Gujarat High Court
Lh Of Decd Tulshibhai Dhulabhai ... vs Lh Of Decd Laxmanbhai Dhulabhai Vankar ... on 6 October, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 409 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/SECOND APPEAL NO. 409 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
Yes
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LH OF DECD TULSHIBHAI DHULABHAI DINESHBHAI TULSHIBHAI
VANKAR
Versus
LH OF DECD LAXMANBHAI DHULABHAI VANKAR URMILABEN D/O
LAXMANBHAI DHULABHAI VANKAR & ORS.
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Appearance:
MR ANKIT Y BACHANI(5424) for the Appellant(s) No. 1
MS. R. C. CHAVDA(14146) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 06/10/2025
ORAL JUDGMENT
1. The present Second Appeal under Section 100 of the Code
of Civil Procedure has been filed challenging the judgment and
decree, dated 08.07.2025, passed by 4th Additional District
Judge, Petlad, in Regular Civil Appeal No. 20 of 2024, where by
the judgement and decree passed by Principal Civil Judge
Sojitra, in Regular Civil Suit No. 24 of 2019, dated
03.08.2024 ,has been confirmed.
2. For the sake of brevity, the parties are referred to as per
their original status as that in the suit.
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3. The brief facts arising in the present Second Appeal are
that the plaintiff filed a suit on the ground that the suit property
belonged to late Dhulabhai Shanabhai Vankar, and that he is a
common ancestor of the plaintiff and defendants and after the
demise of their grandfather, name of the legal heir of her
grandfather i.e. late Laxmanbhai Dhulabhai, late Tulsibhai
Dhulabhai and late Keshavbhai Dhulabhai were mutated in the
revenue records, the plaintiff states that her name was mutated
in the revenue record after the death of her father i.e. late
Laxmanbhai Dhulabhai and initially the names of defendant
Nos. 1 to 1/7 were also mutated in the revenue record after the
death of their father, late Tulsibhai Dhulabhai and the name of
mother of defendant Nos. 2.1 to 2.3 and names of defendant
Nos. 2.4 and 2.5 were are also mutated in the revenue record
after the death of their father, late Keshavbhai Dhulabhai, and as
the plaintiff had shought for her share in the suit properties from
the defendants and as the defendants were not willing to give the
said share, the plaintiff had issued legal notice on 04.01.2016,
and thereafter, the plaintiff filed suit for declaration that the
plaintiff is having 1/ 3 share in the suit property and for partition
to be given as per her share and ancillary relief for injunction.
The summons of the said suit were served on defendant No.1.1
to 1.6, vide Exhibit-22, defendant No.2.1 to 2.3, and they
appeared through the advocate, vide exhibit 29, defendant
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No.2.4 and 2.5 appeared through their advocate, vide Exhibit-31
and defendant No.1.7 though served failed to appear in the said
suit.
4. Defendant No.2.1 to 2.3 filed their written statement, vide
Exhibit-36 wherein they supported the case of the plaintiff that
if the share of the plaintiff is given in the suit property, they
have no objection. The rest of the defendants have not filed their
written statement and the stage of written statement was closed.
The trial Court framed issues vide Exhibit-54, which reads as
under:-
Sr. No. Issues
1. Whether the plaintiff proves that, the property bearing
Account No. 448, Survey No. 1036 and Survey No. 1131
and Survey No.1211/2 and Survey Nos. 1235, situated at
Village Sojitra, Taluka Sojitra had been received by the
father of the plaintiff as well as father of the Respondents
by way of succession after the death of the grandfather of
the plaintiff namely Dhulabhai Shanabhai Vankar?
2. Whether the plaintiff proves that, he is entitled to have
the right of 1/3 share by way of succession in the
property bearing Account No. 448, Survey No. 1036 and
Survey No. 1131 and Survey No.1211/2 and Survey Nos.
1235, situated at Village Sojitra, Taluka Sojitra?
3. Whether Respondent No.2 proves that, he is also entitled
to have the right of 1/3 share by way of succession in the
property bearing Account No. 448, Survey No. 1036 and
Survey No. 1131 and Survey No.1211/2 and Survey Nos.
1235, situated at Village Sojitra, Taluka Sojitra?
4. Whether the plaintiff is entitled to get the relief as sought
for in the plaint / application ?
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5. What order and decree?
5. The plaintiff examined himself, vide Exhibit-56 and
defendant neither cross-examined the plaintiff nor entered the
witness box and after considering the oral evidence of the
plaintiff and documentary evidence of the plaintiff and giving
findings on all the issues, the trial court allowed the said suit and
held that the plaintiff is entitled to 1/3 share in the suit property
and the legal heir of Tulshibhai Dhulabhai Vankar i.e. defendant
No.1/1 to 1/7, entitled to 1/3 share in the suit property and
defendant No.2/1 to 2/5 are entitled to 1/3 share in the suit
property and directed the collector, Anand District or any
official authorized by him to make partition as per decree and
report thereof within 60 days upon which the final decree can be
passed. Aggrieved by the said judgement and decree passed by
the trial court, defendant No.1/1 filed Regular Civil Appeal No.
20 of 2024 and after appreciating the evidence, the First
Appellate Court dismissed the said Appeal and aggrieved by the
same, the present Second Appeal is filed.
6. Learned advocate for the defendant has mainly argued that
the trial Court and the First Appellate Court have erred in
appreciating the evidence and documents on record and have
passed an order without taking into consideration the relevant
facts. It has been argued by the learned advocate for the
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defendant that the Appellate Court has not considered the
registered will and has not reappreciated the facts, and therefore,
the ex-parte decree passed by the trial court and could not have
confirmed by the First Appellate Court.
7. It has been argued by the learned advocate for defendant
that the Appellate Court could not have rejected the registered
will, which was produced on record before the Appellate Court
and that the First Appellate Court has not taken into
consideration the provisions of Order-XLI, Rule 27 of the Code
of Civil Procedure, which allows additional evidence to be
produced in the appeal in certain circumstances, in view of the
fact that defendant has fairly shown inability to produce the
same during the proceedings before the trial Court, despite due
diligence, due to error of learned advocate, the defendant could
not furnish the crucial evidence at the trial stage, in view of the
fact that the will of the father of the plaintiff altered the nature of
succession, and therefore, the same being the document on
record before the Appellate Court, the Appellate Court could not
have rejected the said Appeal. In view of the said fact the
present Second Appeal be admitted on the following substantial
question of law:-
(i) Whether the judgment and decree of Appellate court is
erroneous, wrong, illegal and against the settled
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provisions of law?
(ii) Whether the Appellate court has erred in law in discarding
the oral evidence produced by present appellant?
(iii) Whether the respective Appellate court has erred in law by
refusing to consider the Registered Will of deceased
Lakshmanbhai, which was crucial for just a
determination of the rights of the parties, on the sole
ground that it was not produced before the Trial Court,
particularly when the appellant claims a lack of
knowledge of the ex- parte proceedings due to oversight
of advocate?
(iv) Whether the ex-parte decree passed by the Trial Court,
upheld by the Appellate Court, amounts to a denial of
natural justice to the appellant, given that the appellant
was allegedly not duly informed by his advocate about
the proceedings, thereby, being deprived of the
opportunity to present a crucial defence?
(v) Whether, in a suit for partition of ancestral property, the
existence of a valid will bequathing a share of the
deceased co-parcener's property fundamentally alters
the nature of the succession to that share, and if so,
whether the Courts below erred in not considering
the impact of such will on the claim of plaintiff for a share
in that specific portion of the property?
(vi) Whether the findings of the lower appellate court are
pervese in law for failing to acknowledge and consider
the implicaions of the unproduced Will, which, if proven,
would significantly alter the legal rights and shares of the
parties in the suit properties?
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(vii) Whether the respective Appellate court has erred in not
considering that the suit filed by plaintiffs is time- barred
and must be dismissed regardless of whether defendants
raise the issue of Limitatino or not?
(viii) Whether the Appellate Court had erred in not concluding
that the time-barred Civil Suit instituted by the plaintiff
has been wrongly allowed under the provisions of the
Code of Civil Procedure?
(ix) Whether the Appellate Court has committed an error of
law in upholding the order passed by Ld. Trial Court
allowing the plaint of the plaintiff under Civil Procedure
Code?
(x) Whether the Appellate Court had erred in passing one-
sided, biased, and prejudiced order?
8. Having heard learned advocate for the plaintiff and having
considered the judgment and decree passed by the trial Court
and confirmed by the First Appellate Court, the following are
undisputed facts:
(a) The plaintiff has filed the suit for partition with respect to
her share, which she received from her father late Laxmanbhai
Dhulabhai.
(b) It is also an admitted position that the suit property belong
to late Dhulabhai Shanabhai Vankar, and after the demise, the
suit property mutated in the name of his three children,
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Laxmanbhai Dhulabhai, Keshavbhai Dhulabhai and Tulshibhai
Dhulabhai, the plaintiffs are claiming right with respect to the
rights that late Laxmanbhai Dhulabhai.
(c) The defendant No.1.1 to 1.7 will have a right qua the right
that was mutated in the name of Tulshibhai Dhulabhai.
(d) The mother of defendant No.2.1 & 2.3 and defendant
No.2.4 & 2.5 will have a right in view of the name of late
Keshavbhai Dhulabhai mutated in the revenue record.
9. Therefore, the case of the plaintiff before the trial court
was that the plaintiff will have 1/3 share in the property.
Defendant No.1.1 to 1/7 will have 1/ 3 share qua the right of late
Tulshibhai Dhulabhai and defendant No.2.1 to 2.5 will have 1/3
share qua the right of late Keshavbhai Dhulabhai, there is no
dispute that the plaintiff is the daughter of late Laxmanbhai
Dhulabhai, the plaintiff has produced revenue record to support
her case in the proceedings. If the oral evidence of the plaintiff
is taken into consideration which has been produced vide
Exhibit-56, it has been proved that the suit property is an
ancestral property, and if the revenue record, Entry No. 8975 is
taken into consideration, the plaintiff has proved that initially
the property was owned by late Dhulabhai Vankar and after the
demise, the name of the father of defendant was mutated in the
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revenue record. In the present case, it has been proved that late
Dhulabhai Shanabhai Vankar expired on 02.06.1997, and
therefore, the succession opened in the year 1997, and the father
of the plaintiff will have 1/3 share in the property. Therefore, the
trial court after taking into consideration all the facts and the
facts that neither the plaintiff has been cross-examined nor the
defendant has led any evidence to support their case, the trial
court has rightly allowed the said suit taking into consideration
the share of the plaintiff and the defendant.
10. It is only at the stage of Appeal that that the defendant
No.1 has come forward with a case that will has been executed
by the father of the plaintiff, if the record and proceedings of the
trial court are taken into consideration, the defendants have
neither filed any written statement nor they have cross-examined
the plaintiff nor they have entered in the witness box in view the
fact that they have not filed any written statement and it is only
at the stage of appeal that the defendant No.1 states that as
defendant No.1.1 had taken care of the predecessor father, he
had given his share in the disputed property to the defendant
No.1 by executing the said will. The said will alleged to be
executed by the deceased Laxmanbhai Dhulabhai was not
produced before the trial court nor the same is produced under
Order XLI, Rule 27 of the Code of Civil Procedure, which
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reads as under:-
"27. Production of Additional Evidence in Appellate
Court.
(1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or
documentary, in the Appellate Court, But if-
(a) the Court from whose decree the appeal is preferred
has refused to admit evidence which ought to have been
admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or
could not, after the exercise of due diligence, be produced
by him at the time when the decree appealed against was
passed, or
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause,
the Appellate Court may allow such evidence or document
to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall record
the reason for its admission."
11. Therefore, as the said will has not been proved by the
defendant nor it is produced before the trial court and has not
been produced under Order XLI, Rule 27 of the Code of Civil
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Procedure, the same has rightly not been taken into
consideration by the First Appellate Court. Therefore, the trial
court and First Appellate Court have rightly passed the
judgment and decree. In view of the same, no interference is
required and the present Second Appeal is required to be
dismissed.
12. Considering the submissions made and after examining the
findings of both the Courts below on the issue raised in the suit
and upon examining the judgment and orders of both the Courts
below, this Court is of the considered opinion that the learned
advocate for the defendant is unable to point out any infirmity,
perversity or impropriety in the concurrent findings of the fact
recorded by both the Courts below, not only that, the learned
advocate for the defendant is unable to show that the findings
recorded by the learned Courts are without any evidence or there
is any illegality in the findings.
13. In the case of Jaichand (Dead) through Lrs and Other
v. Sahnulal and Another reported in 2024 SCC OnLine SC
3864, 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
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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."
14. 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 in the right perspective and as stated above no substantial
question of law arises in the present appeal. The defendant has
failed to prove his case before the learned trial Court as well as
before the first appellate Court. This Court does not find any
substance in the present Second Appeal as the same is devoid of
any merit both on facts and law and the same is dismissed at
admission stage.
15. In view of the order passed in the main matter, Civil
Application does not survive and stands disposed of
accordingly.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
