IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 1564 of 2019 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/FIRST APPEAL NO. 1564 of 2019 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-

and HONOURABLE MR.JUSTICE J. L. ODEDRA Sd/-

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Approved for Reporting Yes No ==========================================================

PATEL CHANDRIKABEN D/O HARIBHAI MAKABHAI PATEL AND W/O GADHVI AMIRDAN NATHUBHAI Versus PATEL MANGUBEN WD/O HARIBHAI MAKABHAI & ORS.

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Appearance:

MR. VIMAL PATEL with MR. HITESH PATEL for VMP LEGAL(7210) for the Appellant(s) No. 1 MR. B. A. PATEL(5281) for the Defendant(s) No. 1,2.1,2.3,3,4,5,6,7 RULE NOT RECD BACK for the Defendant(s) No. 2.2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE and HONOURABLE MR.JUSTICE J. L. ODEDRA Date : 08/10/2025 ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

1. This First Appeal under Section 96 of the Civil Procedure Code, 1908 is preferred against order dated 19-01-2019 passed by 2^nd Additional Senior Civil Judge, Ahmedabad (Rural), Ahmedabad in Special Civil Suit No.19 of 2019.

2. The impugned order is passed Suo-Moto rejecting the plaint of the appellant by invoking Order 7, Rule 11 (a) and (d).

3. The suit was instituted praying interalia as under:

“(a) Kindly declare that, in respect of the agricultural land bearing Survey No. 131/A/3 admeasuring 2570 Sq. M. with akar of Rs. 1.93 paise and the agricultural land bearing Survey No. 115/3 admeasuring 2306 Sq. M. with akar of Rs.1.73 paise, situated within the limits of village Chenpur, Taluka Ghatlodia, District Ahmedabad, I am entitled, under the Hindu Succession Act as a Class-I heir, to one-eighth share therein. It is further prayed that the said one-eighth share of the land be separated and possession thereof be handed over by the defendants to the plaintiff and that a decree to that effect be executed in favour of the plaintiff and against the defendants.

(b) Kindly issue a permanent injunction restraining the defendants, their servants, agents, attorneys or any other persons acting on their behalf, to commit or cause to commit any acts that may create any defect in the title of the aforesaid agricultural land bearing Survey No. 131/A/3 admeasuring 2570 Sq. M. with akar of Rs. 1.93 paise and the agricultural land bearing Survey No. 115/3 admeasuring 2306 Sq. M. with akar of Rs. 1.73 paise, situated within the limits of village Chenpur, Taluka Ghatlodia, District Ahmedabad, or to create or cause to create any encumbrance, lien etc. thereon in favour of any third person, institution etc.

(c) Kindly award the costs of this suit.”

3(a). Both learned Advocates have agreed for final hearing of the appeal on the basis of Paper-book supplied and R & P considering the nature of dispute involved.

4. The Court on its own raised a question as to whether the Suit is barred by limitation and as to whether there was any cause of action.

4.1 It appears that the Court in its opening para has framed a preliminary issue in this regards.

5. Learned Advocate for the appellant has submitted that the appellant is one of the eight children of Patel Haribhai Makabhai, who inherited an ancestral land being the Suit land bearing No.106/4, 106/2, 115 and 131/A of Mouje: Chenpur, Taluka: Ghatlodiya, District:

Ahmedabad.

5.1 However, as the appellant had married in other caste against the wishes of her family and therefore, her family members severed relations with her and also did not make entry of her name in the Revenue Record upon the death of her father.

6. Learned Advocate for the appellant has argued that in the facts of this case, the issue of limitation is a mixed question of law and facts and therefore, requires leading of evidence, therefore, outside the scope of Order 7, Rule 11.

7. It is submitted that error is committed by Civil Judge in not taking