Gujarat High Court

Maheshbhai Balubhai Ambaliya vs Laxmiben Haribhai Ambaliya W/O Decd. ... on 6 May, 2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                              R/SECOND APPEAL NO. 106 of 2018

                                                          With
                                       CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
                                           In R/SECOND APPEAL NO. 106 of 2018
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                                  MAHESHBHAI BALUBHAI AMBALIYA & ORS.
                                                  Versus
                       LAXMIBEN HARIBHAI AMBALIYA W/O DECD. HARIBHAI KARAMSHIBHAI
                                            AMBALIYA & ORS.
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                      Appearance:
                      MR PRATIK Y JASANI(5325) for the Appellant(s) No. 1,2,3
                      MR.MRUDUL M BAROT(3750) for the Appellant(s) No. 1,2,3
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                        CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                          Date : 06/05/2025
                                                           ORAL ORDER

1. The present Second Appeal has been filed under Section 100 of the

Code of Civil Procedure, 1908 (for short "the Code") being

aggrieved by the judgment and decree dated 15.11.2017 passed by

4th Additional District Judge, Amreli in Regular Civil Appeal

No.11 of 2006 confirming the judgment and decree passed by Joint

Civil Judge Junior Division, Dhari in Regular Civil Suit No.95 of

1991.

2. For the sake of brevity and convenience, the parties are referred to

their original status as that in the suit.







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3. The brief facts arising in the present suit are that the plaintiff's

father Dharamsibhai Bhagwanbhai and defendant's father

Karamsibhai Bhagwanbhai were real brothers and it is a plaintiff's

case that land survey no.275 admeasuring acres 11-04 Gunthas is

of independent ownership and possession of the plaintiff and same

is acquired by the plaintiff by devolution of property through

succession. The plaintiff has put up a case that he has developed

the said land and he is the sole owner of the suit property. The suit

has been filed by the plaintiff is on the ground that the defendant

has no right, title, interest in the land and hence, he has sought

declaration that the suit property is of independent ownership and

possession of the plaintiff and that defendants and others have no

right, title, interest in the property. The plaintiff has also prayed

that the defendants be ordered to remove the cultivation if any,

made by the defendants by way of encroachment of the suit

property.

4. The defendant appeared in the said suit and filed written statement

and amongst other grounds it has been stated by the defendant that

before filing the present suit, the plaintiff had filed Regular Civil

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Suit No.161 of 1981 against the defendant, which has been

unconditionally withdrawn and therefore the suit is barred on the

ground of res judicata.

5. The Trial Court has framed following issues vide exhibit 47:

"(1) Whether the plaintiff proves that land Survey No.274 Acres 11-04 Gunthas of Khambha Sim is of the independent ownership and possession of the plaintiff and in this land, the defendants have no any share, right, title or interest?

(2) Whether the plaintiff proves that he is entitled to get declaration and injunction as prayed for?

(3) Whether the defendants prove that the suit land has been partitioned into two shares?

And western side share gone in the portion of the father of the defendants and eastern side portion gone in the share of the father of the plaintiff?

(4) Whether the suit of the plaintiff is barred by limitation?

(5) Whether the plaintiff's suit is bared by res-judicata? (5A) Whether the defendants prove that they have become owner of the suit land by way of adverse possession?

(5B) Whether the suit is bad for non-joinder of the parties?

(6) What order & decree?"

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6. The plaintiff had examined himself vide exhibit 52 whereas the

defendant examined himself vide exhibit 102 and after taking into

consideration the oral and documentary evidence and giving

finding on all the issues, the Trial Court had dismissed the said

suit.

7. Being aggrieved by the said judgement and decree, the present

plaintiff had filed appeal under the provisions of Section 96 of the

Code of Civil Procedure, 1908 and by a judgement and decree

dated 15.11.2017, the said appeal has been rejected by the First

Appellate Court while confirming the Judgement and decree

passed in Regular Civil Suit no.95 of 1991, hence, the present

second appeal.

8. Learned advocate for the plaintiff has mainly contended that the

Trial Court and the Appellate Court have not considered the legal

possession of plaintiff as the plaintiff was having possession of the

suit property. It has also been argued that by considering exhibit

135, the Trial Court and the Appellate Court has only considered

the hissa which is based on the 7-12 abstract. It has also been

argued by the learned advocate for the plaintiff that though the

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issue no.1 and 2, were to be proved by the plaintiff and the same

were proved by the plaintiff, the Trial Court has treated the same as

not proved and therefore has committed an error.

9. It has also been argued that though the plaintiff has produced

relevant revenue record to show that the suit property is of

ownership and possession of the plaintiff, the Trial Court and the

Appellate Court has not taken into consideration the said fact. It

has also been argued that there is nothing on record that survey

no.275/1 and Survey no.275/2 have been partitioned and the

partition has not been proved on record. It has also been argued

that the Suit that was filed earlier (Regular Civil Suit No.161 of

1981) and the present suit are different and hence the present suit

cannot be considered as barred on the ground of Res Judicata. On

the aforesaid counts, it has been argued that there are substantial

questions of law involved in the present second appeal and

therefore, the present second appeal is required to be admitted on

the substantial questions of law, formulated in the memorandum of

appeal.

10. Having heard learned advocate for the plaintiff, in view of the oral

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evidence of the plaintiff vide exhibit 52 and the oral evidence of

defendant no.2, vide exhibit 102, it can be clearly established that

the partition of property took place between the father of the

plaintiff and defendant and thereafter demarcation was made

between the parties. The said partition took place before eighty

years and the revenue entry to that effect in the name of plaintiff's

father and defendant's father had already taken place. It is in this

view that as per exhibit 135 in column 4, the name of the possessor

is shown as Balubhai Dharamsibhai, i.e. the predecessor of the

present plaintiff. Whereas in hissa no.2, the name of possessor is

Haribhai Karamsibhai, i.e. father of the defendant and therefore the

Trial Court has come to the conclusion that two shares had taken

place of survey no.275 and by way of partition, one share came in

the possession of the plaintiff and therefore the plaintiff and

defendant both are in joint possession of survey no.275.

11. Moreover, it is also required to be noted that in Regular Civil Suit

no.161 of 1981, (filed by the plaintiff), the plaintiff has stated that

the defendants have encroached the land bearing Survey no.275

and the prayer in that suit was for removal of the encroachment and

to handover the possession of the premises to the plaintiff whereas

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in the present suit, the plaintiff has come forward with a case that

the plaintiff is in possession of survey no.275. Hence, a completely

contrary stand has been taken by the plaintiff by filing the letter

suit, i.e. Civil Suit No.95 of 1991.

12. In the present suit, the defendant has also examined the surveyor at

exhibit 124 and the said surveyor has also deposed that on

16.12.1973, the measurement of land survey no.275 was done and

Balubhai Dharamsibhai i.e. predecessor of the plaintiff were

shown in possession of the land admeasuring 9 bigha and 11 Vasa

in survey no.275/1 and the predecessor of the present defendant are

in possession of land survey no.275/2 and therefore, it has been

clearly established that the predecessor of the plaintiff and

predecessor of the defendant have partitioned revenue survey

no.275 into survey nos.275/1 and 275/2.

13. It is also required to be noted that the earlier suit that is Regular

Civil Suit No.161 of 1981 has been withdrawn by the plaintiff and

though the said suit is not decided on merits but the fact remains

that after withdrawing the said suit, the plaintiff has filed the

present suit without taking leave of the Court to file a fresh suit at

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the time of withdrawal of Regular Civil Suit No.161 of 1981, and

therefore the Trial Court has rightly held that though the suit is not

decided on merits after withdrawal of the said suit, the plaintiff

could not have filed Regular Civil Suit no.95 of 1991. It is

therefore also clear that no leave of the Trial Court under Order

XXIII Rule 1(3) of the Code was obtained by the plaintiffs for

initiation of a fresh suit. Therefore also, the present suit is not

sustainable in the eye of law.

14. The other relevant point is also required to be noted that though the

plaintiff is claiming right through his father and that though the

defendant had taken a ground that the mother of the defendant was

residing with the defendant and the defendant had stated that the

suit land was given to the mother of the defendant for her

maintenance, the defendant's mother was not joined as a party in

the suit. The fact also remains that though the suit was for

injunction along with the reliefs for injunction the plaintiff had also

sought for relief for a declaration to declare the plaintiff to be the

owner of the suit premises and that being the case, as the mother

of the defendant was a co-owner of Survey no.275, she was also a

necessary and proper party.





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15. In view of the aforesaid, this Court is of the view that there are no

substantial questions of law involved in the present case. Since

there are no substantial questions of law involved in the present

second appeal on the fact that the Trial Court and the Appellate

Court have given concurrent finding of fact, the instant appeal is

required to be dismissed.

16. It is required to be noted that in Second Appeal, the scope is very

limited and the Court cannot re-appreciate the evidence. In the case

of Navaneethammal v. Arjuna Chetty reported in 1996 (6) SCC

177, the Hon'ble Apex Court has observed as under:-

"11. This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts."

17. In the case of Jaichand (Dead) through Lrs and Other v.

Sahnulal and Another reported in 2024 SCC OnLine SC 3864,

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the Hon'ble Apex Court has observed as under:-

"28. It is thus clear that under Section 100 CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence."

18. Therefore, also the plaintiff has miserably failed to show that there

is any substantial question of law involved in the present appeal

and the substantial question of law which has been formulated in

the memo of appeal are also not substantial question of law and on

facts and the said factual aspect has well been considered by the

Trial Court and the First Appellate Court.

19. Under the circumstances, this Second Appeal is devoid of any

substantial question of law. Both the learned Trial Court and first

appellate Court have rightly decided the issue between the parties

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