1. In this petition preferred by the original plaintiff challenge is made to the order passed by the learned Principle Senior Civil Judge, Ankleshwar whereby the Court rejected the application Exh. 5 preferred in Special Civil Suit No. 37 of 2011 seeking declaration and permanent injunction with respect to land bearing survey Nos. 188-A and 188-B situated at village Talodara, Tal: Zaghadia, Bharuch.
2. Aggrieved by said order when the same was challenged before the Additional District Judge, Bharuch by preferring Civil Misc. Application Appeal No. 14 of 2012, the same was dismissed by its order dated 16th March 2012 thereby confirming the order of the trial court and the same came to be challenged in the present petition.
3. It is the case of the present petitioner that both the Courts below have directed non granting of protection in his favour and the petitioner since is claiming adverse possession that was required to be protected from being effected by any parties qua defendant No.1 and right title in the interest of defendant respondent No. 2 is by way of registered sale deed executed by the defendant No. 1 respondent No.1 herein.
4. Learned advocate Mr. Vyas appearing for the petitioner has fervently submitted that the Court has failed to notice the settled possession of the original plaintiff who has relation with the said land for almost four decades and two generations. It is being used for cultivating crop and the payment of land revenue is also made by the petitioner on behalf of respondent No. 1. He further urged the Court that the report of the Court Commissioner is indicative of standing crops of sugarcane. Even if the petitioner would not succeed in setting injunction, without due process of law he cannot be dispossessed from the settled possession. He further urged the Court that there is apprehension of his being dispossessed and thereby the very objective of filing of the suit will get defeated.
5. Having heard learned advocate for the petitioner original plaintiff and on having examined the material on record, this Court is of the opinion that no interference is required to the orders passed by the Courts below.
6. It can be noted from the order of the trial court that it has exhaustively discussed the fact on record to conclude that the plaintiff petitioner failed to establish prima facie case. It can be further noted that the Court also has taken the note of various decisions of the Supreme Court and High Court with regard to adverse possession. The Court is of the view that they do not apply to the facts of the present case. However, none of the evidences adduced by the present petitioner is found potent enough for the Court to hold the case of the petitioner prima facie and for the Court to grant application for injunction moved by the present petitioner.
7. When challenged before the Appellate forum as can be noted from the elaborate order passed in favour of the respondent herein and against the petitioner herein that the Appellate Court also has taken note of the fact that petitioner claimed adverse possession but it has prima faice not been able to satisfy the Court on the date and time of his possession and the nature of the possession. It also noted that the principles laid down by the Apex Court in the case of Hemaji Vs Bhikhabhai reported in AIR 2009 SC 103, that, " A person claiming adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and therefore what is required to plead and prove are the well laid down principles and after noting them the Court did not feel satisfied with the case of the petitioner. Coupled with it, it confirmed the order of the trial court while noting that the registered sale deed executed in favour of the respondent No. 2 is also reflected in the revenue record and cumulatively, it noted that some of the land revenue records and tax receipts of the suit, when compared that the documentary evidence produced by the respondents, petitioner has no prima facie case requiring protection.
8. On of the main emphasis is the payment of charges of land on behalf of the owner and the receipt of water charges as well as such other charges by the petitioner and the same has been turned down by the Appellate Court on the ground that any person can pay such charges on behalf of original owner but that would hardly establish his prima facie case as far as this case of adverse possession is concerned.
9. From none of the documents, petitioner could point out that the orders passed by both the Courts below is so materially and cogently wrong and perverse that the same is causing such grave injustice to the cause of the petitioner warranting any interference under Article 227 of the Constitution of India. Moreover this is not an appeal where this Court needs to replace the orders of Courts below by its own reasonings and none of the grounds is made out for the Court to interfere with the present petition.
10. With the above observation/ direction this petition stands disposed of.
(Ms.
Sonia Gokani,J.) mary// Top