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SA/202/2008 2/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 202 of 2008
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PATEL
NATHALAL SHIVRAM & PATEL SHIVRAM VIRCHAND KARTA & 8 -
Appellant(s)
Versus
PATEL
CHANDRAKANT SHANTILAL S/O DECEASED JOITIBEN D/O & 8 -
Defendant(s)
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Appearance
:
MR
AJ SHASTRI for
Appellant(s) : 1 - 9.
None for Opponents(s) : 1 - 4, 4.2.1, 4.2.2,
4.2.3, 4.2.4, 4.2.5,4.2.6 -
9.
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CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 09/09/2008
ORAL
ORDER
This
appeal has been filed by the appellants ? original plaintiffs.
The appellant No.1 had filed a suit before the learned Civil Judge
(JD), Unjha, which was registered as Civil Suit No. 232 of 1990.
The
case of the appellants before the learned trial Court was that
agricultural land bearing Revenue Survey No. 2190, admeasuring 1
acre and 25 gunthas, situated in village Upera, Taluka Unjha was
mutated in the name of Ishwarbhai Virchandbhai Patel, who was the
eldest son of the Hindu Undivided Family (HUF) of Virchandbhai. The
said land was running in the name of Ishwarbhai Virchandbhai Patel
since 1937-38. Narotambhai Virchandbhai and Shivabhai Virchandbhai
Patel were the younger brothers of Ishwarbhai Virchandbhai Patel.
The case of the appellants was that the respondent no.4 (original
defendant no.4) though not the direct and legal heir of Ishwarbhai
Virchandbhai Patel, got mutated an entry in his name in respect of
the land in question. It was also the case of the appellants that
their father Shivabhai Virchandbhai was a minor in the year 1936-37
and since he was the brother of Ishwarbhai Virchandbhai, the
appellants have got a legal right in the suit land. On coming to
know that the respondents have got mutated an entry in their favour
in the revenue records and that the suit land is likely to be
transferred, the appellants filed the said suit against the
respondents with a prayer to restrain them from transferring the
suit land to any other person, in any manner, and further seeking
the relief of declaration to the effect that if any sale deed has
been executed on 26.7.1996, the same be declared as illegal and
void.
The
respondents contested the suit by filing their written statement
vide exh.53 wherein the facts stated by the plaintiffs were denied.
It was stated by the respondents that the deceased Ishwarbhai
Virchandbhai was the father of respondent nos. 1 to 3 and that
respondent no.4 had purchased the suit land from their self-acquired
income, in a public auction, and hence the appellants do not have
any share in the suit land. It was further stated that at the
relevant point of time, Ishwarbhai Virchandbhai Patel handed over
his share of the land bearing Revenue Survey No.2190 to the
respondent no.4, by way of oral partition and since then, all the
respondents are in actual possession of the suit land in the
capacity of original owners and that the revenue entries have been
mutated in the revenue records in the name of the respondents, who
are in possession of the land and are carrying on agricultural
activities thereupon.
The
learned trial Judge framed as many as 14 issues and after hearing
the parties and considering the oral and documentary evidence on
record, has dismissed the suit of the appellants with costs, by
judgment and decree dated 20.4.2001.
Being
aggrieved by the dismissal of the suit, the appellants preferred an
appeal before the learned Principal Judge, Mehsana, which was
registered as Regular Civil Appeal No.43 of 2001. The first
appellate Court, after considering the judgment of the learned trial
Court, dismissed the appeal filed by the appellants by judgment and
decree dated 5.2.2008, hence the present appeal.
I
have heard Mr.A.J.Shastri, learned counsel for the appellants and
have perused the judgment and decree of the trial Court as well as
that of the first appellate Court. Mr. A.J.Shastri, learned
advocate has submitted that the Courts below have not examined the
issues in detail and some material issues, which are involved in the
appeal and have been specifically raised, have not been considered
in the right perspective. He has submitted that the appellant no.1
was the son of Shivram Virchand, who is the third son of Virchand
Becharbhai. It is further submitted that the father of the
appellant no.1 is the younger brother of Inswarbhai Virchandbhai, in
whose name the suit land was mutated, being the eldest son of the
HUF. Therefore the appellants have got a right in the suit land and
are entitled to claim their share in it and, therefore, the appeal
may be allowed.
It
is evident from a perusal of the judgment and decree of the learned
trial Court that a specific finding of fact has been recorded to the
effect that the suit land is not in the possession of the appellant
no.1, as per his own admission in cross-examination. Moreover, the
said land bearing Revenue Survey No. 2190, is mutated in the name of
respondent no.4. The learned trial Judge has recorded a finding,
arrived at on the basis of evidence on record, that the suit land
was running in the name of Ishwarbhai Virchandbhai Patel in the year
1937-38 and hence, he alone has become the owner of the suit land.
It is further recorded by the learned trial Judge that Ishwarbhai
Virchandbhai Patel has purchased the suit land in a public auction.
There is also a finding that the suit land was purchased by
Madhabhai Kanabhai Patel from Ishwarbhai Virchandbhai Patel and
subsequently, mutation entry no. 323 has been effected in the
revenue record, which has remained unchallenged till date, and the
name of Madhabhai Kanabhai continued to appear in the revenue
records till the filing of the suit. The learned trial Judge has
come to conclusion that the appellants have not specifically
mentioned their share and have not prayed for the relief of
partition and hence they do not become entitled to obtain any share
from the disputed land, especially since they are not found to be in
possession of land bearing Survey No. 2190.
The
above-mentioned findings of fact recorded by the learned trial Judge
have been confirmed by the first appellate Court and, therefore,
there are concurrent findings of fact against the appellants.
Another noteworthy feature of the case is that the appellant No.1 ?
original plaintiff had filed the suit against the
respondents? original defendants, for a declaration that he has got
a share in the land bearing revenue survey no.2190 and had also
prayed for the permanent relief of restraining the respondents from
transferring the suit property to anybody, in any manner whatsoever.
During the pendency of the suit, the plaint was amended and the
relief of declaration and permanent injunction was prayed for.
However, the plaintiff did not pray for the relief of partition and
possession of the suit property. The learned first appellate Court
has recorded that a suit for permanent injunction, without any
alternative relief of partition is not sustainable and therefore the
relief prayed for by the appellants has rightly not been granted by
the learned trial Judge.
In
the light of the facts and circumstances narrated hereinabove, I am
of the considered view that concurrent findings of fact have been
recorded by the Courts below, which are based on cogent and reliable
evidence on record. No question of law, much less a substantial
question of law arises for the consideration of the Court. There is
no perversity or infirmity in the concurrent findings of fact
recorded by the Courts below so as to warrant interference. The
appeal, therefore, cannot be accepted, and is dismissed. The
parties shall bear their own costs.
(Smt.
Abhilasha Kumari,J)
Jayanti*
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