High Court of Gujarat
KANUBHAI ALIAS KANAIYALAL MANEKLAL SHETHversusBHARATBHAI MOTIBHAI RAJPUT
- Disposal
- 58-RULE ISSUED & RULE ABSOLUTE/ALLOWED @FH
- Bench
- C DOSHI
Holding
The appeal is allowed; the trial court's judgment is quashed and the suit is remanded for fresh determination.
Summary
The appellant, Kanubhai, claimed ownership of a one‑room property in Shahibaug Cantonment, originally purchased by his father in 1935 and later entered in the mutation register in 1979 (and again in 2018). He filed a civil suit in 2014 seeking recovery and possession against the respondents. The trial court dismissed the suit on the ground that the appellant failed to prove his title, despite the respondents never contesting his ownership and the appellant having a leave‑and‑license agreement and mutation entries supporting his claim. On appeal, the High Court observed that the trial court adopted a hyper‑technical approach and erred in dismissing the suit without allowing the parties to lead evidence. Consequently, the appeal was allowed, the impugned judgment was set aside, and the suit was remanded to the trial court for fresh consideration within nine months.
Issues considered
- Whether the trial court erred in dismissing the suit for failure to prove ownership when the respondents did not contest the appellant's title.
- Whether a hyper‑technical approach by the trial court warrants setting aside its judgment and remanding the case for fresh consideration.
Subjects
civil suitrecovery and possessionmutation registertitle of propertyappealremandhyper‑technical approachevidenceproperty lawGujarat High Court
Judgment
C/FA/4307/2024 ORDER DATED: 17/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4307 of 2024
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KANUBHAI ALIAS KANAIYALAL MANEKLAL SHETH
Versus
BHARATBHAI MOTIBHAI RAJPUT & ANR.
==========================================================
Appearance:
MR ROBIN PRASAD(9344) for MR ND GOHIL for the Appellant
NOTICE SERVED for the Respondents
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 17/07/2026
ORDER
1. Present First Appeal is directed against the judgment
and order dated 22.7.2024 passed by the learned City Civil
Court at Ahmedabad below Exh.53 in Civil Suit (CCC) No.951
of 2014.
2. For the sake of convenience and brevity, parties are
referred to as per their original status before the learned trial
Court.
3. Brief facts of the case are as under:-
3.1 The father of the appellant had purchased the suit
property consisting one room and orsi (open space) situated
on the ground floor at back side of House No.214 in
Shahibaug Cantonment area at Mauje Camp Sadar Bazar, Tal:
Cuty, Dist: Ahmedabad on 26.6.1935. He applied for Transfer
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C/FA/4307/2024 ORDER DATED: 17/07/2026
of Property (Mutation) on 5.7.1977 by application to the Chief
Executive Officer and died on 26.12.1977. The application for
Transfer of Property (Mutation) was considered and approved
by Ahmedabad Cantonment Board vide C.B.R. No. (1)(b)(3) on
26.7.1979. The name of father of the appellant-Maneklal S/o
Bhagwadas was deleted and name of Kanubhai S/o Maneklal
Sheth, the appellant was entered in the GLR.
3.2 The appellant - original plaintiff instituted Civil Suit No.
(CCC) No. 951/2014 in the Court of Ld. City Civil Court at
Ahmedabad on or about 23.4.2014 and inter-alia prayed for
decree of recovery and possession against the respondent
defendant nos. 1 and 2 in respect of suit property.
3.3 The Ld. City Civil Court was pleased to order below
notice of motion on 23.4.2014. The defendants having been
served with the notice of motion filed reply below Ex: 15.
3.4 The Ld. City Civil Court vide impugned judgment dated
22.07.2024 has been pleased dismiss the suit.
3.5 Hence, present First Appeal.
4. Heard learned advocate Mr. Robin Prasad for the
plaintiff. Though served, none appears for the defendants.
5. Learned advocate for the plaintiff, referring to written
statement at Exh.15 filed by the defendants, would submit
that in written statement, at nowhere, the defendants raised
contention that the plaintiff is not the owner of the suit
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C/FA/4307/2024 ORDER DATED: 17/07/2026
property, but rather accepted that the plaintiff on the basis of
ancestral property, owes ancestral right and yet, the learned
trial Court has fixed issue No.1 to direct the plaintiff to prove
his ownership. He would further submit that it is a simple case
where the plaintiff himself executed leave and license
agreement of 11 months on 1.2.2013 in favour of the
defendants and permitted the defendants to continue the
possession of the suit property. Learned advocate Mr. Prasad
took this Court through the unexhibited document (page 117
of the compilation) and submitted that the suit property has
been transferred in name of the plaintiff in the Mutation
Register on 30.1.2018. However, inadvertently, it was not
placed before the learned trial Court by the plaintiff. He
would further submit that in the notice and reply exchanged
between the parties, the defendants did not raise any
contention that the plaintiff is not the owner of the suit
property. He would further submit that the plaintiff has filed
affidavit in lieu of chief examination at Exh.37 and asserted
and reiterated the contention that the defendants did not
cross-examine the plaintiff and rebutted the contention stated
in the chief examination and yet, the learned trial Court has
dismissed the suit on the ground that the plaintiff has failed to
succeed in proving his case of ownership.
6. Upon above submissions, learned advocate Mr. Robin
Prasad prays to allow this First Appeal and to quash and set
aside the impugned judgment and order. Alternatively, he
prays to remand the matter to the learned trial Court and the
plaintiff be given one for chance to defend his case.
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C/FA/4307/2024 ORDER DATED: 17/07/2026
7. Having heard learned advocate for the plaintiff as well
as on perusal of the records and proceedings of the case, what
appears that the learned trial Court took hyper-technical
approach and in hurry of disposal of the suit, though, the
defendants were not at dispute, as they have not cross-
examined the plaintiff not have entered into the witness box,
dismissed the suit on the ground that the plaintiff has failed to
prove his case. This Court does not subscribe such kind of
approach of the learned trial Court.
8. Without dealing further on merits of the case, this Court
finds that this is a fit case to remand the matter before the
learned trial Court for fresh consideration. Hence, I pass
following order.
8.1 The First Appeal is allowed. Impugned judgment and
order dated 22.7.2024 passed by the learned City Civil Court
at Ahmedabad below Exh.53 in Civil Suit (CCC) No.951 of
2014 is hereby quashed and set aside by remanding the
matter to the learned trial Court for fresh consideration.
8.2 Civil Suit (CCC) No.951 of 2014 is restored to its original
proceedings.
8.3 Both the parties are permitted to lead their evidence, if
so advised and desired.
8.4 The learned trial Court is directed to decide the suit afresh
and in accordance with the evidence led before it and as early as
possible, preferably within nine months from the date of receipt
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C/FA/4307/2024 ORDER DATED: 17/07/2026
of copy of this order.
8.5 It is expected that both the parties shall cooperate the
learned trial Court for expeditious disposal of the suit.
9. Registry is directed to return back the R & P, if any, to
the concerned Court forthwith.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: SHEKHAR PRAFULBHAI BARVE(HC00200), Principal Pvt. Secretary, at High Court of Gujarat on 17/07/2026 14:30:42
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