BAI CHANCHAL v. MOTIBHAI JHAVERBHAI — 1985 DIGILAW 179 (GUJ)

R. A. MEHTA, J. ( 1 ) AT the time of admission of this Second Appeal the following substantial question of law wa framed :"whether on the facts and in the circumstances of the case the appellants father and/or the appellant became owner of the suit propriety by adverse possession"? ( 2 ) THE appellant is the or final plaintiff and the following is the pedigree showing the relationship of the parties : shambhubhai Jhaverbhai _______________________________________________________________________ Ranchhod Motibhai Shankarbhai (died in D-1 1966 -- Chanchal Dhuylabha Rambhai (plaintiff- D-2 D-3 Appellant) the suit property is agricultural land S. No. 358 admeasuring 1 Acre and 34 Gunthas in village Chili. It is the case form the appellant-plaintiff that the grandfather Jhaverbhai was the original owner of the suit field and other his demise the said land had come to be given to her father. Ranchhod on 6/05/1949 and ever since than her father and after his death she the plaintiff and been in continue peaceful and undertaking the suit was filed for injunction and declaration in respect of the suit land. ( 3 ) THE undisputed facts are that by a registered gift deed dt. 19/04/1947 (ex. 169) Jhaverbhai gifted his properties including the suit land to two of his sons namely Motibhai and Shankerbhai to the exclusion of his third son Ranchhod. Jhaverbhai died thereafter. It is the case of the plaintiff that the exclusion of Ranchhod was the subject matter of the village dispute and as a result of conciliation by ciders of the village the dispute was settled by a writing dt. 6/05/1949. Out of the properties gifted to the two sons the two sons gave only the Suit land to Ranchhod and he was put in to possession. Admissibility of this document dt. 6/05/1949 (ex. 198) is seriously contested by the respondents on the ground of absence of proof of execution of the document absence of proof of attestation and absence of registration. ( 4 ) THE plaintiff has examined herself at ex. 94. She has no personal knowledge about the document ex. 198. However she has deposed about her fathers continued possession from 1949 and has produced and proved several documents being exhs. 95 108 to 113 135 to 153. These documents are Khedut Khatavahi (ex. 95) Revenue Records village forms 7/12 (ex. 108) village form 8-A (ex. 109) village form No. 6 (ex. 122 ). 198. However she has deposed about her fathers continued possession from 1949 and has produced and proved several documents being exhs. 95 108 to 113 135 to 153. These documents are Khedut Khatavahi (ex. 95) Revenue Records village forms 7/12 (ex. 108) village form 8-A (ex. 109) village form No. 6 (ex. 122 ). village form No. 7/12 (ex. 123) and (ex. 130) receipts of education cess (exhs. 110 to 121 from 1965 to 1970 ). land revenue receipts (exhs. 124 to 129 135 to 149 from 1957 to 1970 tobacco licence for the year 1959-60 (ex. 150 ). ( 5 ) OTHER witness examined by the plaintiff are Naranbhai Trikambhai ex. 164 and witness Babubhai Jagjivandas ex. 165 who is the person who has been examined to prove the alleged deed ex. 198 dt. 6/05/1949. The witness is the son of the then Talati who had written that document. The Talati has expired 8 years prior to the suit. The witness has only identified the signature and the entire body of the writing in the hands of his deceased father. The witness has not identified the signature and thumb impressions of the executants or of the attesting witness. The plaintiff in her cross-examination has admitted that at least one attesting witness Mangalbhai Garbadbhai was living and yet that attesting witness it not examined. It is therefore submitted on behalf of the respondents that the document is not proved at all especially when the execution was specifically denied. Reliance has been placed on the provisions of secs. 67 and 68 of the Evidence Act. Sec. 67 provides for proof of signature of a person alleged to have signed and it is provided that the signature must be proved to be in the handwriting of the person alleged to have signed. In the present case the document purported to have been signed by Motibhai and Shankerbhai is not proved to have been signed by them. Similarly sec. 68 provides for examination of at least one attesting witness to prove the document which is required by law to be attested. No such attesting witness has been examined though proved to be alive and capable of giving evidence and subject to the process of the court. It is therefore submitted by the respondents that these documents shall not be used as evidence. No such attesting witness has been examined though proved to be alive and capable of giving evidence and subject to the process of the court. It is therefore submitted by the respondents that these documents shall not be used as evidence. It is thus clear that the document is not proved and for wan of proof the document is not admissible in evidence and therefore the trial court was in error in exhibiting the same and the lower appellate court is right in not exhibiting that document. The question of lack of registration of compulsorily registerable document also looses all significance because the document is not proved at all. Even if it was admissible for collateral purpose of proving the possession the document is required to be proved and the document is not proved. When the document is not proved it is not admissible in evidence and must be excluded. It is submitted by the appellant that the fact remains that the witness Babubhai Jagjivandas ex. 165 has stated that the document is in the handwriting of his father who had died about 8 years prior to the suit. It is submitted by the learned counsel for the appellant that the writer of the document had died 8 years prior to the suit when there was no dispute between the parties about the suit land such an independent third person had written that document in 1949 and he had no reason to concoct the document. This argument does not carry the matter any further for the appellant for the simple reason that the document is not proved at all nor the signature or thumb impressions of the executant nor of the attesting witnesses are proved. Therefore mere proof of contents of the body of the writing is of no assistance for the appellant. ( 6 ) EVEN though this document is totally excluded from consideration there is voluminous and thoroughly reliable evidence to show that the appellantplaintiff has been in possession of the suit land all throughout. The documentary evidence consists of Khedut Khatavahi ex. 95 showing that the suit land stands in the name of the father of the appellant-plaintiff. The village forms Nos. 6 7 12 and 8a show that the appellants father has been shown to be the tenant and actual cultivator of the land for all these years continuously. The documentary evidence consists of Khedut Khatavahi ex. 95 showing that the suit land stands in the name of the father of the appellant-plaintiff. The village forms Nos. 6 7 12 and 8a show that the appellants father has been shown to be the tenant and actual cultivator of the land for all these years continuously. He has been paying the land revenue an d the education cess every year and the receipts are also produced. The tobacco licence for the year 1959-60 at ex. 150 is also in the name of Ranchhod-the father of the appellant. Ex. 180 which is the certified copy of the order of the Agricultural Lands Tribunal and Mamlatdar and which is produced in the cross-examination of the defendant shows that Ranchhod Jhaverbhai has been cultivating the suit land. The respondent Motibhai Jhaverbhai and his sons were parties to that proceeding. It was a proceeding under sec. 32g of the B. T. A. L. Act for fixation of the purchase price. In that order it is held that village forms and revenue record from 1956- 1957 show the name of Ranchhodbhai in the column of Khedut Manibhai Motibhai (deft I. B.) and stated that Ranchhodbhai was his uncle and was cultivating the suit land as owner. In view of this admission of sons of Motibhai. the proceedings for fixation of purchase price were dropped because Ranchhod was cultivating the land as owner and not as a tenant. In cross-examination the defendant has further admitted that he had not preferred any appeal against that order and therefore that order has become final. ( 7 ) AS against this voluminous and reliable documentary evidence for all these years the defendant has relied on the gift deed (ex. 169) dt. 19/04/1947 executed by Jhaverbhai. There is no dispute that the father had gifted the suit land and other properties to Motibhai and Shankerbhai in 1947. The question is whether subsequent thereto the third brother Ranchhod has been in possession ? The documentary evidence for all these years in the form of revenue records and entries is in favour of Ranchhod and his daughter. On the part of the defendants only land revenue receipts have been produced at ex. 170 to 175. They are all pertaining to the year 1960-70 after the pressure dispute had arisen. The documentary evidence for all these years in the form of revenue records and entries is in favour of Ranchhod and his daughter. On the part of the defendants only land revenue receipts have been produced at ex. 170 to 175. They are all pertaining to the year 1960-70 after the pressure dispute had arisen. The suit was filed on 17/03/1970 and prior thereto there was a criminal case between the parties being Criminal Case No. 1516/69. It is thus clear the at only after the present dispute had assessment the defendant had tried to pay the land revenue and obtain the receipts. Prior to 31/05/1969 i. e. right form 1949 to 1969 there has not been a single piece of documentary evidence to show that the defendant was at any point of time in possession of the suit land. The learned Assistant Judge who and heard and allowed the appeal held that in the suit for injunction as to possession the plaintiff must prove has lawful title and his possession should be based on lawful title. The learned appeallate Judge has reef on the case of Sukhlal Ramchand and others vs. Lalji not be held to have legal possession on the time into the land which land be protected. In that case when the bank sought to realise the loan amount by enforeing possession claiming to the a transfer and auction purchaser in 1979. In the case of Special Recovery Officer Land Development Bank Ltd. Una v. Koli Ramesh Bhikha 24 G. L. R. 621 it has been held that. the party seeking injunction on the allegation that the party is in possession of the property and seeks assistance of the court by praying of an injunction restraining the other party alleged to be disturbing possession of the party in possession must show its lawful possession of the property which inn turn must be referable to valid title. In the present case if the title of the plaintiff has been perfected by adverse possession that would be a valid side. The observations in the judgments relied on by the respondents are only to the effect taht if the person seeks injunctions to possession he and not only to show the possession about also show his right of possession. In the present case if the title of the plaintiff has been perfected by adverse possession that would be a valid side. The observations in the judgments relied on by the respondents are only to the effect taht if the person seeks injunctions to possession he and not only to show the possession about also show his right of possession. The court will not assist a rank the appear by an injunction nit if a to appear has openly commodity find the peacefully remained in possession of the property even without title the would not lawful would become lawful in perfect. Therefore reliance placed by the respondents and the learned Assistant Judge on these judgments to non-suit the plaintiff is clearly illegal and erroneous. ( 8 ) THE learned Assistant Judge has tired to make out much form the so called one find admission of the plaintiff in her cross-examination wherein she has stated that it was true that the properties which were given to Shankerbhai and Motibhai at the time of gift of 1947 were continuing their possession till date. From their sentence the learned Assistant Judge has conclude that the suit propriety which was also one of the proprieties included in the gift deed continued in possession of the defendant along with till date. If this was bet only statement or admission the learned Assistant Judge would form has been right. But her evidence is corollary to the effect that out of all the proprieties gifted to the other two sons only one property (the suit land) was given to Ranchhhod and Ranchhhod continued in possession of that property and all the other gifted proprietaries continued in possession of the defendants. If the hand relief only in her oral evidence this admission in the cross-examination might have destroyed her oral evidence but having regard to the voluminous reliable documentary evidence in revenue record and village forms for so many years it is clear that this so called admission has to be confined and given effected only with regard to the all properties (other than the suit property) covered by gift deed of 1947. The approach of the learned Assistant Judge regarding this one sentence is clearly out of context and not reading the evidence as a whole and no reasonable person could have based its conclusion on so called one sentence and the learned Judge has used this sentence to rebut the presumption attached to the revenue records. The learned Assistant Judge has failed to consider that the revenue record year after year for all these years discloses and proves possession of the appellant and her father. As against that the defendant if he had been in possession and cultivating the land would have certainly seen that the revenue records showed his name and entries. He would be paying the land revenue and education cess and he would be having the receipts and other documents. The very fact that the defendant has not a single piece of documentary evidence in his favour right from 1949 to 1969 shows that the say of the defendant that he was in possession is without any basis whatsoever. In fact the learned Assistant Judge seems to have held that though the plaintiff has been in possession the possession was not referable to a valid title and therefore she is non suited. This is clearly an error of law. The learned Assistant Judge has observed as follows: " Extract 7-12 by which the slower court has come to the conclusion that the plaintiff and her farther were shown to be in possession of the suit land cannot be relied upon because there was no referable to valid title as per the observations of the Gujarat High Court in the decisions reported in VIII G. L R. 48 and XX G. L. R. 69. (citation should by VIII GLT 48 and 24 (1) GLR 621) and further held that therefore they cannot be said to be in possession of the suit land continuously for 12 years peacefully and without any interruption within the knowledge of the father of the defendant no. 1 and Motibhai and Shankerbhai. (citation should by VIII GLT 48 and 24 (1) GLR 621) and further held that therefore they cannot be said to be in possession of the suit land continuously for 12 years peacefully and without any interruption within the knowledge of the father of the defendant no. 1 and Motibhai and Shankerbhai. The finding of the learned Assistant Judge regarding adverse possession is clearly illegal and contrary to revenue record and reliable evidence on record and therefore the Second Appeal is required to be allowed and the suit is required to be decreed and the judgment and decree of the lower appellate court is required to be set aside and that of the trial court is required to be restored with costs throughout. ( 9 ) IN the result the Second Appeal is allowed and the decree of the lower appellate court is reversed and that of the trial court is restored. Respondent no. 1 shall pay costs of the appellant throughout. Appeal allowed .