Gujarat High Court
Gambhirbhai Jagmalbhai Gohil vs Jagmalbhai Morarbhai Gohil on 11 July, 2025
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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.
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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
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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,
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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.
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7.6. Making the above submissions, learned Advocate Mr.
Chudasama would request this Court to allow the present
application.
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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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.
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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
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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.
(MAULIK J.SHELAT,J)
MOHD MONIS
