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
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 318 of 2021
==========================================================
SHOBHA RAJUBHAI MISTRY
Versus
SANTRAMJI SHALIRAMJI SHARMA & ORS.
==========================================================
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
==========================================================
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
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
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
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
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
