In a title declaration suit, the burden of proof lies on the plaintiff. For a document to qualify as a valid family settlement, it must be a bona fide transaction resolving disputes between parties having antecedent claims, and it cannot function as a testamentary instrument if the author lacks title.

ORDER :

J. C. DOSHI, J.

1. The remarks in the cause list of this First Appeal belongs to year 1991 shows that the Respondent No.3.1 is deleted, Advocate Notice issued to Respondent No.3.2 is not received back, Advocate Notice issued to Respondent Nos.4 and 5 remained unserved as they are residing abroad and few of the respondents have expired.

1.1 Since appellants have not cleared procedural aspects, despite given more than sufficient time and opportunity, as this appeal is more than year 30 years old, it is kept up for final hearing on request of learned advocates for both the sides.

2. This First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 (‘the Code’, for short) at the behest of original plaintiff challenging the judgment and decree dated 31.08.1990 passed in Civil Suit No.155 of 1976 by the learned City Civil Court No.5 at Ahmedabad by which the plaintiff’s suit was dismissed.

3. The parties herein are referred to as per their original status before the trial Court.

4. The facts gathered from the impugned judgment as well as from the Records and Proceedings, in brief, are that;-

4.1 The original plaintiff nos.1 and 2 and the defendant no.1 are real brothers. Plaintiff no.3 is wife of plaintiff no.1 and plaintiff nos.4 and 5 are sons of plaintiff no.1. Defendant Nos.2 and 3 are also alleged to be partners of firm in whose favour defendant no.1 executed Agreement to sale (‘ATS’, for short). The defendant nos.4 to 8 are persons who have alleged to have purchased the ‘suit land’ from defendant nos.2 to 3. Plaintiff filed the suit for the relief of declaration that defendant no.1 is not a real owner but the Benamidar holder of the plot no.17 of land bearing Survey No.41 (Final Plot No.9) of T.P. Scheme No.IV (Maninagar) , admeasuring 657 sq yards, situated at Mouje Danilimda, Ahmedabad [‘the suit land’, for short], with a further relief of declaration that suit land is property of one or more of the plaintiff and other ancillary reliefs. The reliefs prayed by the plaintiff read thus:

“(a) That the Honourable Court will be pleased to declare that the property more particularly described in para 2 hereinabove is the property of the Plaintiffs or any one more of them and that the defendant is not the real owner thereof but a benamidar.

(b) The defendant, his agents and servant and any person claiming through him be resrained by a permanet injunction from selling, mortgaging, transferring or dealing with the said property or any part thereof in any manner whatsoever.

(c) Decree for possession be passed against all Defendants directing them to handover the peaceful and vacant possession of the suit property described in the Plaint by removing all the superstructure that might have been raised on the sauit land.

(d) Decree for damages for illegal use and occupation of the suit land be passed against Defts. 4 to 8 at the rate of Rs.400/- from 1-2-78 till handing over the possession of the suit land.

(E) The cost of the suit be awarded.

(f) And such other and further relief as the Hon'ble Court deemed fit be passed.”

Amongst aforesaid reliefs, few of them asked subsequently by amending the plaint.

4.2 Bai Reva was the mother of plaintiff nos.1-2 and defendant no.1. According to the plaintiff, she has been gifted the suit land by her brother late Ratilal Chunilal Patel (now expired). However, for sake of convenience, in revenue proceedings, the suit land was mutated in the name of defendant no.1. It is the further case that the land of Survey No.41 was purchased by late Ratilal Chunilal Patel by executing sale-deed at Sr.No.485 in the office of Sub- registrar on 25.07.1933. He has purchased the land of Survey No.41 from Hiralal Trikamlal. Later on the land of Survey No.41 was divided into 38 plots, layout plan of which has been approved. Out of love and affection, as well as considering the poor financial situation of Bai Reva, her real brother late Ratilal Chunilal Patel gifted sub-plot no.17 to her and was mutated in the name