Gujarat High Court
Legal Heirs Of Deceased Vashrambhai ... vs Jivrajbhai Vashrambhai Solanki on 12 February, 2025
NEUTRAL CITATION
C/FA/364/2025 ORDER DATED: 12/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 364 of 2025
With
CIVIL APPLICATION (FOR DIRECTION) NO. 3 of 2024
In R/FIRST APPEAL NO. 364 of 2025
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LEGAL HEIRS OF DECEASED VASHRAMBHAI HARIBHAI SOLANKI & ORS.
Versus
JIVRAJBHAI VASHRAMBHAI SOLANKI
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Appearance:
CHETANKUMAR V DARJI(9309) for the Appellant(s) No.
1,1.2,1.2.1,1.2.2,1.2.3,1.3,1.3.1,1.3.2,1.4,1.5,1.6,1.7
DELETED for the Appellant(s) No. 1.1
MR TEJASKUMAR J SHAH(11077) for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 12/02/2025
ORAL ORDER
[1.] Heard Mr. Chetankumar V. Darji, learned advocate on record for the appellants and Mr. Tejaskumar J. Shah, learned advocate on record for the respondent.
[2.] The present appeal is filed at the instance of the heirs and legal representatives of the deceased- original plaintiff, being aggrieved and dissatisfied with the judgment and order dated 14.10.2023 passed by learned Additional City Civil Judge, City Civil & Sessions Court, Ahmedabad, dismissing the suit pursuant to the order dated 14.10.2023 passed below Exh.138 preferred in Civil Suit No.2303 of 2003 by invoking the powers conferred under Order VII Page 1 of 10 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 23:05:56 IST 2025 NEUTRAL CITATION C/FA/364/2025 ORDER DATED: 12/02/2025 undefined Rule 11 (a) of the Code of Civil Procedure, 1908 (for short, "the Code"). [3.] In nutshell, the case pleaded by the original plaintiff before the trial court, which can be gathered from the plaint, is summarized hereunder:
[3.1] The original plaintiff namely Mr. Vashrambhai Haribhai Solanki had approached the court of learned Additional Civil Judge, City Civil Court, inter alia praying for recovery of the property being Tenement No.16-A of Saurashtra Co. Op. Housing Society Limited, having registered No. B-1032 situated at village-Bhuderpura, Pritam Nagar Ward, T.P. Scheme No.3, Survey No.752/748/13/A, Tenement No.0507-09-0511-0001-9 (hereinafter referred as " suit property"). The plaintiff claims to be the owner of the suit property as it was purchased by him during his life time. He also claims to be in exclusive possession of the aforesaid residential property. [3.2] It is the case of the plaintiff that from his own income, he had constructed two rooms and toilet on the first floor of the suit property. The plaintiff was working as Technician-Boiler Attendent in the Ahmedabad Cotton Manufacturing Company Ltd. and from his income, he had purchased the aforesaid suit property. The defendant Page 2 of 10 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 23:05:56 IST 2025 NEUTRAL CITATION C/FA/364/2025 ORDER DATED: 12/02/2025 undefined is the son of the plaintiff.
[3.3] It is the case of the plaintiff that without his permission, the defendant along with his wife had forcefully entered into the aforesaid property and illegally occupied two rooms and toilet situated on the first floor of the suit property. The plaintiff had, therefore, alleged that defendant has trespassed into the suit property. The plaintiff has further averred that he is a retire person whereas the defendant is a Police Constable in the Karanj Police Station, Ahmedabad and his wife is working as a lawyer. Taking undue advantage of their profession, the defendant had started quarrel with the family members and had also lodged false complaint against them thereby giving them mental stress and harassment. The plaintiff had, time and again, requested the defendant to hand over the peaceful and vacant possession of the suit property. However, since the defendant failed to do so and started administering threat to implicate them in false police case, the cause of action arose for the plaintiff to approach the court of learned Civil Judge seeking recovery of the possession of the suit property as well as for declaration that the defendant has trespassed into the suit property. The plaintiff had submitted before the trial court that the legal notice dated 22.07.2003 was issued in this regard to the defendant thereby calling Page 3 of 10 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 23:05:56 IST 2025 NEUTRAL CITATION C/FA/364/2025 ORDER DATED: 12/02/2025 undefined upon him to hand over the possession of the suit property, failing which, the suit was preferred before the learned Judge.
[4.] Mr. Chetankumar V. Darji, learned advocate on record for the appellants, while referring to the aforesaid pleadings made in the plaint, has invited attention of this court to the reasons assigned by the learned Judge while not entertaining the suit by invoking the powers conferred under Order VII Rule 11(a) of the Code. Learned advocate for the appellants, at the outset, has submitted that one of the reasons, for which, the application under Order VII Rule 11(a) of the Code has been entertained as assigned by the learned Judge, was on the ground that the heirs of the deceased original plaintiff- Vashrambhai Haribhai Solanki, who expired on 18.02.2008, have no locus standi. The learned Judge has on misconception of law dismissed the suit by observing that unless rights of succession are crystallized, their right to seek recovery of possession does not survive on death of original owner. Learned advocate Mr. Darji had further pointed out that the application for bringing heirs and legal representatives of the deceased plaintiff was preferred before the trial court, whereby vide order dated 13.08.2008, the heirs and legal representatives of the deceased plaintiff namely i.e. 1.1-Shantaben Vashrambhai Solanki, 1.2- Popatbhai Vashrambhai Solanki, 1.3- Jamanaben Vashrambhai Solanki, Page 4 of 10 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 23:05:56 IST 2025 NEUTRAL CITATION C/FA/364/2025 ORDER DATED: 12/02/2025 undefined 1.4-Bhanuben Vashrambhai Solanki, 1.5-Bachubhai Vashrambhai Solanki, 1.6-Jasuben Vashrambhai Solanki and 1.7-Jagdishbhai Vashrambhai Solanki, were brought on record.
[4.1] Learned advocate for the appellants has further pointed out that pending the aforesaid proceedings, the original plaintiff nos.1.1, 1.2 and 1.3 had expired, for which, appropriate applications for bringing heirs and legal representatives of the deceased plaintiffs, were moved. Since the heirs and legal representatives of the deceased- Shantaben Vashrambhai Solanki were already on record, the application at Exh.73 was given on 31.08.2021 before the trial court to delete her name. It was further pointed out that the original plaintiff no.1.2 -Popatbhai Vashrambhai Solanki had expired on 23.09.2019, whereby the application for bringing the heirs of deceased plaintiff, was submitted on 31.12.2019 at Exh.130 seeking condonation of delay of 9 days caused in preferring such application. It was further pointed out that the application for bringing heirs and legal representatives of the deceased plaintiff no.1.3 was preferred on 31.08.2021 at Exh.79 along with an application seeking condonation of delay of 7 days caused in preferring such application at Exh.77.
Page 5 of 10 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 23:05:56 IST 2025 NEUTRAL CITATION C/FA/364/2025 ORDER DATED: 12/02/2025 undefined [4.2] By referring to the aforesaid facts, learned advocate for
the appellants has once again invited my attention to the reasons assigned whereby the learned Judge has observed that heirs have no right to seek any relief against the defendant, in absence of right, title and interest being acquired in the suit property by purchase or gift during lifetime of deceased. Learned advocate has, further, submitted that the trial court committed serious error to arrive at such finding by ignoring the aforesaid applications which were preferred before the learned Judge and were pending consideration. Before arriving at such conclusion, the learned Judge ought to have decided the aforesaid applications preferred at Exh.73, 79, 130. [4.3] Learned advocate for the appellants has further submitted that in fact, the impugned judgment and order is passed in gross violation of principle of natural justice inasmuch as the heirs and legal representatives of the deceased plaintiff being not brought on record, have been precluded from participating in the proceedings, whereas on the other hand, their right to seek adjudication on the dispute stands closed, by virtue of dismissal of the suit. [4.4] Lastly, learned advocate for the appellants has submitted that the heirs and legal representatives of the deceased original Page 6 of 10 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 23:05:56 IST 2025 NEUTRAL CITATION C/FA/364/2025 ORDER DATED: 12/02/2025 undefined plaintiff having not been brought on record, the order impugned is passed against a dead person and is therefore, void in eye of law. During the course of arguments, learned advocate has submitted that in fact registered WILL was executed by deceased- Vashrambhai Haribhai Solanki in favour of the original plaintiff no.1.5. In support of his submissions, learned advocate for the appellants has placed reliance upon the judgments of this Court in cases of Rahubha Jivubha vs. State of Gujarat reported in 1995 (1) GLR 805 and Jiviben Lavji Raganath vs. Jadavji Devshanker reported in 1978 AIR (Guj) 32 and the judgment of Hon'ble Supreme Court in the case of Gurnam Singh (D) Thr. Lrs. & Ors. vs. Gurbachan Kaur (D) by Lrs. & Ors. reported in 2017 AIR (SC) 2419.
[5.] Mr. Tejaskumar J. Shah, learned advocate on record for the respondent, has participated in the hearing of the present proceedings through virtual mode. Learned advocate for the respondent has placed reliance upon the findings and the reasons assigned by the learned Judge. The attention of this Court was invited to the pleadings of the plaint, to contend that the plaintiffs had no cause of action to seek recovery of the tenement being tenement No.0507-09-0511-0001-9. As according to the defendant, he was not in occupation and possession of the aforesaid property. Learned Page 7 of 10 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 23:05:56 IST 2025 NEUTRAL CITATION C/FA/364/2025 ORDER DATED: 12/02/2025 undefined advocate had made an attempt to offer an explanation that the defendant was occupying two rooms and toilet, which is not forming part of the suit property. He has, therefore, submitted that no error can be found with the approach of learned Judge in arriving at a conclusion that the plaintiffs had no cause of action to seek declaration against the defendant being trespasser and for recovery of the suit property.
[6.] Considering the submissions made by learned advocates for the respective parties and having perused the impugned judgment and order, the learned Judge has committed serious error while proceeding with the dismissal of the suit by invoking the Order VII Rule 11(a) of the Code in the facts of the case. Indisputably, the applications were preferred by the present appellants, who are the heirs and legal representatives of the deceased/original plaintiff- Vashrambhai Haribhai Solanki. As rightly pointed out by Mr. Darji, learned advocate for the appellants that the respective applications were preferred by the heirs and legal representatives of the deceased original plaintiff, to permit them to be deleted or to be brought on record as heirs and legal representatives of the deceased. The learned Judge has completely lost sight of the aforesaid applications and without passing appropriate orders in this regard, has proceeded to Page 8 of 10 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 23:05:56 IST 2025 NEUTRAL CITATION C/FA/364/2025 ORDER DATED: 12/02/2025 undefined decide the applications by recording the finding that the heirs and legal representatives of the deceased original plaintiff, have no cause of action as described in para 10 of the plaint, as the same does not survive qua the plaintiffs. On the contrary, the learned Judge though having incorrectly recorded that the applications for bringing the heirs and legal representatives of the deceased plaintiff as well as to delete the deceased plaintiff, have been allowed, proceeds to conclude that unless any right or title is acquired in suit property by purchase or gift from the deceased during his life time, the plaintiffs have no locus standi to pursue the suit for recovery.
[7.] The aforesaid findings and the reasons assigned by the learned Judge are self contradictory. On one hand, the learned Judge has accepted the case of the applicants being the heirs and legal representatives of the deceased plaintiff being permitted to be brought on record and on the other hand, the learned Judge, after appreciating the cause of action, as reflected in part 10 of the plaint, has arrived at conclusion that cause of action qua the heirs and legal representatives of the deceased plaintiff, does not survive. [8.] In the opinion of this Court, the learned Judge has completely lost the sight of the fact that the applicants are admittedly Page 9 of 10 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 23:05:56 IST 2025 NEUTRAL CITATION C/FA/364/2025 ORDER DATED: 12/02/2025 undefined the heirs and legal representatives of deceased-original plaintiff. Appropriate applications seeking impleadment of having acquired the right, title and interest by way of succession, were pending consideration. Without adjudication of such applications, the learned Judge has arrived on an erroneous ground that the application seeking deletion of original plaintiff no.1.1 has been allowed and the heirs and legal representatives of the deceased-original plaintiff nos.1.2 and 1.3 has also been granted. The impugned judgment and order based on an incorrect recording of the fact and misconception of law, is quashed and set aside. The original suit being Civil Suit No.2303 of 2003 is directed to be restored to its original file. The learned Judge is directed to decide the applications preferred by the present appellants-original plaintiffs, in accordance with law. [9.] With these observations, present First Appeal stands allowed. The Civil Application (for Direction) stands disposed of, accordingly.
(NISHA M. THAKORE,J) SUYASH SRIVASTAVA Page 10 of 10 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 23:05:56 IST 2025