Gujarat High Court
Legal Heirs Of Decd Heeraben Dwarkabhai … vs Ujambhai Revanath Hanath on 10 July, 2026
NEUTRAL CITATION
C/SA/386/2026 JUDGMENT DATED: 10/07/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 386 of 2026
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
In R/SECOND APPEAL NO. 386 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J. SHELAT
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Approved for Reporting Yes No
√
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LEGAL HEIRS OF DECD HEERABEN DWARKABHAI BHUTKA &
ANR.
Versus
UJAMBHAI REVANATH HANATH & ORS.
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Appearance:
MR JAMSHED KAVINA(11236) for the Appellant(s) No. 1,1.1
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,1.1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 10/07/2026
JUDGMENT
1. The present Second Appeal is filed under Section 100 of
the Code of Civil Procedure, 1908 (hereinafter referred to as
“CPC“) against the judgment and decree dated 10/06/2026
passed by the 3rd Additional District Judge, Banaskantha at
Palanpur in Regular Civil Appeal No.74 of 2025, whereby it
has confirmed the judgment and decree dated 04/11/2025
passed by the 3rd Additional Senior Civil Judge, Palanpur in
Regular Civil Suit No. 35 of 2008.
2. The appellant herein is the legal heir of the original
Defendant No.1, being Defendant No.1.2. Respondent No.1 is
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the original plaintiff, whereas the rest of the respondents are
the other original defendants. For the sake of convenience,
herein after, the parties will be referred to as per their
original status in the suit.
SHORT FACTS OF THE CASE :
3. The short facts of the case appear to be that the plaintiff
has purchased non-agricultural plot Nos.8 to 12 at Village
Madana (Gadh), Taluka Palanpur, District Banaskantha, which
are situated at Revenue Survey No.349-351. The plaintiff
appears to have purchased the said plot by way of a
registered sale deed on 15/06/1990. Whereas Respondent-
Original Defendant No.1 purchased plot Nos.4 to 7 by way of
a registered sale deed on 28/5/1990 located immediately
south of the plaintiff’s plot No.8.
3.1 It is the case of the plaintiff in the suit that there is an
approved layout plan sanctioned by the Taluka Development
Officer (TDO), Palanpur, while converting the land in question
from agricultural to non-agriculture vide its order dated
24/05/1990. It has clearly reserved a 10-foot-wide lane on the
east and a 20-foot-wide public road on the West to provide
ingress and egress to all land owners and for the smooth
movement of vehicles. The plaintiff has come out with a case
that the defendants have illegally encroached upon
approximately 10 out of the 20-foot-wide road on the western
side running North to South by constructing a permanent
compound wall, a latrine, a bathroom and a soak pit on the
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northern corner, thereby narrowing down the public access
road.
3.2 Since the defendants have put up a permanent
construction on such a public road and it has obstructed the
plaintiff’s way to transport his agricultural equipment, etc., he
approached the Civil Court by way of Regular Civil Suit No.35
of 2008 in question. The plaintiff has prayed that the
defendants may be directed to remove the illegal
encroachment over the 20-foot-wide road and also sought for
a perpetual injunction that, in future, the defendants shall not
put up any construction over it.
3.3 The defendants appeared and opposed the suit by filing
the written statement, contending, inter alia, that the suit is
barred by limitation and without any basis, a false allegation
of illegal encroachment is made against them. The locus of the
plaintiff was also challenged to maintain the suit. According to
the defendants, they have not put up any illegal construction
as alleged.
3.4 Upon appreciation of the pleadings of the parties, the
Trial Court has framed in all 12 issues and after appreciating
the oral and documentary evidence made available on record,
decreed the suit in favor of the plaintiff, whereby it directed
the defendants to remove the encroachment done on the 10
foot area in the 20 foot wide suit way situated at the western
side of plot Nos.4 to 7 of the defendants’ ownership, as
mentioned in the map prepared by the Talati-cum-Mantri
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which is produced on record at Exhibit 63. It has also issued a
permanent injunction against the defendants not to carry out
any encroachment as well as not to create any hurdle or
hindrance to the movement of the plaintiff on the 20-foot-wide
suit way as referred to above.
3.5 Feeling aggrieved and dissatisfied with the aforesaid
judgment and decree, out of all, only Defendant Nos.1.1 and
1.2 preferred Regular Civil Appeal No.74 of 2025 before the
Appellate Court. After hearing the parties at length and upon
re-appreciation of evidence on record, the Appellate Court
vide its impugned judgment and decree dated 10/06/2026
dismissed the said appeal, whereby it has confirmed the
judgment and decree passed by the Trial Court.
3.6 Now, this Second Appeal is filed at the instance of only
one defendant, being Defendant No. 1.2, questioning the
concurrent findings of fact recorded by the courts below
against him.
SUBMISSIONS OF APPELLANT/DEFENDANT NO.1.2 :
4. Mr.Jamshed Kavina, learned advocate for the appellant,
has made the following submissions:
4.1 The Courts below have erroneously arrived at the finding
that there is an encroachment done by the defendants on the
20-foot-wide road in question. There is no legal evidence
brought on record by the plaintiff which can prove that thePage 4 of 16
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defendants have made any encroachment as alleged.
4.2 The Courts below have wrongly placed reliance upon the
map prepared by the Talati-cum-Mantri (Exhibit 63) as he was
neither authorized in law to prepare any type of map nor he
had given any prior intimation of his visit to the defendants.
The oral evidence of witnesses examined by the plaintiff, more
particularly the oral evidence of two revenue officers
examined as PW-2 and PW-3 at Exhibits 49 and 78,
respectively, were completely misconstrued by the Courts
below and they arrived at a perverse finding that PW-3 was
authorized in law to inspect the site and also authorized to
prepare his report/map. Even neither PW-2 nor PW-3 had
stated in their evidence that there is an encroachment over
the 20-foot-wide road land in question.
4.3 PW-3 in his cross-examination has categorically admitted
that the land in question was converted to non-agricultural by
the TDO, who had also prepared a layout plan and he had not
obtained any prior permission from the TDO before doing the
measurement at the site. The witness also admitted that no
resolution was passed by the Panchayat authorizing him to
carry out any such measurement. The Courts below ought to
have appreciated such evidence and ought to have discarded
the map prepared by PW-3.
4.4 The plaintiff has failed to bring on record any material
evidence wherefrom it can be confirmed that there is an
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encroachment of 10 feet on the 20-foot-wide road and that too
by the defendants. The Courts below have placed reliance
upon inadmissible evidence and committed a serious error in
allowing the suit despite the fact that the plaintiff did not
prove his case. The plaintiff is also not residing at the plot
purchased by him and being non-agricultural land, no revenue
officer has any authority in law to come and measure any area
of any such plot or otherwise. The balance of convenience and
irreparable loss are also not tilted in favor of the plaintiff and
he has failed to prove them on record.
4.5 The Trial Court has committed a serious error in law by
not answering Issue Nos.5, 7 and 8 though framed, which
ultimately resulted into a miscarriage of justice. As per Order
XIV Rule 2 read with Order XX Rule 5 of the CPC, it was
incumbent upon the Trial Court to pronounce its judgment on
all issues. This inherent defect was also not corrected by the
Appellate Court which ought to have remanded the matter
back to the Trial Court.
4.6 This Court can always exercise its power under Section
100 of the CPC when the findings of fact recorded by the
Courts below are perverse, grossly erroneous and contrary to
law. It is a settled position of law that due to such a perverse
finding which goes to the root of the matter, it can be
corrected by this Court while exercising its power under
Section 100 of the CPC.
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4.7 To buttress his arguments, Mr.Kavina, learned advocate
for the appellant has placed reliance upon the following
judgments :
(i) Tharammel Peethambaran and Ors. Vs. T.
Ushakrishnan and Ors. – AIR 2026 SC 938 : 2026
INSC 134.
(ii) Rangammal Vs. Kuppuswami and Ors – (2011)
12 SCC 220.
5. No other or further submissions were advanced by the
learned advocate for the appellant.
ANALYSIS :
6. I have heard Mr.Kavina, learned advocate for the
appellant at length. He took me through the oral and
documentary evidence of the respective parties and their
witnesses made available in the form of paper-book with this
appeal. The Second Appeal is filed by one of the defendants
against the concurrent findings of fact recorded by the Courts
below against him, whereby it has been held that the
defendant has done an encroachment of a 10 foot area in the
20 foot wide road situated at the western side of the
defendants’ plot Nos.4 to 7 as per the map prepared by the
Talati-cum-Mantri, which is produced on record at Exhibit 63.
Therefore, the defendants are directed to remove the
encroachment and are also further directed to be permanently
injuncted from doing any encroachment as well as creating
any hurdle or hindrance to the movement of the plaintiff on
that 20-foot-wide road as referred to above.
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7. At the outset, it is required to be observed that as per
the settled principles of law, the power of this Court to
interfere with the findings of fact recorded by the Courts
below is very limited. Unless it has been shown by the
appellant that such a finding of fact recorded by the Courts
below is either perverse or grossly erroneous or contrary to
law, this Court should refrain itself and cannot substitute its
own opinion over the opinion of the Courts below.
8. At this stage, it would be apt to refer and rely upon the
recent decision of the Hon’ble Apex Court with regard to
scope and ambit of power of this Court while adjudicating any
second appeal filed under Section 100 of CPC. In the case of
Russi Fisheries (P) Ltd. v. Bhavna Seth-2026 SCC
OnLine SC 555, it has been categorically held by the Hon’ble
Apex Court that this Court should not interfere with finding of
facts recorded by the Courts below unless it is so perverse or
grossly erroneous, and / or contrary to a settled principle of
law. The relevant observations of the said decision read thus:
“31. It is settled in law that the findings of fact howsoever
erroneous, cannot be reopened and disturbed in second
appeal which is required to be adjudicated only upon the
substantial question of law, if any, arising therein. Thus,
the argument that the High Court in second appeal ought
to have examined the evidence to ensure the correctness
of the findings of the First Appellate Court has no legs to
stand and fails.
32. Long back in 1981, three judges of this Court in the
case of Bholaram vs. Ameerchand had ruled that even if
findings of facts by courts below are wrong or grossly
inexcusable that by itself would not entitle the High Court
to interfere under Section 100 CPC in the absence of clear
error of law. A similar view was reiterated in MadhavanPage 8 of 16
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Nair v. Bhaskar Pillai (Dead) by Lrs., wherein it has been
laid down that even if the First Appellate Court commits an
error in recording a finding of fact, that itself will not be a
ground for the High Court to upset the same.
33. In Kashibai w/o Lachiram v. Parwatibai w/o Lachiram, a
similar proposition of law was laid down by this Court and
it was held that the High Court cannot reappreciate the
evidence and interfere with the findings of facts unless a
substantial question of law or a question of law duly
formulated is to be decided. The second appeal does not
lie on the ground of erroneous findings of facts based on
appreciation of the relevant evidence.
35. Again, in Kulwant Kaur v. Gurdial Singh Mann (Dead)
by Lrs, it was emphasized that the fact remains that in a
second appeal, a finding of fact, even if erroneous, will not
be disturbed unless it is found that it stands vitiated for
want of perversity. No such case for interference has been
made out in the present case.”
(Emphasis supplied)
9. It is also profitable to refer and rely upon the decision of
the Hon’ble Apex Court in the case of Jaichand (Dead)
through Lrs and Others v. Sahnulal and Another – 2024
SCC OnLine SC 3864, whereby, the Hon’ble Apex Court held
as under:
“25. In Kshitisn Chandra Purkait v. Santhosh Kumar
Purkait reported in (1997) 5 S.C.C. 438), this Court
held that in the Second Appeal, the High Court should
be satisfied that the case involves a substantial
question of law and not mere question of law.
27. This Court in Kondira Dagadu Kadam v. Savitribai
Sopan Gujar reported in AIR 1999 S.C. 2213 held:-
“The High Court cannot substitute its opinion for the
opinion of the first appellate Court unless it is found
that the conclusions drawn by the lower appellate
Court were erroneous being contrary to thePage 9 of 16
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mandatory provisions of law applicable or its settled
position on the basis of pronouncements made by
the Apex Court, or was based upon inadmissible
evidence or arrived at without evidence.”
28. It is thus clear that under Section 100, C.P.C., the
High Court cannot interfere with the findings of fact
arrived at by the first Appellate Court which is the
final Court of facts except in such cases where such
findings were erroneous being contrary to the
mandatory provisions of law, or its settled position on
the basis of the pronouncement made by the Apex
Court or based upon inadmissible evidence or without
evidence.”
(Emphasis supplied)
10. As far as the decisions which are pressed into service by
Mr. Kavina for the appellant are concerned, there is no cavil
that in a case where this Court finds that the findings of fact
recorded by the Courts below are perverse or based upon
conjectures and surmises or contrary to the settled position of
law, this Court can surely interfere with such findings of fact
by exercising its power under section 100 of CPC. Also, there
cannot be a dispute on the proposition of law that the plaintiff
has to positively establish his case by bringing material
evidence on record and it cannot rely upon the weakness of
the defendant.
11. Having appreciated the submissions of Mr.Kavina,
learned advocate and upon perusal of the impugned judgment
and decree passed by the Courts below, it appears that not
only the Trial Court but the Appellate Court has in detail
discussed the evidence on record and answered the issues
germane to the matter, albeit in favour of the plaintiff. There
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is no dispute amongst the parties that the plaintiff has
purchased plot Nos.8 to 12, whereas the defendants have
purchased plot Nos.4 to 7, thereby they become neighbors.
The essential dispute before the Trial Court was in relation to
an encroachment of 10 feet out of the 20-foot-wide road on
the western side of plot Nos.4 to 7 owned by the defendants.
12. The Trial Court has referred to documentary and oral
evidence while answering the issues, wherein it appears that
as per the N.A. order passed and the layout plan prepared by
the TDO, there is a 20-foot-wide road shown in such layout
plan. To prove the encroachment on the road in question, the
plaintiff has examined himself at Exhibit 23 as well as
examined two other witnesses, namely, PW-2 Ashish Kantilal
Chauhan and PW-3 Karim Mohammed Ismailbhai Memon at
Exhibits 49 and 78, respectively. The plaintiff filed an
application for removal of encroachment before the office of
the District Development Officer (DDO) and Taluka
Development Officer (TDO), respectively, on 08/03/2011
(Exh.61.). A similar application was also submitted to the
Gram Panchayat vide his application dated 20/04/2011
(Exhibit 62), which was received by the PW-3 on 22/04/2011
in his official capacity.
13. Pursuant to such application, PW-3, the Talati-cum-
Mantri of the local Village Panchayat, appears to have visited
the site and prepared the map which was produced at Exhibit
63. To prove map and the encroachment on the 20-foot-wide
road, the plaintiff has examined PW-3, who appears to have
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retired as on the date of his deposition. As per PW-3’s
deposition, after preparing the map at Exhibit 63 and
comparing it with the layout plan of the TDO, he has deposed
that the defendants have done encroachment on the 10-foot
area of the 20-foot-wide suit road. PW-3 was thoroughly cross-
examined by the defendants, but nothing fruitful came out;
rather, he has specifically denied the suggestion of the
defendants that he was not authorized to measure the alleged
encroachment on the road as it is a non-agricultural plot. PW-
3 has replied to the question that, being a Revenue Talati in
his official capacity and while discharging his duty upon
receipt of the application of the plaintiff (Exhibit 62), he had
measured and prepared the map produced at Exhibit 63. It
has also come out in his cross-examination that he had orally
informed the plaintiff and defendants about his time of visit
and he measured the encroachment in the presence of the
defendants. Nonetheless, he has admitted that no written
notice or signature of the defendant was obtained on the map
(Exhibit 63). The defendant has not produced any material on
record to show that, upon noticing the said map produced at
Exhibit 63 or after completion of the oral evidence of PW-3,
the defendants made any complaint about PW-3’s
unauthorized act to his superior, nor called any witness from
the Revenue Department to dislodge the oral evidence of PW-
3. In short, no rebuttal evidence led by the defendants.
14. Having appreciated the oral evidence of the plaintiff and
also the documentary evidence, the Trial Court has correctly
observed that the onus was shifted upon the defendants to
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disprove the factum of encroachment as alleged by the
plaintiff. Undisputedly, the defendants did not discharge such
onus shifted on them and have not led any contrary evidence;
rather, Defendant No.2 in his cross-examination has admitted
that he does not know that he has constructed in the
perimeter of the west side of the defendants’ plot where
construction is not allowed and further played ignorance that
he does not know that they (defendants) have also constructed
on the road which is 20 foot wide on the western side of the
perimeter. He has also pleaded ignorance that he does not
know that on the northern corner, a bathroom has been
illegally built in the 20-foot-wide road on the western side of
the defendants’ plot. He has also pleaded ignorance that he
does not know anything about Exhibits 61 to Exhibit 63.
15. The Courts below have arrived at a finding that,
considering the nature of the dispute and the map prepared
by PW-3 in his official capacity, being a designated Revenue
Officer under the Gujarat Land Revenue Code, 1879, as per
Section 114 of the Indian Evidence Act, 1872, the law permits
the Court to presume that his work was done in his official
capacity. Since no rebuttal evidence was led by the
defendants and they did not allege any mala fides in the act of
PW-3, I am of the considered opinion that the finding of fact
recorded by the Courts below that there is an encroachment
of 10 feet cannot be said to be either perverse or grossly
erroneous as submitted by Mr. Kavina, learned advocate.
16. The Courts below have correctly arrived at the
conclusion that the defendants have put up a permanent
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construction, thereby doing an encroachment on the 20-foot-
wide road which is meant for public use and in the absence of
any rebuttal evidence led by the defendants, no infirmity can
be found in the impugned judgment and decree passed by the
courts below. It is required to be observed that the issues
framed by the Trial Court are required to be judged on the
principle of preponderance of probabilities, unlike an issue in
a criminal trial, which is required to be proved beyond all
doubt.
17. Apart from the aforesaid, as per Section 105 of the
Gujarat Panchayats Act, 1993, it was the duty of the
Panchayat to remove any obstruction or encroachment upon
public streets and open sites within the limits of its village. It
is not in dispute that the 20-foot-wide road was within the
limits of the Panchayat and in such cases also, the act done by
PW-3 of the local Village Panchayat cannot be said to be
unauthorized or illegal.
18. As far as none answering few issues are concern, the
Trial Court did supply its reasons which read thus:
“IV. Issue no. 4, 5, 7 and 8
IV.1 The above mentioned issues are the issue of
facts, wherein the burden is casted upon the
defendant, are therefore deliberated together. With
respect to Issue No. 4, the fact of plaintiff residing at
Plot No. 36 and 37 is not the issue at contention and
furthermore the issue of fact bearing Issue No. 4, 5 ,7
and 8 wherein burden is casted upon the defendant,
does not warrant any deliberation and determination
in the case at hand. The said issues have been framed
by the my predecessor judicial officer and the framingPage 14 of 16
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of issues in civil proceedings, governed by Order XIV
of the Code of Civil Procedure, 1908 (CPC), is
intrinsically linked to the pleadings of the parties,
ensuring that judicial adjudication remains confined to
the lis defined therein. A cardinal principle of civil
jurisprudence, reiterated in Section 149 of the Civil
Procedure Code and Section 7 of the Court Fees Act,
1870, mandates that no decree or finding can be
rendered in favor of a claim or relief unless it is
expressly pleaded in the plaint or counterclaim,
accompanied by the requisite court fees. Thus, when
a defendant raises additional facts in the written
statement under Order VIII CPC that go beyond mere
denial or defense–such as seeking affirmative relief
or independent cause of action–without filing a
counterclaim as per Order VIII Rule 6A CPC, the court
is precluded from giving finding on those facts. To do
otherwise would impermissibly expand the scope of
the suit, allowing the court to pronounce upon matters
neither raised by the plaintiff nor substantiated by the
defendant’s payment of ad valorem court fees,
thereby violating the foundational rule against
granting relief on unpleaded grounds, as affirmed in
Trojan & Co. v. RM N.N. Nagappa Chettiar (AIR 1953
SC 235) and Kedar Lal v. Hari Lal (1952 SCR 179).
VI.2 This safeguard upholds procedural fairness and
fiscal equity, preventing the plaintiff from being
ambushed by extraneous issues and compelling the
defendant to assume the onus of a separate suit if
affirmative relief is desired. Furthermore, the instant
suit being the suit for removal of encroachment and
not claiming easementary right, the issue of alternate
way does not warrant any inference and also the issue
of fact, that the plaintiff has breached the condition of
the allotment, in absence of counter claim, also
cannot be deliberated and determined. Consequently,
the absence of a counterclaim renders such
defendant-raised facts evidentiary at best for
defensive purposes, ineligible for issue-framing or
consequential findings, thereby preserving the
integrity of the suit’s original contours. Therefore, the
said issues are hereby decided accordingly.”
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19. After going through such reasons assigned by the Trial
Court vis-à-vis the issues framed in the suit, I am of the
considered view that there is no illegality committed by the
Trial Court while not answering those issues. It seems that
before the Appellate Court, the present appellant did not harp
upon this aspect and requested the Court to remand the
matter back to the Trial Court.
20. Thus, taking note of the aforesaid facts and
circumstances of the case and even after appreciating the
submissions made by Mr.Kavina, learned advocate for the
appellant, I am unable to agree with any of his submissions, at
least, I could not find any perversity in the reasoning and/or
findings of fact recorded by the Courts below in their
impugned judgments nor its based upon any conjecture and
surmise.
21. Having not found any such infirmity in the impugned
judgment and decree, I would not like to interfere with the
concurrent findings of fact recorded by the Courts below. The
present Second Appeal is found to be devoid of merits;
accordingly, it is summarily dismissed. No order as to costs.
Consequently, the connected Civil Application also stands
disposed of.
(MAULIK J. SHELAT, J)
GAURAV J THAKER
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