Gujarat High Court
Meniben Hamirbhai Vadher vs Kaviben Wd/O Ramsibhai Ahir on 15 October, 2025
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C/SA/460/2025 JUDGMENT DATED: 15/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 460 of 2025
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2025
In
R/SECOND APPEAL NO. 460 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
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MENIBEN HAMIRBHAI VADHER & ORS.
Versus
KAVIBEN WD/O RAMSIBHAI AHIR & ORS.
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Appearance:
MR AFTABHUSEN ANSARI(5320) for the Appellant(s) No. 1,2,3,4
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 15/10/2025
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 28.7.2025, passed by principal District Judge Gir -
Somnath, at Veraval, in Regular Civil Appeal No. 87 of 2024,
which affirmed the judgement and decree dated 17.5.2024,
passed by Senior Civil Judge, Veraval in Special Civil Suit No.
43 of 2011.
2. For the sake of brevity the parties are referred to as per
their original status as that in the suit.
3. The brief facts arising in the present Second Appeal are
that the plaintiff has filed the suit to claim 1/8 share in the suit
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property. It is the case of the plaintiff that, the suit property
belonged to the father of the plaintiff and that defendant No.1/1
is the mother of plaintiff and defendant No.1/2/, 1/3, 1/6 & 1/7
and defendant No.1/4 and 1/5 are plaintiff's sister and defendant
No.1/2 is the wife of plaintiff's brother and defendant No.2/2 to
2/5 are the children of deceased brother of the plaintiff.
4. The plaintiff filed the suit on the ground that the plaintiff
has never relinquished his rights in the property and the
defendants have tried to enter their names in the revenue records
by Entry No. 2053, which was challenged by the plaintiff and
the Mamlatdar at Veraval had cancelled the said revenue entry
No. 2053, by an order dated 27.3.2000 and aggrieved with the
said order, the defendant has filed RTS Appeal No. 22 of 2003,
before the Deputy Collector, Veraval and by an order dated
30.4.2004, the said RTS Appeal was also rejected and aggrieved
by the same, Revision Application No. 30 of 2004 was filed
before the Collector, Junagadh and the Revision Application
was also rejected by order dated 06.04.2007, and thereafter, the
plaintiff had issued notices to the defendants with respect to
their right, title, interest in the suit property and the same was
replied by the defendant by reply dated 20.11.1999. And
thereafter, the plaintiff filed suit to claim 1/8 share in the suit
property and for claiming mesne profit.
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5. The defendant appeared in the suit and filed written
statement, vide Exhibit-9 and defence that was taken in the
written statement was that an agreement was executed by father
of the plaintiff and defendants Arjanbhai Hamirbhai Ahir, dated
24.5.1999, and therefore, the plaintiff did not have any right,
title, interest in the suit property. The trial court framed issues,
vide Exhibit-11, which reads as under:-
(1) Whether the Plaintiff proves that the suit property is the
joint, ancestral, and undivided property of the Plaintiff
and the Defendants?
(2) Whether the Plaintiff proves that he has a 1/8th share in
the suit land?
(3) Whether the Plaintiff proves that despite demanding
from the Defendants to legally partition the suit property
and give him his share of the property, the Defendants,
with malicious intent to usurp the Plaintiff's right and
share, are not giving the Plaintiff his share of the
property?
(4) Whether the Defendant proves that late Hamirbhai
Samatbhai Ahir had already carried out a family
partition of their ancestral property between the Plaintiff
and the Defendants while he was alive?
(5) Whether the Plaintiff is entitled to the relief as sought for
in Para-7 of his plaint at Exhibit-1?
(6) What final order and decree?
6. Plaintiff examined himself, vide Exhibit-34, the defendant
examined himself, vide Exhibit-80 and the witness of the
defendant was examined, vide Exhibit-95 and after considering
all issues, the trial court allowed the said suit and declared that
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the plaintiff has 1/8 share in the suit property.
7. Aggrieved by the said order, defendant had challenged the
said by filing Regular Civil Appeal No.87 of 2024 and after re-
appreciating the evidence, the First Appellate Court dismissed
the said appeal and confirmed the judgement and decree passed
in Special Civil Suit No. 43 of 2011. Hence, the present Second
Appeal.
8. Learned advocate for the defendant has mainly argued that
the trial Court and First Appellate Court have committed
fundamental error by holding that the family arrangement dated
24.05.1999 was invalid and unenforceable.
9. Learned advocate for the defendant has also argued that
the trial Court and First Appellate Court have not taken into
consideration Exhibit-T/84 and Exhibit-T/86 and Exhibit-T/87,
which were the applications filed by the father before the
Mamlatdar which proved that family settlement was not a
concocted document and was acted upon during his lifetime. It
has also been argued by learned advocate for the defendant that
the appellate court has not reappreciated the entire evidence and
has overlooked the Exhibits and the appellate court has also not
independently assessed the evidence on record, and therefore,
the present Second Appeal is required to be admitted on the
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following substantial question of law:-
(A) Whether the Courts below erred in holding the
Family settlement dated 24.05.1999 invalid on the
ground of non-registration and absence of one heir's
signature, ignoring the ratio in Kale & Ors. v. Deputy
Director of Consolidation (AIR 1976 SC 807), which
holds that a bona fide family arrangement, even if
unregistered, is valid if acted upon.
(B) Whether the Courts below committed perversity of
law in treating Mutation Entry No.2054 as conclusive
proof of joint family ownership, contrary to the settled
principle that revenue entries are only for fiscal
purposes and do not confer or negate title (Balwant
Singh v. Daulat Singh (1997) 7 SCC 137; Narasamma
v. State of Karnataka (2009) 5 SCC 591)?
(C) Whether the Courts below erred in reversing the
burden of proof by requiring the Defendants to
disprove joint family ownership, instead of insisting
that the plaintiff first prove that the properties were
ancestral (Kuppala Obdul Reddy v. B.V. Narayana
Reddy (1984) 3 SCC 447)?
10. Having heard learned advocate for the defendant and
having considered the judgment and decree passed by the trial
Court and confirmed by the First Appellate Court, the fact
remains that the plaintiff has succeeded before the revenue
department, with respect to the revenue entry No.2053. The fact
also remains that the said family arrangement on which the
defendant wants to rely is not exhibited by the trial court and
admitted position is that the alleged settlement is not signed by
the plaintiff. Therefore, the fact of taking into consideration the
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said family arrangement does not arise.
11. The admitted position in the present Second Appeal is that
the plaintiff is the legal heir of Arjan Hamirbhai and Arjan
Hamirbhai expired interstate on 12.09.1999 and the plaintiff
along with defendants are class-I legal heirs as per section-8 of
Hindu Succession Act, and therefore, alongwith defendants, the
plaintiff will have right, title, interest in the suit property, there
is also nothing on record to prove that the plaintiff has
relinquished his right in the suit property, therefore, the
judgment and decree passed by the trial Court and confirmed by
the first appellate Court are as per the facts and evidence and the
trial Court and first appellate Court have not overlooked the
provisions of law.
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.
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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 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
