Gujarat High Court
Gambhirbhai Jagmalbhai Gohil vs Jagmalbhai Morarbhai Gohil on 11 July, 2025
NEUTRAL CITATION
C/SCA/2138/2015 JUDGMENT DATED: 11/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2138 of 2015
With
R/MISC. CIVIL APPLICATION NO. 1565 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 2138 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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GAMBHIRBHAI JAGMALBHAI GOHIL
Versus
JAGMALBHAI MORARBHAI GOHIL & ORS.
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Appearance:
MR GAURAV CHUDASAMA(5660) for the Petitioner(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 2
MR HRIDAY BUCH(2372) for the Respondent(s) No. 7
NOTICE SERVED for the Respondent(s) No. 1,3,4,5
REFUSED SERVED (N)(10) for the Respondent(s) No. 6
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 11/07/2025
ORAL JUDGMENT
ORDER IN CIVIL APPLICATION (FOR RESTORATION) NO.1565 OF 2025
1. Heard learned Advocate Mr. Gaurav Chudasama for the applicant and learned Advocate Mr.Hriday Buch appearing for the opponent No. 7.
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2. Considering the averments made in the application and the assurance given by learned Advocate Mr. Chudasama to proceed with the matter, the application is allowed in terms of para 10(B).
ORDER IN SPECIAL CIVIL APPLICATION NO.2138 OF 2015
1. Rule returnable forthwith. Learned Advocate Mr.Hriday Buch waives service of Rule on behalf of respondent No.7.
2. Heard learned Advocate Mr. Gaurav Chudasama appearing for the petitioner and learned Advocate Mr. Buch appearing for respondent No. 7. Though served, none appears for the rest of the respondents and their presence is not required for the adjudication of this application.
3. The present application is filed under Article 227 of the Constitution of India, seeking the following relief:-
"A. This petition be admitted and allowed.
B. By issuing appropriate writ, order and direction, Your Lordships may be pleased to quash and set aside the order dated 16-10-2014 passed by Principal Civil Judge, Vagra passed below Exh.35 in Reg. Civil Suit No. 178/2011 and further direct the ld. Judge to reject the same.Page 2 of 10 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:50:48 IST 2025
NEUTRAL CITATION C/SCA/2138/2015 JUDGMENT DATED: 11/07/2025 undefined C. By issuing appropriate writ, order and direction, Your Lordships may be pleased to quash and set aside the order dated 26-03-2012 passed by Principal Civil Judge, Vagra passed below Exh.33 in Reg. Civil Suit No. 178/2011 and further direct the ld. Judge to allow the same.
D. Pending hearing and final disposal of this petition, the ld. Principal Civil Judge, Vagra may be directed to stay the proceeding of the suit vide Reg. Civil Suit No. 178/2011 filed by the present petitioner.
Ε. Any other relief that may be deemed just and proper may also be kindly granted."
4. At the outset, learned Advocate Mr. Chudasama requests this Court that the petitioner is not pressing the present application so far as prayer (C) is concerned, with liberty to file an appropriate independent application to challenge it.
5. Permission as sought for is hereby granted. It is open for the petitioner to challenge the order dated 26th March 2012 passed by Principal Civil Judge, Vagra below Exhibit 33 in Regular Civil Suit No. 178 of 2011 in accordance with law.
6. THE SHORT FACTS OF THE CASE 6.1. It appears that the petitioner happens to be the plaintiff of Regular Civil Suit No. 178 of 2011, filed against respondents Nos. 1 to 6, seeking partition of the suit Page 3 of 10 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:50:48 IST 2025 NEUTRAL CITATION C/SCA/2138/2015 JUDGMENT DATED: 11/07/2025 undefined properties. It appears that during the pendency of the suit, respondent No. 1, through his power of attorney, sold the entire parcel of suit land in favour of respondent No. 7 herein, who has filed the impugned application below Exhibit 35 in the suit to be joined as a defendant.
6.2. After hearing the parties, the Trial Court, vide its order dated 16.10.2014, has allowed the application, against which the present application is filed by the plaintiff.
7. SUBMISSIONS OF THE PETITIONER 7.1. Learned Advocate Mr. Chudasama would submit that the Trial Court has manifestly erred by allowing a third party to be joined in a suit for partition, thereby having committed a jurisdictional error, which requires to be interfered with by this Court while exercising its power under Article 227 of the Constitution of India.
7.2. Learned Advocate Mr. Chudasama would further submit that respondent No. 7 herein - company, has purchased the entire suit land by way of a bogus power of attorney, Page 4 of 10 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:50:48 IST 2025 NEUTRAL CITATION C/SCA/2138/2015 JUDGMENT DATED: 11/07/2025 undefined alleged to have been executed by defendant No. 1, who happens to be the father of the plaintiff, and has, thereby, not created any right, title and interest in the suit properties, which is the subject-matter of the suit. 7.3. Learned Advocate Mr. Chudasama would further submit that respondent No. 7 is neither a necessary nor a proper party for the adjudication of the suit filed seeking partition of ancestral properties.
7.4. Learned Advocate Mr. Chudasama would further submit that defendant No. 1 has no right to sell the suit properties in favour of any third party when a suit seeking partition of the properties is pending. 7.5. So, learned Advocate Mr. Chudasama would further submit that considering the peculiar facts and circumstances of the present case, a stranger is allowed to be joined by the Trial Court in a suit for partition, which cannot be done. Page 5 of 10 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:50:48 IST 2025
NEUTRAL CITATION C/SCA/2138/2015 JUDGMENT DATED: 11/07/2025 undefined 7.6. Making the above submissions, learned Advocate Mr. Chudasama would request this Court to allow the present application.
8. SUBMISSIONS OF RESPONDENT NO. 7 8.1. Per contra, learned Advocate Mr. Buch would submit that there is no error, much less any gross error of law, committed by the Trial Court while allowing the impugned application and this Court, having limited jurisdiction to interfere with an order passed by the Trial Court while exercising its power under Article 227 of the Constitution of India, should not interfere with it.
8.2. Learned Advocate Mr. Buch would further submit that respondent No. 7 has purchased the suit properties by way of a registered sale deed, which has not been questioned by anyone till date, and has acquired right, title and interest in its favour by paying consideration, thereby, having every right to be joined in the suit.
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NEUTRAL CITATION C/SCA/2138/2015 JUDGMENT DATED: 11/07/2025 undefined 8.3. Learned Advocate Mr. Buch would submit that it is not even prohibited in law that a person having right, title and interest in the suit properties with others cannot sell his notional share to any third party and as per Section 44 of the Transfer of Property Act, such mode of transfer is permissible in law.
8.4. Learned Advocate Mr. Buch would further submit that once respondent No. 7 has acquired the title over the suit properties, it has every right to be joined as a defendant in the suit.
8.5. Making the above submissions, learned Advocate Mr. Buch would request this Court to reject the present application.
9. POINT FOR DETERMINATION 9.1. The short question that falls for consideration is as to whether any gross error of law and/or a jurisdictional error was committed by the Trial Court while allowing the impugned application filed by respondent No. 7 for joining itself in the suit seeking partition.
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10. ANALYSIS
11. The facts which are observed hereinabove are not in dispute. Respondent No. 7 has purchased the suit property by way of a registered sale deed on 11th March, 2008, pending the suit, from the power of attorney holder of the original defendant No. 1, who happens to be the father of the plaintiff. Till date, none of the parties to the suit has questioned the said sale deed, which stands as on date.
12. Once a person acquires the right, title and interest by way of the execution of a registered sale deed, he becomes the owner of such properties unless such sale deed is questioned by anyone and set aside by a competent court of law.
13. Having observed hereinabove that respondent No. 7 has acquired title to the suit properties by way of execution of a registered sale deed in its favour, it has a right to be joined as a defendant in the suit for partition of the suit properties which it has acquired by way of a registered sale deed. Page 8 of 10 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:50:48 IST 2025
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14. It is not out of place to mention that respondent No. 7 stepped into the shoes of defendant No. 1, who sold the suit properties to respondent No. 7, and thereby, also, respondent No. 7 has every right to be joined as a party defendant in the suit.
15. Furthermore, considering Section 44 of the Transfer of Property Act, even defendant No. 1, being a co-owner of the suit property, as the case may be, has the right to sell his share to a third party by execution of a registered sale deed, which he has done in the present case.
16. Thus, examining the matter from all angles and after appreciating the facts at hand, I do not find any error of law, much less any gross error of law, committed by the Trial Court while allowing the impugned application.
17. Now, it is a well-settled legal position of law that unless there is a gross illegality, irregularity and/or a jurisdictional error committed by the Trial Court, which goes to the root of the matter, this Court should not exercise its power under Page 9 of 10 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:50:48 IST 2025 NEUTRAL CITATION C/SCA/2138/2015 JUDGMENT DATED: 11/07/2025 undefined Article 227 of the Constitution of India. [See Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 (Para 6 and 7) and Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181 (Para 15 and 16)].
18. So, in view of the aforesaid, I am not impressed by any of the submissions made by learned Advocate Mr. Chudasama, which are required to be rejected accordingly.
19. CONCLUSION 19.1. The upshot of the aforesaid observations, discussion and reasons is that the present application lacks merits and requires to be rejected, which is hereby REJECTED. No order as to costs. Rule is discharged.
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