Savitaben Fatiyabhai Vasava vs Zinakiben Jagalabhai Vasava ...
2024 Latest Caselaw 890 Guj

Gujarat High Court

Savitaben Fatiyabhai Vasava vs Zinakiben Jagalabhai Vasava ... on 2 February, 2024

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      C/SA/435/2023                                       ORDER DATED: 02/02/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/SECOND APPEAL NO. 435 of 2023

                                  With
               CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
                   In R/SECOND APPEAL NO. 435 of 2023
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                     SAVITABEN FATIYABHAI VASAVA
                                Versus
               ZINAKIBEN JAGALABHAI VASAVA (DECEASED)
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Appearance:
MR ANKIT B PANDYA(5906) for the Appellant(s) No. 1
PRITHU PARIMAL(9025) for the Appellant(s) No. 1,2,3,4
for the Respondent(s) No. 1,1.1,1.2,1.3,2,2.1,2.2,2.3
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 02/02/2024

                                  ORAL ORDER

1. This Second Appeal is filed being aggrieved by the

judgment dated 17.12.2013 passed by the Principal Civil

Judge, Jhagadiya in Regular Civil Suit No.3 of 2009 and the

judgment dated 20.9.2022 passed by the 3 rd Additional

District Judge, Bharuch at Ankleshwar in Regular Civil

Appeal No.1 of 2014.

2. The brief facts leading to filing of this Second

Appeal are such that the appellants and respondents belong

to Adivasi community; that the mother of the appellants and

the respondents i.e. Bhamtiben was first married to

Chhaganbhai Chhaniyabhai and out of the said wedlock, two

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sons namely Fatiyabhai and Ganpatbhai and two daughters

namely Dhaniben and Bhokhiben were born; that the present

appellants are the legal heirs of late Fatiyabhai Vasava,

whereas the respondent no.2 are the legal heirs of late

Bokhiben Chhaganbhai Chhaniya; that after the death of

Chhaganbhai Chhaniyabbhai the mother i.e. Bhamtiben

married Jaglabhai Vechanbhai and the respondent no.1 i.e.

original plaintiff was born out of this second marriage; that

the children of Bhamtiben from the first marriage including

Fatiyabhai were raised by Jaglabhai Vechanbhai as his own

children and since he had no other sons, he raised

Fatiyabhai as his adopted son; that after the death of

Jaglabhai Vechanbhai, Fatiyabhai i.e. appellant got his name

entered into the revenue records qua the suit properties vide

entry no.1484 dated 14.8.1986; that after passing away of

Fatiyabhai, the present appellants i.e. the legal heirs of

Fatiyabhai got their names entered into the revenue records

qua the suit properties on 23.9.1989 vide entry no.1691; that

the appellants herein have been in possession of the suit

properties since then; that the respondent no.-1original

plaintiff filed RTS Appeal No.48 of 2008 before the Assistant

Collector at Ankleshwar, challenging the aforesaid mutation

entries, which was dismissed; that the respondent no.1-

original plaintiff filed Regular Civil Suit No.43 of 2008 before

the learned trial court, which suit was withdrawn by her

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without any permission or liberty from the learned trial court

to file a suit afresh; that the respondent no.1-original plaintiff

then filed the present suit being Regular Civil Suit No.3 of

2009, which was partly allowed by declaring the respondent

no.1-original plaintiff as sole owner of the suit properties and

by further holding that the present appellants have no right,

title, interest or share in the suit properties; that being

aggrieved by the same, the appellants filed Regular Civil

rd Additional District

Judge, Bharuch at Ankleshwar which was dismissed on

20.9.2022. Hence, this appeal.

3. Heard learned advocate Mr.Prithu Parimal for the

appellants. He has submitted that the suit which is filed as

Regular Civil Suit No.3 of 2009 is barred by principle of res

judicata since another Regular Civil Suit No.43 of 2008 filed by respondent no.1-original plaintiff seeking 1/3rd share in

the suit property had been withdrawn by her without any

permission or liberty from the trial court to file a fresh suit

pertaining to the same matter. He has submitted that the

provisions of Hindu Succession Act, 1956 do not apply to the

parties of the present suit since they belong to Adivasi

community and both the courts below have erred in applying

the provisions of the Act in deciding the instant dispute; that

the appellants have been in possession of the suit property

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for more than thirty years prior to filing of the present suit

and therefore by way of adverse possession, the appellants

have perfected their title and rights over the suit properties;

that even the plaintiff has not proved her case and has not

discharged her burden of proof as the plaintiff; that the

learned trial court has not considered that the suit has been

filed by respondent no.1-original plaintiff after grave delay

and same is filed only an afterthought and the plaintiff has

not offered any reasonable explanation for such delay and

therefore it should be fatal to the case of the present

plaintiff but the courts below have not considered these

issues in proper context. Therefore, the present appeal is

required to be admitted.

3.1 In support of his submission, learned advocate for

the appellant has relied on the following judgments:

(i) on the aspect of res judicata, in the case of University of

Agricultural Sciences V/s Saroj Gupta reported in 2021(16) SCC 768.

(ii) on the aspect of adverse possession, in the case of

Md.Mohammad Ali (Dead) by Lrs. V/s Jagadish Kalita and others reported in 2004(1) SCC 271;

(iii) on the aspect of principal of estoppel, in the case of

Commissioner of Excise and Another V/s Manoj Ali and

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Another reported in 2006(13) SCC 88;

4. Therefore, he prays to allow this appeal as

substantial questions of law involved in the present appeal

which are suggested in the memo of the appeal, which read

as under are required to be considered.

"A. Whether the present suit is barred by the doctrine

of res judicata once a prior suit pertaining to the

present subject matter was withdrawn by the original

plaintiff, without any permission or liberty from the

Ld.Trial Court to file afresh;

B. Whether the provisions of the Hindu Succession Act,

1956 would govern the present case.

C. Whether the ground of adverse possession ought to

be considered when the same is raised in defence by

the Appellants in the suit.

D. Whether the Ld.First Appellate Court was required

to frame proper questions of law and fact while

deciding the First Appeal.

E. Such other questions as may be urged at the time

of hearing of the present Second Appeal."

5. I have considered the submissions made at the

bar, also perused the judgment passed by the courts below

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and I have also perused the judgments cited at the bar in

support of the contentions raised in the present appeal. It

transpires from the order of the learned trial court that after

the suit was filed, notice was served and the defendant

nos.1,3 and 4 have adopted the written submissions filed by

defendant no.2 and defendant no.5 has filed her written

statement separately, therefore, all the defendants have

contested the suit by raising defence as per their written

statement. Thereafter, the documentary evidence as well as

oral evidence are adduced and produced by the plaintiff as

well as the defendant nos.1 to 4 in support of their case

which are recorded in paragraphs 4 and 5 of the judgment of

the learned trial court which is reproduced as under:

"4. The plaintiff has produced the following oral and

documentary evidence in support of her case.

(a) ORAL EVIDENCE;

1. Jinkiben D/o Jaglabhai Vechanbhai (plaintiff) Exh.20

2. Ishwarbhai Bhavanbhai Vasava Exh.31

3. Ramanbhai Chhaganbhai Vasava Exh.42

(b) DOCUMENTARY EVIDENCE:

1. Village form no.8 A for khata no.13 Exh.22

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2. Village form no.7 & 12 for survey no.64 Exh.23

3. Village form no.7 & 12 for survey no.67A Exh.24

4. Village form no.7 & 12 for survey no.67B Exh.25

5. Village form no.7 & 12 for survey no.460 Exh.26

6. Village form no.8A for Khata no.75 Exh.27

7. Mutation entry no.1484 dated 14-08-86 Exh.28

8. Office copy of notice sent by plaintiff to defendant no.1. Exh.29

9. Withdraw pursis filed by plaintiff in RCS No.43/08 Exh.30

5. The defendants no.1 to 4 have produced following

oral and documentary evidence in support of their case.

(a) ORAL EVIDENCE:

1. Kantibhai Fatiabhai Vasava (defendant no.2) Exh.53

(b) DOCUMENTARY EVIDENCE:

1. Notice sent by court of Assistant Collector, Ankleshwar Exh.55

2. Copy of application of RTS Appeal Exh.56

3. Village form no.8A for khata no.75 Exh.57

4. Birth Certificate of Mangiben Fatiabhai Exh.58

5. BPL Card Exh.59

6. Order in RTS Appeal No.48/08 Exh.60

7. Notice sent by the plaintiff to defendant no.1 Exh.61

8. Reply notice sent by defendant no.1 to the plaintiff Exh.62

9. Death Certificate of Fatiabhai Jaglabhai Vasava Exh.63

10. Pedegree of Jaglabhai Vechanbhai Vasava Exh.64

11. Receipts of revenue. Education cess, house tax for Exh.65 different years (30 in numbers) to 94

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Thereafter, the issues framed and findings given by the

learned trial court are stated in paragraphs 6 and 7 of the

judgment, which read as under:

"6. For the determination of the suit my learned predecessor has framed the following issues vide Exh-14.

Issues:

(1) Whether the plaintiff proves that she is the sole lineal descendant of the deceased Jagla Vechan Vasava? (2) Whether the plaintiff proves that she has become the owner of the suit properties only as lineal descendant ?

(3) Whether the plaintiff proves that the defendant nos.1 to 4 are holding adverse possession over the suit properties?

(4) Whether the plaintiff is entitled for mesne profits from the defendants?

(5) Whether the plaintiff proves that the suit is barred by res judicata?

(6) Whether the plaintiff is entitled for the prayers prayed for in the plaint?

(7) What order and decree?

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7. My findings on the above issues are as under:

1. Affirmative

2. Affirmative

3. Affirmative

4. Negative

5. Negative

6. Partly Affirmative

7. As per final order."

6. For arriving at such findings, the learned trial

court has has dealt with the issue regarding the

applicability of the provisions of Sections 24, 25, 29, 36 and

37 of the Indian Succession Act, which provisions are

reproduced hereunder:

"24. Kindred of consanguinity - Kindred or consanguinity is the connection or relation of persons descended from the same stock or common ancestor.

25. Lineal Consanguinity :- (1) Lineal Consanguinity is that which subsists between two persons one of whom is descended in the direct line from the other, as between a man and his father, grandfather and great- grandfather and so upwards in the direct ascending

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line; or between a man and his son, grandson, great- grandson and so downwards in the direct descending line.

(2)......

(3) ......

29. Application of Part. - (1) This part shall not apply to any intestacy occurring before the first day of January, 1866, or to the property of any Hindu, Mohammedan, Buddhist, Sikh or Jain;

(2) Save as provided in sub-section (1) or by any other law for the time being in force, the provisions of this part shall constitute the law of India in all cases of intestacy.

36. Rules of distribution - The rules for the distribution of the intestate property (after deducting the widow's share, if he has left a widow) among his lineal descendants shall be those contained in sections 37 to 40.

37. Where intestate has left child or children only. - Where the intestate has left surviving him a child or children, but no more remote lineal descendants through a deceased child, the property shall belong to his

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surviving child, if there is only one, or shall be equally divided among all his surviving children."

7. Considering the above provisions, the learned trial

court has come to the definite conclusion that the provisions

of Part-V of the Indian Succession Act would be the law of

India in all cases of intestacy except in cases mentioned in

sub-section(1) of Section 29 and any other law which includes

customary law. In the present case, the defendants have

failed to prove any customary law governing intestate

succession of the parties to the suit. Hence, part-V of the

Indian Succession Act is applicable to all the parties to the

suit.

8. This finding of the learned trial court is, in my

opinion, absolutely correct, more particularly, when the

defendants are disputing about the applicability of the

provision of any law, then the burden is cast on the

defendants to prove the same by providing necessary

material. In absence of such material, the trial court has

rightly come to the conclusion with regard to the same.

9. The another issue of the defendants was that they

have possession for more than thirty years in the land in

question, which was considered by the learned court below to

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the effect that as per the say of the defendants, they are

holding possession of the suit lands considering themselves as

lineal descendants of deceased Jaglabhai and therefore there

is no animus of holding the suit lands adversely on the part

of the defendants. In fact in their written statement also, the

defendants have pleaded that they are linear descendants of

the deceased and they are not having any requisite animus

and hence no matter how long the defendants are in

possession of the suit land, the period of prescription has not

commenced.

10. Thereafter, the learned court below has referred to

some revenue proceeding commenced by the parties and came

to the conclusion that when the plaintiff came to know about

the entry, she filed RTS appeal being Appeal No.48 of 2008

and thus, the possession of the defendants over the suit

lands becomes adverse to the plaintiff only when she came to

know about the mutation entries. Till the possession of the

defendants was not adverse for the plaintiff and the

defendants have failed to prove that they have prescribed

title by way of adverse possession. This finding of the

learned appellate court is also in consonance with law and as

per the material available on the record.

11. The other issue with regard to applicability of

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Section 11 of CPC is also dealt with properly by the learned

trial court and has rightly come to the conclusion that when

the former suit and is heard and finally decided by a court

competent to try the subsequent suit then only the principle

of res judicata shall apply. In the present case, the former

suit being Regular Civil Suit No.43 of 2018 which was filed

by the plaintiff was withdrawn by filing withdrawal pursis

and the said suit was not finally decided on merits and

therefore the res judicata would not apply.

12. The provisions of Order 23 Rule 1 of CPC is also

discussed in detail by the court below and the court has

rightly partly allowed the suit after appreciating the evidence

available on the record.

13. Against the said judgment, the appeal is preferred

by the present appellant before the District and Sessions

Court being Regular Civil Appeal No.1 of 2014, which is also

dismissed. The learned first appellate court has also recorded

sufficient reasons in the judgment and also discussed the

scope of appeal under Section 96. The argument raised by

learned advocate for the appellant that the suit is barred by

the provisions of Sections 73AA and 73AC of the Land

Revenue Code is also dealt with by the learned lower

appellate court by giving cogent and convincing findings in

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paragraphs 22 and 23 of the judgment. The learned lower

appellate court has referred to the judgment in the case of

Madhu Kishwar & Ors V/s State of Bihar & Ors. Reported in 1996(5) SCC 125, while dealing with the issue that the parties are tribal and in their custom, female member has no

right to inherit immovable propertly, however, the appellant

has not cited any provisions of law or not produced any

evidence to prove this custom. Hence, the submission of the

appellant was not accepted and the court has found that

otherwise also, if there had been any such custom, then such

custom should be required to be treated to be inappropriate

in view the principles laid down in the judgment in the case

of Madhu Kishwar (supra).

14. In view of the aforesaid discussion, I find that

there is no merit in the present case and both the courts

below have arrived at the findings which are in accordance

with law and in consonance with the material available on

the record. The interpretation of the documentary evidence as

well as appreciating of oral evidence is also found in

accordance with law and no error apparent on the record is

committed by the learned courts below.

15. There cannot be any dispute with regard to the

judgments cited at bar by the learned advocate for the

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appellant and they are binding to this Court, however, in the

facts of the present case and in view of the above mentioned

discussion, such judgments are not helpful to the case of the

present appellant.

16. Otherwise also, while exercising powers under

Section 100 of the CPC the court has to consider whether

there is any substantial question of law for consideration or

not.

17. It is fruitful to refer the judgment in the case of

Gurbachan Singh (Dead) Through Lrs Gurcharan Singh

(Dead) Through Lrs and Others.reported in 2023 SCC Online

SC 875 paragraphs 7, 14 and 15 which are reproduced as

under:

"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed v. J. Kamala (2- Judge Bench), it was observed:--

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"27. In HeroVinoth v. Seshammal [HeroVinoth v.

Seshammal, (2006) 5 SCC 545], this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545] are set out hereinbelow : (SCC p. 554, para 21)

"21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means-- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with--technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)

(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In

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Guran Ditta v. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969] : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314], AIR p. 1318, para 5)

'5. ... when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular

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facts of the case it would not be a substantial question of law.'

28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way." (Emphasis supplied)

14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgment entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are:--

"(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably

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capable of supporting the finding."

15. A Bench of three learned Judges, recently in Balasubramanian v. M. Arockiasamy (Dead) Through LRs. , had referred to, with approval judgment rendered in Ramathal v. Maruthathal (two-Judge Bench) wherein it was observed that the restraint in interfering with questions of fact under the jurisdiction of second appeal, is not an absolute rule. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence "suffers from material irregularity"

the court will be justified in interfering with such findings."

18. As no substantial questions of law emerges for

consideration of this court in the present matter, in view of

the above discussion, there is no merit in the present case

and this appeal is dismissed with no order as to costs.

(SANDEEP N. BHATT,J) SRILATHA