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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. THAKER, J.
Nagben D/o. Vithalbhai Motibhai - Appellant
Versus
Bhikhabhai Ranchhodbhai & 6 Others - Respondents
R/Second Appeal No. 127 of 1998
Decided On : 23-07-2021
Constitution of India, 1950 - Acquire property - Partition of all properties -Whether plaintiff proves that she has one half shares in suit properties - Whether plaintiff proves that house property shown as lot B in plain paragraph is of sole ownership of her father - Whether defendant proves that they have become ownership by adverse possession - Whether suit is barred by limitation - Whether plaintiff is entitled to get mesne profit yes how much - What order - What decree
Finding of the Court : Defendants-respondents being aggrieved by judgment and decree passed by Senior Civil Judge preferred whereas the appellant-plaintiff has filed her cross-objection in appeal in respect of property bearing - Assistant Judge vide its judgment and order allowed appeal of respondents by modifying decree passed by Trial Court by declaring that the appellant has only one half share in the property shown as and further set aside the decree in respect of properties shown as lot also allowed cross objections of appellant by declaring that the appellant-plaintiff is absolute owner of property bearing - Plaintiff-appellant has contended that Appellate Court below has erred in not appreciating that the agricultural lands shown in lot ancestral properties and same stood in name of undivided family - Contended that since no partition has taken place in past it could not have been owned by respondents-defendants
Result : Order accordingly
JUDGMENT :
1. The Second Appeal has been preferred by the Original-plaintiff being aggrieved with the judgment and decree passed by the learned Assistant Judge, Bharuch dated 22.07.1998 in Regular Civil Appeal No.24 of 1993 to the extent allowing the appeal of the respondents.
2. The brief facts leading to this Second Appeal are that the appellant filed the suit being R.C.S No.396/1987 for getting her share in movable as well as immovable properties namely the agricultural land bearing Block No. 523, 591, 469, 30, 73, 356 and one house bearing No.1/62 and the property no.1/63. It was the case of the appellant-plaintiff that the aforesaid properties were ancestral properties, in which her father viz Vithalbhai Motibhai had one share and she is only legal heir of the deceased father, who expired on 09.02.1986, the said share of her father should be given to her.
2.1. It was also contended that the house bearing No.1/59 being self acquired property of her father, she should be declared sole owner of the said property.
3. The defendants have denied the case of the appellant by filing written statement at Exh.12 and resisted the suit on all grounds.
3.1. It is contended by the defendants that the properties are not of a joint property and plaintiff has no any right in the suit properties. It is also contended that the entire properties, which were joint held by the father of the plaintiff as well as father of the defendants, who are real brothers have been partisan earlier and all the properties came to the share of defendant’s father. According to the defendants, they are in conscious possession of the suit properties for more than 20 years and therefore, even on the grounds of adverse possession, the plaintiff has now no legal right or title in the suit properties. They have prayed to dismiss the suit.
4. On the basis of the pleadings of the parties, the Trial Court has framed following issues, at Exh.13, in vernacular language, which on translation reads as under:
[ii] Whether plaintiff proves that the house property shown as lot B in plain paragraph No.1 is of the sole ownership of her father?
[iii] Whether defendant proves that they have become ownership by adverse possession?
[iv] Whether suit is barred by limitation?
[v] Whether plaintiff is entitled to get mesne profit, if yes how much?
[vi] What order?
[vii] What decree?
5. After recording of evidence of both the sides and considering the submissions, the aforesaid issues have been answered as under by the Trial Court, in vernacular language, which on translation reads as under :
[ii] In affirmative.
[iii] In negative.
[iv] In negative.
[v] In affirmative.
[vi] As per the final order.
[vii] As per the final order.
Ultimately, the trial Court has passed the preliminary decree and ordered that the appellant-plaintiff has one share in all the properties. It has also appointed commissioner for deciding mesne profit as well as partition of all the properties by metes and bounds.
6. The defendants-respondents being aggrieved by the judgment and decree passed by the Senior Civil Judge, Bharuch, preferred R.C.A. No.24/93, whereas the appellant-plaintiff has filed her cross-objection at Exh.13 in the said appeal in respect of property bearing No.1/59.The learned Assistant Judge, Bharuch vide its judgment and order dated 22.07.1998 allowed the appeal of the respondents by modifying the decree passed by the learned Trial Court by declaring that the appellant has only one half share in the property shown as lot C and D and further set aside the decree in respect of the properties shown as lot A and C and also allowed the cross objections of the appellant by declaring that the appellant-plaintiff is absolute owner of the property bearing No.1/59.
7. The plaintiff-appellant has contended that the learned Appellate Court below has erred in not appreciating that the agricultural lands shown in lot A are ancestra
plea of partition based on oral evidence alone cannot be accepted and it is to be rejected out rightly. Hence, in absence of such evidence, it is to be presumed that the plaintiff-Appellant has one h....
The presumption of joint family property necessitates proof of individual ownership; without such proof, a child has a right to claim share in ancestral property.
The burden of proof lies with the plaintiff to establish that the properties are ancestral, and evidence must be pleaded and proved through evidence.
Joint family property is presumed until proven otherwise; prior partition must be established by metes and bounds to be valid.
Ancestral properties must be proven to remain joint family properties post-partition; otherwise, they are deemed separate and not subject to partition claims.
A co-sharer’s right to ancestral property is inherent and cannot be extinguished by absence from the parental home.
The judgment emphasizes that possession by one co-sharer does not constitute adverse possession, and mutation in revenue records does not establish ouster. The need for evidence to prove adverse poss....
In the absence of partition or relinquishment, a co-parcener cannot be said to have lost their rights over ancestral properties.
The burden of proof in establishing joint family property and partition lies with the party alleging its existence. The court also emphasized the entitlement of daughters to share in joint Hindu fami....
to approach the Civil Court for adjudicating the title in issue and when the defendant's patta had been cancelled during 1995 merely on the production of certain electricity bills and house tax recei....
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