possessor of land bearing Survey No.334/86, Ashok Gordhan Baraiya had purchased the said land from (1) Nitinkumar Narottam Gandhi (2) Kailashben (3) Pareshaben Narottamdas Jethalal Gandhi vide registered sale deed dated 15/06/2012. Thereafter, the respondents-plaintiffs purchased the said three lands bearing Survey Nos.334/12, 334/84 and 334/86 vide registered sale deed Nos. 764, 765 and 766 respectively dated 17/03/2015 from the respective owner/s and possessor/s.

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NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined 3.5. As respondent-companies wanted to start construction for an industrial activities over three lands, an engineer of respondent visited suit lands and discovered that appellant- original defendant had encroached upon the said lands and constructed an industrial shed with fencing walls. When respondent inquired, it learnt that appellant-original defendant had purchased the land bearing Block No.653, Survey No.334/88 admeasuring about 16,64659 mtrs. situated at Moje- Bhamsara, Tal-Bavla, Dist-Ahmedabad vide Registered Sale Deed dated 05.01.2017 from erstwhile owners and inspite of purchasing the aforesaid land appellant-defendant had encroached upon the land of respondents and occupied 5837.00 Sqr.mtrs land from southern side and 8816.00 Sqr.mtrs land from north-eastern side and illegally constructed fencing wall and sheds for industrial purpose with leaving only 16,421.00 and 15,465.00 Sqr.mtrs land unused/vacant. Therefore, the respondents-original plaintiffs filed two separate Special Civil Suits for respective lands.

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NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined 3.6. The appellant (Gopi Paper Mart (India) Pvt. Ltd.) appeared and filed reply and additional reply at Exh-20 and 20A respectively against the injunction application. Thereafter, Written Statement vide Exh-84 dated 16/01/2020 has been filed by the appellant-original defendant.

3.7. Following issues were framed in both the suits;

IN SPECIAL CIVIL SUIT NO.39 OF 2018

1. Whether the plaintiff proves that, suit property bearing revenue Survey no. 334 paiki 12 admeasuring 16188 sq. m. non-agriculture land Was purchased by plaintiff as per the original(first) four dimensional situation?

2. Whether the plaintiff proves that, suit property bearing revenue Survey no. 334 paiki 84 admeasuring 6070 sq. m. non-agriculture land was purchased by plaintiff as per the original (first) four dimensional situation?

3. Whether the plaintiff proves that, defendants had illegally Constructed 5837 sq. m. at West-East direction of the suit property bearing revenue survey nos. 334 paiki 12 and 334 paiki 84 and encroached upon it ?

4. Whether the plaintiff proves that, defendants had done rectification registered sale deed for the purpose of validate illegal encroachment upon the revenue survey no. 334/88?

5. Whether the defendant proves that, property bearing revenue survey no. 334 paiki 88 admeasuring 16646 sq. m. non-agriculture land was purchased by defendant as per the original(first) four dimensional situation and constructed according to it?

6. Whether the defendant proves that as per the Land Revenue Code, this Page 6 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined court has no jurisdiction to entertain the suit ?

7. Whether the defendant proves that the plaintiff has not paid sufficient Court fees?

IN SPECIAL CIVIL SUIT NO.40 OF 2018

1) Whether the plaintiff proves that, suit property bearing revenue survey no. 334 paiki 86 admeasuring 24281 sq. m. non-agriculture land was purchased by plaintiff as per the original (first) four dimensional situation?

(2) Whether the plaintiff proves that, defendants had illegally constructed 8816 sq m. at North-East direction of the suit property bearing revenue survey nos. 334 paiki 86 and encroached upon it? (3) Whether the plaintiff proves that, defendants had done rectification registered sale deed for the purpose of validate illegal encroachment upon the revenue survey no.338/88?

(4) Whether the defendant proves that, property bearing revenue survey no. 334 paiki 88 admeasuring 16646 sq. m. non-agriculture land was purchased by defendant as per the original (first) four dimensional situation and constructed according to it?

(5) Whether the defendant proves that as per the Land Revenue Code, this court has no jurisdiction to entertain the suit? (6) Whether the defendant proves that the plaintiff has not paid sufficient Court fees 3.8. The respondent filed affidavit, additional affidavit in the form of depositions vide Exh-61 and 89 in Special Civil Suit No.39 of 2018 and vide Exh-59 and 84 in Special Civil Suit No. 40 of 2018. The District Inspector Land Record, Ahmedabad (DILR) was examined by respondent-plaintiff who has deposed Page 7 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined at Exh-96 in Special Civil Suit No. 39 of 2018 and at Exh-87 in Special Civil Suit No. 40 of 2018. The Sub-registrar, Bavla deposed at Exh-102 in Special Civil Suit No. 39 of 2018 and at Exh-92 in Special Civil Suit No. 40 of 2018.

3.9. The appellant-original defendant filed an affidavit in the form of deposition vide Exh-155 in Special Civil Suit No. 39 of 2018 and vide Exh-139 in Special Civil Suit No. 40 of 2018. 3.10. After considering the evidence and material placed on record, learned Trial Court vide its judgment and decree dated 26/08/2022 allowed both the Civil Suits and ordered appellant- defendant to remove encroachment of 5837.00 Sqr.mtrs and 8816.00 Sqr.mtrs. upon the lands bearing Survey Nos. 334/12, 334/84 and 334/86 within 30 days and ordered to hand over the peaceful possession of the said lands and granted relief of declaration and permanent injunction. Being aggrieved, the appellant-original defendant (Gopi Paper Mart (India) Pvt. Ltd.) has filed present two first appeals.

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NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined 3.11 The controversy in both suits is common, type of evidence, and contentions and counter contentions are same, upon request of learned advocates for the parties, both the First Appeals are heard and decided together by this common judgment. 3.12 To understand the controversy prayers of both the suits are reproduced as under;-

In Special Civil Suit No.39 of 2018 "Therefore, plaintiff seeks the relief as under- (A.) That, to grant an injunction directing removal of illegally constructed fencing walls and sheds intended for industrial use on non-agricultural land bearing Revenue Survey No.334/12 as well as Survey No.334/84 total admeasuring He.Are.Sq.Mtr. 2-22-58, situated at Moje-Bhamsara, having ownership and possession of plaintiff as stated in para 2 and further, direct defendant to restore and hand over vacant, quiet and peaceful possession of encroached portion admeasuring of 5837.00 Sq.mtrs from southern side of said land.

(B.)That, grant a temporary injunction during the pendency of the suit and the injunction application, restraining the defendant, either personally or through any servant, agent, attorney, director, partner or any other person acting on their behalf, from carrying out or facilitating any industrial activities, special construction, or further encroachment on the disputed land and further, to restrain the defendant from selling, mortgaging, gifting, leasing, or otherwise transferring, encumbering, charging, or creating any right or interest in favour of any third party in respect of the encroached portion Page 9 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined admeasuring 5837.00 Sq. Mtrs. on the southern side of the non-agricultural land bearing Revenue Survey No.334/12 as well as Survey No.334/84 total admeasuring He.Are.Sq.Mtr. 2- 22-58, situated at Moje-Bhamsara.

(C.) That, to pass such orders as it deems fit and to direct the respondent to bear the cost incurred in the present application."

In Special Civil Suit No.40 of 2018 "Therefore, plaintiff seeks the relief as under- (A.) That, to grant an injunction directing removal of illegally constructed fencing walls and sheds intended for industrial use on non-agricultural land bearing Revenue Survey No.334/86 admeasuring He.Are.Sq.Mtr. 2-42-81, situated at Moje-Bhamsara, having ownership and possession of plaintiff as stated in para 2 and further, direct defendant to restore and hand over vacant, quiet and peaceful possession of encroached portion admeasuring of 8816.00 Sq.mtrs from north-eastern side of said land.

(B.) That, grant a temporary injunction during the pendency of the suit and the injunction application, restraining the defendant, either personally or through any servant, agent, attorney, director, partner or any other person acting on their behalf, from carrying out or facilitating any industrial activities, special construction, or further encroachment on the disputed land and further, to restrain the defendant from selling, mortgaging, gifting, leasing, or otherwise transferring, encumbering, charging, or creating any right or interest in favour of any third party in respect of the encroached portion admeasuring 8816.00 Sq. Mtrs. on the north-eastern side of the non-agricultural land bearing Revenue Survey No.334/86 admeasuring He.Are.Sq.Mtr. 2-42-81, situated at Moje- Bhamsara.

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NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined (C.) That, to pass such orders as it deems fit and to direct the respondent to bear the cost incurred in the present application."

SUBMISSIONS OF APPELLANT-ORIGINAL DEFENDANT

4. It is the case of Appellant-original defendant that land bearing survey No. 334/88paiki was initially granted by the government in favour of Karamshi Kachrabhai as new tenure land in the year 1971. The revenue records were also mutated vide entry No. 332 on 12.6.1971. Thereafter, Karamashi Kacharabhai died on 30.4.1974 leaving behind his heirs. The names of his heirs were mutated in revenue record vide entry No. 367 on 19.4.1976. Thereafter, widow of Karamashi Kachrabhai i.e. Shantuben was died on 14.2.2012 and entry to the said effect was mutated into revenue record vide entry No.2266 on 3.9.2013. The heirs of Karamshi Kachrabhai sold the land bearing survey No. 334/88 on 01.11.2013 by executing a registered sale deed in favour of Prashantkumar Bharatbhai Joshi and the revenue records were also mutated vide entry No. 2279 on 2.11.2013. In the said Page 11 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined sale deed, the land bearing survey No. 334/88paiki 16646 sq. mtrs which was sold to Prashantkumar Bharatbhai Joshi was specifically mentioned. Out of the total land of revenue survey No. 334, the land bearing survey No. 334/88 admeasuring 16646, owned and possessed by Prashantkumar Bharatbhai Joshi, was measured and earmarked by DILR on 05.01.2014 and hissa form No. 4 was prepared for measurement and location of the land bearing survey No. 334/88 admeasuring 16646 sq. mtrs.

5. Since the land was of new tenure land, it was converted by the original allottee from new tenure to old tenure on 06.07.2008. The Mamlatdar, Bavla vide his order dated 06.07.2008 converted the land on payment of premium by the heirs of Karamshi Kacharabhai. The said conversion was done after verifying the revenue record as well as the location of land and after getting opinions of different authorities. Prashantkumar Joshi also got the land converted into old Page 12 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined tenure land for industrial purposes on payment of premium. The Collector vide his order dated 17.12.2014 converted the said land into old tenure. The collector has granted such permission after considering the revenue records and location of land and after getting necessary opinions from different revenue authorities. Prashantkumar Bharatbhai Joshi made an application on 19.01.2015 for getting NA permission for land admeasuring 16646 sq. mtrs. of revenue survey No. 334/88. The said permission was granted by District Development Officer vide his order dated 12.05.2015 which clearly shows that the said permission was granted after considering opinion with regard to land bearing survey No. 334/88 from the different authorities.

6. Prashantkumar Bharatbhai Joshi sold and conveyed the said land to (1) Manankumar Ashokbhai Modi, (2) Sheth Vishal Kiranbhai and (3) Sheth Parth Kiranbhai by registered sale deed dated 30.5.2015. The Appellant-defendant herein Page 13 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined purchased the land bearing survey No. 334/88 admeasuring 16646 sq. mtrs from (1) Manankumar Ashokbhai Modi, (2) Sheth Vishal Kiranbhai and (3) Sheth Parth Kiranbhai on 05.01.2017 after the lands were duly converted from new tenure to old tenure and after NA permission was granted. After purchasing the land Appellant obtained development permission from the competent authority on 06.06.2017. The assessment of taxes was also made for the land of the Appellant. The plans for constructions of industrial shed were sanctioned by Town Planning and Valuation Department, Ahmedabad Branch through town planner, Ahmedabad on 09.06.2017. Appellant has purchased the land after necessary permissions were granted by the competent authorities under the provisions of Bombay Land Revenue Code, 1879 and Bombay Agricultural Lands & Tenancy Act, 1948 . The Appellant has started construction only after getting necessary development permission and the plans were duly sanctioned. Almost entire industrial shed was constructed on Page 14 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined survey No.334/88 by appellant and on the date of suit 95% of construction was complete. The construction is carried out in the land of ownership of appellant. Lands of plaintiffs and defendants are not adjacent but situated at different location.

7. It is submitted that sale deed produced by the appellant executed by the respondent's predecessor with respect to the disputed land, revealed discrepancies in the boundary descriptions between successive sale deeds, indicating variations in the boundaries of the land from one deed to another. It is further submitted that discrepancies in the boundaries of the said sale deeds are stated hereinbelow;

I. Survey No.334/12 ad-measuring of 16188 sq. mtrs. a. 1st Sale deed No.208 dated 20.01.2011 Seller: Baldevbhai Sanabhai Prajapati & ors. Purchaser: Ganeshbhai Becharbhai Bharwad.

Purchaser: 1.Rambhai Baraiya and 2. Jayantibhai Baraiya East: Survey No. 338Paiki West: Survey No. 334Paiki North: Lagu Khedvan Land South: Lagu Khedvan Land c. 3rd Sale deed No.764 dated 17.03.2015.

Seller: 1. Rambhai Baraiya and 2. Jayantibhai Baraiya Purchaser: Leelahip Recycling Pvt. Ltd. (plaintiff) East: Survey No. 337Paiki Khedvan Land West: Survey No. 334Paiki Khedvan Land North: Road thereafter Survey No. 334Paiki Khedvan Land South: Survey No. 334/86 Binkhedvan Land II. Survey No.334/84 ad-measuring of 6070 sq. mtrs.

III. Survey no. 334/86 admeasuring of 24281 sq. mtrs.:

Ownership can only be established through a valid sale deed and cannot be proven solely by reference to the year 2012 and 2018 measurement sheets and till date, the respondent has neither challenged the appellant's title nor established its own title to the disputed land.

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NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined

9. It is further submitted that Survey No.334 constitute a large tract of land, which has undergone various partitions (hissa), and that measurements have not been conducted by any of the owners. There are no records in DILR office reflecting these measurements. Resultantly, it is impossible to definitely ascertain the actual possession of the land. The DILR report also admits that the boundaries stated in the respondent's sale deed are inaccurate, as they were not properly considered during the preparation of the sale deed.

10. It is further submitted that it was admitted by the Court Commissioner that during the execution of the Court Commissioner, he was required to obtain the signatures of the parties present at the site. However, he acknowledged that he failed to obtain the signatures of the parties. The Court Commissioner also admitted that Survey No.334/88 was not mentioned in his report. It is further submitted that he relied solely on the information provided by the respondents and the Page 21 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined panchas for the identification of the disputed land.

11. It is further submitted that during cross-examination, respondent admitted that the boundaries of any land cannot be changed on sale of the said as it is an immovable property. DILR officer conducted the measurement based on 2012 measurement sheet and sale deeds provided by the respondent. There are serious doubts about the accuracy and reliability of the year 2018 map. It is further submitted that in preparing report, DILR relied solely on the 2012 measurement sheet and the sale deed produced by the respondent while failing to consider the sale deeds of the respondent's predecessors in title. Additionally, DILR neglected to take into account the 2014 measurement sheet, an omission which was acknowledged during cross-examination of the witness of DILR Office. It is further submitted that DILR officer further admitted in cross- examination that both the 2012 and 2014 measurement sheets are government records and are readily accessible, yet the 2014 measurement sheet was not considered.

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12. It is further submitted that the officer of DILR conceded during cross-examination that there was a discrepancy between the boundaries depicted in the 2012 measurement sheet and those in the sale deed, thereby undermining the respondents reliance on 2012 measurement sheet and its claim that boundaries of the sale deed are consistent with the measurement sheet. It is further submitted that 2012 measurement sheet pertains only to survey Nos.334/12, 334/84 and 334/86, whereas 2014 measurement sheet relates to Survey No.334 of 88p.

13. It is further submitted that respondent had produced the sale deeds to establish ownership over Survey Nos.334/12, 334/84 and 334/86. However, the boundaries delineated in these sale deeds differ from those specified in the sale deed of the respondent's predecessor. Respondent has failed to produce the sale deed establishing the title of its predecessor in interest, which was duly produced by the appellant. It is further submitted that respondent neither disputed the appellant's title Page 23 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined nor sought the cancellation of the appellant's sale deed. Respondent has failed to provide any evidence establishing its ownership of the disputed property.

14. It is further submitted that when the respondent-plaintiff seeks removal of an encroachment, the respondent must also seek a declaration of ownership over the encroached portion of the property. It is further submitted that the rectification deed has been placed on record before the learned Trial Court. However, the respondent has not filed any application under Order VI, Rule 17 of the Civil Procedure Code, 1908 to amend the prayer clause, challenging the rectification deed, or seek a declaration of ownership over the disputed land. Respondent- plaintiff has not contested the primary sale deed upon which the appellant-defendant claims ownership of the disputed land, which implies that the respondent has no objections to either the rectification deed or the main sale deed executed in favor of the appellant. It is further submitted that unless and until the Page 24 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined appellant's sale deed, to the extent, it pertains to the encroached land, is set aside, the possession of the disputed property cannot be transferred to the respondent. Respondent has failed to establish its title over the disputed land and therefore, the suit filed by the respondent is hit by Section-34 of Specific Relief Act, 1963, which clearly lays down that any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not, in such a suit, asks for any further relief. It is further submitted that in proviso that no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. It is further submitted that on the one hand, there are registered sale deeds of both the appellant and the respondent, including the sale deeds of the predecessors in title, which constitute documentary evidence. On the other hand, there are 2018 measurement sheet Page 25 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined and its accompanying report, which represent expert opinions that are suggestive in nature. Section-83 of the Indian Evidence Act, 1872 is applicable which is quoted as as under:

15. It is submitted that pursuant to Section 110 of the Indian Evidence Act, 1872 the burden of proof rests on the plaintiff to establish that the defendant is not the owner of the disputed land and had encroached upon the disputed land and that the plaintiff is the rightful owner. Learned Trial Court has erroneously shifted the burden of proof onto the defendant to prove ownership of the disputed land by framing incorrect issues. Despite the appellant having filed an application seeking the recasting of issues to rectify this fundamental error, the learned Trial Court failed to properly entertain and address the said Page 26 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined application. It is submitted that the burden of proving the appellant's encroachment on the disputed land also lies with the respondent. However, the respondent has failed to discharge this burden, relying merely on 2018 measurement sheet and DILR report, which were not prepared in an appropriate manner. Appellant had indeed challenged the respondent's title through its reply and examination-in-chief and had also produced the sale deeds of the respondent's predecessors and it is in this fashion, raised the dispute of the title of the respondent in the present suit. Learned Trial Court relied on 2018 DILR report and the Court commissioner's report despite being fully aware that the appellant's land and the respondent's land are distinct and not adjacent. Reliance is placed by learned Trial Court on reports, is not conclusive proof as both are merely suggestive in nature.

16. It is further submitted that on the examination-in-chief of the appellant, appellant has explicitly challenged the Page 27 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined respondent's title, asserting that the respondent cannot claim a better title than that of the predecessor-in-title. No one can give a better title than he himself has. The purpose of executing the rectification deed is that the appellant at the relevant point of time discovered a typographical error in the description of boundaries, wherein the north boundary was mistakenly recorded as south and south becomes north vice versa. Additionally, the eastern boundary required correction due to close adjacency of Survey Nos.335 and 336. The appellant has referred to the DILR map of 2014 to ensure accuracy and the necessary corrections are being executed accordingly. It is further submitted that these corrections do not alter the actual condition of the property in any manner. Respondent has not filed any application under Order VI, Rule 17 of the Code of Civil Procedure , 1908 to amend the plaint, specifically the prayer clause, nor have they challenged the appellant's sale deed or rectification deed. It is submitted that respondent has not sought any declaratory relief to establish himself as the owner of Page 28 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined the disputed property. It is further argued that a suit for a mere injunction, is not maintainable in the absence of a prayer for declaratory relief, more particularly, when the plaintiff, either directly or indirectly, challenges the title of the defendant. In such a case, the plaintiff is required to prove its title to the disputed land. It is submitted that respondent has not sought the relief of cancellation of the sale deed and/or rectification deed executed in favor of the appellant. There are discrepancies in the boundary descriptions of each successive sale deed of the respondent's predecessors, which are clearly evident. As a result, the actual possession of the respondent's land cannot be determined. Appellant has produced the successive sale deeds, yet respondent has failed to provide any clarification regarding these discrepancies. Respondent has failed to establish the precise identification and location of its land without proving its ownership and the exact extent of its property, respondent cannot allege encroachment by the appellant. Page 29 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025

NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined

17. In support of above submissions, reliance is placed upon the following decisions by the learned Senior Counsel for the appellant;

reported in MANU / GJ /0428 / 1995.

7. Durga Singh & Ors Vs. Yadagiri & Ors. reported in (2018) 6 SCC 209.

8. Ramasami Reddy & Ors. Vs. Govinda Reddy & Ors. reported in MANU / TN / 1240 / 2015.

9. Chennadi Jalapathi Reddy Vs. Baddam Pratapa Reddy (2019) 14 SCC 220."

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NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined SUBMISSION OF RESPONDENT-ORIGINAL PLAINTIFF

18. Per contra, learned Senior advocate for the respondent submitted that respondents-plaintiffs never claim title / ownership of Survey No.334/88. The appellant-defendant also does not claim title over the lands of the respondents-plaintiffs. It is further submitted that appellant-defendant has encroached over the land of the respondents-plaintiffs and has put up construction thereon. Therefore, the respondents-plaintiffs instituted two suits before the learned Civil Court, Dholka. Respondents-plaintiffs assert the title / ownership over the three parcels of land, i.e. Survey Nos.334/12, 334/84 and 334/86. A relief of declaration is prayed against the appellant-defendant with regard to the encroachment and removal of the construction and restoration of possession. Appellant-defendant has raised contentions that suits must fail as no declaration of ownership of the land is sought by plaintiffs, is misconceived. There is no dispute about the title of respective land. The appellant- defendant pleads in its written statement that the lands of the Page 31 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined respondents-plaintiffs described in the plaint and the land of the appellant-defendant, are located at different places and the lands are also different. In the written statement, appellant pleads that the appellant has not made any encroachment on three parcels of land of the respondents-plaintiffs and that the construction put up by the appellant-defendant is on its own land. In cross- examination, a specific question is put in defence on behalf of the appellant-defendant about title and ownership of the land. In response, the witness of the respondents-plaintiffs state that it is true that the lands of the respondents-plaintiffs and the appellant-defendant are located at different places and there is no dispute about the ownership of their respective lands. Defendant in its evidence for the first time states that the title of the lands of the plaintiff is not clear. It is further submitted that in a suit for removal of encroachment, an encroacher cannot challenge the title of the owner. An independent suit has to be filed. Onus is on the encroacher to prove that his possession is legal. There is no dispute about the ownership of the respective Page 32 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined lands and the only issue is with regard to the location. Hence, the respondents-plaintiffs had no reason to challenge the sale deed of the appellant-defendant. A cloud is said to raise over the person's title when some apparent defect in his title to a property or some prima facie right of a third party over title is made out or shown. Thus, a mere contention of the appellant- defendant that it has put up construction only on its own land and has not encroached upon the lands of the respondents- plaintiffs is not raising cloud over the title. It is submitted that in the case of Kurella Naga Druva vs. Galla Jani [(2008) 15 SCC 150], Hon'ble Apext Court has held that the claim of title by way of an adverse possession does not mean that a cloud is raised over plaintiff's title and even in such a case, the plaintiff not need to file a suit for declaration of the title and in the case of Muddasani Venkata vs. Muddasani Sarojana [(2016) 12 SCC 288], the Hon'ble Apex Court has held that unless there is serious cloud over the title of the plaintiff, there is no need to file suit for declaration of the title. Similarly, in the case of K.M. Page 33 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined Krishna Reddy vs. Vinod Reddy [(2023) 10 SCC 248], it is held that the defendant had to set up a title for himself or is claiming through somebody who was claiming title, to contend that there is 'cloud over title'.

19. It is further submitted that boundaries in the sale deeds of respondent-plaintiffs are in sync with DILR map dated 25.5.2012 (Exhibit-72), DILR report dated 17.10.2018 (Exhibit-100) and Court Commissioner's report dated 5.8.2018 (Exhibit-134). It is submitted that first sale transaction happened in 2011, names of the owners of the adjoining lands are mentioned. In the second sale deed dated 25.07.2011, the survey numbers are mentioned. Therefore, there is apparent discrepancy and more particularly, the same does not change the location of the lands of the respondents-plaintiffs. It is submitted that on 25.05.2012, the predecessor of the respondent-plaintiff got all the three parcels of land identified through DILR. Thereafter, the lands are converted for non-agricultural use. Thus, the Page 34 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined location and identification of the land is clear and specific. Thereafter, the respondents-plaintiffs purchased the three parcels of land by different sale deeds on 17.03.2015, which is completely in tune with the aforesaid map and N.A. plans. Admittedly, the lands of the respondents-plaintiffs are adjoining the private survey numbers viz. Survey Nos.335, 336, 337 and

338. Under the circumstances, the allegation about discrepancy in the boundaries is totally insignificant. It is further submitted that when the controversy is in regard to the identification, location and measurement of land, the only alternative available to the learned Trial Court for determining the said controversy is to go for appointment of Commissioner as per Order 26 Rule 9 of CPC or the appointment of expert like government officials from DILR, for the purpose of getting map drawn and report made with effect from identification, location and measurement of land in question. It is submitted that on the one hand, three registered sale deeds dated 17.03.2015 of the respondent- plaintiff and on the other hand, one sale deed dated 05.01.2017 Page 35 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined of the appellant-defendant, clearly distinguish different locations of the lands bearing Survey Nos.334/12, 334/84 and 334/86 of the respondent-plaintiff.

20. It is submitted that Section 83 of the Evidence Act provides that the Court shall presume that maps or plans purporting to be made by the Authority of the Central Government or any State Government were so made and accurate, but maps or plan made for the purpose of any cause must be proved to be accurate. Thus, in the instant case, presumption in favour of the accuracy of DILR map dated 04.10.2018 and Survey Report dated 17/22.10.2018 is required to be drawn. No evidence in rebuttal has been produced despite several opportunities given by the Court. It is submitted that respondent-plaintiff has never disputed the title of the land bearing Survey No.334/88 belonging to the appellant-defendant and therefore, no question arises for invocation of Section 110 of the Evidence Act. It is submitted that learned Trial Court has Page 36 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined clearly reached a finding that the appellant-defendant had encroached upon the land of 16,631 sq.mtrs. in the lands of plaintiff. The aforesaid finding is based upon DILR map dated 04.10.2018 and the Survey Report dated 17/22.10.2018 is part of the sale deed of the predecessor of the appellant-defendant. It is clear from the said map that the land of the appellant- defendant being Survey No.334/88 is in the midst of Survey No.334. As per the said map, none of the boundaries touch the private survey numbers viz. Survey Nos.335, 336, etc. It is submitted that as per the map, approximately 40 to 50 metres of land of Survey No.334 would be in between the land of the appellant-defendant and the private survey numbers. It is submitted that the construction ought to have been put up by the appellant-defendant as per the said map, instead the construction is not as per the said map and is touching the boundaries of the private survey numbers. The boundaries of the appellant land bearing Survey No.334/88 are not in sync with DILR map dated 05.01.2014, Sale deed dated 05.01.2017 (Exhibit-65), Page 37 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined Rectification dated 27.08.2018 (Exhibit-175) and construction of the factory as per DILR dated 17.10.2018 (Exhibit-100). The map dated 05.01.2014 forming part of the sale deeds as well as rectification deeds, has not been exhibited.

21. It is submitted that at the time of hearing of Appeal from Order Nos.213 & 214 of 2018, parties agreed that such dispute should be resolved by proper identification and demarcation of the boundaries of the lands of the parties. Hence, by consent, the Settlement Commissioner was directed to ask to DILR of two districts to jointly measure the lands of the parties in presence of the parties and prepare a report. Accordingly, the map (Exhibit-

99) is prepared and a report (Exhibit-100) produced before the Court. An undertaking dated 19.9.2018 is also given by the appellant-defendant that he will abide by the outcome of the joint measurement and demarcation and will not claim any equity or that may be put up after 18.9.2018 The appellant- defendant will remove the construction if the same is found by Page 38 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined this Court on the basis of the reports that the same is on the land of the respondents-plaintiffs. It is submitted that immediately after giving this undertaking, the land was mortgaged with Kalupur Commercial Cooperative Bank on 29.09.2018. The conduct in execution of the rectification deed is also objectionable. Having realized, an apparent defect in the sale deed dated 05.01.2017 and after hearing of Exhibit-5 was over, the appellant-defendant and his predecessors rushed to the office of Sub-Registrar and changed the boundaries in the rectification deeds. It is submitted that the construction commenced later and the respondents-plaintiffs realized only when they found construction going on its land. The issue of laches, i.e. suits are instituted after 95% construction is over, pales into insignificance.

22. In support of above submissions, reliance is place upon the following decisions by the learned Senior advocate for the respondent;

23. We have heard learned Senior Counsels for the respective parties and perused record and proceedings of both suits.

24. It is the case of plaintiff that the land bearing Survey No.334/12 was initially owned by one Ganesh Bharwad who Page 40 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined sold the said land by registered sale deed to Rambhai Rajabhai Baraiya and Jayantibhai Rajabhai Baraiya. Thereafter, Rambhai Rajabhai Baraiya and Jayantibhai Rajabhai Baraiya sold the land to plaintiff by registered sale dated 17.03.2015. In between the predecessor-in-title applied for the conversion of land into non- agricultural land for the purpose of industrial purpose and said permission was granted on 01.09.2014. The land bearing Survey No.334/84 was owned and possessed by one Ajaybhai Kanubhai Joshi, who sold the said land to Jayantibhai Rajabhai Baraiya by registered sale deed dated 12.10.2011. The said land was sold to plaintiff by Jayantibhai Rajabhai Baraiya by sale deed dated 17.03.2015. In between the predecessor-in-title applied for conversion of land into non-agricultural land for the purpose of industrial purpose. The permission was granted on 07.07.2014.

25. The sister concern of plaintiff namely Sarvang Shipping Services Private Limited purchased the land bearing survey No. 334/86 from its owner for the purpose of developing the land for industrial purpose. Thus, all the three lands were purchased by Page 41 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined plaintiffs for the purpose of industrial use. In 2017, the defendant purchased a land bearing Survey No.334/88. Before the institution of the suit, the engineer of the plaintiffs visited the site and found that defendant has erected a huge industrial shed and constructed fencing walls by encroaching upon the lands of the plaintiff. The plaintiff got a map prepared by engineer with regard to the encroachment done by the defendant. It is also the case of plaintiff that defendant has committed a trespass on the southern side of Survey No.334/12 and 334/84 ad measuring about 5837 sq.mtrs 26 In the second suit being Special Civil Suit No.40 of 2018, it is the case of the plaintiff that a land bearing survey No.334/86 was purchased by plaintiff from its owners by registered sale deed dated 17.03.2015. It is also stated by plaintiff that defendant has committed a trespass on the north- eastern side of survey number 334/86 ad measuring about 8816.00 sq. mtrs.

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NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined 27 An application under Order 39, Rule 1 and 2 of the Code of Civil Procedure was filed by plaintiff seeking a relief of injunction against defendant which was identical to the relief sought for in the plaint. The application Exhibit-5 came to be rejected by learned trial Court against which an Appeal from Order bearing No.213 and 214 of 2018 came to be filed by the plaintiff-respondent. Pending the hearing of appeal from order, the Co-ordinate bench of this court passed an order on 20.09.2018 which is reproduced as under;-

28. The District Land Office visited the suit lands and prepared a report and map which was submitted before co- ordinate Bench of Court. The Co-ordinate Bench of this Court after considering the report of DILR passed following order on 19.06.2019.

29. The defendant carried the order passed in appeal from order before the Hon'ble Apex Court and the Apex Court passed the following order on 19.11.2019;

30. Learned Trial Court has framed issues and thereafter, plaintiff examined the Authorized Signatory of the company, Mr. Girishchandra Pravinchandra Ramaiya at Exhibit-61 and 59 and also examined the officer from district and Revenue Records at Exhibit-96 and 87. Plaintiffs examined Registrar from the Sub-Registrar's office at Exhibit-102 and 92. Court commissioner was also examined by plaintiff at Exhibit-132. Defendant examined director, Mr.Harshadkumar Mohanlal Patel Page 46 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined at Exhibit-155 & 139 in respective suits. After considering the evidence, learned Tribunal allowed the suits by directing defendant to remove the construction.

31. In disputes with regard to location of lands, the party who asserts encroachment done by other party, who is also a title holder of his land has to first establish his title which includes exact location and identification of his land. Initial burden is on respondent-plaintiff that appellant-defendant has encroached upon his ownership land. It appears that plaintiff and defendant both are having registered sale deeds in their favour. Encroacher is not supposed to prove his legal possession over the alleged encroached area / location till the onus is discharged by party who asserts encroachment discharges its burden. Position would have been different if appellant-defendant is not having a registered title in its favour, the burden would have been on defendant to prove his legal possession and a right to remain in possession.

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NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined

32. In the present case, as per the respective stands of plaintiff and defendant, lands of plaintiff and defendant are situated at different location.

33. When both the parties are setting up their rights of ownership and possession over the land which they have purchased through respective registered sale deeds, question would definitely be touching to the title of the properties in question. As per maps prepared by DILR, it appears that almost enitre lands of defendant is found overlapping the lands of plaintiff, in such circumstances, the question is related to the location and identification of lands and also with regard to the title of the properties. The plaintiff under such circumstances was required to file suit for a relief of declaration of title of their lands and also was required to question the legality of registered sale deeds of the defendant. The prayers which are sought for in the plaint are to the extent of removal of encroachment and restoring possession of encroached land to the plaintiffs. In such Page 48 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined type of controversy, when both the parties are claiming possession of their respective lands through their respective registered sale deeds and more, particularly when a dispute is cropped up with regard to identification, boundaries, and location of the properties, it is for the plaintiff to discharge the onus of proving encroachment to the exact location of the lands which plaintiff has purchased. It also appears from the record that defendant has produced previous registered sale deeds of the lands of plaintiff and it is found that in all the registered sale deeds boundaries of lands differ from each other. Plaintiff has not examined previous title holders of the lands to prove the exact location and boundaries of the properties of the plaintiff. Once that onus is discharged by plaintiff, then the burden to rebut the same would shift on defendant. Plaintiff has averred in plaint that upon visit by the engineer of plaintiff on the site, plaintiff found that defendant has encroached upon the lands and has constructed an industrial shed and constructed a fencing and a compound wall. It is also an undisputed fact that when the suit Page 49 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined was filed almost more than 95% of the construction was completed by defendant. The construction was done after due permission and sanctions from competent Authority. There is no explanation forthcoming from plaintiff's side as why did they not raise any dispute of encroachment when defendant started with the construction.

34. So far as report of Court Commissioner produced at Exhibits-134 and 135 is concerned, it is found that the Commissioner in his oral deposition has admitted that he has not taken measurement of the defendant's land bearing Survey No.334/88. When a Court Commissioner is appointed by Court in a dispute which pertains to the boundaries, location, identification of the lands, local Court Commissioner must first ascertain the revenue records of the land in question, and thereafter, has to prepare report after visiting the site of dispute and after verifying the exact position, location, boundaries of the land and after taking into consideration of registered sale deeds Page 50 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined of the owners of the surrounding lands, recording the statements of the neighbouring land owners has to prepare a detail report and sketch of disputed land. The Court Commissioner in his deposition has also admitted that he has not taken care to see the revenue records and has only visited the place of plaintiff and inspected the lands of the plaintiff and prepared report and map. The commissioner's report Exhibit-134 and a map prepared by him at Exhibit-135 do not inspire any confidence and the same cannot be relied upon in the present case. Even on perusal of the map, Exhibit-135 Court Commissioner has not mentioned the location of land bearing Survey No.334/88. It appears from the oral deposition of Court Commissioner that the said report is prepared at the instance of Panchas who are not admittedly owners of the surrounding lands.

35 The oral deposition of the person from DILR office has stated in his deposition that while preparing the report, pursuant to the order passed by this Court, has not taken into consideration the map of 2014. Which is not exhibited in the Page 51 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined present case, but admittedly available in the records of government. A report/map of 2014 though produced by defendant is not exhibited, but the witness has admitted that while preparing the report Exhibit 99 and 100 dated 04.10.2018 has not taken into consideration map of 2014. The report is not supported by any of the village records. The report also indicates that report is prepared in absence of the extract of village forms by relying upon the sale deeds of lands in question. When the sale deeds of the plaintiff with regard to boundaries of the lands are not consistent with each other, reliance upon such sale deed would lead to a situation that if the report Exhibit 100 and 99 is relied upon, it would be fatal for the defendant in losing its lands in absence of any prayer for cancellation of sale deed and if defendant is directed to remove construction from the portion of land which belonged to his ownership. Plaintiff would succeed in getting registered sale deed of defendant cancelled or unenforceable without there being any prayers. The plaintiff did not examine the owners of Page 52 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined the surrounding lands as witnesses and also did not examine predecessor-in-title to establish exact location and identification its lands. When dispute of boundaries is cropped up in the cases where the report of DILR is not conclusive in its nature, it would not be appropriate to rely upon such report in arriving at a conclusion that which party has encroached upon the lands of other party.

DISPUTE WITH REGARD TO LOCATION 36 Now if three maps which are on record, Exhibit-100, 72 and a map of 2014 are seen, all maps are prepared by DILR authorities. Exhibit-72 is a map prepared by DILR on 25 th May 2012. It transpires that in 2012 map measurement of Survey Nos.334 and 336 are recorded in the measurement sheet. As per measurement sheet, Ganeshbhai Becharbhai Bharwad is the owner of 1-61-88 hecter are sq.mtrs of land. Jayantibhai Rajabhai Baraiya is the owner of 0-60-70 hector are sq. mtrs of Page 53 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined land and Vipul Kumar Narottamdas Gandhi and others are owners of land ad measuring about 2-42-81 hector are sq. mtrs of land. As per the measurement sheet, the total area of Survey No.334 is 336-60-90. If Map Exhibit-72 is considered, it is mentioned in the report by the concerned Government authority that since the measurement is of part of Survey No.334, the same is not confirmed. Admittedly in 2012 map, there is no specific reference of Survey Nos.334/12, 334/84 and 334 /86. In Exhibit-99 it is mentioned that as per the revenue record, measurement of Survey No.334/12, 334/86, 334/84 is 45,936 sq. mtrs. Whereas as per mark '"ABCDEFGOINA" measurement of the three Survey numbers is 46,539 sq. mtrs. There is significant change in measurement and the measurement does not sync with measurement found in revenue record. Further, the District Inspector Land Records, Gandhinagar has mentioned in its report that the subdivision of survey number 334 are found in Village Form number 7 but no such record is rectified in the records of DSO. It is further found that the DILR Page 54 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined officers has referred only the sale deeds of the plaintiffs and has relied upon the map Exhibit 72 while preparing the measurement Exhibit-99 and Exhibit-100. Admittedly, while preparing the map and report exhibit 99 and 100 respectively, DILR authorities have not taken into consideration the map of 2014, which was already available with them. Even the officer of the DILR has also admitted the fact that while preparing Exhibit 99 and 100 he has not considered the report of 2014. In 2014 map, defendant's survey number 334/88 is mentioned which is ad measuring about 16,646 sq. mtrs and the same is found in almost middle of the part of survey number 334. Whereas in the map Exhibit 99 location of defendant's survey number 334/88 is found slightly on the eastern side of the edge of survey number 334. In both the maps of 2012 and 2018, location of alleged encroachment is not found at the same place. Thus, report exhibit 99 and 100 prepared by DILR authority is not accurate and a conclusive piece of evidence to hold that defendant has encroached into the lands of plaintiffs survey Page 55 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined number. Except the measurement sheet, and map prepared by DILR, no other material is found on record to establish and prove that defendant has encroached upon the land of plaintiff. More particularly, when the suit was filed, almost 95% of the construction work was completed, which was as per sanctioned plans and after obtaining necessary permissions from relevant authority. Section 83 of Indian evidence act deals with the presumption as to maps or plants made by Authority of government. As per section 83 maps and plans purporting to have been made by the authority shall be presumed to have been made and be accurate.. The presumption under this section is not conclusive and is rebuttal. onus of proving such a map as accurate lie on the party who wants to rely on the said map or plan. It has to be proved that the said map or plan or survey report is accurate by examining the person who actually prepared it. undisputedly plaintiff in the present case has not discharged the burden of proving the accuracy of map and report exhibit 99 and 100. The author of the map has not been Page 56 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined examined by plaintiff, which was required to prove the accuracy of the map.

37. For convenience and better understanding of DILR and the map prepared by authorities and produced at Exhibit-72, Exhibit-99 and Exhibit-100 and the measurement sheet of 2014 are translated into English language from Gujarati version and the translated version is reproduced hereunder; Page 57 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025

NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined Map of 2012 Page 58 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined Map of 2014 Page 59 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined Map of 2018 Page 60 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined Exh. No. 100 SPCS No. 39/18 Office of Settlement Commissioner and Director of Land Records, State of Gujarat, Gandhinagar Near Kha-5 Circle, Sector 14, Gandhinagar - 382016. Office Phone No. (079) 23229090

--------------------------------------------------------------------------------------- Sr. No. D.I.LR./Hon'ble Gujarat High Court/Appeal No. 213/2018 and 214/2018 Date :- 22/10/2018 To, Government Pleader, Legal Department, Gujarat High Court, Ahmedabad.

Subject :-Report of measurement of the lands bearing survey Nos.

334/12, 334/84, 334/86 and 334/88 situated at moje Bhamsara, Taluka - Bavla, District - Ahmedabad. Ref. :- As per the order dated 20/09/2018 passed in the Appeal Nos. 213/2018 and 214/2018 by Hon'ble Gujarat High Court.

Apropos the subject and reference cited above, it was directed to prepare the report and submit the same after measuring the lands bearing survey nos. 334/12, 334/84, 334/86 and 334/88 situated at moje Bhamasara, Taluka - Bavla, District - Ahmedabad.

In connection with the same, both parties remained present at this office on 26/09/2018 and fixed 04/10/2018 for the measurement. Pursuant to the same, D.I.L.R., Ahmedabad, and D.I.L.R., Gandhinagar, were appointed by this office for the measurement .

On 04/10/2018, in the presence of both D.I.L.R.s and Assistant D.I.L.R. (Consolidation) of this office as well as both parties, measurement was carried out.

The complete report of the aforesaid measurement is prepared in accordance with the order dated 20/09/2018 of the Hon'ble Gujarat High Court and the same is forwarded herewith to be produced before Hon'ble High Court. Therefore, it is humbly requested to bring this report to the notice of Hon'ble High Court.

Sd/- (illegible) Settlement Commissioner and Director of Land Records, Gandhinagar, State of Gujarat. Page 61 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025

NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined Encl. :-

Apropos the subject and reference cited above, it is respectfully stated that you have issued direction to give opinion in respect of the possession after considering four boundaries of different documents and to prepare measurement sheet after measuring the lands bearing survey nos. 334/12, 334/84, 334/86 and 334/88 situated at moje Bhamsara, Taluka - Bavla, District - Ahmedabad, in the presence of District Inspector of Land Records, Ahmedabad, District Inspector of Land Records, Gandhinagar and Mr. Modi, Assistant D.I.L.R. of your office. As per your direction, the measurement work has been completed in the presence of all the parties on 04/10/2018. Their opinion in respect of the possession after considering four boundaries of different documents is submitted vide letter under reference at sr. no. (2).

The area of the land bearing Survey No. 334 situated at moje Bhamsara, Taluka-Bavla, is very large, wherein there are many paiki Hissas numbers. But, paiki hissas numbers have not been measured. Therefore, in absence of the survey records, it is not possible to decide as to where real possession of the Page 62 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined each paiki hissa is situate. It does not appear that the four boundaries of the sale deeds, which have been produced, are not considered properly while preparing the deeds. Measurement of three possession of said three hissas have been done in 2012. Accordingly, two deeds of Lila Ship Recycling Pvt. Ltd. and one deed of Sarvang Shiping Recycling Pvt. Ltd. appears to have been in consistency. But, at the time of present measurement, Bhailalbhai Bhagubhai, Hetalben Akshaykumar and Gopi Paper Mart (India) Pvt. Ltd. have shown their possession over the land in question.

As District Inspector of Land Records, Ahmedabad and Gandhinagar, have prepared a detailed report, the same is enclosed herewith in original. It is requested to do the needful after considering the same.

Sd/-(illegible) Deputy Director of Land Records Ahmedabad District Inspector of Land Records, Ahmedabad "Amdavad Jilla Mojani Seva Sadan"

The Deputy Collector, Dholka, rented out the land for cultivation in 1968 and 1987. The different lands of paiki of survey no. 334 are being transferred at the different times. As all these sale is of paikis, their survey records have not been prepared by this office.

(6) It is stated by Bhailalbhai Bhagubhai that the land mentioned in Point No. 1 has been purchased by him through two different registered sale deeds. He purchased land admeasuring Hec. 0-80-93 Sq. Mtrs of Survey No. 334/66 paiki vide registered sale deed no. 1273 dated 25/04/2016. The four boundaries thereof are mentioned as under:-

88 Sq. Mtr., which was occupied by Ganeshbhai Becharbhai Bharvad. Ganeshbhai Bharvad sold his land to Jayantibhai Rajabhai Baraiya and others vide registered sale deed no. 2643 dated 25/07/2011 and Lila Ship Recycling Pvt. Ltd. purchased this land from them vide registered sale deed no. 765 dated 11/03/2015. The four boundaries are mentioned as under in the deed of Lila Ship Recycling Pvt. Ltd.

East:- Cultivable land of Survey No. 337 paiki West:- Cultivable land of Survey No. 334 paiki North:- Existing road and thereafter cultivable land of Survey No. 334 paiki South:- Non-cultivable land of Survey No. 334/86 It is found that above mentioned four boundaries are consistent with measurement carried out in the year 2012. It appears that a mistake is committed in writing survey no. 337 instead of Survey No. 336 in the East. (10) As per the measurement of the year 2012, the land marked as "BCDKB" of Survey No.334 Paiki admeasuring Hectare 0-60-70 sq.mtrs was under possession of Jayantibhai Rajabhai Baraiya. Leela Ship Recycling Pvt. Ltd. had purchased the said land vide registered sale-deed No.765 dated 17/03/2018, wherein Survey No.334/84 is shown. In the said Survey Number, the four boundaries are shown as under.

East: Uncultivated land bearing Survey No.337 Paiki. West: Land bearing Survey No.334/12.

North: Cultivable land bearing Survey No.334 Paiki. South: Land bearing Survey No.334/12 and 334/86.

The above-mentioned four boundaries appear to be consistent with the measurement done in the year 2012.

(11) As per the measurement done in the year 2012, the land shown in the map vide Mark "E,F,G,H,I,E" was under possession of Vipulkumar Narottamdas Gandhi and Others. The area thereof is measured to be Hectare 2- 42-81 sq.mtrs. Vipulkumar Narottamdas Gandhi had sold out the said land vide registered sale-deed No.1760 dated 15/06/2012 to Ashokbhai Gordhanbhai Baraiya, wherein Survey No.334/86 has been shown. The four boundaries are shown as under in this sale-deed.

East:- Land bearing Survey No.336.

West:- Land bearing Survey No.334.

North: Land bearing Survey No.334/12.

South: Existing road.

Above-mentioned four boundaries are consistent with the location. Ashokbhai Gordhanbhai Baraiya has sold out the said land vide registered sale- deed No.736 dated 17/02/2018 to Sarvang Shipping Services Pvt. Ltd. In this sale-deed, the four boundaries are shown as under. East: Land bearing Survey nos. 335 and 336.

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North: Land bearing Survey No.334.

South: Existing road leading to Sarla village.

As per boundaries shown in both sale-deeds, the boundaries of two sale- deeds is uniform with the aforesaid boundaries of land, which was purchased by Ashokbhai Gordhanbhai Baraiya and subsequently sold by Ashokbhai Gordhanbhai Baraiya and also consistent with the location.

On the basis of the measurement conducted on 25/05/2012, the documents executed by the Shipping Company are consistent with the location shown at present, but in this land, at the time of present measurement, Bhailalbhai Bhaguben, Hetalben Akshaykumar and Gopi Paper Mart (India) Pvt. Ltd. have shown their separate possessions over this land, but the four boundaries shown in their sale-deeds do not appear to be consistent with the location.

In the instant measurement case, considering the aforementioned facts and details, the outer boundaries are being found and available in accordance with the borders and boundaries shown in the measurement conducted in the year 2012. In the instant case, upon verification of the record in respect of measurement of the Survey No.334 Paiki, it transpires that the measurement of the hissa has not been conducted at the time of handing over the possession, but since the Honourable High Court has directed to fix the "identification and demarcation" after conducting measurement of the land in dispute, after obtaining the copies of the registered sale-deeds from the office of the Sub-Registrar, study of the four boundaries shown in each of the aforementioned sale-deeds has been conducted. At the same time, the details of possession as per the measurement conducted in the year 2012 have been taken into consideration.

Thus, as per the measurement conducted in the year 2012, it prima facie appears that the land marked as "A,B,C,D,E,F,G,O,I,N,A" was purchased by Leela Shipping Recycling Pvt. Ltd. and Sarvang Shipping Services Pvt. Ltd. through different sale-deeds and land marked as - 'D,E,F,G,L,M,J,D", it appears that Gopi Paper Mart (India) Pvt. Ltd. has at present carried out construction of the factory on the said land.

2/- With a request to do the needful considering the above-mentioned report. Page 67 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025

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38. If Exhibit-72 and Exhibit-99 are compared, it appears that in Exhibit-100, Mark A,B,C,D, J, N,A is referred to as the land in possession of Bhailalbhai Bhagubhai. A reference of the measurement sheet of 25.05.2012 is made and as per 2012 measurement-sheet, mark A,B,K,D,E,I,N,A is the land which is purchased by Leelasheep Recycling Private Limited (plaintiff- respondent) from its erstwhile owner, now if this mark A,B,K,D,E,I,N,A is seen in the measurement map of 2018 (Exhibit-99), it is part of the land of Bhailalbhai Bhagubhai. In Exhibit-99 on the eastern site of mark CDEF Survey No.337, Survey No.336 and 335 are mentioned. Whereas in the measurement sheet of 2012 (Exhibit-72) on the eastern side of Survey No.334 settlement Commissioner has not mentioned Survey No.335. In the map of 2014, on eastern side of survey No.334, there appears to be a highway road of Ahmedabad to Bagodara and Survey No.335 and 336 are mentioned but reference of Survey No.337 is missing. Thus, on comparing three maps the location, boundaries of the land in question do Page 68 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined not sync with each other which raises doubt about accuracy of maps / plans. It appears that the land Mark as marked A,B,C,D,J,N,A, and marked as A,D,K,D,E,I,N,A are overlapping when DILR report of 2018 is relied upon by the plaintiff, such measurement of identification of the boundaries and location of the plot has to be very clear and unambiguous. When all the three reports do not indicate the exact situation, location and identification of the boundaries of Survey Nos.334/82, 334/84, 334 /86 and 334/88, reliance cannot be placed upon to resolve the dispute of alleged trespass being committed by defendant-appellant. Further, in 2018 report location of Survey No.334/88 is not identified which was the work allotted to the authority as per order dated 20.09.2018 passed by Co-ordinate Bench of this Court.

39. In the decision of Anathula Sudhakhar (supra), plaintiff filed a suit for a relief of permanent injunction to restrain the defendant from interfering with their possession. The trial Court decreed the suit. The First Appellate Court allowed the appeal Page 69 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined by holding that defendant was in possession of the suit property and the plaintiffs had not made out either title or possession over the suit property. The defendant clearly set up a case of title in himself. In the second appeal, the High Court restored the judgment and decree passed by trial Court. High Court held that plaintiff had established their title by inferring that possession was presumed to be with the plaintiff as possession follows title. In paragraph No.13.3, 14, 15, 16 and 21 the Hon'ble Supreme Court has observed as under;

13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

14. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, Page 70 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.

15. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.

16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.

21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :

But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.

40. In the case of Mary Pushpam (supra), it has been observed in paragraph No.22 and 23, which is as under; Page 72 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025

NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined "22. In order to test the above argument, we carefully examined the judgment of the trial court as also the first appellate court. What is discernible is that nowhere it is recorded the actual boundary or the measurements of the property in possession of the mother of the appellant (defendant therein). The respondents-plaintiff therein had based her case on the ground that they had purchased 8 cents of open piece of land and the defendant therein had raised construction over some adjoining land, and had trespassed over part of her purchased land as such decree of possession be granted. "23. We are unable to appreciate the said argument of the respondents. Suit for possession has to describe the property in question with accuracy and all details of measurement and boundaries. This was completely lacking. A suit for possession with respect to such a property would be liable to be dismissed on the ground of its identifiability. Further, it may be noted that if the construction by the defendant were not made over 8 cents of purchased land, then the plaintiff therein would not have a claim to possession of the same. The argument thus has to be rejected not only on facts but also on legal grounds as discussed above.

41. In the case of the Tehsildar, Urban Improvement Trust And Anr (supra), it has been observed in paragraph Nos21.1, 29 and 30, which is as under;

21.1 Further a suit simpliciter for injunction may not be maintainable as the title of the property of the plaintiff/respondent was disputed by the appellants/ defendants. In such a situation it was required for the respondent/plaintiff to prove the title of the property while praying for injunction. Reference can be made to the judgment of this Court in Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs . and Oars.

29. As recorded by the Trial Court, the respondents/plaintiffs had not been able to prove the document on the basis of which they were claiming a right of possession of the property in question. Even if the aforesaid document is considered, the sale was clearly violative of Rule 266 of the 1961 Rules, under which aforesaid alleged lease deed/sale deed has been issued in favour of the respondents/plaintiffs. In terms of Rule 266 of the 1961 Rules, only in certain specified situation, the land could be transferred by way of sale on private negotiation, namely, where any person has a plausible claim of title to the land and auction may not fetch reasonable price or it may not be the convenient mode for disposal of land or where such a course is regarded by the Panchayat necessary for advancement of Scheduled Castes and Scheduled Tribes or other Backward Classes. Another situation envisaged is where the person is in possession of land for more than 20 years but less than 42 years. Nothing was produced on record to show that the due process required for Page 73 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined leasing out/sale of the land in favour of the respondents/plaintiffs by private negotiation was followed. Gram Panchayat from whom the land was taken was not impleaded as party to admit or deny the allegations made by the respondents/plaintiffs in the plaint.

30. For the reasons, mentioned above, we find merit in the present appeals. The same are accordingly allowed. The impugned judgments of the High Court as well as the First Appellate Court are set aside and that of the Trial Court is restored. Resultantly, the suits are dismissed.

42. In the case of Vasantha (dead) Thr. Lr. (supra), it has been observed in paragraph Nos.24, 26, 28, 29, 30, 31 and 33, which are as under;

24. We now proceed to examine whether the suit for declaration simpliciter was maintainable in view of Section 34 of the SRA, 1963.

26. The learned senior counsel for the appellant has contended that it has been settled by the Courts below that the appellant has been in possession of the subject property since 1976. In view of the proviso to Section 34 , the suit of the plaintiff could not have been decreed since the plaintiff sought for mere declaration without the consequential relief of recovery of possession.

28. We now proceed to examine the law on this issue. As submitted by the learned Senior Counsel for the appellant, in Vinay Krishna v. Keshav Chandra [Vinay Krishna v. Keshav Chandra, 1993 Supp (3) SCC 129] (two- Judge Bench), this Court while considering Section 42 of the erstwhile Specific Relief Act, 1877 to be pari materia with Section 34 of SRA, 1963 observed that the plaintiff's not being in possession of the property in that case ought to have amended the plaint for the relief of recovery of possession in view of the bar included by the proviso.

29. This position has been followed by this Court in Union of India v. Ibrahim Uddin (2-Judge Bench ), elaborated the position of a suit filed without the consequential relief. It was observed:

30. In Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead ) thr. LRs (2-Judge Bench), the purpose behind Section 34 was elucidated by this Court. It was observed that the purpose behind the inclusion of the proviso is to prevent multiplicity of proceedings. It was further expounded that a mere declaratory decree remains non-executable in most cases. This Court noted that the suit was never amended, even at a later stage to seek the consequential relief and therefore, it was held to be not maintainable. This position of law has been reiterated recently in Akkamma and Ors. v. Vemavathi and Ors. (2-Judge Bench)

31. This Court in Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran and Others (2-Judge Bench) while reversing the High Court decree, observed that because of Section 34 of the SRA, 1963, the plaintiff not being in possession and claiming only declaratory relief, ought to have claimed the relief of recovery of possession. It was held that the Trial Court rightly dismissed the suit on the basis that the plaintiff has filed a suit for a mere declaration without relief for recovery, which is clearly not maintainable.

33. Adverting to the facts of the present case, on a perusal of the plaint, it is evident that the plaintiff was aware that the appellant herein was in possession of the suit property and therefore it was incumbent upon him to seek the relief which follows. Plaintiff himself has stated that defendant no. 1 was in possession of the subject property and had sought to transfer possession of the same to defendant no.2, thereby establishing that he himself was not in possession of the subject property. We are not inclined to accept the submission of the learned counsel for the respondent on this issue. We note that after the death of the life-estate holder in 2004, there was no attempt made by the original plaintiff to amend the plaint to seek the relief of recovery of possession. It is settled law that amendment of a plaint can be made at any stage of a suit34, even at the second appellate stage.

43. In the case of Union of India (supra), it has been observed in paragraph Nos.84, 85, 85.1, 85.6, 85.12 and 85.13, which are Page 75 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined as under;

84. In view of the above, we are of the considered opinion that the appellate courts dealt with the case in an unwarranted manner giving a complete go-by to the procedure prescribed by law. The appellate courts examined the title of the Government instead of Respondent 1- plaintiff. Such a course was not warranted. The title of the Government cannot be disputed. In any event possession of the Government for decades is not disputed. The plaintiff shifted the case from time to time but failed to prove his title.

85. To sum up, in view of the above discussion, we reach the following conclusions:

plaintiff was the owner of the suit land.

44. In the case of State of Gujarat (supra), it has been observed in paragraph Nos.3 and 13, which are as under; Page 76 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025

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3. In a civil suit for declaration of title over immovable property and permanent injunction on certain facts or propositions asserted by the plaintiff/plaintiffs, when they are denied or at least not admitted by the defendants, the question on the burden of proof arises. In the present case, all plaintiffs No. 1 to 7 came to the Court for declaration that they are the owners of Survey No. 295 of village Bhabhar Navavas, which according to them was admeasuring 3 acres 32 gunthas and 88 cents. They positively averred in the plaint that after survey settlement in the revenue record since 1954, the area of the said land was shown as 1 acre and 23 gunthas, but their assertion was that such area was simply approximately written. They have claimed ownership over the suit land by averring that Jagirdar Thakor Balvantsingh Kaluji had mortgaged the said Survey No. 295 with possession by registered deed for Rs. 500/- for a period of 10 years to plaintiff No. 1 and deceased Parshottam Chunnilal, who is represented by plaintiffs No. 2 to 7, being his heirs and legal representatives. It is their case that since execution of the said mortgage deed dated 22nd July, 1954, they are in possession of Survey No. 295. The said registered mortgage deed dated 22nd July, 1954 executed by Thakor Balvantsingh Kaluji is produced along with the list of documents at Exhibit 4/1 and the same is exhibited at Exhibit 47.

13. This Court must at once clarify that the question of burden of proof or onus probandi is certainly important in the early stage of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side. In such a contingency, the party on whom the onus lies to prove certain facts must fail if facts are not proved. In the present case, when ownership over Survey No. 295 was asserted by the plaintiffs and when specific issues to that effect were framed, and when plaintiffs have never claimed title on the basis of their possessory title, they having failed in Page 77 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined discharging their burden of proving their title, they must fail. It is true that in cases where evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place and truth or otherwise of the case must always be adjudged on the evidence led by the parties. Vide MANU/SC/0106/1963 : [1963]49ITR165(SC).

45. In the case of M.Durga Singh And Others (supra), it has been observed in paragraph Nos.16 and 17, which are as under;

16. The Special Court dealt with all these issues and concluded that the appellants had failed to establish that they are the owners of the scheduled property and there was no material to establish their ownership. It was also held that the appellants had not been able to show that the respondents had trespassed on the suit property without legal entitlement and were therefore land-grabbers within the meaning of the Act.

17. What is more serious is that the Special Court concluded that there is no certainty about the land alleged to have been grabbed by the respondents. The location of the land was not clear, the area was not clearly identified, the description of the land was very vague, no measurements of the land were given and the boundaries of the land were also not clear.

46. In the case of Ramasami Reddy And Ors (supra). it has been observed in paragraph Nos.2, 13, 17 and 18 which are as under;

2. The averments made in the plaint are as follows:-

13. It is well settled dictum of the Apex Court that a person who files a suit for injunction, must prove his prima facie title, legal possession and balance of convenience and if injunction is not granted, irreparable loss will be caused to him. In the case on hand, except the sale deed under Ex.A1, the first appellant/plaintiff has not filed any document to show that he is in possession and enjoyment of the suit property.

17. According to the learned counsel for the respondents, boundaries will prevail over the extent. He has also relied upon the decision of this Court reported in 2000 (3) MLJ 327 (Ramaiya Asari v. Ramakrishna Naicker alias Kollimalai Naicker and another), wherein it was held that the boundaries will prevail over the extent. So it is appropriate to extract para-15, which reads as follows:

18. Considering the facts and circumstances of the case, I am of the considered opinion, the suit filed by the first appellant/plaintiff itself is not maintainable without prayer for declaration of title as per the dictum laid down in MANU/SC/7376/2008 : 2008 SC 2033 ( Anathula Sudhakar v. P.Buchi Reddy (dead) by legal heirs and others). It is the duty of the appellants to prove that the plaintiff is having prima facie title and legal possession. But the appellants have not filed any single document to prove that the first appellant/ plaintiff is in possession of the suit property. So I am of the view, the Courts below are right in dismissing the suit for injunction after considering that the plaintiff has not proved his possession and title to the suit property. Therefore, the appellants herein are not entitled to any relief. The substantial question of law is answered accordingly.

47. In the case of Chennadi Jalapathi Reddy (supra), it has been observed in paragraph Nos.9, 10, 11 and 13, which are as under;

9. As mentioned supra, the High Court mainly relied upon the opinion evidence of DW 2, the handwriting expert, who opined that the signature of the first defendant on the agreement of sale, Ext. A-1 did not tally with his admitted signatures. Page 80 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025

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10. By now, it is well settled that the court must be cautious while evaluating expert evidence, which is a weak type of evidence and not substantive in nature. It is also settled that it may not be safe to solely rely upon such evidence, and the court may seek independent and reliable corroboration in the facts of a given case. Generally, mere expert evidence as to a fact is not regarded as conclusive proof of it. In this respect, reference may be made to a long line of precedents that includes Ram Chandra v. State of U.P. [Ram Chandra v. State of U.P., AIR 1957 SC 381 : 1957 Cri LJ 559] , Shashi Kumar Banerjee v. Subodh Kumar Banerjee [Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529] , Magan Bihari Lal v. State of Punjab [Magan Bihari Lal v. State of Punjab, (1977) 2 SCC 210 : 1977 SCC (Cri) 313] and S. Gopal Reddy v. State of A.P. [S. Gopal Reddy v. State of A.P., (1996) 4 SCC 596 : 1996 SCC (Cri) 792]

11. We may particularly refer to the decision of the Constitution Bench of this Court in Shashi Kumar Banerjee [Shashi Kumar Banerjee v. Subodh Kumar Banerjee , AIR 1964 SC 529] , where it was observed that the evidence of a handwriting expert can rarely be given precedence over substantive evidence. In the said case, the court chose to disregard the testimony of the handwriting expert as to the disputed signature of the testator of a will, finding such evidence to be inconclusive. The court instead relied on the clear testimony of the two attesting witnesses as well as the circumstances surrounding the execution of the will.

12. On the other hand, in Murari Lal v. State of M.P. [Murari Lal v. State of M.P., (1980) 1 SCC 704 : 1980 SCC (Cri) 330] , this Court emphasised that reliance on expert testimony cannot be precluded merely because it is not corroborated by independent evidence, though the Court must still approach such evidence with caution and determine its creditworthiness after considering all other relevant evidence. After examining the decisions referred to supra, the Court was of the opinion that these decisions merely laid down a rule of caution, and there is no legal rule that mandates corroboration of the opinion evidence of a handwriting expert. At the same time, the Court noted that Section 46 of the Evidence Act, 1872 (hereinafter "the Evidence Act ") expressly makes opinion evidence open to challenge on facts. In Alamgir v. State (NCT of Delhi) [Alamgir v. State (NCT of Delhi), (2003) 1 SCC 21 : 2003 SCC (Cri) 165] , without referring to Section 46 of the Evidence Act, this Court reiterated the observations in Murari Lal [Murari Lal v. State of M.P. , (1980) 1 SCC 704 : 1980 SCC (Cri) 330] and stressed that the court must exercise due care and caution while determining the creditworthiness of expert evidence.

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13. In our considered opinion, the decisions in Murari Lal [Murari Lal v. State of M.P. , (1980) 1 SCC 704 : 1980 SCC (Cri) 330] and Alamgir [Alamgir v. State (NCT of Delhi), (2003) 1 SCC 21 : 2003 SCC (Cri) 165] strengthen the proposition that it is the duty of the court to approach opinion evidence cautiously while determining its reliability and that the court may seek independent corroboration of such evidence as a general rule of prudence. Clearly, these observations in Murari Lal [Murari Lal v. State of M.P. , (1980) 1 SCC 704 : 1980 SCC (Cri) 330] and Alamgir [Alamgir v. State (NCT of Delhi), (2003) 1 SCC 21 :

Suit land was given on lease by plaintiff to various persons suggested by defendant from time to time. The defendant offered the plaintiff to take the suit land on lease on annual rent. Defendant was cultivating the land as a tenant. Plaintiff after issuing a notice filed a suit demanding payment of agreed rent and possession of the land. Defendant in defence contained title by adverse possession and further challenged that plaintiff was never in possession and the sale deed in favour of plaintiff was a Page 82 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined nominal deed. A specific issue was framed whether the defendant had acquired title by adverse possession. It was also observed by the apex court that merely by defendant that he had preferred his title by adverse possession does not mean that a cloud is raised over the plaintiff title and the plaintiff who is the owner should file a suit for declaration of title.

The facts in the present case are totally different from the facts which was before the apex court. Therefore , the said decision is not helpful to the plaintiff-respondent.

49. In the case of Muddasani Venkata (supra), the controversy was totally on a different footing. In paragraph Nos.2 and 3, controversy narrated, which is reproduced.

Since the Courts held that the plea raised prima facie did not raise any cloud over plaintiff's title and unless there is a serious cloud over the title of plaintiff, there is no need to file a suit for declaration of title. The suit for possession was maintainable. Therefore , the said decision is not helpful to the plaintiff-respondent.

50. In the case of K. M. Krishna Reddy (supra), the controversy between plaintiff and defendant was not related to title of the property, but the defendant admitted title of plaintiff's father to the suit property. The dispute was with regard to allotment of share under family settlement. The plea of defendant was adverse possession against the plaintiff, which Page 84 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined presupposes that applicant was owner in a suit solicited for a perpetual injunction based on title, defendant pleases perfection of his title by adverse possession against plaintiff or his produce, cannot be said that there is any dispute about title of plaintiff and therefore it was held that plaintiff did not claim in declaration of title in cases where issues involved in such suit, whether plaintiff has proved that he was in possession on the date of institution of the suit and whether the defendant has proved that he has perfected his title by adverse possession. Therefore , the said decision is not helpful to the plaintiff- respondent.

51. In the case of Mahendranath Parida (supra), the question was with regard to appointment of court commissioner under order 26, rule nine of the code of civil procedure. The application for appointment of court commissioner was rejected by the trial Court by holding that the same was premature and if it was considered necessary, commissioner would be appointed Page 85 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined after evidence was closed under the afforded controversy, the Orissa High Court held that under no circumstances, can local investigation be sought after the evidence is closed. The appointment of court commissioner should be done before the parties adduced evidence and thereafter The impure order was vacated and a survey knowing commissioner was directed to be appointed. Therefore, the said decision is not helpful to the plaintiff-respondent.

52. In the case of Sulemankhan S/o Mumtajkhan and Others (supra), it has been observed by the Bombay High Court that in suit involving boundary dispute between parties, court must ascertain that a map is drawn to the appropriate scale by competent government official from the office of TILR or DILR switch to measure the suit property either in presence of parties or in absence of parties. The suit property has to be properly measured, boundaries are fixed and boundary dispute is finally settled by producing map in the court by the plan maker who Page 86 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined can prove its genuineness by deposing in support of such plan/map.

In the present case, Exhibit 99 and 100, which are the measurement sheet and plan have relied upon by plaintiff is not supported by the evidence of a plan maker who has measured the disputed boundaries and prepared map. Therefore , the said decision is not helpful to the plaintiff-respondent.

53. In the case of Shreepat (supra), the suit of the plaintiff was with regard to dispute of identity of land and the court did not get the established and decrease the suit only on the basis of oral evidence which was not sufficient for the purpose of establishing the identity of the land in dispute at the spot. It has been observed that before decreeing the suit Court below should have got the identity established by issuing a survey commission to locate the plot in dispute.

In the present case, the exercise of identifying, measuring the boundaries was carried out by appointing DILR. However, Page 87 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined the office of DILR while preparing the measurement sheet of 2018, admittedly did not take into consideration the measurement sheet of 2014, which was available with the office at the time of Preparing measurement sheet of 2018. When there are serious flaws in the measurement sheet of 2018, such document is not a conclusive piece of evidence which can weigh court to decree the suit. Therefore, the said decision is not helpful to the plaintiff-respondent.

54. In the case of Kashinath S/o Ramkrishna Chopade (supra), in paragraph Nos.8, 13, 14 and 15, the Bombay High Court has observed as under

14. In view of the aforesaid legal position, it appears to be absolutely necessary that the City Surveyor ought to have been appointed when the question arises as to whether any encroachment has been made or not. The appointment of City Surveyor or Cadastral Surveyor for taking joint measurement of the property owned by the plaintiff and defendant for the purpose of local investigation under Order 26, Rule 9 of the Code of Civil Procedure not only become relevant but appears to be absolutely essential for the just decision of the case.

15. In the present case neither the City Surveyor nor any expert has been appointed for the purpose of local investigation under Order 26, Rule 9 of the Code of Civil Procedure and though the dimension of the property has been mentioned in the sale-deed (Ex.

47), in absence of any evidence of the person who prepared the map it is not possible to accept that the map which formed part of the decree is an accurate map and can be made basis for granting relief to the plaintiff. In fact, the impugned judgments and decree passed by the Courts below have resulted into miscarriage of justice and in such circumstances there is no alternative except to remand this suit to the trial Court with directions to appoint the Commissioner/Surveyor from the office of City Surveyor, Buldana for the purpose of local investigation under Order 26, Rule 9 of the Code of Civil Procedure .

This decision helps the case of defendant- Appellant. Page 89 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025

NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined

55. Decision in the case of Dr Mahendra Prasad Shaw and others (supra) and decision in the case of Balwantbhai Somabhai Bhandari , (supra) is on the line of undertaking given to the court and its compliance In the present case the undertaking which was given by Appellant to this court at the time of the order passed by co-ordinate bench of this court in Appeal from order while appointing DILR office to prepare the measurement sheet, is of not much importance as the report of DILR is not found accurate as discussed in this order and therefore, we are not delving into the issue of breach of undertaking.

56. The Apex Court, in the above decision , has observed that where the defendant asserts title over the property in question, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is disputed and claim for possession is purely based on title, the validity of the sale deed is a question, such complicated question Page 90 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined could properly be examined only in a title suit. In the present case, plaintiff, from the material placed on record could not establish that they were in possession of suit land and defendant has trespassed into the suit land. Therefore, the said decisions are not helpful to the plaintiff-respondent.

57. Considering the analysis of all maps and the report prepared by DILR Authority, we are of the view that the map and report exhibit 99 and 100 is not accurate and no reliance can be placed upon such an inaccurate report in holding that the defendant has committed trespass over the land of plaintiff. Plaintiff has failed to establish the exact location and identification of its land and has failed to establish the boundaries of its land, and therefore the evidence on record is not sufficient to hold that defendant has encroached upon The land of plaintiff to the extent which is claimed in the plaint. Resultantly, we are of the view that plaintiff has not established its case and has not cleared the doubts about the exact identification, boundaries, and location of its property and also Page 91 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined of defendant's property. Learned trial court has committed an error by relying upon the inaccurate map and the inconsistency in mentioning of the boundaries of survey number 334, which is found on record, suit of the plaintiff ought to have been rejected.

58. Resultantly, the First Appeals are allowed. The impugned judgment and decree dated 26.08.2022 passed by learned Principal Senior Civil Judge, Dholka in Special Civil Suit Nos.39 and 40 of 2018 is hereby quashed and set aside. The Special Civil Suit No.39 of 2018 and Special Civil Suit No.40 of 2018 are dismissed. No order as to costs.

59. In view of the order passed in the main matters, the connected Civil Applications do not survive and same stand disposed of accordingly.

60. Record and proceedings, if any, be sent to the concerned Court.

(BIREN VAISHNAV, J) (D. M. DESAI,J) RINKU MALI Page 92 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025 NEUTRAL CITATION C/FA/5/2023 CAV JUDGMENT DATED: 02/05/2025 undefined FURTHER ORDER

1. After pronouncement of the judgment, learned advocate Mr. Hriday Buch for respondent has prayed for the suspension of the judgment and order passed by this Bench for a period of eight weeks.

2. Against which, learned advocate Mr. Maulik S. Sheth for the appellant has opposed the said request.

3. Request is rejected.

(BIREN VAISHNAV, J) (D. M. DESAI,J) RINKU MALI Page 93 of 93 Uploaded by RINKU MALI(HC01574) on Fri May 02 2025 Downloaded on : Sat May 03 17:29:53 IST 2025