Case Note & Summary
The appellant, Bhavesh Jivraj Solanki, was the defendant in a suit filed by Paschim Gujarat Vij Company Ltd. (PGVCL) for recovery of possession of land admeasuring 4,870 square yards. PGVCL claimed that the defendant had encroached upon the land and had no right to continue possession. The trial court decreed the suit in favor of PGVCL, holding that the plaintiff had proved its title and possession, and the defendant failed to prove adverse possession. The first appellate court confirmed the decree. The defendant then filed a second appeal under Section 100 CPC, raising substantial questions of law regarding the correctness of the findings on ownership, burden of proof, adverse possession, maintainability of the suit without a declaration, and sufficiency of plaint particulars. The High Court examined the concurrent findings of fact and held that no substantial question of law arose. The court noted that the plaintiff, being in possession, was entitled to the presumption of ownership under Section 110 of the Indian Evidence Act, and the defendant failed to discharge the burden of proving adverse possession. The court also held that a suit for possession without a declaration is maintainable under Section 6 of the Specific Relief Act, and the plaint sufficiently identified the suit property. Consequently, the second appeal was dismissed, and the civil application for stay was disposed of.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The High Court dismissed the second appeal as no substantial question of law arose, concurrent findings of fact being binding. (Paras 1-2)
B) Evidence Act - Burden of Proof - Section 110 - The plaintiff, being in possession, had the benefit of presumption of ownership; the defendant failed to rebut it. (Paras 4-6)
C) Property Law - Adverse Possession - The defendant failed to prove the essential elements of adverse possession, namely hostile possession, animus possidendi, and continuous possession for the statutory period. (Paras 7-9)
D) Specific Relief Act - Suit for Possession - Section 6 - A suit for possession simpliciter is maintainable without a declaration of title, as the plaintiff can rely on prior possession. (Para 10)
E) Civil Procedure - Plaint Particulars - Order 7 Rule 3 - The plaint sufficiently identified the suit land; no requirement to mention full particulars of the disputed portion when the defendant is in possession of the entire suit property. (Para 11)
Issue of Consideration
Whether the courts below correctly held that the plaintiff proved its right, title, ownership and occupation of the suit land; whether the defendant failed to prove adverse possession; whether the suit for mere possession without declaration is maintainable; and whether the plaint lacked necessary particulars under Order 7 Rule 3 CPC.
Final Decision
The High Court dismissed the second appeal, confirming the judgment and decree of the first appellate court. The civil application for stay was also disposed of.
Law Points
- Burden of proof under Section 110 of the Indian Evidence Act
- 1872
- Principle of adverse possession
- Maintainability of suit for possession without declaration
- Requirement of full particulars under Order 7 Rule 3 CPC
Case Details
2026 LawText (GUJ) (02) 812
R/SECOND APPEAL NO. 250 of 2021
MR. HARDIK J JANI(6497) for the Appellant(s) No. 1, MS LILU K BHAYA(1705) for the Respondent(s) No. 1
Paschim Gujarat Vij Company Ltd
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Nature of Litigation
Civil suit for recovery of possession of land based on title and prior possession.
Remedy Sought
The plaintiff (respondent) sought recovery of peaceful and vacant possession of the suit land from the defendant (appellant).
Filing Reason
The plaintiff claimed that the defendant had encroached upon the suit land and had no right to continue possession.
Previous Decisions
The trial court decreed the suit in favor of the plaintiff on 25.04.2008; the first appellate court dismissed the defendant's appeal on 12.08.2021, confirming the decree.
Issues
Whether the courts below correctly held that the plaintiff proved its right, title, ownership and occupation of the suit land?
Whether the defendant failed to prove the burden cast on him under Section 110 of the Indian Evidence Act, 1872?
Whether the defendant failed to prove his possession and occupation on the suit land?
Whether the courts below correctly appreciated the principle of adverse possession?
Whether the plaintiff proved his lawful possession as on the date of the suit?
Whether the suit for mere possession is maintainable in law in absence of prayer for declaration?
Whether in absence of requirements of Order 7 Rule 3 CPC, the suit is liable to be decreed?
Whether the judgment and decree passed by the courts below is legal, proper and valid?
Submissions/Arguments
The appellant argued that the plaintiff failed to prove its title and that the defendant had acquired title by adverse possession.
The appellant contended that the suit for possession without a declaration of title was not maintainable.
The appellant submitted that the plaint did not contain full particulars of the disputed portion as required by Order 7 Rule 3 CPC.
The respondent argued that the concurrent findings of fact were based on evidence and no substantial question of law arose.
Ratio Decidendi
In a suit for possession, the plaintiff can rely on prior possession and the burden of proof under Section 110 of the Indian Evidence Act shifts to the defendant to prove better title or adverse possession. A suit for possession without a declaration of title is maintainable under Section 6 of the Specific Relief Act. The plaint need not contain full particulars of the disputed portion if the identity of the suit property is sufficiently described.
Judgment Excerpts
By way of this Second Appeal under Section 100 of the Code of Civil Procedure, 1908...
Whether the Ld. Courts below had rightly hold that the plaintiff has proved his right, title, ownership and occupation of the suit land?
Whether the Ld. Courts below had rightly hold that the defendant has failed to prove the burden cast on him under Section 110 of the Indian Evidence Act, 1872?
Procedural History
The plaintiff filed Regular Civil Suit No.49 of 1998, which was decreed on 25.04.2008. The defendant appealed to the Additional District Judge, Porbandar, in Regular Civil Appeal No.28 of 2008, which was dismissed on 12.08.2021. The defendant then filed the present Second Appeal No.250 of 2021 in the High Court of Gujarat, which was dismissed on 19.02.2026.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100, Order 7 Rule 3
- Indian Evidence Act, 1872: Section 110
- Specific Relief Act, 1963: Section 6
