Gujarat High Court
Shobha Rajubhai Mistry vs Santramji Shaliramji Sharma on 3 February, 2025
NEUTRAL CITATION
C/FA/318/2021 ORDER DATED: 03/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 318 of 2021
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SHOBHA RAJUBHAI MISTRY
Versus
SANTRAMJI SHALIRAMJI SHARMA & ORS.
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Appearance:
MR. MAULIK M SONI(7249) for the Appellant(s) No. 1
SERVED BY PUBLICATION IN NEWS for the Defendant(s) No. 1,2,3,4
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 03/02/2025
ORAL ORDER
1. Heard Mr. Maulik M. Soni, learned advocate on record for the appellant.
2. At the outset, learned advocate for the appellant has submitted that the notice issued upon the respondents, has been duly served as the notice issued by this Court has been published in the local newspaper. However, till date, no appearance has been entered on their behalf.
3. The attention of this Court was invited to the issues framed. It was submitted that the suit was filed by the plaintiff originally against the defendant nos 1 and 2. The plaintiff claimed to be the owner of Page 1 of 5 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:24 IST 2025 NEUTRAL CITATION C/FA/318/2021 ORDER DATED: 03/02/2025 undefined the suit property. The plaintiff is the only heir of the deceased- Gitaben, who used to reside in the suit property. However, the defendant nos.1 and 2 taking disadvantage of the aforesaid fact, had entered into the possession of the suit property, after the death of the Gitaben. According to the plaintiff, the defendants are neither the tenants nor the lease holders and they were not even paying any amount for such use of the suit property. The defendants were holding no right, title or interest in the suit property, and therefore, according to them, they were holding illegal possession of the suit properties. The cause of action arose for the plaintiff to approach the learned Judge by preferring the suit praying for recovery of possession, when the defendants had tried to hand over the suit property to third party in absence of any authority to deal with the suit property. The legal notice in this regard was also issued, however, the defendant nos.1 and 2 had failed to hand over the possession of suit property, and therefore, the plaintiff has approached the court of learned Civil Judge praying for recovery of the possession as well as for injunction against defendant nos.1 and 2.
4. By referring to the aforesaid facts, learned advocate has further pointed out that pending the trial, the defendant nos.3 and 4 were joined as party defendants. The appropriate application in this regard Page 2 of 5 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:24 IST 2025 NEUTRAL CITATION C/FA/318/2021 ORDER DATED: 03/02/2025 undefined was made and the defendant nos.3 and 4 were permitted to be joined as defendants in the original proceedings, and the amendment of the cause title was accordingly carried out. Noticing the pleadings, the learned Judge had framed the issues. Upon appreciation of the overall evidence on record, the learned Judge had arrived at a conclusion that the plaintiff has failed to prove that they are the owner of the suit property. Though, the plaintiff has been successful in establishing his case that he resided in the suit property with deceased wife-Gitaben and that on account of dispute with the wife, the deceased Gitaben was residing alone in the suit property. However, the plaintiff could not establish his ownership right. On the other hand, the learned Judge found that the defendant nos.1 and 2 have failed to establish that they were the legal owners of the suit property in question by paying consideration. The learned Judge also noticed that the defendant nos.3 and 4 had also failed to prove that they had purchased the suit property being bona fide purchaser.
5. Having noted so, the learned advocate has submitted that the learned trial court committed gross error in concluding that the plaintiff has not amended the prayer clause to seek recovery of possession from the defendant nos.3 and 4 who are indisputably in possession of the suit property, and therefore, by impugned judgment Page 3 of 5 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:24 IST 2025 NEUTRAL CITATION C/FA/318/2021 ORDER DATED: 03/02/2025 undefined and order, the suit was dismissed.
6. By making the aforesaid submissions, learned advocate has submitted that the attempts were made initially to serve respondent nos.3 and 4 who are claimed to be in possession of the suit property; however, they could not be served and ultimately by publication of notice in the newspaper, it is to be presumed that the notice has been duly served. It was further submitted that the suit properties is lying idle. He has, therefore, prayed for appropriate instructions in this regard from the appellant, more particularly, with regard to absence of any prayer being added against the respondent nos.3 and 4, who were found in possession of the suit property. Learned advocate has, therefore, urged this Court to allow the present appeal as the present appeal has been uncontested in absence of any appearance being entered by the respondents.
7. Having heard the learned advocate appearing for the appellant and having perused the impugned judgment and order in light of the submissions made, it is an undisputed fact that respondent nos.3 and 4-original defendant nos.3 and 4 are in possession of the suit properties. It is also an undisputed fact that the aforesaid defendants though being subsequently joined as parties to the proceedings Page 4 of 5 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:24 IST 2025 NEUTRAL CITATION C/FA/318/2021 ORDER DATED: 03/02/2025 undefined before the trial court, no amendment in the prayer clause has been sought for by the original plaintiff against the original defendant nos.3 and 4 seeking recovery of the possession.
8. In such circumstances, in the opinion of this Court, the learned Judge has rightly not entertained the relief of recovery of possession of the suit property. Learned advocate Mr. Maulik Soni appearing for the appellant could not point out any material contradicting the aforesaid findings recorded by the learned Judge. In absence of any contradictions being pointed out, no error can be found with the findings recorded by the learned Judge. Hence, the present appeal fails, and is hereby dismissed. Notice stands discharged.
9. During the course of hearing, learned advocate has pointed out that earlier advocate representing the appellant had moved draft amendments. However, the liberty may be reserved to produce the aforesaid documents in the proceedings, which may be availed by the present appellant against original respondent nos.3 and 4 at appropriate stage.
10. In light of the aforesaid submissions, the draft amendments are not examined and not considered.
(NISHA M. THAKORE,J) SUYASH SRIVASTAVA Page 5 of 5 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:24 IST 2025