Back
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. Thaker, J.
Navinchandra Somchand, Died Through His Heirs & 1 Others – Appellants
Versus
Heirs Of Somchand Bechardas & 6 Others – Respondents
R/Second Appeal No. 117 of 1988
Decided On : 07-07-2022
Civil Procedure Code, 1908 – Section 100 – Evidence Act, 1872 – Section 91, 92 – Second Appeal – Brevity and convenience – Original defendant – Civil Appeal – Original defendants have filed present Second Appeal under Section 100 of Code of Civil Procedure against judgment and decree passed Civil Judge Junior Division, Regular Civil Suit which came to be confirmed by learned Assistant Judge, Surat by his judgment and decree passed in Regular Civil Suit – Held, It is pertinent to note that regarding other documents, both Courts below have consistently held in favour of plaintiff, holding him, owner of property and considering facts that when plaintiff got it purchased defendants who were his son were never born – On perusal of entire evidence and reasonings given by both Courts below, passing impugned decree in favour of plaintiff and against defendant, it clearly transpires that they have not committed any error of facts and law in appreciating documentary evidence in question – There is a concurrent finding of facts regarding nature of property and right of plaintiff to get possession thereof from his own son – It clearly transpires that reasonings and observations of both Courts below are sustainable in eyes of law – Therefore, considering facts and circumstances of case, Court have decided questions of law in negative accordingly – Second Appeal dismissed.
JUDGMENT :
1. The original defendants have filed the present Second Appeal under Section 100 of the Code of Civil Procedure against the judgment and decree passed by the 3rd Joint Civil Judge Junior Division, Regular Civil Suit No.350 of 1978 which came to be confirmed by the learned Assistant Judge, Surat by his judgment and decree dated 28.03.1988 passed in Regular Civil Suit No.269 of 1984.
2. The appellants are original defendant and the respondents are the original plaintiff before the Court below. For the brevity and convenience, the parties are referred to in this judgment as per their status before the lower Courts i.e. defendant and plaintiff.
3. The plaintiff has filed Regular Civil Suit No.350 of 1980 in the Court of Civil Judge Junior Division, Surat inter alia for declaration that he is the owner of the suit property as well as for possession of the suit property and for permanent injunction against the defendant. It was contended by the plaintiff that the suit property is self acquired property purchased from his personal fund; that the defendants have no right, title and interest in the suit property; that the defendant nos.1 and 2 are the sons of the plaintiff by the first wife; that on 15.06.1907, owner of the suit property Ambaram Parshottamdas the ancestor of the plaintiff and by Maniben, daughter of Parsottam Hirabhai also the ancestor of plaintiff, mortgaged it with one Vallabh Madhav.
3.2. It is also contended that the suit property was never ancestral property and that the plaintiff was permitting the defendants to stay in some portion of it as the licensee and that the defendants are harassing the plaintiff and therefore the license was terminated by notice dated 30.03.1977. On these grounds the plaintiff filed the aforesaid suit for declaration, injunction and for possession.
4. The defendants have filed their written statement at exhibit 10 and inter alia denied the entire case of the plaintiff. They have contended that the suit property is an ancestral property over which they have got a right to stay. That in fact, the suit property originally belonged to their ancestors Parsottam Hirabhai. That the sale deed executed earlier was bogus and it was executed only with a view to defeat the creditors of Becharbhai Parsottam. It was also contended that the defendants have spent substantial amount in repairing the suit property. On all these grounds, they have prayed to dismiss the suit with cost.
5. On the basis of the pleadings of the parties, the trial Court has framed issues at exhibit 12 to the following effect:-
(ii) Whether the Court fees paid by the plaintiff is proper?
(iii) Whether the defendants prove that the title deeds as alleged by the plaintiff in respect of the suit property are false, bogus and without consideration in order to escape from the creditors and the suit property is ancestral and they have got their shares in it as alleged?
(iv) Whether the defendants prove that they have expanded amount for repairation, alteration and extension of the suit property as alleged in the para 4 and 5 of the W.S.?
(v) Whether there is any cause of action to file this suit?
(vi) What relief the plaintiff is entitled to?
(vii) What order and decree?
6. It appears from the record that the learned trial Court has decided the issue nos.1,2 and 5 in affirmative and issue nos.3 and 4 in negative and has ultimately passed the decree in favour of the plain
Plea of adverse possession raised by defendants against their own father cannot be accepted.
Objections to the admissibility of evidence should be raised when the evidence is tendered and cannot be raised subsequently. The plea of adverse possession must be pleaded with proper particulars an....
The burden of proof lies with the party claiming specific performance, and the evidence presented must be sufficient to establish legal rights and ownership of the property.
The plaintiff must prove lawful possession to obtain a permanent injunction; mere possession without title is insufficient.
A plaintiff seeking a permanent injunction must prove both title and settled possession, failing which the claim may be dismissed.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
