{"id":181563,"date":"2010-07-28T00:00:00","date_gmt":"2010-07-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jaswantsinh-vs-fatesinh-on-28-july-2010"},"modified":"2017-08-19T10:04:23","modified_gmt":"2017-08-19T04:34:23","slug":"jaswantsinh-vs-fatesinh-on-28-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jaswantsinh-vs-fatesinh-on-28-july-2010","title":{"rendered":"Jaswantsinh vs Fatesinh on 28 July, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Jaswantsinh vs Fatesinh on 28 July, 2010<\/div>\n
Author: K.A.Puj,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSA\/345\/1983\t 12\/ 12\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSECOND\nAPPEAL No. 345 of 1983\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE K.A.PUJ\n \n \n=========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================\n \n\nJASWANTSINH\nANDARSINH GOHIL & 2 - Appellant(s)\n \n\nVersus\n \n\nFATESINH\nNANSINH GOHIL & 2 - Defendant(s)\n \n\n========================================= \nAppearance\n: \nMR NR\nTANDEL for\nAppellant(s) : 1 - 3. \nNOTICE SERVED for Defendant(s) : 1 -\n3. \n=========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE K.A.PUJ\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 28\/07\/2010 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
The
\n\tappellants\/original plaintiffs have filed this Second Appeal under
\n\tSection 100 of the Civil Procedure Code, challenging the judgment
\n\tand order passed by the learned District Judge, Panchmahals at
\n\tGodhara on 16.7.1983 in Regular Civil Appeal No.105 of 1981,
\n\tconfirming the judgment and decree passed by the learned Civil Judge
\n\t(J.D.) Godhara in Regular Civil Suit No.467 of 1978.  This Second
\n\tAppeal was admitted and following substantial questions of law was
\n\tformulated by the Court;\n<\/p>\n
 Whether
\n\tin the facts and circumstances of the case, the Lower Appellate
\n\tCourt has substantially erred in law in raising presumption under
\n\tSection 114 of the Indian Evidence Act, with regard to Entry No.581
\n\tdated 4.3.1967, particularly when the evidence on record shows that
\n\tno notice under Section 135 of the Bombay Land Revenue Code was
\n\tissued before holding the said Entry .\n<\/p>\n
In
\n\tthis appeal, learned advocate Mr. N. R. Tandel is appearing on
\n\tbehalf of the appellants\/original plaintiffs. Originally Mr. Akshay
\n\tH. Mehta, learned advocate appeared on behalf of the respondents.
\n\tHowever, on his elevation as a
\n\tjudge of this Court, fresh notice was issued to the
\n\trespondents. Despite, service of notice nobody appears on behalf of
\n\tthe respondents.\n<\/p>\n
The
\n\tbrief facts giving rise to the present Second Appeal are that the
\n\tappellants\/original plaintiffs have filed Regular Civil Suit No.
\n\tNo.467 of 1978 on or about 1.8.1978.  All the Three appellants as
\n\twell as the respondent no.2 are the four brothers.  The respondent
\n\tno.1 is the uncle of the appellants and the respondent no.3 being
\n\tthe widow of Anopsinh Nansinh was joined as party in the suit and in
\n\tall subsequent proceedings.  The appellants contended that in sim of
\n\tvillage Motal in Godhra Taluka, Block No.235, survey no.44\/2
\n\tadmeasuring about 1 Acre, 21 Gunthas is the joint property of both
\n\tthe parties and in possession of them jointly.  The suit land was
\n\tpreviously standing in the record of right in the name of their
\n\tuncle as well as Andarsinh, father of the appellants.  Except
\n\tappellants and the respondents, no one has got any share in the suit
\n\tland.  Since the deceased Vajesinh and Anopsinh have already
\n\tobtained their shares, they have not got any right , title or
\n\tinterest over the suit land.  During the life time of the father of
\n\tthe appellants and respondent no.2, they were cultivating the suit
\n\tland jointly with the respondent no.1 but after the death of their
\n\tfather, the appellants as well as the respondent no.2 and respondent
\n\tno.1 are cultivating the land jointly.  On 12.7.1978, the appellants
\n\thad gone for the purpose of agriculture work in the suit land and
\n\tthe respondents obstructed them alleging that the appellants have no
\n\tright, title or interest therein.  The appellants, therefore,
\n\tinquired and came to know that the respondent nos.1 and 2 had
\n\tcolluded and filed Regular Civil Suit No. 355 of 1974 in the Court
\n\tof the Civil Judge (S.D.) Godhara, and the respondent no.1 had
\n\tobtained a decree in his favour against the respondent no.2.  It was
\n\tan ex-parte as well as collusive decree.  Under this decree, the
\n\trespondents nos.1 and 2 did not allow the appellants to enter and
\n\tcultivate the suit land in spite of the fact that the appellants
\n\thave right, title or interest in the suit land.  The respondent no.1
\n\thad not joined them as a party when he filed Regular Civil Suit
\n\tNo.355 of 1974.  Under the circumstances, the said ex-parte decree
\n\tis null and void and not binding on the appellants.  On the basis of
\n\tthe said decree, if the names of the appellants are got deleted from
\n\tthe record of rights, it is not binding to the appellants.  The
\n\tappellants as well as the respondent no.2 have got one half share in
\n\tthe suit land and as such, the suit is filed by them for a
\n\tdeclaration to that effect.  The appellants have prayed for
\n\tdeclaration in the suit that the lands admeasuring 1 Acre, 21
\n\tGunthas of Revenue survey no.44\/2 of Block No.235 situated in the
\n\tsim of village Motal, one half share from it is belonging to the
\n\tappellants and the respondent no.2. They have also prayed for
\n\tconsequential relief of permanent injunction against the respondents
\n\tnot to obstruct the cultivation and possession of the appellants.\n<\/p>\n
The
\n\tsaid suit was contested by the respondent no.1 vide written
\n\tstatement at Exhibit-14, wherein he denied all the averments made in
\n\tthe plaint.  The respondent no.2, the brother of the appellants had
\n\tmade an attempt to commit a criminal tracepass by entering upon suit
\n\tland in 1974 and as such, Regular Civil Suit No.355 of 1974 was
\n\tfiled against the respondent no.2 only.  The respondent no.2 did not
\n\tsucceed therein and the respondent no.1 obtained a declaration in
\n\this favour, as per the judgment and decree dated 26.9.1977.  The
\n\trespondent no.3 has also filed a written statement at Exhibit-23
\n\tcontending that the averments and allegations made by the appellants
\n\tare made at the instance of the stand taken by the respondent no.1.\n<\/p>\n
The
\n\tlearned Civil Judge framed issues at Exhibit-18 and after recording
\n\tthe evidence of both the sides, the learned Civil Judge came to the
\n\tconclusion that the appellants failed to prove that the suit land
\n\twas joint ownership of both the parties.  The respondent no.1 proved
\n\tthat there was a partition as per the averments made in Paras 4 and
\n\t6 of his written statement and the suit land is in possession of
\n\trespondent no.1.  The learned Civil Judge accordingly, dismissed the
\n\tsuit and passed the judgment and decree against the appellants.\n<\/p>\n
Being
\n\taggrieved by the said judgment and decree, the appellants have filed
\n\tRegular Civil Appeal No.105 of 1981.  The learned Joint District
\n\tJudge,  Panchmahals at Godhara, raised the following points for
\n\tdetermination;\n<\/p>\n
(i)
\n\tWhether it is proved that the appellants-respondents are joint
\n\towners of the suit land as alleged by the appellants ?\n<\/p>\n
(ii)
\n\tWhether the respondent no.1 proves that there was a partition after
\n\t1966 and thereafter, he was only the person in possession of the
\n\tsuit land ?\n<\/p>\n
(iii)
\n\tWhether the suit is maintainable in view of the prior Regular Civil
\n\tSuit No.355 of 1974 ?\n<\/p>\n
After
\n\tconsidering the rival submission of the parties and after
\n\tappreciating the evidence on record and the judgments and decree
\n\tpassed by the learned Civil Judge, the Appellate Court came to
\n\tconclusion that the appellants have failed to prove that they have
\n\tone half share in the suit land.  The appellants have also failed to
\n\tprove that they have got the possession of one half share or one
\n\thalf portion of the suit land.  When the mutation entry as well as
\n\trevenue record are there supporting the respondent no.1’s case and
\n\twhen even in the prior suit when the respondent no.2 the brother of
\n\tthe appellants has failed to establish his share, the appellants
\n\tcannot be allowed to reagitate that they were technically entitled
\n\tto file the suit because they were not the parties. The Appellate
\n\tCourt, therefore, held that the judgment and decree passed by the
\n\tlearned Civil Judge is quite legal, proper and consistent with the
\n\tfacts and circumstances as disclosed in the evidence and there is no
\n\treason to interfere in the same when the learned Civil Judge has
\n\trightly appreciated the evidence on record.\n<\/p>\n
It
\n\tis this order which is under challenge in the present Second Appeal.\n<\/p>\n
Impugned
\n\torders are challenged on the ground that during the pendency of the
\n\tsuit, a Commissioner was appointed by the Court and the Panchnama at
\n\tExhibit-41 was prepared by him, which clearly shows that one half
\n\tportion of land bearing Survey No.44\/2 of Block No.235 was divided
\n\tin two parts by a cactous hedge and the appellants were in the joint
\n\tpossession of the said land along with the respondents.  It is
\n\tfurther contended that relying on the evidence of witness Vikramsinh
\n\tMakansinh together with the evidence of Pratapsinh Jivatsinh and the
\n\tPanchnama prepared by the Commissioner, the lower Appellate Court
\n\tshould have appreciated that eastern portion of land bearing Survey
\n\tNo.44\/2 of Block No.235 was being cultivated by the appellants for
\n\tthe last 18 to 19 years and therefore, possession of the suit land
\n\tby the appellants should not have been doubted by the Court.  It is
\n\tfurther contended that if the appellants had no right, title or
\n\tinterest in the suit property, then there was no need to divide the
\n\tsuit land into two parts by a cactous hedge and the respondent no.1
\n\twould not have been permitted the appellants to cultivate the suit
\n\tland for the last 18 to 19 years.  It is further contended that in
\n\tRegular Civil Suit No.355 of 1974 filed by the respondent no.1
\n\tagainst the respondent no.2, the appellants were never impleaded as
\n\tparties and hence the decree passed in the said suit would not be
\n\tbinding on the appellants and even otherwise, decree in the said
\n\tsuit was obtained in collusion by the respondent no.1 with
\n\trespondent no.2.  It is further contended that the respondent no.1
\n\twas serving in the Police Department, and since he was out of
\n\tstation, the appellants were cultivating the land on behalf of the
\n\trespondent no.1.  If the appellants had no right, title or interest
\n\tin the suit land, they would not be interested in cultivating the
\n\tsuit land without any reward and it is not the case of the
\n\trespondent no.1 that something was being paid or given in kind by
\n\thim to the appellants for cultivating the suit land.  It is further
\n\tcontended that raising presumption under Section 114 of the Indian
\n\tEvidence Act regarding Entry No.581 dated 4.3.1967 is not justified
\n\tin view of the fact that no notice under Section 135 of the Bombay
\n\tLand Revenue Code was issued on the appellants.  It is, therefore,
\n\turged that the judgments and decrees passed by the Courts below are
\n\terroneous and bad in law and hence they are required to be set
\n\taside.\n<\/p>\n
As
\n\tstated earlier no one appears on behalf of the respondents after
\n\tservice of the fresh notice. However, the judgments and decrees
\n\tpassed by the Courts below have been perused by the Court
\n\tand records and proceedings
\n\tare also available with this court.  Both the Courts below have
\n\tconsidered the materials and evidence produced before them and after
\n\tappreciation they have arrived at the conclusion that the
\n\tdeclaration sought for by the appellants cannot be granted in
\n\tabsence of any evidence to that effect in their favour. The factum
\n\tof partition was accepted by the Courts below.  Though, the
\n\tappellants were not parties in the earlier suit i.e. Civil Suit
\n\tNo.355 of 1974, the judgment and decree passed therein was not
\n\tchallenged or disputed by the respondent no.2 a brother of the
\n\tpresent appellants.  It has also came on record that after
\n\tpartition, Panch has passed a resolution and a reference to the said
\n\tresolution was made before the Courts below. The Entry No.581 dated
\n\t4.3.1967, clearly shows that the respondent
\n\tno.1 was the owner and in possession of the suit land.  The said
\n\tEntry has not been challenged by the appellants even on the ground
\n\tthat the same was passed without issuance of notice under Section
\n\t135 of the Bombay Land Revenue Code.  Even if, the said Entry is
\n\tnull and void it has to be challenged and got it quashed and set
\n\taside in appropriate proceedings.  So long as such Entry remains in
\n\texistence, it is binding on the parties affected by the said Entry.
\n\tThe lower Appellate Court has clearly observed that the Entry No.581
\n\twas prepared after consulting all the brothers and after issuing
\n\tnecessary notices. When mutation entry is made the parties concerned
\n\tare required to be contacted. The Court can presume that under
\n\tSection 114 of the Indian Evidence Act, the necessary procedure must
\n\thave been followed while entering the mutation entry.  The learned
\n\tTrial Judge has also held that the appellants have got no evidence,
\n\tparticularly any documentary evidence to show that they were paying
\n\thalf of the land revenue or any land revenue for the part of the
\n\trevenue Survey No.44\/2.  The learned Trial Judge has further
\n\tobserved that when the witnesses of the appellants have admitted
\n\tthat the partition was evicted in the year 1966 and Entry No.581 was
\n\tmade as per the partition and as per the shares that have gone to
\n\tthe parties concerned, the appellants could not have been allowed to
\n\tback out from that Entry which was never challenged since then.  The
\n\tCourts below, therefore, rightly held that the Entry No.581 is self
\n\tsufficient to show that the appellants have no case that they have
\n\tgot the shares in the suit land.\n<\/p>\n
\tConsidering
\n\tthe entire facts and circumstances of the case and scrutinizing the
\n\tevidence as well as impugned judgments and orders passed by the
\n\tCourts below, this Court is of the view that no interference is
\n\tcalled for by this Court while exercising its appellate jurisdiction
\n\tunder Section 100 of the Civil Procedure Code.\n<\/p>\n
This
\n\tSecond Appeal is, accordingly dismissed, with no order as to costs.\n<\/p>\n
(K.A.\n<\/p>\n
PUJ, J.)<\/p>\n
Pankaj<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Jaswantsinh vs Fatesinh on 28 July, 2010 Author: K.A.Puj,&Nbsp; Gujarat High Court Case Information System Print SA\/345\/1983 12\/ 12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 345 of 1983 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ========================================= 1 Whether Reporters of Local Papers may be allowed to […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-181563","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nJaswantsinh vs Fatesinh on 28 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jaswantsinh-vs-fatesinh-on-28-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jaswantsinh vs Fatesinh on 28 July, 2010 - 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