In a second appeal filed before the Gujarat High Court under Section 100 of the Code of Civil Procedure, 1908 (CPC), against a judgment and decree dated 29-11-2025, whereby the Additional District Judge, Panchmahal, dismissed a regular civil appeal and confirmed the judgment by the Additional Senior Civil Judge, a Single Judge Bench of Justice J.C. Doshi held that the appeal had failed due to lack of substantial question of law and dismissed the same.
The respondent (plaintiff) filed a regular civil suit seeking a prohibitory permanent injunction on the grounds that she had purchased the suit property. The plaintiff received an invitation for the opening of the construction of a temple at the entrance by the defendants (appellant).
Upon reaching the suit property, the plaintiff raised hue and cry against the illegal construction and encroachment carried out by the defendants. Upon filing of the said suit, notice was served upon all the defendants, but only defendant 6, claiming to be the pujari of the temple, came forward and asserted that he did not encroach on the suit property, and was only given the task of offering puja. He mentioned that he had been living in the house attached to the temple for more than 12 years and that he had perfected title to the suit property by applying the principle of adverse possession.
Thereafter, the Trial Court decreed the suit in favour of the plaintiff and restrained the defendants from entering the suit property and from carrying out any further construction. A permanent injunction was also granted, with directions to remove the construction on the public road used for ingress and egress to the suit property.
Aggrieved, the pujari filed the said regular civil appeal, which was dismissed by the Additional District Judge, who confirmed the decision of the Trial Court and modified the order to direct the immediate removal of all illegal construction on the suit property and at its entrance. Aggrieved, the pujari filed the present second appeal.
The Court stated that to admit a second appeal, it would have to be satisfied that substantial questions of law are involved in the matter. Referring to various decisions, the Court noted that the defendant had joined the suit as a pujari of the temple. Regarding the submission by the pujari that he had a proprietary right over the suit property, the Court said that it had no legs to stand on and established that the status of the defendant was not more than that of a pujari.
Further, it was stated that the pujari had no right to file a second appeal to challenge the order directing the removal of the unauthorized construction because to claim adverse possession, a litigant had to plead and prove the classic requirements being nec vi, nec clan, and nec precario as held by the Supreme Court in Chatti Konati Rao v. Palle Venkata Subba Rao, 2010 (14) SCC 316.
The Court stated that a servant had no right to claim possession over the suit property by stating that his possession is on behalf of his master, which has matured into title on the principle of adverse possession. The Court found it noticeable that the alleged trustee did not come forward to claim any proprietary title.
The Court stated that it had been unequivocally proved that the construction in the form of a temple was carried out on a public road approaching the suit property, which was completely illegal and unauthorized. The Court held that the appeal failed to raise any substantial question of law and dismissed it at the admission stage.
Appearances:
For Appellant – Mr. Vijal P Desai
For Respondent – None
