Gujarat High Court
Legal Heirs Of Deceased Vashrambhai ... vs Jivrajbhai Vashrambhai Solanki on 12 February, 2025
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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
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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
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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
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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,
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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.
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[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
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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
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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
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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
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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
