Dismissed

Raval Bhemabhai Jesangbhai v. Raval Bababhai Shankarbhai

Gujarat HC26 Jul 2018SA/39/2014

Case brief

AI extract

What is this about?

The High Court dismissed a Second Appeal filed by plaintiffs challenging a decree dismissing a suit for declaration and injunction regarding land ownership. The court held that plaintiffs failed to establish title as revenue records (Gamthan Patrak) are not documents of title and substantial questions of law were not involved.

What did the court decide?

Second Appeal dismissed; judgment and decree of lower courts affirmed; no interference warranted.

Raval Bhemabhai Jesangbhai Vs Raval Bababhai Shankarbhai — Property and Title | Gujarat HC (2018)

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C/SA/39/2014 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SECOND APPEAL NO. 39 of 2014

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE J.B.PARDIWALA

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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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RAVAL BHEMABHAI JESANGBHAI

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Versus

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RAVAL BABABHAI SHANKARBHAI

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Appearance:

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MR HRIDAY BUCH(2372) for the PETITIONER(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8,1.9

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MR PRANAV G DESAI(290) for the RESPONDENT(s) No. 1.1,1.2,1.3 NOTICE SERVED(4) for the RESPONDENT(s) No. 2.1,2.2,2.3,2.4,2.5,2.6,2.7,3.2,3.4,3.5,3.6,4.1,4.2.1,4.2.2,4.2.3,4.2.4,4.3,4.4,4. 5,4.6.6,5.2.1,5.2.2,5.2.3,5.2.4

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NOTICE UNSERVED(8) for the RESPONDENT(s) No. 5.1 UNSERVED EXPIRED (N)(9) for the RESPONDENT(s) No. 3.1

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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Date : 26/07/2018

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ORAL JUDGMENT

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This Second Appeal under Section 100 of the CPC is at

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the instance of the original plaintiffs and is directed against the

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judgment and order dated 10.07.2009 passed by the Additional District Judge, Mehsana, in the Regular Civil Appeal No. 85/1995 arising from the judgment and decree dated 31.08.1995 passed by the learned Civil Judge (Junior Division), Kheralu, in the Regular Civil Suit No. 172/1990.

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For the sake of convenience, the appellants herein shall be referred to as the plaintiffs and the respondents herein shall be referred to as the defendants.

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The plaintiffs filed the Regular Civil Suit No.172/1990 in the Court of the learned Civil Judge, (Junior Division), Kheralu, for declaration and injunction.

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It is the case of the plaintiffs that they are the true and lawful owners of the suit property bearing Gram Panchayat Vada, Statement No.15, situated in village Chada, Tal. Kheralu. The defendants Nos. 4 and 5 have supported the case put up by the plaintiffs in the plaint. According to the plaintiffs, they are in possession of the suit land past couple of years. According to the plaintiffs, as the respondents herein – original defendants Nos. 1, 2 and 3 tried to disturb the peaceful and settled possession of the plaintiffs, the Civil Suit had to be filed

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for declaration and injunction.

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The original defendants Nos. 1 and 2 filed their written statement vide Ex-70 and contested the suit whereas the original defendants Nos.4 and 5 filed their written statement vide Ex-51. The defendants Nos. 1 and 2 denied the entire case put up by the plaintiffs and asserted their own title over the suit land. According to the defendants Nos.1 and 2, they are in possession of the suit property by virtue of succession. Their names are in the Gamthan Patrak at serial no. 303. According to the defendants Nos.1 and 2, they had also sought permission from the Chada Gram Panchayat to put up construction of a house in the suit land and such permission was granted by the Gram Panchayat vide notification dated 30.04.1990. In such circumstances, the defendants Nos. 1 and 2 prayed before the trial Court to dismiss the suit.

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Having regard to the pleadings of the parties, the trial Court framed the following issues vide Exh-53:

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“(1) Whether the plaintiff proves that the suit vada registered with the Chada Gram Panchayat vide vada statement No.15 is of the joint ownership and possession of plaintiff and defendant Nos. 4-5 ?

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(2) Whether the defendant Nos. 4 and 5/1 & 5/2 prove that the aforementioned suit vada is of their joint ownership and possession ?

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(3) Whether the plaintiff is entitled to get the reliefs as prayed for ?

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(3/A) The suit land vada running at Sr. No. 15 is not a vada but a land of Gamthan Patrak No.303 and the same has been obtained as an ancestral by the defendant Nos. 1-2.

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(3B) Whether the defendant Nos. 1-2 prove that the defendant Nos. 4-5 have illegally encroached upon the suit land ?

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(4) What order and decree ?”

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The issues framed by the trial Court came to be answered as under:

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“(1) In the Negative. (2) In the Negative. (3) In the Negative. (3A) In the Affirmative. (3B) In the Affirmative. (4) As per final order.”

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On appreciation of the oral as well as documentary evidence on record, the trial Court ultimately dismissed the

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suit filed by the plaintiffs. The findings recorded by the trial Court as regards the issue No.1 is as under:

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“(10) Considering the fact of the suit of the Plaintiff, his case is such that the Vada registered at Serial No. 15 in village site statement at Chada village is of joint ownership of the Plaintiff and Respondent No. 4-5. The plaintiff proves about such fact that whether Vada registered at Serial No. 15 is of his ownership? If we look at that fact, such representation has been made in support of the said point by oral evidence on oath vide Exhibit-58 that the Vada in suit is in the name of his father Late Jesangbhai Lalabhai and the Vada in suit is of joint ownership and of himself and Respondent No. 4, 5/1 and 5/2. To show this, he has produced copy of Vada Patrak vide Exhibit-59 in this case. He states that they are having possession of the Vada since the time of his ancestors for the last 100 years. He also states that he has taken water connection for the last seven to eight years. Detailed cross-examination of the said witness was carried out on behalf of the Respondents and looking to the facts of his cross-examination, he admits in his cross-examination that the Vada registered in the Vada Patrak is in the name of his father. He has not obtained certificate from the Mamlatdar regarding this Vada and it has not happened that his father had obtained the same. It has also not happened that he had deposited money in the Government for the Vada. He states that his land is recorded in Vada Patrak. He

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states that it measures 40 feet x 30 feet. The said land is 40 feet long in East to West and 30 feet wide in North to South. He states that he had obtained water connection in concession. He states that he did not deposit money for water connection. He states that he had deposited Rs. 111-00 afterwards. In view of the facts of his case and examination-in-chief and facts of cross-examination, it does not appear that the Plaintiff adheres to the facts of his examination-in-chief in his cross-examination. In support of his case, the Plaintiff has not produced any other evidence apart from his evidence on oath and documentary evidence vide Exhibit-59. In refutable fact on behalf of Respondent No. 1-2 against the fact and oral evidence of the Plaintiff, it is submitted on behalf of the Respondent that the land at Entry No. 15 registered in Vada Patrak, which the Plaintiff states to be belonging to him, he states that that entry is false and he states that in fact, the said entry is at No. 303 in Vada Patrak. He states it to be a Vada in dispute. Dispute of Vada has been going on between the Plaintiff and Respondent. Plaintiff states the property registered at Serial No. 15 in Village Site Statement as disputed Vada. Whereas, Respondent No. 1-2 states the property registered vide Entry No. 303 as disputed Vada. As per the case of the Respondent, in support of the fact of his case, he has produced oral evidence on oath vide Exhibit-112 of Power of Attorney Ishwarbhai Motibhai. And he has submitted in his oral evidence on oath that, the property is mentioned at No.303 in Vada Patrak and its North-South length is 40 feet and East-West length is

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26 feet. As Sankabhai Bhukhanbhai had died, the said land was succeeded to the defendant as his heir. In support of his oral submissions, he has produced the copy of order of the Chada Gram Panchayat for entering defendant No.1-2 as heirs vide Exhibit-116 and he has properly proved this fact. In support of his oral evidence on oath, he has proved the permission for construction vide Exhibit-116. To prove the entry No.303, he has produced the village site statement vide Exhibit-119. The Gram Panchayat gave the construction permission to defendant No.1-2 and before that, the plaintiff was informed to produce the objection against permission of construction given to the defendant No.1-2, if any even though the plaintiff has not submitted any objections against the permission of construction. Detailed crossexamination of this witness was conducted on behalf the plaintiff but the said witness adhered to the fact of his Examination in Chief. In support of the fact of the case on behalf of the defendant, the evidence of witness No.2 Manubhai Varvabhai Barot has been recorded on oath vide Exhibit-129. He also clearly states the fact in his Examination in Chief that, he was the member of Chada Gram Panchayat and he clearly submits that, the defendant No.1-2 obtained the property of their advocate Raval Sankabhai Bhukhanbhai through heirship and he corroborate the fact of Exhibit-116 and 117. He states that the order of Exhibit-116 and 117 was passed in his presence. The land of entry No.303 vide Exhibit-119 is the land mentioned in Vada Patrak wherein Jesangbhai also

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sought permission for construction and he was not given the permission. The said witness has also adhered to his facts stated in Examination in Chief. Witness No.3 on behalf of defendant No.1-2 Babuji Madhuji Thakor states in his oral evidence on oath vide Exhibit-136 that, he measured the village site entry No.303 and drew its Panchanama. The said witness has clearly stated that, on the basis of the application vide Exhibit-118, he measured the entry No.303 of village site statement in presence of Sarpanch, Talati and Pancha. The said witness has also adhered to the facts of Examination in Chief in his cross-examination. Thus, considering the facts of the case of defendant No.1-2 and oral and documentary evidence produced on their behalf, it is clearly transpired that, according to the fact of the plaintiff, the Vada registered in the office of village Panchayat at No.15 is under possession and occupation of the plaintiff for the last 100 years which does not corroborate the fact of documentary evidence of Exhibit-59 and the fact of his oral evidence on oath. Because, it is not written in the documentary evidence of Exhibit-59 that the plaintiff or his forefathers has possession since 100 years. One of the reason behind the same is that considering the refutable facts submitted by the defendant against the case of the plaintiff and the documentary evidence of Exhibit-59, it is not correct that the plaintiff has possession since 100 years. Considering the said document, it appears that the said deed of 119 is of the year - 1968 dated 06/09/1917. Looking to the fact in the said sheet, the name of Raval Sankabhai

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Bhukhanbhai is appearing at Entry No.303. Measurement is 40 feet from north to south and 26 feet from east to west. Subsequent to the succession of Raval Sankabhai, the said land is entered in the name of defendant no.1 and 2. The said fact is corroborated by witness no.2 Manubhai Varvabhai Barot, who stated that the resolution of Exhibit—116 was passed in his presence. Thus, it appears that the property of Sr. No.303 as per village record was transferred in the names of defendant no.1 and 2 on 27/09/2009 by resolution. The written and oral evidence for defendant no.1 and 2 disproves the fact that the ownership of the Vada property no.15 to be constructed for belongs to defendant no.1 and 2 by resolution dated 30/04/1990. The said fact is refuted by the written as well as oral evidence of the defendant no.1 and 2. Mr. Babuji Madhuji Thakor, circle inspector and witness no.3 for defendant no.1 and 2 states that he went to measure the site of Sr. No.307 of village record and he states that upon informing to the plaintiff to submit the objection against the said measurement, the plaintiff has not submitted any objection. Similarly, witness no.2 Manubhai Varvabhai also states that the plaintiff had not submitted any objection regarding succession of the defendant no.1 and 2 and at the time of permission for construction when he was informed to do so. Moreover, the said witness adhered to the facts of his chief examination in his cross-examination at length. Therefore, I do not agree with the argument of Mr. K.K. Raval, Advocate for the plaintiff that according

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to Exhibit-59, Jesangbhai Lalabhai, father of plaintiff is in possession of disputed vada land since 100 years as it is proved that document of Exhibit-59 and date thereon do not corroborate the facts of the case of the plaintiff. Because the fact of Ex-59 is rebutted for the respondent with the fact given at serial no.303 in Vada Patrak at Ex-119 and evidence of witness no.2 Manubhai Varvabhai and witness no.3 Babuji Madhuji Thakor- circle inspector. Therefore, it cannot be believed that the plaintiff has occupancy of the Vada for 100 years solely on the basis of entry at serial no.15 at Ex-59. The documentary evidence- copy of Vada Patrak of year 1968 at Ex-59 was produced to prove the fact at entry no.15 of Chada Gram Panchayat as a true fact regarding the Vada and the fact of entry no.303 of Chada Gram Panchayat produced by the respondent as not true. The aforementioned copy does not appear sufficient. He has not made any attempt to produce any record of panchayat to prove the said fact nor any witness has been examined. Therefore, respondent no.1, respondent no.2 has proved that evidence bearing entry no.303 of Vada Patrak at Ex-119 stands superior to that of the plaintiff. If the plaintiff wanted to prove his occupancy of the Vada at Entry no.15, he could have produced evidence of concerned officer of Village record and he could have rebutted facts of respondent no.1, respondent no. 2. But, he has not done the same. Therefore, I believe that the plaintiff has failed to prove occupancy of the Vada in Village record Entry no.15 for 100 years in his case. Therefore, I hold the

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issue no.1 in negative. As the respondents no.1, respondent no.2 prove receiving the land at Serial no.303 in Vada Patrak at Ex-119 by heirship, I hold the issue no.3(A) in affirmative.”

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The findings recorded by the trial Court as regards the issues Nos. 2 and 3 are as under:

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“(11) If we look in support of the said issue, it appears that the plaintiff's case is that the Vada in question is jointly owned by the respondent No-4 and 5/1 and 5/2. Considering his oral and documentary evidence on oath vide Exh-58 and 59 respectively, it appears that the plaintiff states that his father has died before about five to six years. Respondent Nos. 4 and 5 are his brothers. Whereas, respondents No. 5/1 and 5/2 are his nephews. Vada is jointly owned by them. The said witness clearly admits in his crossexamination that his father's name is found continue in the statement. Further, he also admits in his crossexamination that he has not submitted any written application for water connection. He clearly admits that no any written permission was obtained for filling up the foundation. He also states clearly that if he has submitted any application, he does not remember as to when he submitted the same. He also does not know the name of the mason who prepared the foundation. Now, looking to the facts stated by the witness in his examination-in-chief and crossexamination, it appears that in support to the present

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case, he has not produced any documentary evidence other than which is produced vide Exh-59. Looking to the said evidence, it appears that only his father's name is existing. Apart from that, neither any submission has been made on behalf of the plaintiff or respondent Nos. 4, 5/1 and 5/2, with regard the fact of posting name in Entry No-15 of Vada Patrak to decide the heirship nor any evidence has been produced in this regard. Respondent Nos. 4, 5/1 and 5/2, have not produced any oral or documentary evidence on oath before the Court. Hence, it gets proved from the facts admitted during the cross-examination that as the plaintiff, respondents No. 4, 5/1 and 5/2 couldn't prove that they jointly owned the Vada, in Chada village site statement or entry No-15, relief as prayed by them cannot be granted and therefore, my reply to the Issue No. 2 and 3 is in negative.

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Issue no. 3(B)

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(12) Considering the oral and documentary evidence produced for the defendant in support of this issue, the case of defendant no. 1 and 2 is that the plaintiff and defendant no.4 and 5 took over possession of disputed property in collusion with the Sarpanch of Chada village in their absence and installed tap and pulley etc. Whereas, the fact of defendant no. 1 and 2 is that in connection with the fact as to whether defendant no. 4 and 5 have occupied the disputed property, witness no. 1 Ishwarbhai Motibhai for the defendant has stated in

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the cross-examination, while adhering to the fact, that when they arrived at disputed property Babaji Circle, the place was vacant and after they went away, the plaintiff had taken possession of the place and he submitted application to the Mamlatdar to vacate the possession that the plaintiff had destroyed his hut and bricks have also been stolen. In the cross-examination, he has adhered to this fact. He had lodged the complaint regarding destroying his hut and stealing the bricks in the Mamlatdar Office that means in the police station and the police detained the plaintiff. The plaintiff was released on bail and the case was heard in the court of Mamlatdar and compromise was worked out in this case and the case was disposed of. During the compromise, writeup was prepared regarding his possession and bricks. It is submitted for defendant no. 1 and 2 that the plaintiff destroyed hut in their property and the bricks of defendant no. 1 and 2 were stolen and police case was registered in this regard and compromise was done. This fact has not been challenged by the plaintiff by way of any oral or documentary evidence or no attempt has been made to do so. Therefore, there is reason to believe the fact of defendant no. 1 and 2 that the plaintiff attempted to take possession in their place and as there is reason to believe that possession was taken, the decision to this issue is given in affirmation.”

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The findings with regard to issue No.4 recorded by the Trial Court is as under:

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“(13) Considering the discussion of all the aforesaid issues and arguments, my predecessor Shri P.U. Patel had passed interim injunction order under Exhibit – 5 until further order. But, the plaintiff has demanded for permanent injunction order in paragraph no. 8(c) of his plaint. But, title of the land is not clear and plaintiff is unable to state as to which is the suit land. Therefore, considering the facts of this case, permanent injunction can not be granted as plaintiff is not able to prove his case. Therefore, plaintiff's demand should be rejected after above mentioned discussion, I come to the conclusion that plaintiff is not able to prove his case. Therefore, I give reply to issue no. 4 by passing final order as follows.”

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The plaintiffs, being dissatisfied with the judgment and decree passed by the trial Court dismissing the suit, preferred the Regular Civil Appeal No.85/1995 in the District Court at Mehsana. The lower appellate court, upon reappreciation of the oral as well as documentary evidence, dismissed the appeal, thereby affirming the judgment and decree passed by the trial Court dismissing the suit of the plaintiffs. The findings recorded by the lower appellate court while dismissing the Regular Civil Appeal are as under:

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“(7) As per the case of the plaintiff property in dispute is mentioned as vada land posted at serial No.15, in the name of Raval Jesangbhai Lalabhai,

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situated in Raval vas, Kheralu. While as per case of the defendant No.1, 2 and 3 the disputed property is mutated as No.303 in Gamthan Ptrak which was a house, now in above circumstances it is the fist and foremost duty of the plaintiff to prove that the disputed property is shown as vada land at serial No.15 and it is stated in Raval vas and it is a vada land for this purpose when we go through the evidence produced and adduced on behalf of plaintiff, plaintiff has stated on oath vide Exh.58 that suit property is a vada land and it is mutated in the name of deceased Jesangbhai Lalabhai, the father of the plaintiff and that the said vada land is within the possession of plaintiff and defendant No.4 & 5 and they are owners in possession of the land in dispute. In support of his oral say he has produced document vide Exh. 59. Further it is stated on oath by the plaintiff that they are in possession of vada land since 100 years. They have taken water connection in the said land just only before 7 to 8 years. In his cross examination he has admitted that he has not obtained any certificate from Mamlatdar showing that the land is mutated in name of his father. It is also admitted by the plaintiff that he has not paid any amount in the Government. The measurement of land is shown as 40 X 30 feet. East to West it is 40 feet in length and north to south it is 30 feet width. On one hand he is stating that he has been provided water connection without any payment and on other hand he is stating that he has paid Rs.111/-. There is no other evidence on record supporting the say of the

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plaintiff while as per the say of the defendants No. 1 to 3 the disputed land is shown as entry No.303. Power of attorney holder of defendants Ishwarbhai Motibhai has deposed supporting the case of the defendants and it is deposed by him that it was in the name of Sankabhai Bhukhanbhai and after his death this land came in the possession of defendant No.1 & 2, in support of his oral say he has produced resolution of Chada Grampanchayat vide Exh.116, in which name of defendant No.1 & 2 are mutated as legal heir of Sankabhai Bhukhanbhai. In support of defendants' case permission seeking to carry construction over the land is also produced vide Exh.116. Further the document showing entry No.303 in Gamthan Ptrak is produced vide Exh.119. At the time of granting permission to carry construction objections were called by the Panchayat, at that time no objections were filed by the plaintiff. Further evidence of the defendant is supported by Manubhai Varvabhai Barot vide Exh.129. From his deposition, it appears that at the time of passing resolution he was member of the Panchayat. He supports the fact that the land in dispute came in the name of defendants No.1 & 2 by virtue of succession of deceased Sankabhai Bhukhanbhai. He further admits that resolution of Panchayat which is produced vide Exh. 116 & 117 were passed in his presence. Further it is stated by him that the disputed land is entry No.303, further it is deposed by him that permission to carry construction the disputed land was sought by Jesangbhai which was not granted. Further Babuji

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Moghaji Thakore has supported the case of the defendant vide Exh.136 stating there in that he has drawn panchnama after making measurement of the disputed property bearing entry No.303 and said panchnama and map was drawn at the instance of application produced vide Exh.118. The panchnama was drawn in the presence of Talati, Sarpanch and Panchas. Now considering documents produced vide Exh.59 by the plaintiff and the other documents produced by the defendants, the document produced vide Exh.59 is of the year – 1968 while the document produced vide Exh.119 is dated 06/09/1917 in which name of Sankabhai Bhukanbhai is mentioned and entry No.303 is mentioned measurement from north – south is shown as 40 feet and East-West is shown as 26 feet. Babuji Madhuji who is Circle Inspector has made measurement of the land in dispute. Plaintiff has not filed any objections against that at the time of mutation of succession and permission for construction. No objections were taken by the plaintiff. Thus considering all the documents and deposition of the witnesses. Plaintiff is unable to establish that disputed property is posted at serial No.15 in the name of deceased Jesangbhai Lalabhai and that the plaintiff and defendant No.4 & 5 are the co-owner and in possession of the land in dispute. Further there is no evidence supporting the case of the plaintiff that he and defendant No.4 & 5 are in possession of the suit land. Thus neither the ownership nor possession is established by the plaintiff nor property in dispute at entry No.15 vada

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land is established by the plaintiff.

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(8) Further as per say of the plaintiff his father has died before 5 to 6 years and defendant No.4 & 5 are his brother. In his cross examination he has admitted that vada land is in his father's name. Further no application for water connection was given by him. Further he has admitted that no permission from panchayat to carry boundary has been taken by the plaintiff. Who has prepared the base of the boundary, he has no knowledge. No attempts are made by him or defendant No.4 & 5 to mutate their name in panchayat record. So far as the possession as claimed by the plaintiff is concerned, there is no evidence showing lawful possession of the plaintiff. Possession must be lawful referable to legal valid title. Then only possession can be protected. Here there is no legal valid title, no lawful possession. Therefore possession as plaintiff is claming cannot be considered in his favour. On the contrary it appears that he has encroached upon the possession of the defendants. A Criminal complaint was lodged against plaintiff in which compromise was taken place. Therefore plaintiff is not entitled for any declaration as sought by the plaintiff in para-8(A) of the plaint. Further plaintiff is not entitled for declaration in respect of snatching away possession of the disputed property of the plaintiff as claimed in para-8(B) of the plaint. Further plaintiff is not entitled for any kind of permanent injunction as sought in para-8(C) of the plaint. Considering above all the Judgment and

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Decree dismissing suit of the plaintiff as passed by the Learned Trial Judge does not require any interference by this court. The Learned Trial Judge has passed decree by applying law properly. Hence, Learned Trial Judge has not committed any error in holding that the disputed property is mutated as Gamthan Ptrak No.303 and that defendant No.4 & 5 have illegally encroached upon the land in dispute and that the Learned Trial Judge has not committed error in dismissing the suit of the plaintiff. Plaintiff has not proved that plaintiff as well as defendant No.4 & 5 are the owners and in possession of the disputed land. Therefore the Judgment and Decree passed by the Learned Trial Judge does not require to be set aside. Hence, my answer to point No.1 to 3 are in negative and point No.4 as per final. In view of above I pass the following final order.”

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Being dissatisfied with the judgment and order passed by the lower appellate court dismissing the appeal, the plaintiffs are here before this Court with this present Second Appeal under Section 100 of the CPC.

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The following questions have been formulated as the substantial questions of law in the memorandum of the Second Appeal:

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“(1) Whether the courts below have erred in law in relying solely on the 'Gamthan Patrak' as proof which

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confers title of the land to respondent Nos. 1 and 2 ?

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(2) Whether the courts below have erred in law by rejecting overwhelming evidence in favour of the appellants regarding ownership and possession of the vada land by relying solely on the testimony of two witnesses supporting the case of the respondents – defendant Nos. 1 and 2 ?

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(3) Whether the courts below erred in holding that the respondents – defendants are in possession of the suit land despite the admission of the respondents – defendants in their evidence that they were not in possession of the land and never resided there ?

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(4) Whether the Courts below erred in law by holding that the Taluka Development Officer as well as the member of Gram Panchayat were empowered to decide the ownership of the land especially when it was essentially a private dispute of ownership ?

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(5) Whether the impugned judgments and orders passed by the courts below are based on misleading the evidence and thereby illegal ?”

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Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that this Second Appeal does not involve any substantial question of law. All the questions formulated are

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questions of fact. They cannot be said to be even mixed questions of law and fact. The plaintiffs have tried to prove and establish their title and ownership over the suit land by relying upon the Gamthan Patrak. To put it in other words, the only evidence which the plaintiffs were able to adduce to establish their title over the suit property is the revenue record in the form of Gamthan Patrak. Revenue records are not documents of title. Both the courts below have recorded concurrent findings that the plaintiffs have not been able to establish their title over the suit property and there is also a concurrent finding with regard to the fact that the plaintiffs are not in possession of the suit land.

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The learned counsel appearing for the plaintiffs vehemently submitted that even the defendants have not been able to establish anything. To put it in other words, according to the learned counsel appearing for the plaintiffs, the defendants have also not been able to establish their title over the property. The defendants have also relied upon the Gamthan Patrak to show that they are in possession of the suit land and are the lawful owners. The weakness in the defence of the defendants while contesting the suit by itself will not help the plaintiffs in establishing their title over the property.

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The plaintiffs have to establish their case on their own legs.

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In the aforesaid context, I may refer to and rely upon a decision of the Supreme Court in the matter of Ramchandra Sakharam Mahajan vs. Damodar Trimbak Tanksale and Others reported in (2007)6 SCC 737 , wherein the Supreme Court has observed as under:

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“13. The suit is for recovery of possession on the strength of title. Obviously, the burden is on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions.”

¶118

I may also refer to one another decision of the Supreme Court in the case of Gurunath Manohar Pavaskar and Others vs. Nagesh Siddappa Navalgund and Others, reported in (2007)13 SCC 565, wherein the Supreme Court observed in paragraphs 11 and 12 as under:-

¶119

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¶120

C/SA/39/2014 JUDGMENT

¶121

“11. Furthermore, the High Court committed an error in also throwing the burden of proof upon the appellantdefendants without taking into consideration the provisions of Section 101 of the Evidence Act. In Narain Prasad Aggarwal v. State of M.P. This Court opined: (SCC p.746, para 19)

¶122

“19. Record-of-right is not a document of title. Entries made therein in terms of Section 35 of the Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable.”

¶123

12. A revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the Evidence Act. The courts below, were, therefore, required to appreciate the evidence keeping in view the correct legal principles in mind.”

¶124

In the overall view of the matter, I have reached to the conclusion that the findings recorded by the two Courts below

¶125

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¶126

C/SA/39/2014 JUDGMENT

¶127

cannot be termed as frivolous or erroneous in law. I do not find any jurisdictional infirmity in the two judgments of the Courts below, warranting any interference in this Second Appeal under Section 100 of the CPC.

¶128

In such circumstances, this Second Appeal fails and is hereby dismissed.

¶129

(J.B.PARDIWALA, J)

¶130

MAYA

¶131

Page 24 of 24

Raval Bhemabhai Jesangbhai v. Raval Bababhai Shankarbhai

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Raval Bhemabhai Jesangbhai v. Raval Bababhai Shankarbhai

Case brief

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