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SA/183/2009 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 183 of 2009
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HANSABEN
WD/O JIVANBHAI KABHAI TADVI - Appellant(s)
Versus
DECEASED
KABHAI DEVJIBHAI TADVI'S HEIR : GANGABEN D/O KABHAI - Defendant(s)
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Appearance
:
MR
DAIFRAZ HAVEWALLA for
Appellant(s) : 1,MR M.H. SAIYED for Appellant(s) : 1,
MR ABHIRAJ R
TRIVEDI for Defendant(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 16/07/2010
ORAL
ORDER
Heard
the learned advocates of both the sides.
Considering
the reasoning given by the courts below, I am of the view that the
appeal deserves consideration and therefore, the appeal is
admitted. Mr Ahiraj R Trivedi waives service of process of
admission on behalf of respondent.
The
following substantial questions of law arise for determination of the
Court.
[1] Whether
in the facts and circumstances of the case, the respondent plaintiff
is entitled to receive vacant and peaceful possession of the suit
premises from the appellant defendant, on the basis of the registered
Will dated 25.2.94 as per Ex. 62 which is not proved according to law
and in the absence of the other heirs and legal representatives of
deceased Kabhai who were not brought on record or joined as necessary
parties in the suit proceedings?
[2] Whether
in the facts and circumstances of the case, the suit of the
respondent-plaintiff was abated according to law as no heirs and
legal representatives of deceased plaintiff Kabhai Devjibhai Tadvi
were brought on record of the suit proceedings within 90 days from
9.10.1994 the date of the death of the deceased plaintiff?
[3] Whether
in the facts and circumstances of the case, the lower appellate court
has substantially erred in accepting and believing the oral evidence
of respondent-plaintiff as per Ex.54 on relying upon the Ex. Nos.
102, 124 and 133 application for cross examination of
respondent-plaintiff which were rejected by the lower court and
denied the right of cross-examination of appellant-defendant?
[H.B.
ANTANI, J.]
pirzada/-
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