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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
NIKHIL S. KARIEL, J.
HASMUKHBHAI RAMCHADNRA BAROT - Appellant
Versus
RAMANBHAI MANGALBHAI PRAJAPATI - Respondent
SECOND APPEAL NO. 103 of 2020 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2020 In SECOND APPEAL NO. 103 of 2020 With SECOND APPEAL NO. 104 of 2020 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2020 In SECOND APPEAL NO. 104 of 2020 With SECOND APPEAL NO. 105 of 2020 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In SECOND APPEAL NO. 105 of 2020 With SECOND APPEAL NO. 106 of 2020 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In SECOND APPEAL NO. 106 of 2020
Decided On : 20-12-2021
Code of Civil Procedure, 1908 - Order VII, Rule 11(a) and (d) - Section 100, 135D - Limitation Act, 1963 - Article 54, Article 56 - By way of present Second Appeal, appellants herein challenge judgment and order passed by 4th Additional Civil Judge, under Exhibit 60 and 73 in Regular Civil Suit, whereby plaint preferred by appellants – plaintiffs has been rejected under Order VII, Rule 11(a) and (d) of Code of Civil Procedure - Appellants further challenge judgment and order passed by Principal District Judge, confirming order of Civil Judge vide judgment and order in Regular Civil Appeal - Whether learned Court erred in rejecting the plaint of the appellant under Order VII, Rule 11 - Whether Appellate Court was justified in holding that plaint of appellants does not disclose any cause of action and therefore, deserves to be rejected - Whether Suit disclosed a cause of action or not detailed evidence was required to be led and since the same had not been done in instant case, , interference is required with orders passed by District Court as well as Trial Court - Held, no substantial questions have been raised by appellants, which would require interference by Court - It would be pertinent to mention that original plaintiffs were both defendants in Regular Civil Suit and whereas both plaintiffs had submitted affidavits before Civil Suit confirming the fact of sale and confirmed the act of having received consideration - It also appears that from year 1997 till date of filing of Suit, original plaintiffs had not questioned affidavit as noted by Appellate Court neither fact of sale which was well within knowledge of plaintiff nor facts of having submitted an affidavit in nature of settlement purshis was disclosed by plaintiffs in plaint - Court is of considered opinion that litigation starting from Suit to present Second Appeal are nothing but an abuse of process of law and hence, appropriate costs requires imposed upon appellant - Appeals disposed of.
JUDGMENT :
1. Heard learned Advocate Shri Hiren Modi for the appellants and learned Advocate Shri Parthiv Shah for the respondent Nos.1,4,7 and 10.
2. At the outset, it is required to be noted that this Court has heard four Second Appeals being Second Appeal Nos.103 to 106 of 2020 together, more particularly, since the parties and the issues raised in all Appeals though arising from the different Civil Suits and different Civil Appeals are near similar, in this view of the matter, this Court propose to dispose of all the four Second Appeals by way of present common judgment.
3. Since four Appeals are having decided together, it would be appropriate to give a brief background of each of the Second Appeal by way of tabular chart as hereinbelow:
| 1. Regular Civil Suit No.706 of 2003: |
| Plaintiffs: 1. Hasmukhbhai Ramchandra Barot 2. Arunaben Ramchandra Barot. Prayer in brief: For declaration that the land admeasuring 4700 Sq. Mtrs. of total land admeasuring 15782 Sq. Mtrs. was of the ownership and occupation of the plaintiffs and for a declaration that the defendants did not have any right, title or interest over the said land in question. |
| Regular Civil Appeal No.311 of 2018 Second Appeal No.103 of 2020 |
| 2. Regular Civil Suit No.774 of 2006 |
| Plaintiffs: Heirs of late Ramchandrabhai Ranchhodbhai Barot 1. Yogeshbhai Rajeshbhai Barot 2. Alpaben Rajeshbhai Barot 3. Paulomi Hasmukhbhai Barot |
| Prayer in brief: For challenging the sale deeds executed by the defendant No.1 in favour of the defendant Nos.2 to 9 in 1996 to be declared as illegal, restraining the defendant Nos.1 to 9 and 13 to 15 from dealing with the property (incidentally the sale deeds are with regard to parcels of land from total land admeasuring 15782 Sq. Mtrs.) |
| Regular Civil Appeal No. 89 of 2015 |
| Second Appeal No.104 of 2020 |
| 3. Regular Civil Suit No.281 of 2010: |
| Plaintiffs: 1. Hasmukhbhai Ramchandra Barot 2. Ambaben Wd/o. Ramchandra Barot |
| Prayer in brief: For declaration that the land mentioned in paras 1 and 2 of the plaint (4288 Sq. Mtrs. of land) of total 15728 Sq. Mtrs. of land is of the ownership of the plaintiffs and for getting possession of the said parcel of land from the defendants therein. |
| Regular Civil Appeal No.78 of 2015 |
| Second Appeal No.106 of 2020 |
| 4. Regular Civil Suit No.546 of 2013 |
| Plaintiffs: 1. Hasmukhbhai Ramchandra Barot 2. Arunaben Ramchandra Barot. |
| Prayer in brief: For declaration that the sale deed of the year 1999 in so far as the same deals with land belonging to the share of the plaintiffs is illegal, the defendants to be restrained from dealing with the said land. For declaration that the sale deed with regard to land in the Schedule be declared as illegal and not binding on the plaintiffs. (incidentally schedule refers to the land admeasuring 5304 Sq. Mtrs. out of total land admeasuring 15782 Sq. Mtrs.) |
| Regular Civil Appeal No.228 of 2017 |
| Second Appeal No.105 of 2020 |
4. What could be observed from the above table prima facie is that 3 Civil Suits have been preferred by Shri Hasmukhbhai Ramchandra Barot and others whereas one Suit is preferred by the daughter, nephew and niece of Shri Hasmukhbhai Ramchandra Barot. The subject land is a part of the same parcel of land admeasuring 15782 Sq. Mtrs. and prayers sought for in the Civil Suits where Shri Hasmukhbhai Barot is one of the party, are similar in nature albeit on different grounds. With this above backdrop, this Court proposes to deal with each Second Appeal separately.
(I) SECOND APPEAL No.103 of 2020 :
5. By way of present Second Appeal, the appellants herein challenge the judgment and order passed by the learned 4th Additional Civil Judge, Vadodara, under Exhibit 60 and 73 in Regular Civil Suit No.706 of 2003 dated 03.04.2018, whereby the pla
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