Gujarat High Court
Heirs Of Decd. Govindrao Daulatrao ... vs Snehlata Ashok Pavar on 1 May, 2025
NEUTRAL CITATION
C/SA/579/2023 ORDER DATED: 01/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 579 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SECOND APPEAL NO. 579 of 2023
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HEIRS OF DECD. GOVINDRAO DAULATRAO PAVAR, MAYA WD/O
GOVINDRAO DAULATRAO PAVAR & ORS.
Versus
SNEHLATA ASHOK PAVAR
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Appearance:
HARSH V GAJJAR(7828) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4,1.5
MR AR MAJMUDAR(428) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/05/2025
ORAL ORDER
1. The present Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 ('the CPC', for short) being aggrieved by the judgment and decree passed by the 4 th Additional District Judge at Vadodara in Regular Civil Appeal No.384 of 2019 whereby vide an order dated 31.08.2023 passed by the 4 th Additonal District Judge at Vadodara, the said appeal is allowed quashing and setting aside the judgment and decree dated 18.10.2019 passed in Regular Civil Suit No.391 of 2014.
2. For the sake of convenience, the parties are referred to as per their original status before the trial Court.
3. The brief facts arising necessary for adjudication of the present appeal are that:
Page 1 of 9 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:56:59 IST 2025NEUTRAL CITATION C/SA/579/2023 ORDER DATED: 01/05/2025 undefined 3.1 the suit property was purchased by Kailasvasi Dolatrao in March, 1962 and the plaintiff had purchased five shares of Kasturinagar Society as on 20.09.1979 and she had paid the membership fee and became member of the society. It is the case of the plaintiff that plot no.19-B was allotted to her and the plaintiff had constructed ground floor structure after obtaining necessary permission from the concerned authorities and for the same a loan was taken from Gujarat Co.operative Housing Finance Society Ltd.
3.2 Since the defendants were during the said time searching for a house, they requested the plaintiff to permit the plaintiff to stay on the ground floor for a temporary period. The defendant had assured the the plaintiff that after purchasing new house within a short span of time, the defendant shall shift and vacate the ground floor.
3.3 It is the case of the plaintiff that in the year 1987, the plaintiff constructed first floor on the suit premises and started residing there with family permanently since 01.04.1988.Thereafter the plaintiff asked the defendant to vacate the suit property and as defendants refused to vacate the premises a notice was sent to the defendant on 06.02.2014 and as the defendant did not vacate the premises, the plaintiff filed Civil Suit No.391 of 2014 seeking declaration and possession relating to the suit property.
3.4 The defendants entered appearance in the said suit and set up a case that both the plaintiffs and defendants wanted to purchase the suit property and all the family members agreed that the suit property would be purchased in the name of plaintiff and that the defendants would reside on the ground floor for some time. After arranging for Page 2 of 9 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:56:59 IST 2025 NEUTRAL CITATION C/SA/579/2023 ORDER DATED: 01/05/2025 undefined funds, the plaintiff would construct first floor and reside there. It is only for the said reason that the name of the plaintiff is mentioned in the share certificate.
3.5 The trial Court framed issues vide Exh.13, which reads as under:
3.6 The plaintiff's deposition is on record of the court at Exh.18, whereas the defendant's deposition is at Exh.146 and son of the defendant was examined vide Exh.163.
3.7 The trial Court dismissed the suit of the plaintiff observing that the defendant has been residing in the suit property since the year 1963 without any obstruction and the trial Court relied upon the Vastupuja invitation card and that loan payment receipts were produced by the defendant who had deposed that he had paid installments and that husband of the plaintiff had given in writing that, Rs.2,000/- was paid towards the share fund.
3.8 The trial Court came to a finding that merely because the property was purchased in the name of plaintiff, it would not disentitle the defendants from ownership of the property and the trial Court came to a finding that looking at the documentary evidence, it was sufficient to presume that loan installments were paid by the defendant and, therefore, he was joint owner of the suit property.
3.9 The said order was challenged by the plaintiff by way of Regular Civil Appeal No.384 of 2019 and by an order dated 31.08.2023, the said Regular Civil Appeal was allowed. The judgment and decree passed in Regular Civil Suit No.391 of 2014 was quashed Page 3 of 9 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:56:59 IST 2025 NEUTRAL CITATION C/SA/579/2023 ORDER DATED: 01/05/2025 undefined and set aside and the defendants were directed to handover possession of the premises within three months from the date of order. Hence, the present Second Appeal.
4. Learned advocate for the original defendant has mainly contended that defendant is residing in the premises since very long time and trial Court and the appellate Court have also held that the defendant is in possession of the ground floor portion of the suit premises. It has also been argued that the appellate Court has not properly appreciated oral as well as documentary evidence appearing on record.
5. Moreover, it has also been argued that the defendants are in uninterrupted possession of the premises right from 1984, the suit that has been preferred in the year 2014 is absolutely beyond period of limitation. Moreover, it has also been argued that the possession of the suit premises of the defendant since 1984 was pursuant to a family arrangement and in view of the said fact that the defendant was in uninterrupted possession of the premises, the appellate Court could not have granted the order of handing over possession of the plaintiff.
6. Learned advocate for the defendants has also argued that while disposing of the appeal, the first appellate Court has not raised point of determination as required under Order 41 Rule 31 of the CPC and in view of the said fact as point of determination were not raised in the first appeal, it was mandatory on the part of the first appellate Court to raise point of determination and in that view of the matter also the Second Appeal is required to be admitted and the substantial Page 4 of 9 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:56:59 IST 2025 NEUTRAL CITATION C/SA/579/2023 ORDER DATED: 01/05/2025 undefined questions of law, which are suggested in the memo of appeal, are required to be framed and the appeal be admitted.
7. Per contra, learned advocate for the plaintiff has mainly argued that plaintiff being the owner of the property has filed a suit for seeking possession of a property which the defendant is occupying as a permissive user.
8. It is the case of the plaintiff that plaintiff is owner of the property and there is no documentary evidence to support the case that defendant has to show that the defendant has any right to reside in the suit property.
9. It has also been argued that though the defendant has stated that defendant has paid house tax and water tax and that the loan amount has been paid by the defendant but the fact remains that defendant has neither filed any counter claim to the effect to decide that defendant is a joint owner of the suit property nor has filed any suit for a declaration that the defendant is co-owner of the suit property and, therefore, the appellate Court has rightly come to conclusion that the present defendant does not have any right to reside in the suit property.
10. It has further been argued that the appellate Court after reappreciating the entire evidence has allowed the said appeal and directed the defendant to handover peaceful and vacant possession of the suit premises. Moreover, it has also been argued that there are no substantial questions of law suggested in the memorandum of appeal and in view of said fact present Second Appeal is required to be dismissed at the admission stage.
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11. Having heard learned advocates for the parties and having gone through the record, certain undisputed facts which emerged are as under:
(i) The share certificate of the suit property is in the name of plaintiff;
(ii) the defendant is residing in the suit premises since the year 1984;
(iii) the plaintiff and defendants are family members;
(iv) the defendant has not filed any counter claim with respect to defendant being co-owner of the property;
(v) the defendant has not filed any separate suit to declare him to be co-owner of the suit property.
12. In view of such admitted position, the fact remains that it is not in dispute that the name of the plaintiff is mentioned in share certificate and, therefore, plaintiff is the owner of the property. The defendant, in his cross-examination, has also admitted that the membership in the share certificate of the society is in the name of plaintiff and that the allotment letter is also in the name of the plaintiff.
13. The fact remains that defendant is residing in the premises without any obstruction and though defendant has raised a contention with respect to Benaami transaction and adverse possession but no defence has been raised by the defendant and no prayer has been sought by the defendant with respect to the said argument. The defendant has relied upon only on the invitation card of Vastu Puja and receipts of installments of loan but the same do not give any legal right to the defendant to reside in the premises.
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14. The defendant has come up with specific defense that the suit property is of the joint ownership but the fact remains that in the record of City Survey, the name of the plaintiff is mentioned and the loan for construction of ground floor was also taken in the name of the plaintiff and the plaintiff has constructed first floor in the year 1987 and is residing there since 1988. Therefore, it can be clearly established that property is in the name of plaintiff and the plaintiff has proved her title to the suit property and the defendant has also not come forward with any defense to prove his co-owernship over the suit premises. Moreover, the appellate Court has given cogent reasons why the judgment is required to be disturbed and proper justification has been given by the appellate Court to alter the judgment of the trial Court
15. By way of long and uninterrupted possession, the defendant cannot be considered as co-owner of the suit premises. Moreover, as defendant has not sought for any relief to declare the defendant to be the owner in view of adverse possession and / or family arrangement, the question of defendant being the owner of the suit property does not arise.
16. As regards the argument of Order XLI Rule 31 of the CPC, this Court finds that the appellate Court has sufficiently dealt with all the issues as raised by the parties. Hence, there is substantial compliance with the provisions of the said rules. That being the case, there is no mandatory law that non-compliance with the provisions, by itself, will vitiate the judgment and make it wholly void.
17. This view has been laid down by several decisions of the Page 7 of 9 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:56:59 IST 2025 NEUTRAL CITATION C/SA/579/2023 ORDER DATED: 01/05/2025 undefined Hon'ble Apex Court, the latest being in Nafees Ahmad and Anr. v. Soinuddin and Ors., 2025 SCC Online SC 826. The Hon'ble Court has held as under:
"5. It appears that the High Court relying upon few decisions took the view that Order 41 Rule 31 CPC is mandatory and the failure on the part of the Appellate Court to frame the points for determination as per the provisions of Order 41 Rule 31 CPC would vitiate the entire judgment and make it wholly void.
6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are in complete disagreement with the view taken by the High Court.
7. We propose to follow the dictum as laid by this Court in the case of "G. Amalorpavam v. R.C. Diocese of Madurai", (2006) 3 SCC 224, wherein this Court observed that whether in a particular cae, there has been substantial compliance, with the provisions of Order 41 Rule 31 CPC should be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions, by itself, may not vitiate the judgment and make it wholly void and may be ignored if there has been a substantial compliance with it. (emphasis supplied).
18. The appellate Court has relied on the judgment passed in the case of Maria Margarida Sequeria Fernandes and Others v. Erasmo Jack de Sequeria (Dead) in Appeal No.2968 of 2012 (Arising out of SLP (C) No.15382 of 2009) decided on 21.03.2012, the Hon'ble Apex Court has observed as under:-
"101. Principles of law which emerge in this case are crystallized as under:-
1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person wuld not acquire Page 8 of 9 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:56:59 IST 2025 NEUTRAL CITATION C/SA/579/2023 ORDER DATED: 01/05/2025 undefined any right or interest in the said property.
2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession.
The caretaker or servant has to give possession forthwith on demand.
3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.
5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession."
19. Under the circumstances, this Second Appeal is devoid of any substantial question of law. The first appellate Court has rightly decided the issue between the parties in the right perspective and as stated above no substantial question of law arises in the present appeal. The appellant has failed to prove his case before the learned appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merit both on facts and law and the same is dismissed at admission stage. Accordingly, connected Civil Application would not survive and it is disposed off.
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