Judgment · High Court · 2026

CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT Date : 07/07/2026 ORAL JUDGMENT ORDER IN CIVIL APPLICATION NO.1 OF 2026 :

#1. Rule returnable forthwith. Mr.Dhaval Parmar, learned AGP waives service of rule for the State opponents. Mr.Devnani, learned advocate waives service of Rule for opponent Nos.5 and 8. C/SCA/14221/2019 JUDGMENT DATED: 07/07/2026

#2. The present application is filed by the applicant – original petitioner with a prayer to delete respondent Nos.5 and 8 from the array of parties in the main petition.

#4. Heard learned advocates for the respective parties. Having heard learned advocates for the parties and considering the averments made in the application, the present application is partly allowed in terms of para 5(A) of the application. Rule is made absolute, to the aforesaid extent. Necessary amendment be made in the main matter, forthwith. ORDER IN THE SPECIAL CIVIL APPLICATION & CIVIL APPLICATION FOR STAY :

#1. Rule returnable forthwith. Mr.Dhaval Parmar, learned AGP waives service of rule for the State respondents.

#2. Heard Mr.Amar Mithani, learned advocate for the petitioners and Mr.Chirag Parmar, learned AGP appearing for the State respondents.

#3. The present petition is filed under Article 227 of the Constitution of India, seeking the following reliefs : “(A) Your Lordship may be pleased to admit and allow the present petition; (B) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ. order or direction to quash and set aside the impugned Order dated 02.08.2019 passed below Exhibit 114 of Special Civil Suit No. 162 of 2017 and be pleased to allow the Application Exhibit 114 (Annexure 'A') as prayed for in C/SCA/14221/2019 JUDGMENT DATED: 07/07/2026 the interest of justice; (C) Pending the admission, hearing and final disposal of this petition, be pleased to stay the further proceedings of Special Civil Suit No. 162 of 2017 (Old No. 190/2015) pending before the Court of Ld. Principal Senior Civil Judge, Chhota Udepur; (D) Pending, admission, hearing and final disposal of this petition, be pleased to stay the implementation, operation and the execution of impugned Order dated 02.08.2019 passed below Exhibit 114, passed by the Ld. Principal Senior Civil Judge, Chhota Udeppur in Special Civil Suit No. 162 of 2017 (Old No. 290/2015). with all consequential effects;”

#4. Mr. Mithani, learned advocate for the petitioners would submit that the trial court has committed a serious error in law by rejecting the impugned application filed below Exhibit 103 of the petitioners-plaintiffs in the suit. It is submitted that the impugned application ought to have been allowed by the trial court and it ought to have framed an additional issue as proposed in the interim application because it is the case of the respondents-defendants that they are the owners of the suit property and their names were mutated in the revenue records by due process of law.

#5. Per contra, Mr.Parmar, learned AGP would oppose this petition contending, inter alia, that there is no error much less any gross error of law committed by the trial court while rejecting the impugned application. It is submitted that the necessary burden to prove the factum of ownership is upon the plaintiff as he is seeking the declaration about the same. He submitted that the necessary issue in this regard is C/SCA/14221/2019 JUDGMENT DATED: 07/07/2026 already framed by the trial court which is also referred to in the impugned order. It is further submitted that as the respondents-defendants have not filed any counter-claim and sought any declaration from the trial court, no burden can be cast upon them.

#6. Having heard learned advocates for the respective parties and upon perusal of the order impugned in this petition as well as the copy of pleadings of the parties made available on the record of this petition, it appears that the plaintiffs have sought a declaration that by virtue of filing the suit, that he be declared as owner of the suit property and the defendant/State has no right to take and disturb their possession. After completion of pleadings of the parties, the trial court has framed the following issues : “1. Whether the plaintiffs prove that they are the owner of the suit-properties (Survey No. 124, 125 (Old Survey No.140, 148) admeasure of 124.19 (Acre), situated in the Village-Khuntalia, Taluka of Chhota- udepur)?

#2. Whether the plaintiffs prove that they are in legal possession of the suit-properties?

#3. Whether the plaintiffs prove that Defendant No.1, 2, without considering ownership and possession of plaintiffs, have wrongly alloted suit lands to the Defendant No. 4, 6 & 8?

#4. Whether the plaintiffs are entitled to get relief as prayed for?

#5. What Order & Decree?” C/SCA/14221/2019 JUDGMENT DATED: 07/07/2026

#7. The petitioner happens to be the plaintiff and by virtue of the impugned application filed below Exhibit 103 requested the trial Court to frame an additional issue whereby it has been suggested to frame the issue that whether defendant Nos.1 to 4, 6 and 8 prove that the suit property has been vested in the State Government by following due process of law? The second issue proposed is in regard to whether defendant Nos.1 to 4, 6 and 8 prove that after the suit property had been vested in the State Government in the revenue records, possession thereof was obtained from its owner?

#8. The trial Court has correctly observed in the impugned order that the burden of proof is upon the plaintiff to prove their ownership of the suit property and the necessary issue in this regard is already framed as observed. It is not in dispute that the respondents-defendants have not filed any counter- claim and sought any declaration/relief from the trial court in the suit. Moreover, the issues were framed on 29/8/2018, whereas the impugned application appears to have been filed on 24/7/2019, after more than a year thereafter by the plaintiffs.

#9. Thus, considering the aforesaid facts and circumstances of the case and having not found any reasons either perverse or erroneous in the present petition, I would not like to disturb the impugned order while exercising my power under Article 227 of the Constitution of India. C/SCA/14221/2019 JUDGMENT DATED: 07/07/2026

#10. Accordingly, I do not find any merit in this petition. Consequently, it is dismissed. Rule is discharged. Interim relief, if any, stands vacated. Resultantly, the connected Civil Application No.1 of 2019 also stands disposed of. GAURAV J THAKER (MAULIK J. SHELAT, J)