C/SA/190/1993 ORDER DATED: 01/09/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SECOND APPEAL NO. 190 of 1993 With CIVIL APPLICATION (SCA & SA BR.) (DIRECTION) NO. 1 of 1993 In R/SECOND APPEAL NO. 190 of 1993 ================================================================ PATEL KACHARDAS DUNGARBHAI & ORS. Versus HEIRS OF PATEL KESHAVLAL DOSARAJ & ORS. ================================================================ Appearance: MR RC JANI(357) for the Appellant(s) No. 1.1,2.1,2.2,3 ABATED for the Respondent(s) No. 1.2 DELETED for the Respondent(s) No. 1.1 DS AFF.NOT FILED (N) for the Respondent(s) No. 1.4,1.5,1.6 MR HM PARIKH(574) for the Respondent(s) No. 1.3 MR RASESH H PARIKH(3862) for the Respondent(s) No. 1.3 ================================================================ CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER Date : 01/09/2025 ORAL ORDER 1. The present Second Appeal under Section 100 of Code of Civil Procedure has been filed challenging the judgment and decree passed by the 2nd Joint District Judge, Mahesana in Regular Civil Appeal No.105 of 1991, dated 07.09.1992, whereby, the judgment and decree passed by Civil Judge, J.D. Visnagar in Regular Civil Suit No.74 of 1983, dated 31.12.1990, has been set aside and the original suit of the plaintiff is partly allowed and decree is passed that the plaintiffs has a right to recover the possession of the suit property from the defendants and the plaintiff’s relief with respect to mesne profit was rejected. 2. For the sake of convenience, the parties are referred to as per their original status as that in the suit. Page 1 of 10 C/SA/190/1993 ORDER DATED: 01/09/2025 3. The brief facts arising in the present Second Appeal are that the plaintiff filed Civil Suit No.74 of 1983 to declare that the plaintiff is the owner of the suit property and is entitled for possession of the premises. The defendant raised defence that the plaintiff is a Benami owner of the suit property and the owner of the property is the defendant. The defendant also raised an issue that the defendant has become owner by way of adverse possession in view of the fact that the defendant is in possession of the property since more than 12 years without any obstructions, and therefore, by way of adverse possession, the defendant has claimed ownership of the suit property. The plaintiff had also stated that the suit property was given to the defendant on rent, and therefore, the plaintiff is entitled for possession of the property. 4. The plaintiff examined himself vide Exhibit-68, witness of the plaintiff was examined vide Exhibit-77. The defendant’s witness was examined, vide Exhibit-80 and the defendant also examined one witness, namely, Sahay Shankar Mohanbhai and after considering the oral and documentary evidence, the trial Court held that the plaintiff has proved that the plaintiff is the owner of the property. The trial Court also held that the defendant has miserably failed to prove that the plaintiff is the Benami owner of the suit property and actual owner of the suit C/SA/190/1993 ORDER DATED: 01/09/2025 property is the defendant. The trial Court held that the defendant being in possession of the suit property for last more than 12 years, has become the owner of the suit property by way of adverse possession. In view of the said fact, suit of the plaintiff was dismissed and trial Court held that the defendant has become the owner by way of adverse possession. 5. Aggrieved by the said order, plaintiff filed Regular Civil Appeal No.105 of 1991 and the appellate Court after reappreciating the evidence allowed the said appeal. Hence, the present Second Appeal. 6. The present Second Appeal was admitted by an order dated 11.01.1993, though, no substantial questions of law were framed at the time when the appeal was admitted. With the consent of parties substantial question of law was framed as under:- (i) Whether the appellate Court has erroneously come to the conclusion that the appellants have not become the owner by way of adverse possession of the suit premises? 7. Learned advocate for the defendant has mainly argued that it is not in dispute that the defendant is in possession of the suit property, the appellate Court has not appreciated the facts C/SA/190/1993 ORDER DATED: 01/09/2025 and evidence on record. The fact that the defendant was in possession of the suit property for more than 12 to 13 years is not denied by the plaintiff. The defendant has produced documentry evidence to show that the defendants have been cultivated the suit property since Baroda State and as and when Baroda State had placed the suit property on auction for cultivation, the possession of the suit property was with the defendant. 8. The documentary evidence that has been produced by the defendant clearly estalished that the defendants are in possession of the property since the year 1950 and the defendants have been cultivating the land and in view of the said fact, the appellate Court could not have quashed and set aside the judgment and decree of the trial Court in view of the same it has been aruged that the present Second Appeal is required to be allowed, the appellate Court has erred in holding that the defendant has not become the owner by way of adverse possession of the suit property. 9. Per contra, learned advocate for the plaintiff has argued that looking to the entire defence of the defendant, the defendant has taken two contentions: (i) First contention that has been taken is that the plaintiff is C/SA/190/1993 ORDER DATED: 01/09/2025 Benami owner of the suit property and actual onwer of the property is defendant. (ii) By way of adverse possession, the defendant has become the owner of the property in view of the fact that the defendant is in possession of the suit property without any obstructions for last more than 12 to 13 years. 10. Moreover, there is nothing on record to show that the defendant has ever asserted any hostile title against the real owner. There is no specific statements made by the defendant that the defendants have in fact become the owner by way of adverse possession, and therefore, the appellate Court has rightly decided the same. Moreover, it has been argued that claim for independent title by way of claiming real owner of the property by stating that the plaintiff is the Benami owner of the property and owner by way of adverse possession at the same time amounts to contrary plea, and therefore, also it has been argued that the present Second Appeal is required to be dismissed. 11. Having heard learned advocate for the parties and having considered the judgment and decree passed by the trial Court and the first appellate Court, the fact remains that the trial Court has held that the plaintiff is the owner of the suit property and C/SA/190/1993 ORDER DATED: 01/09/2025 has also held that the defendant is not a real owner of the property and plaintiff is not Benami owner of the suit property. Therefore, the fact remains that the said findings of the trial Court having not been challenged by the defendant has attained finality, therefore, the fact that the plaintiff is the owner of the property is not in dispute in the present Second Appeal and the fact that the defendant is not the owner, has also attained finality. Therefore, the only issue which this Court will have to see is whether there are any averments to prove that the defendant has given any evidence and/or pleaded with respect to the claim of defendant becoming the owner of the suit property by adverse possession. The fact remains that the defendants who are claiming adverse possession, have miserably failed to show that, on what date they came into possession and that what was the nature of their possession and whether the factum of possession, was known to the plaintiff and since how long their possession have continued and the defendants have also miserably failed to prove that their possession was open and undisturbed. All the above referred ingredients are not mentioned in the pleadings and are also not proved in evidence and therefore, when there are no averments in the pleadings and there is no oral or documentary evidence, the case of the defendants without evidence will not establish the fact of adverse possession. Moreover, mere possession of the land by C/SA/190/1993 ORDER DATED: 01/09/2025 the defendants would not ripen into possessory title. The defendants to claim right by adverse possession must have intention and hold the suit property adverse to the title of the plaintiff. 12. Moreover, with respect to the claim of the defendants to be in adverse possession, the possession of the suit property by the defendants contemplates a hostile possession i.e. a possession which is impliedly or expressly in denial of the title of the true owner and for claiming possession to be adverse, the same must be a possession by the defendants, who does not acknowledge either the plaintiff’s right or anybody else's right, but also denies the said right. The defendants possession for claiming adverse possession had to imply a control and consciousness in the mind of the defendants having dominion over an object that defendants have adverse possession and only then can defendants exercise it, and therefore by only holding possession of the suit property would not entitle the defendants into possessory title as there has to be an element to hold the suit property adverse to the title of the true owner. 13. Moreover, the possession of the premises of the defendants only implies the bare use of the land without any right to retain it and therefore, in order to constitute adverse possession, the C/SA/190/1993 ORDER DATED: 01/09/2025 defendants must prove that the actual possession of the defendants was claimed by the defendants as of right by himself or by persons deriving title from him and therefore, it was not sufficient for the defendants to prove adverse possession to show just the possession of property and for the claim of adverse possession, the said possession along with being actual, visible exclusive has to be hostile and continued during the time necessary to create a bar under the statute of limitation. It is not enough for the defendants to prove that he was in actual possession of the property within period of limitation, but the defendants must establish his title to the property and if the defendants fail to prove his title, the right to claim adverse possession fails and the question of adverse possession does not arise in such a case. 14. In the present case, the defendants had already been declared unauthorized occupants by revenue Court. The fact that the trial Court has already decided the issue No.1 & 2 in the affirmative and the same having not been challenged, the said fact of plaintiff being the owner of the property is not in dispute. There is nothing on record to show that the possession of the plaintiff is hostile possession. The fact remains that there is nothing on record to show that the defendant was in hostile possession, the defendants have claimed that either they have C/SA/190/1993 ORDER DATED: 01/09/2025 declared real owner of the suit property and the plaintiff be declared as Benami owner of the property and in the alternative plea of adverse possession has also been sought by the defendant. The defendant tried to rely on the amount paid towards the land revenue and water charges but the same will not amount to prove adverse possession of the defendant in the suit property.The revenue Court competent has already decided that the defendants are in unauthorized possession of the suit property. The said order has become final and the same is not challenged by the defendant. 15. Moreover, the plea as taken by the defendants to claim title and adverse possession are inconsistent and the latter does not begin to operate until the former is renounced. In view of the fact that the plaintiff is claiming possession by way of claiming ownership and also claiming adverse possession at the same time in view of the said fact also the judgment and decree of the appellate Court does not require any interference. 16. In view of the said fact, the substantial question of law framed by order dated 30.07.2025 “Whether the appellate Court has erroneously come to the conclusion that the appellants have not become the owner by way of adverse possession of the suit premises” is answered in ‘negative’ and from the facts stated C/SA/190/1993 ORDER DATED: 01/09/2025 hereinabove the appellate Court has rightly come to the conclusion that the appellants have not become the owner by way of adverse possession of the suit premises. 17. In view of the said fact, Second Appeal is dismissed. 18. In view of the order passed in main matter, Civil Application does not survive and stands disposed of accordingly. (SANJEEV J.THAKER,J) Manoj Kumar Rai Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: MANOJKUMAR RAI(HC01072), PRIVATE SECRETARY, at High Court of Gujarat on 01/09/2025 18:17:09