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SUPREME COURT OF INDIA
R. BANUMATHI, A.S. BOPANNA, HRISHIKESH ROY, JJ.
Gajaraba Bhikhubha Vadher & Ors. – Appellants
Versus
Sumara Umar Amad (D) Thru Legal Heirs & Ors. – Respondents
Civil Appeal No. 260 of 2020 (Arising out of SLP (Civil) No.33722 of 2016)
Decided on : 14-01-2020
Civil Procedure Code, 1908 – Section 100 – Second appeal – Substantial question of law – Partition matter – Defendant No.1, (father of plaintiff) had disputed claim of joint ownership and had contended that defendant had purchased suit land before birth of plaintiff and parties being Mohammedans, plaintiff cannot have any right in suit land based on his relationship as a son, during lifetime of father – Defendant No. claimed absolute right and authority to sell property which was due to bad financial situation of defendant father – High Court after taking note of substantial questions has only recorded contentions of both sides – When substantial questions of law were formulated on admission, those were required to be answered one way or other by providing High Court’s reasonings and to arrive at a conclusion on that basis – On other hand, if Court was of opinion that any of substantial questions of law framed was to be modified, altered or deleted, hearing was required to be provided on the same and thereafter, appropriate substantial questions of law could have been framed and answered – Without resorting to any such procedure, on taking note of substantial questions of law as it existed, brief reference is made thereto and same is disposed of without answering the same, which would not be justified – When appeal was considered after admission and to that extent when certain observations are also made to the extent of modifying decree to bring it in conformity with judgment, nature of right claimed by appellants was also to be adverted and a decision be taken in that regard instead of merely stating that appellants would be governed by Section 52 of Transfer of Property Act – Even otherwise, working out of equities in final decree proceedings in manner of allotment of shares thereto despite purchase during pendency of suit is also an issue which will arise after a proper consideration is made by High Court, while answering substantial questions of law and if need be by framing additional substantial questions in that background – Judgment passed by High Court in Second Appeal set aside and matter remitted to High Court to restore Second Appeal on file and reconsider the same. (Paras 3, 11 to 17)
Facts of the case:
Appellants are assailing judgment dated 19.10.2016 passed by the High Court of Gujarat at Ahmedabad in Second Appeal No.12 of 2014. Through the said judgment, though appeal is allowed in part to the extent of setting aside the decree dated 03.12.2012 passed in the Regular Appeal No.130 of 2005 and confirming the judgment dated 07.11.2012 in Regular Page 1 of 19 Civil Appeal No.130 of 2005, the High Court has held that insofar as the locus of the appellants, they being third parties had no right to challenge the judgment and order passed by the Lower Appellate Court. The appellants being purchasers of plot in the land bearing Survey No.36 of Dhinchna, Taluk and District Jamnagar which is subject matter of suit are therefore, before this Court claiming to be aggrieved by impugned judgment.
Findings of Court:
Even otherwise the working out of equities in the final decree proceedings in the manner of allotment of shares thereto despite purchase during pendency of suit is also an issue which will arise after a proper consideration is made by the High Court, while answering substantial questions of law and if need be by framing additional substantial questions in that background.
Result : Appeal disposed of with directions.
JUDGMENT :
A.S. Bopanna, J.
Leave granted.
2. The appellants are before this Court assailing the judgment dated 19.10.2016 passed by the High Court of Gujarat at Ahmedabad in Second Appeal No.12 of 2014. Through the said judgment, though the appeal is allowed in part to the extent of setting aside the decree dated 03.12.2012 passed in the Regular Appeal No.130 of 2005 and confirming the judgment dated 07.11.2012 in Regular Civil Appeal No.130 of 2005, the High Court has held that insofar as the locus of the appellants, they being third parties had no right to challenge the judgment and order passed by the Lower Appellate Court. The appellants being purchasers of plot in the land bearing Survey No.36 of Dhinchna, Taluk and District Jamnagar which is the subject matter of the suit are therefore, before this Court claiming to be aggrieved by the impugned judgment.
3. The appellants were not the parties to the suit nor in the regular appeal. However, the adverse judgment in the first and second appeal has led to the present appeal. The brief facts noticed for the limited purpose of disposal of this appeal is that the predecessors of the respondents No.1/1 to No.1/4, namely, Sumara Umar Amad instituted a suit bearing Special Civil Suit No.77/1974 against his father Sumara Amad Osman seeking for partition of the land bearing Survey No.36 situate in Dhinchna village Jamnagar measuring 23 Acres, 27 Guntas. The claim put forth was that the said property was in the joint ownership, occupation and possession. The plaintiff referred to certain mortgage transaction with his father and in that light claiming to have a joint ownership right to the extent of half share in the said property, had sought for partition of the property, more fully described in Schedule A to the plaint. In that regard, certain exchange of notices by way of paper publication was referred as the cause of action since the defendant No.1, namely, the father of the plaintiff is stated to have published a notice in the daily Newspaper “Nobat” on 29.03.1974 expressing the intention to sell the property. In the said suit the defendants 2 to 4 who were purchasers of the property under the Sale Deed dated 29.07.1975 were subsequently arrayed as defendants 2 to 4 though they were not parties initially. The defendants had opposed the claim put forth in the plaint. In that regard, the defendant No.1, namely, the father of the plaintiff had disputed the claim of joint ownership and had contended that the defendant had purchased the suit land before the birth of the plaintiff and the parties being Mohammedans, the plaintiff cannot have any right in the suit land based on his relationship as a son, during the lifetime of the father. The defendant No.1, therefore, claimed absolute right and the authority to sell the property which was due to the bad financial situation of the defendant father. During the pendency of the suit the defendant No.1 father expired on 21.02.1978 and his heirs, namely, the siblings of the plaintiff were joined as defendants No.1/1 to 1/4.
4. Based on the rival pleadings, the Trial Court had framed five issues for its consideration. During the course of the suit, despite not having pleaded in the plaint, the plaintiff put forth a different version about his right to the property claiming right to the property under an oral gift from his grandfather. The Trial Court on having adverted to all aspects of the matter, through its detailed judgment had dismissed the suit by judgment and decree dated 17.04.1982. The plaintiff claiming to be aggrieved by the same preferred a Regular Appeal as contemplated under Section 96 of the Civil Procedure Code in R.C. Appeal No.130 of 2005. In the said Regular Appeal the Lower Appellate Court had reversed the judgment and decree dated 17.04.1982 passed by the Trial Court and consequently decreed the suit of the plaintiff declaring him to have right over half share of the suit schedule property. The appellants herein who had purcha
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