[1.0] As common question of law and facts arise in both these second appeals, they are disposed of by this common judgment and order.
[2.0] Second Appeal No.153 of 2008 has been preferred by the appellants herein - original plaintiffs to quash and set aside the impugned judgment and order passed by the learned Appellate Court - learned Presiding Officer, 2nd Fast Track Court, Panchmahal, at Godhra in Regular Civil Appeal No.83 of 2000 by which the learned Appellate Court has allowed the said Appeal preferred by the respondents herein
- original defendants and quashed and set aside the judgment and decree dated 06.10.2000 passed by the learned Civil Judge (Junior Division), Shahera in Regular Civil Suit No.8 of 2000 and consequently dismissing the said suit.
[2.1] Second Appeal No.155 of 2008 has been preferred by the appellants herein - original defendants to quash and set aside the impugned judgment and order passed by the learned Appellate Court - learned Presiding Officer, 2nd Fast Track Court, Panchmahal, at Godhra in Regular Civil Appeal No.82 of 2000 by which the learned Appellate Court has allowed the said Appeal preferred by the respondents herein
- original plaintiffs and has quashed and set aside the judgment and decree passed in Regular Civil Suit No.7 of 2000 and consequently decreed the suit and granted declaration and permanent injunction as prayed for in favour of respondents herein - original plaintiffs.
[3.0] That the appellants herein of Second Appeal No.153 of 2008 - original plaintiffs instituted Regular Civil Suit No.8 of 2000 against the respondents herein - original defendants in the Court of Civil Judge (Junior Division), Shahera for a declaration and perpetual injunction to declare that they have become the owners by adverse possession. It was the case on behalf of the plaintiffs that the disputed suit property in question was originally belonging to one Nathubapu and others and the original owners have handed over the possession of the said land to the father of the plaintiffs in the year 1949 and since then they are in possession of the suit land and they have become the owners by adverse possession. It was further alleged in the plaint that despite the aforesaid fact, one Fatemabibi purchased the said land from the original owner and thereafter sold the same to defendant No.6 on 29.07.1991. That the said suit was resisted by defendant Nos.1 to 4 by filing written statement at Exh.26 and by defendant No.5 by filing written statement at Exh.32 and by defendant No.6 by filing written statement at Exh.22. That the learned trial Court framed issues at Exh.35.
[3.1] It appears that simultaneously the respondent of Second Appeal No.155 of 2008 - purchaser and original defendant No.6 of Regular Civil Suit No.8 of 2000 also preferred Regular Civil Suit No.7 of 2000 against the appellants of Second Appeal No.153 of 2008 - plaintiffs of Regular Civil Suit No.8 of 2000 for a declaration and permanent injunction with respect to the very land which was the subject matter of Regular Civil Suit No.8 of 2000 to declare that the appellants herein - original defendants have no right, title or interest in the suit land and also restraining the appellants herein
- original defendants in obstructing and/or restraining the plaintiff from putting up any construction.
[3.2] That the learned Civil Judge (Junior Division), Shahera by judgment and decree dated 06.10.2000 allowed the Regular Civil Suit No.8 of 2000 preferred by the appellants herein - original plaintiffs and granted the declaration that the appellants herein - original plaintiffs have become the owner of the disputed suit land by adverse possession and consequently granted the perpetual injunction against defendant Nos.5 and 6 not to dispossess the plaintiffs from their peaceful possession and also granted the injunction restraining defendant Nos.5 and 6 from entering in the disputed property. Consequently the learned Civil Judge (Junior Division), Shahera by judgment and decree dated 06.10.2000 dismissed the Regular Civil Suit No.7 of 2000 filed by original defendant No.6 of Regular Civil Suit No.8 of 2000.
[3.3] Feeling aggrieved and dissatisfied with the judgment and decree dated 06.10.2000 passed by the learned Civil Judge (Junior Division), Shahera in Regular Civil Suit Nos.7 of 2000 and 8 of 2000, original defendant No.6 of Regular Civil Suit No.8 of 2000 - respondent No.6 herein - the subsequent purchaser preferred Regular Civil Appeal No.83 of 2000 (against the judgment and decree passed by the learned trial Court in Regular Civil Suit No.8 of 2000) and also preferred Regular Civil Appeal No.82 of 2000 (against the judgment and decree passed by the learned trial Court in Regular Civil Suit No.7 of 2000) and the learned Appellate Court by respective judgment and orders dated 19.02.2008 has allowed the aforesaid Appeals by quashing and setting aside the judgment and decree passed by the learned trial Court in Regular Civil Suit Nos.8 of 2000 and 7 of 2000 and consequently dismissing the suit preferred by the appellants herein - original plaintiffs of Regular Civil Suit No.8 of 2000 and consequently allowing the Regular Civil Suit No.7 of 2000 preferred by the original plaintiff of Regular Civil Suit No.7 of 2000 and original defendant No.6 of Regular Civil Suit No.8 of 2000 (the purchaser).
[3.4] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court passed in respective Regular Civil Appeal Nos.83 of 2000 and 82 of 2000, the appellants herein have preferred the present Second Appeals under Section 100 of the Code of Civil Procedure, 1908.
[4.0] Shri Kharadi, learned advocate appearing on behalf of the appellants herein has vehemently submitted that the learned Appellate Court has materially erred in denying the claim of the appellants as owner by adverse possession. It is submitted that the learned Appellate Court has materially erred in quashing and setting aside the judgment and decree passed by the learned trial Court passed in Regular Civil Suit No.8 of 2000 declaring the appellants as owner by adverse possession as the appellants' possession of the suit property was of more than 14 years and that too within the knowledge of the land owners. It is submitted that the learned Appellate Court has materially erred in holding that the 2nd purchaser i.e. Maulana Mizanurraheman is in possession of the disputed suit land as even the 1st purchaser was also not having any possession of the suit property. Therefore, it is requested to allow the present Second Appeals.
[5.0] Both these appeals are opposed by Shri P.M. Dave, learned advocate appearing on behalf of the contesting respondents more particularly original defendant No.6 of Regular Civil Suit No.8 of 2000 - original plaintiff of Regular Civil Suit No.7 of 2000 - 2nd purchaser. It is submitted that admittedly even at the time of filing of the suit, original defendant Nos.1 to 4 - original owners against whom the appellants herein - original plaintiffs prayed for a declaration that they have become the owner by adverse possession, were not the owners and they had sold the land in question in favour of original defendant No.5 who in turn sold the disputed suit land in favour of original defendant No.6 and the sale deeds in favour of original defendant No.5 and consequently original defendant No.6 are registered sale deeds and despite the same, the sale deeds in favour of original defendant No.5 or in favour of original defendant No.6 have not been challenged and therefore, as such the plaintiffs are not entitled to any declaration against defendant Nos.5 and 6 to the effect that the plaintiffs have become the owner by adverse possession. It is submitted that the learned Appellate Court has therefore, rightly held that the appellants herein have failed to prove that they were in possession of the disputed land in question. It is submitted that when the learned Appellate Court specifically found that the appellants herein have failed to prove that they were in possession of the suit land, the learned Appellate Court has rightly held that appellants herein cannot be declared as owner by adverse possession. It is submitted that for declaring a person owner by adverse possession, he has to prove that he is in uninterrupted possession within the knowledge of the true owner. Therefore, it is requested to dismiss the present Second Appeals.
[6.0] Heard the learned advocates appearing for respective parties at length, considered the impugned judgment and order passed by both the Courts below and also considered the relevant documentary evidences from the Record & Proceedings which has been received from the learned trial Court. At the outset it is required to be noted that appellants herein - original plaintiffs of Regular Civil Suit No.8 of 2000 have prayed for a declaration that they have become the owner by adverse possession and that their father was in possession of the suit land since 1949 and thereafter, after his death, the appellants are in possession of the same. It is required to be noted that even at the time when the suit was filed by the appellants herein - original plaintiffs, the disputed suit land in question was sold in favour of original defendant No.5, by original defendant Nos.1 to 4 (original owners) and thereafter, original defendant No.5 had sold the suit land in favour of defendant No.6. Still the original plaintiffs did not chose to pray to set aside their sale deeds and as such filed a suit for a declaration that they have become the owner by adverse possession and the relief was sought mainly against defendant Nos.1 to 4. So at the relevant time when the suit was filed, original defendant Nos.1 to 4 were not the owner of the suit land and original defendant No.6 was the owner who has purchased the same from original defendant No.5 by registered sale deed. It is required to be noted that the learned Appellate Court has specifically observed and held that the appellants herein - original plaintiffs of Regular Civil Suit No.8 of 2000 have failed to prove that they were in possession of the suit land in question. No documentary evidences were produced and/or any evidence was produced to prove that the appellants herein - original plaintiffs were in possession of the suit land in question. On the other hand the defendant No.6 has purchased the suit land by registered sale deed. Under the circumstances, when the appellants herein - original plaintiffs of Regular Civil Suit No.8 of 2000 failed to prove their possession by leading evidence, they cannot be declared owners by adverse possession and therefore, the learned Appellate Court has rightly quashed and set aside the decree passed by the learned trial Court in Regular Civil Suit No.8 of 2000 declaring the appellants herein - original plaintiffs of Regular Civil Suit No.8 of 2000 by adverse possession. To grant a relief declaring a person as owner by adverse possession, such person has to prove that he is in possession of suit land uninterruptedly within the knowledge of the original owners and the possession of such a person is sine qua non. Under the circumstances when the appellants herein - original plaintiffs of Regular Civil Suit No.8 of 2000 failed to prove that they are in possession of the suit land in question, no illegality has been committed by the learned Appellate Court in quashing and setting aside the judgment and decree passed by the learned trial Court in Regular Civil Suit No.8 of 2000, by which the appellants herein - original plaintiffs were declared as owners by adverse possession. Under the circumstances, the learned Appellate Court has rightly dismissed the suit preferred by the appellants herein - original plaintiffs of Regular Civil Suit No.8 of 2000 and consequently has rightly allowed the Regular Civil Suit No.7 of 2000 preferred by the 2nd purchaser - original plaintiff of Regular Civil Suit No.7 of 2000 and decreeing the suit and granting a declaration that the appellants herein have no right, title or interest in the suit land in question and they have no right to put up any construction and that they have no right to obstruct the 2nd purchaser from putting up any construction.
[6.1] As stated herein above, the original plaintiffs have not challenged and/or prayed to quash and set aside the registered sale deeds in favour of original defendant No.5 and/or original defendant No.6. Under the circumstances, no illegality has been committed by the learned Appellate Court in allowing the Appeals preferred by the 2nd purchaser and quashing and setting aside the judgment and decree dated 06.10.2000 passed by the learned Civil Judge (Junior Division), Shahera in Regular Civil Suit Nos.8 of 2000 as well as 7 of 2000 and consequently dismissing the Regular Civil Suit No.8 of 2000 and allowing Regular Civil Suit No.7 of 2000.
[7.0] In view of the above and for the reasons stated above, both the Second Appeals fail and the same deserve to be dismissed and are, accordingly, dismissed. No costs.
(M.R. Shah, J.) menon Top