Gujarat High Court
Patel Maheshbhai Shankarbhai Revabhai vs Thakor Amaji Vechatji on 20 August, 2025
NEUTRAL CITATION
C/SA/137/2025 JUDGMENT DATED: 20/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 137 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 137 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
NO
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PATEL MAHESHBHAI SHANKARBHAI REVABHAI & ORS.
Versus
THAKOR AMAJI VECHATJI & ORS.
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Appearance:
MR. NISHIT P GANDHI(6946) for the Appellant(s) No. 1,2,3,4
HARSH K RAVAL(9068) for the Respondent(s) No. 1,2,3,4,5,6,7
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 20/08/2025
ORAL JUDGMENT
1. The present Second Appeal has been filed under Section 100
of the Code of Civil Procedure, 1908 (‘CPC‘, for short) challenging
the judgment and decree, dated 26.11.2024, passed in Regular Civil
Appeal No.134 of 2024, by 3rd Additional District Judge, dismissing
the said appeal and confirming the judgment and decree dated
21.10.2024, passed in Regular Civil Suit No.77 of 2024.
2. For the sake of convenience, the parties are referred to as per
their original status referred in the suit.
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FACTS :
3.1 The plaintiff filed Civil Suit No.77 of 2024 on the ground that
plaintiff has purchased the suit property from the grandfather of
defendant no.1 to 6 and pursuant thereto an agreement is executed
on 22.12.1970, for an amount of Rs.6501/- and from the date of
execution of the said agreement dated 22.12.1970, the plaintiff is in
possession of the suit property.
3.2 It is the case of the plaintiff that as suit property was new
tenure property, sale-deed could not be executed and, therefore,
plaintiff could not seek specific performance of agreement dated
22.12.1970, however, defendant nos.1 to 6 have executed sale-deed
in favour of defendant no.7 and, therefore, the suit is filed on the
ground that plaintiff is in possession of the suit property and,
therefore, the plaintiff be declared owner in view of the adverse
possession and to declare the sale-deed dated 09.07.2024, executed
by defendant nos.1 to 6 in favour defendant no.7 as null and void
and for anciliary relief for injunction.
3.3 The trial Court, suo motu, held that understanding / agreement
dated 22.12.1970, between the plaintiff and the grandfather of the
defendant nos.1 to 6 with respect to suit property, which is new
tenure land, is null and void and, therefore, on the basis of such
agreement no suit shall lie and, therefore, the trial Court rejected the
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plaint. Aggrieved by the said order, plaintiff filed first appeal and the
same was also dismissed.
3.4 Moreover, the plaintiff’s entire case is based on the fact that the
plaintiff is in possession of the property by virtue of the understanding /
agreement dated 22.12.1970 that the grand-father of the defendant nos.1
to 6 have sold the suit property to the plaintiffs and, therefore, the
plaintiff claimed adverse possession of the suit property. Moreover, it has
also been observed in the order passed by the Trial Court while rejecting
the plaint being barred by law on the ground that the plaint is hit by
Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948, and
that there are no averments in the plaint to justify the case of the plaintiff
on adverse possession and by an order dated 21.10.2024 the plaint was
rejected. Aggrieved by the said order, the plaintiff filed Regular Civil
Appeal no.134 of 2024 and after re-appreciating the facts the said Appeal
was dismissed, hence the present second appeal.
3.5 Learned advocate for the plaintiff has mainly argued that the fact of
plaintiff claiming title by way of adverse possession could not be a
ground for the Court to reject the plaint. It has been argued by the learned
advocate for the plaintiff that the plaintiff has not sought for specific
performance of the understanding and therefore also the Trial Court could
not have held that the plaint is barred under the provisions of Section 43
of the Gujarat Tenancy and Agricultural Lands Act, 1948.
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3.6 Learned advocate for the plaintiff has also argued that the Trial
Court also could not have come to the conclusion that there are no
averments made in the plaint that since which date and how the
possession of the suit property has become hostile to the owner of the
property and as to on which date the plaintiff has claimed right by way of
title by adverse possession.
3.7 It is the case of the plaintiff that possession of the plaintiff has
become adverse from the date plaintiff is in possession of the suit
property and, therefore, the trial Court and the first appellate Court
could not have rejected the plaint under the provisions of Order VII
Rule 11 of the CPC and in view of the same it has been argued that
the present Second Appeal is required to be admitted on the
following substantial questions of law, as suggested in the memo of
appeal.
“(1) Whether both the Courts below have committed
substantial error of law in passing the impugned order
contrary to settled law of Adverse Possession ?
(2) Whether the learned Trial Court has committed
substantial error of law in rejecting the plaint without
admitting and without assigning the provisions under which
the same is rejected ?
(3) Whether both the Courts below have committed
substantial error of law in passing the impugned judgment and
order contrary to the law laid down by Hon’ble Apex Court in
2019 (9) SCC 488 ?
(4) Whether the impugned judgment and order of the first
appellant court is rendered bad in law on account of non-
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compliance of the requirements of Order 41 Rule 31 of Code
of Civil Procedure, 1908 ?
(5) Whether the impugned judgment, order and decree of
both the courts below are bad on the ground of perversity of
finding of facts ?
(6) Whether both the courts below have committed
substantial error of law in misreading and misinterpreting the
documentary evidences while passing the impugned orders ?
(7) Whether both the learned Courts have committed
substantial error of law in passing the judgment, order and
decree without assigning proper reasons ?”
4. Having heard learned advocate for the plaintiff and having
considered the plaint and the judgment and decree passed by the
Trial Court which is confirmed by the First Appellate Court, the
following are undisputed facts:
(i) The plaintiffs have filed a suit on the ground that on
22.12.1970, there was an understanding / agreement dated
22.12.1970 between grandfather of the plaintiffs and
forefather of defendant nos.1 to 6, whereby the suit property
was sold to the father of the plaintiffs.
(ii) At the time of entering into an agreement dated
22.12.1970, the suit property was a new tenure land
(restricted land) and pursuant to the payment of entire sale
consideration, the possession of the property was handed
over to the father of the plaintiffs on the very same day i.e.
on 22.12.1970.
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(iii) In the plaint the plaintiffs have pleaded that as the suit
property was a new tenure land a registered sale deed could
not be executed but on 22.12.1970, the father of the plaintiffs
has become owner of the property and defendant nos.1 to
6 did not have any right, title, interest in the property.
5. In view of the aforesaid facts, the fact remains that the
plaintiff has not filed a suit for specific performance, though it is a
specific case of the plaintiff that the plaintiff is occupying the
premises by virtue of an agreement between the father of the
plaintiff and forefather of the defendant nos.1 to 6 in the year
1970.
6. The fact remains that, if the entire plaint is carefully
considered, the plaintiff has nowhere stated that as to on which
and how his possession has become hostile as to that of the
original owners i.e. defendant nos.1 to 6.
7. The entire suit is based on the fact that the plaintiff is in possession
of the property by virtue of an understanding in the year 1970 i.e.
forefather of defendant nos.1 to 6 shall execute sale-deed in favour of the
plaintiffs. The fact remains that Agreement on which the Plaintiffs
relies on was a new tenure land and in the plaint also, there is a clear
averment that the suit property is a new tenure land. At the time
when the Agreement dated 22.12.1970 was entered into between the
parties, the suit property was new tenure land and the same was to be
converted into an old tenure land and thereafter the sale-deed was to
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be executed between the parties. Therefore, the admitted position
before the Court is that an Agreement that was entered into between
the parties was with respect to new tenure land and hence, its sale or
agreement to sell was barred by law.
8. Moreover, the fact remains that at the time of said
understanding i.e. in the year 2005, the suit property was a new
tenure land i.e. a restricted land under Section 43 of the Tenancy
Actwhich reads as under:
“43. (1) No land or any interest therein purchased
by a tenant under section 17B, 32, 32F, 32-I. 6[*],
7[32U, 43-1D or 88E] or sold to any person under
section 32P or 64 shall be transferred or shall be
agreed by an instrument in writing to be
transferred, by sale, gift, exchange, mortgage,
lease or assignment, without the previous sanction
of the Collector and except in consideration of
payment of such amount as the State Government
may by general or special order determine; and no
such land or any interest, therein shall be
partitioned without the previous sanction of the
Collector.
[Provided that no previous sanction of the
Collector shall be required, if the partition of the
land is among the members of the family who have
direct blood relation or among the legal heirs of
the tenant:
Provided further that the partition of the land as
aforesaid shall not be valid if it is made in
contravention of the provisions of any other law for
the time being in force: Provided also that suchPage 7 of 19
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members of the family or the legal heirs shall hold
the land, after the partition, on the same terms,
conditions and restrictions as were applicable to
such land or interest therein purchased by the
tenant or the person.
9. The Division Bench of this Court in the case of Bharatbhai
Devashibhai Ukani vs. Vinaben Babaji and ors. in First Appeal
No. 4023 of 2023 in Para 11, has referred to the issue in question
that has been decided by the Full Bench in the case of deceased
Shaikh Ismailbhai Husenbhai thro’ Legal Heirs (supra), which reads
as under:
“11. Issue, in question is no longer res-
integra in view of the recent judgment of
the Full Bench, in the case of deceased
Shaikh Ismailbhai Hushainbhai through
legal heirs (supra). The Full Bench, has
confined its examination to the provision of
Section 43 of the Act of 1948. Paragraph
21 in this behalf reads thus;
“21. Furthermore, in light of the
controversy before us, as can be seen from
the previous decisions of this Court noted
hereinbefore, we do not find any reason to
enlarge the scope of the reference and
confine ourselves to the question of
reference to examine “whether a plaint is
liable to be rejected on the ground that the
suit for specific performance of contract
based on an illegal or invalid agreement to
sell, hit by Section 43 of the Tenancy
Act,1948, is not maintainable?”
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10. In view of the said judgment it has been held and observed that
it is only the Civil Court that can look into the fact as to whether the
agreement on the basis of which the suit for specific performance is
instituted is a valid agreement and not hit by any statutory provisions
or forbidden by law or opposed to public policy.
11. If the agreement itself is invalid being hit by section 43 of the
Tenancy Act, no cause of action can be said to have arisen asking
Defendant to perform his part of the contract and there is no sanction
and the agreement itself is illegal and invalid. Para 12 of the
decision rendered in First Appeal No. 4023 of 2023 reads as under:
“12. It has been held and observed that the
Civil Court, alone can look into the fact that as
to whether the agreement on the basis of
which, the suit for specific performance is
instituted is a valid agreement, not hit by any
statutory provision, or forbidden by law or
oppose to public policy. The Full Bench, has
also considered the object and scope of Order
VII Rule 11 of the Code, and referred to the
judgment in the case of Dahiben vs.
Arvindbhai Bhanusali (Gajara) dead through
LHS., reported in (2020) 7 SCC 366, wherein,
it has been held and observed that the cause of
action for a suit for specific performance of an
agreement of refusal by the Vendor inspite of
readiness and willingness of the vendee to
execute the sale deed, will not be existing in a
case where the agreement itself is invalid
being hit by Section 43 of the Act of 1948,
inasmuch as, no cause of action can be said to
have arisen, asking the Defendant to perform
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his part of the contract when there is no
sanction and the agreement itself is illegal or
invalid. Paragraphs 138, 139, 151 and 153 of
the judgment of Full Bench, read thus:
xxx …
“138. We may clarify that we are not
concerned with the dispute pertaining to the
validity of an agreement, i.e. the dispute
whether an agreement is hit by Section 43 or
not, i.e. whether it is valid or not? The issue
before us is plain and simple; as to whether the
agreement which has been executed with a view
to transfer a restricted tenure land as
prescribed in Section 43(1), without the
permission of the Collector, can be specifically
enforced by the Civil Court by granting a
decree of specific performance of such an
agreement.” Our concern is about the
jurisdiction of the Civil Court to decide on the
question of enforceability of such an agreement
of sale, which in our considered opinion clearly
resides in the Civil Court as held by the
Division Bench in Ganpatlal (supra). The Civil
Court alone will have jurisdiction to adjudicate
on the question of enforceability of the
agreement of sale, on the basis of which the suit
for specific performance has been executed. It is
the Civil Court which alone can look into the
fact as to whether the agreement on the basis of
which the suit for specific performance is
instituted is a valid agreement, not hit by any
statutory provision, or forbidden by law or
opposed to public policy.
139. The question as to enforceability of
an agreement hit by Section 43 of the TenancyPage 10 of 19
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Act, 1948, to grant a decree of specific
performance, cannot be by any stretch of
imagination, a question within the scope of the
jurisdiction of the revenue authority under the
Tenancy Act, 1948. There is no gainsaying that
Civil Court will not be required to stay a suit
for specific performance based on an agreement
hit by Section 43(1) of the Tenancy Act, 1948
and relegate the parties to approach the
Mamaltdar to decide on the question of validity
of such an agreement. (g) Enforceability of the
agreement hit by Section 43 of the Tenancy
Act:-
xxx …
151.On a careful reading of the provision in
Order VII, Rule 11 of the Code of Civil
Procedure and the law laid down by the Apex
Court in Dahiben (supra), in light of the dispute
before us, we may note that in order to maintain
the suit for specific performance of agreement,
which is hit by Section 43(1) of the Tenancy Act,
1948, the Plaintiff would be required to disclose
the cause of action for seeking a decree of
specific performance of such an agreement. The
cause of action for a suit for specific
performance of an agreement of refusal by the
Vendor inspite of readiness and willingness of
the vendee to execute the sale deed, will not be
existing in a case where the agreement itself is
invalid being hit by Section 43(1), inasmuch as,
no cause of action can be said to have arisen
asking the Defendant to perform his part of the
contract when there is no sanction and the
agreement itself is illegal or invalid. Further, on
the averments made in the plaint, in conjunction
with the documents relied upon by the Plaintiff,Page 11 of 19
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the Civil Court will be in a position to ascertain
the question of enforceability of the agreement.
It will be in a position to ascertain that the
agreement, which is the basis of the suit,
whether is hit by Section 43(1) or not, inasmuch
as, to seek a decree of specific performance of
agreement, the Plaintiff is required to disclose
and establish two circumstances: (I) firstly, that
the documents, which is the basis of the suit is a
valid document in the eye of law and (ii)
secondly, that the cause of action has arisen
prior to the presentation of the plaint. If the
documents, i.e. the agreement is an illegal or
invalid document in the eye of law, the Civil
Court from the statement in the plaint itself will
ascertain the suit being barred by law. In any
case, a suit basis of which is an invalid
document in the eye of law or where there exists
no cause of action to institute the suit on the
date of the presentation of the plaint, the Civil
Court will have no option but to reject the
plaint, at the threshold, under Order VII, Rule
11 of the Code of Civil Procedure. The
arguments that the Civil court will be required
to frame the issue as to the validity of the
agreement, which is the basis of the suit and
must necessarily proceed with the trial to arrive
at the decision as to whether the decree of
specific performance of an agreement hit by
law, is to be granted or not, does not appeal to
us.
… xxx
153. We are in respectful agreement with the
decision of the Division Bench in Naranbhai
Kanjibhai Gajera (supra), holding that thePage 12 of 19
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Division Bench decision in Amarben (supra)
can be said to be ‘per incuriam’ ignoring
statutory provisions and in view of the decision
of another Division Bench dated 21.06.2021 in
Vijaybhai Shambhubhai Patel (supra), which
was challenged in Special Leave to Appeal
(Civil) No.5124 of 2022, and which has been
dismissed vide judgement and order dated
10.11.20222 affirming the Division Bench
judgement in Vijaybhai Shambhubhai Patel
(supra).”
12. In any case, this Court is bound by the judgment of the
Hon’ble Full Bench in Shaikh Ismailbhai Hushainbhai through
legal heirs (supra) and Hon’ble Division Bench in Bharatbhai
Devashibhai Ukani vs. Vinaben Babaji and ors. (supra). These
judgments squarely cover the position of law on the application of
Order VII Rule 11 to Agreements hit by Section 43 of the Tenancy
Act and hence, they squarely apply to the facts of the present case.
13. Therefore, in view of provisions of Section 43 of the Tenancy
Act and the admitted position that the suit property was a new tenure
land, the plaint was liable to be rejected under provisions of Order
VII Rule 11 of the CPC on the ground that the suit based on the
illegal and invalid agreement to sale is hit by section 43 of the
Tenancy Act and hence, is not maintainable.
14. Therefore, the fact remains that neither the plaintiff has
sought for relief for specific performance and the plaintiff has come
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forward with the case that time and again defendant nos.1 to 6
have assured and acknowledged that the sale-deed will be
executed in view of the agreement of 1970.
15. In this background, it will be important to consider the fact
that plaintiff has not produced any document to prove his case of
claiming ownership. It is required that there has to be some
pleadings on the said fact of plaintiff having acquired title by way of
adverse possession. The pleadings must set-forth sufficient factual
details to the extent that it reduces the ability to put-forth a false or
exaggerated claim and pleadings must inspire confidence and
credibility and as held in the judgment reported in Maria Margarida
Sequeria Fernandes vs. Erasmo Jack De Sequeria (Dead) Through
Lrs. (supra) on vague pleadings, no issue arises. Only when the
plaintiff establishes the fact by giving details and prays in his
pleadings, the question of framing issue arises. It is mandatory for
the plaintiff to give details and produce documents sufficient and give
material particulars of his title by adverse possession failing which, the
plaintiff could not succeed. In the present case, except for the fact in
the relief claimed by plaintiff to be owner by way of adverse
possession, there are no pleadings as to how the plaintiff is having
title by way of adverse possession.
16. Moreover the fact remains that, the plaintiffs who are claiming
adverse possession, have miserably failed to show that, on what date he
came into possession and that what was the nature of his possession and
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whether the factum of possession, was known to the defendant and since
how long his possession has continued and the plaintiffs have also
miserably failed to prove that his 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 proof in
the pleadings and there is no oral or documentary evidence, the case of
the plaintiffs without evidence will not establish a case in law. Moreover,
mere possession of the land by the plaintiffs would not ripen into
possessory title. The plaintiffs to claim right by adverse possession must
have intention and hold the suit property adverse to the title of the
defendant.
17. With respect to the claim of the plaintiffs to be in adverse
possession, the possession of the suit property by the plaintiffs
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 plaintiffs,
who does not acknowledge either the defendant’s right or anybody else’s
right, but also denies the said right. The plaintiffs possession for claiming
adverse possession had to imply a control and consciousness in the mind
of the plaintiffs having dominion over an object that plaintiffs have
adverse possession and only then can plaintiffs exercise it, and therefore
by only holding possession of the suit property would not entitle the
plaintiffs into possessory title as there has to be an element to hold the
suit property adverse to the title of the true owner.
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18. The possession of the premises of the plaintiffs only implies the
bare use of the suit premises land without any right to retain it and
therefore, in order to constitute adverse possession, the plaintiffs must
prove that the actual possession of the plaintiffs was claimed by the
plaintiffs as of right by himself or by persons deriving title from him and
therefore, it was not sufficient for the plaintiffs 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
plaintiffs to prove that he was in actual possession of the property within
period of limitation, but the plaintiffs must establish his title to the
property and if the plaintiffs fail to prove his title, the suit fails and the
question of adverse possession does not arise in such a case.
19. In view of the said facts and the fact that as per law laid down
in the case of Government of Kerala & Anr. vs. Joseph and others
reported in 2023 LiveLaw (SC) 621 : 2023 INSC 693, the proper
and concrete proof as required would need for the claimant to show
some proof of possession and merely long period of possession does
not translate into the right of adverse possession.
20. Similarly, in case of Gaya Prasad Dikshit vs. Dr. Nirmal
Chander and Another reported in 1984 (2) SCC 286 it is held that
mere continuance of unauthorised possession even for a period of
more than 12 years is not enough. Wherein in the case of Thakur
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Kishan Singh vs. Arvind Kumar reported in (1994) 6 SCC 591 it is
held that “A possession of a co-owner or of a licensee or of an agent
or a permissive possession to become adverse must be established
by cogent and convincing evidence to show hostile animus and
possession adverse to the knowledge of real owner. Mere possession
for howsoever length of time does not result in converting the
permissive possession into adverse possession …” (emphasis
applied).
21. This Court would apt to refer also the judgment rendered in
the case of Annakili vs. A. Vedanayagam (2007) 14 SCC 308 (Two-
Judges’ Bench), more particularly para:24 which reads as under:
“24. Claim by adverse possession has two elements :-
(1) the possession of the defendant should become
adverse to the plaintiff; and (2) the defendant must
continue to remain in possession for a period of 12 years
thereafter. Animus possidendi as is well known is a
requisite ingredient of adverse possession. It is now a
well-settled principle of law that mere possession of the
land would not ripen into possessory title for the said
purpose. Possessor must have animus possidendi and
hold the land adverse to the title of the true owner. For
the said purpose, not only animus possidendi must be
shown to exist, but the same must be shown to exist at
the commencement of the possession…..”(emphasis
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22. In case of Des Raj and others vs. Bhagat Ram reported in
(2007) 9 SCC 641 (Two Judges’ Bench), in para:21, it is observed
thus:
“21. In a case of this nature, where long and
continuous possession of the plaintiff-respondent stands
admitted, the only question which arose for consideration
by the courts below was as to whether the plaintiff had
been in possession of the properties in hostile declaration
of his title vis-a-vis his coowners and they were in know
thereof.”
23. In case of L. N. Aswathama vs. P. Prakash reported in (2009)
13 SCC 229 (Two Judges’ Bench) it has been observed that
permissive possession or possession in absence of Animus
possidendi would not constitute the claim of adverse possession.
24. It is held in case of Chatti Konati Rao vs. Palle Venkata Subba
Rao (Two Judges’ Bench) reported in (2010) 14 SCC 316, in
para:15 as under:
“15. Animus possidendi as is well known
is a requisite ingredient of adverse
possession. Mere possession does not ripen
into possessory title until the possessor holds
the property adverse to the title of the true
owner for the said purpose. The person who
claims adverse possession is required to
establish the date on which he came in
possession, nature of possession, the factum
of possession, knowledge to the true owner,
duration of possession and that possession
was open and undisturbed…….(emphasis
supplied)”
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NEUTRAL CITATION
C/SA/137/2025 JUDGMENT DATED: 20/08/2025
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25. In the present case, the plaintiff has miserably failed to prove
that he has become owner by way of adverse possession and in view
of the fact that the trial Court and the appellate Court have rightly
taken into consideration the plaint and documentary evidence
produced with the plaint, it has been proved that the plaintiff, who is
claiming the possession through his father-in-law himself was
servant in the premises. In view of the same, no interference appears
to have been called for in the orders passed by both the Courts
below.
26. Under the circumstances, this Second Appeal is devoid of any
substantial question of law. Both the learned Trial Court and first
appellate Court have rightly decided the issue between the parties in
the right perspective and as stated above no substantial question of
law arises in the present appeal. The appellants have failed to prove
their case before the learned trial Court as well as before the first
appellate Court. This Court does not find any substance in the
present Second Appeal as the same is devoid of any merit both on
facts and law and the same is dismissed at admission stage. The
connected application stands disposed of accordingly.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
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