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2010 Supreme(Guj) 255
2010 (3) GCD 2086 (Guj)
Hon’ble Mr. Justice K.A. Puj
Barot Kashaji Kanji, Deleted as Expired & Ors.
Versus
Barot Hanshaji Kasaji & Ors.
Second Appeal No. 281 of 1980—Decided on 20/08/2010
Appearance :
Mr. S.S. Belsare, for the Appellant Nos. 1 - 3.
Mr. Jitendra M. Patel, for the Defendant Nos. 1 - 2.
None, for the Defendant Nos. 3, 3.3.15.
Deleted, for the Defendant Nos. 3.2.1, 3.2.2.
for the Defendant Nos. 3.2.3, 3.2.4, 3.2.5.
Rule Served, for the Defendant Nos. 3.2.21, 3.2.22, 3.2.23, 3.2.24, 3.2.25, 3.2.26.
Unserved-Refused, (N) for the Defendant Nos. 3.2.27, 3.2.28, 3.2.29.
Rule Not Recd Back, for the Defendant Nos. 3.3.1, 3.3.2, 3.3.3, 3.3.4, 3.3.5, 3.3.6, 3.3.7, 3.3.8, 3.3.9.
- for Defendant No. 4.
Point in Issue :
Whether decree passed by first appellate Court for joint possession of fields with defends sustainable?
Headnote:Head Note :
Civil Procedure Code, 1908 (Central Act 5 of 1908) — Section 100 — Second appeal — Decree for recovery for joint possession of suit fields — Held, sustainable because one non-alienating coparcener for possession can not eject the purchaser of field from other coparcener when he is in possession for long — The purchaser may be allowed to continue in possession with other coparceners — In such a case it shall be proper decree that may be passed is one placing the plaintiffs in joint possession with defendant purchaser as rightly ordered by appellate Court.
Held :
The Courts below, the Court is of the view that the Lower Appellate Court has discussed the controversy between the parties at great length and arrived at the conclusion that the Court, in the suit by non-alienating coparcener, for possession, may not eject the purchaser when he has been in possession of the suit land since long, but may allow him to continue in possession with the other coperceners. If the case is one in which joint possession is allowed the proper decree that may be based is one placing the plaintiffs in joint possession with the defendant purchaser. In view of the fact that the defendant No. 4 is held to be a tenant in respect of the fields bearing Survey No. 284/4, admeasuring 1 Acre 11 Gunthas, Survey No. 292/2, admeaduring 4 Acres 20 Gunthas and Survey No. 293/3, admeasuring 1 Acre 11 Gunthas, by virtue of the decision arrived at by the Mamlatdar and A.L.T. Palanpur, the same is held to be legal, valid and conclusive as no appeal or revision is filed by the same plaintiffs. No decree of ejection can be passed against the defendant Nos. 3 and 4 in respect thereof. The decree directing the eviction of the defendant Nos. 3 and 4 is, therefore, rightly held to be bad in law and set aside by the learned District Judge. The plaintiff No. 1, his minor son and his wife, being non-alienating coparceners, however, are entitled to joint possession. [Para 6]
Law Laid Down :
In a suit by non-alienating coparcener for possession may no eject the purchaser when he has been in possession of suit land since long but may allowed him to continue in possession with other coparceners.
K.A. Puj, J.—The appellants/original plaintiffs have filed this Second Appeal under Section 100 of the Civil Procedure Code, challenging the order passed by the learned District Judge, Palanpur in Regular Civil Appeal No. 12/1977 passed on 10.09.1979, quashing and setting aside the judgment and decree passed by the learned Joint Civil Judge (JD), Palanpur on 11.01.1977 in Regular Civil Suit No. 96/66. The learned District Judge has, however, modified the decree passed by the learned Joint Civil Judge (JD), Palanpur, to the extent that the plaintiffs were entitled for recovery for joint possession in respect of the suit fields, except Survey No. 284/4, admeasuring 1 Acre, 11 Gunthas, Survey No. 292/2, admeasuring 4 Acres, 20 Gunthas and Survey No. 293/3, admeasuring 1 Acre, 11 Gunthas, against the defendant No. 4 and the heirs of defendant No. 3.
2. This Second Appeal was admitted and following substantial questions of law were framed by the Court:
(i) In the facts and circumstances of the case, whether the Lower Appellate Court has erred in law in ordering that the plaintiffs are entitled to decree for joint possession in respect of the suit fields, except Survey No. 284/4, admeasuring 1 Acre, 11 Gunthas, Survey No. 292/2, admeasuring 4 Acres, 20 Gunthas and Survey No. 293/3 admeasuring 1 Acre, 11 Gunthas against the defendant No. 4 and the heirs of defendant No. 3 ?
(ii) In the facts and circumstances of the case whether the Lower Appellate Court has erred in law in not granting the absolute possession and/or partition of all the suit properties or the all suit properties except Survey No. 284/4 admeasuring 1 Acre, 11 Gunthas, Survey No. 292/2 admeasuring 4 Acres, 20 Gunthas and Survey No. 293/3 admeasuring 1 Acre, 11 Gunthas ?
(iii) Has the Lower Appellate Court erred in determining the rights of non-alienating coparceners in light of the principles enumerated by Mullas on Hindu law in view of the special facts and circumstances of the present case ?
(iv) Has the Lower Court erred in law in not holding that the order, Ex. 143, dated 13.11.1975 passed by the Mamlatdar and A.L.T. is a nullity or void ab-initio ?
3. The brief facts giving rise to the present appeal are as under :
3.1. The appellants/original plaintiffs have filed Regular Civil Suit No. 96/66 against the respondents for possession of the suit fields, or in the alternative they claimed a decree for partition to the extent of their 3/5 share in the suit field for mesne profits. The appellants alleged in the suit that though the suit properties were of Hindu Undivided Family, the Respondent Nos. 1 and 2, the coparceners of the said H.U.F. sold the said properties to the Respondent Nos. 3 and 4 respectively. The said transactions were illegal and without authority.
3.2. The Respondent Nos. 3 and 4 in their written statement contended that the suit fields did not belong to the plaintiffs. They have not denied the facts of purchasing suit fields from Respondent Nos. 1 and 2. It appeared to the appellants that the Respondent Nos. 1 and 2 sold the suit fields to the Respondent Nos. 3 and 4 by describing themselves as absolute owners of the suit fields. It is however, say of the appellants that as per the plaint, the respondent No. 4 had purchased lands, bearing Survey Nos. 283/2, 284/4, 292/2 and 293/3, whereas according to Ex-143-the order of the Mamlatdar and A.L.T., the respondent No. 4 was held to be a tenant in respect of lands bearing Survey Nos. 284/4, 292/2 and 293/3. Thus, it would be clear that the respondent No. 4 had not been declared as a tenant in respect of land bearing Survey No. 283/2. Therefore, full possession of Survey No. 283/2 should have been given to the appellants. It is also the say of the appellants that the respondent No. 3 and/or his legal heirs were not and are not the tenant/s of suit field purchased by the respondent No. 3 and hence the appellants ought to have been given possession of.
3.3. The said suit was decided by the learned Joint
