[Cites 37, Cited by 0]
Gujarat High Court
Samuben D/O Kachraji Aataji And W/O ... vs Lilaben D/O Kachraji Aataji And W/O ... on 20 March, 2026
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Reserved On : 02/03/2026
Pronounced On : 20/03/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 89 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 89 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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SAMUBEN D/O KACHRAJI AATAJI AND W/O MANAJI VISAJI & ORS.
Versus
LILABEN D/O KACHRAJI AATAJI AND W/O ROHITJI KOYAJI & ORS.
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Appearance:
MR DHAVAL D VYAS, SR. ADVOCATE with MS POONAM M
MAHETA(11265) for the Appellants
MR PARV C MEHTA(10800) for the Respondent(s) No. 8
MR MEHUL S SHAH, SR. ADVOCATE with MR.PINANK J RAIYANI(10166)
for the Respondent No. 1,2,4,5,6
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. This second appeal u/s 100 of the Code of Civil
Procedure, 1908 (in short "the Code") takes exception to the
judgment and decree dated 20.12.2024 passed by the learned
Principal District Judge, Gandhinagar in Regular Civil Appeal
No.22 of 2018, by which the learned appellate Court partly
allowed the appeal and set aside the judgment and decree
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dated 17.1.2018 passed by the learned Addl. Senior Civil
Judge, Gandhinagar in Special Civil Suit No.333 of 2011 in
connection with land bearing survey No.682 and confirmed
the judgment and decree in regards to land bearing survey
No.683. Both parcels of land are situated at village Tintoda,
Dist: Gandhinagar. The learned appellate Court declared that
the plaintiffs and the defendant No.1 have equal share in land
bearing survey No. 682 and further directed the learned trial
Court to draw preliminary decree to give equal shares to the
plaintiffs and the defendant No.1 in land bearing survey No.
2. The appellants are original defendant Nos.1 to 4.
Amongst respondents, respondent Nos.1 to 2 are original
plaintiffs and respondent Nos.3 to 6 are the original
defendants.
3. For the sake of convenience and brevity, parties are
referred to as per their original status before the learned trial
Court.
4. The factual matrix in nutshell, born out of the records,
are as under:-
4.1 The plaintiffs filed the Special Civil Suit before the
learned civil Court, Gandhinagar for partition of land bearing
survey No. 682 admeasuring 5-22-05 hectare- are-sq mtr (in
short "suit land") and land bearing survey No. 683
admeasuring 0-69-81 hectare- are-sq mtr claiming that the
plaintiffs have undivided 2/3rd share in the suit land. The
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plaintiffs also claimed relief to partition the suit land by metes
and bounds and further asked for the relief of permanent
injunction to the effect that the defendants be restrained from
interfering with the plaintiffs' possession over the suit land.
4.2 The plaintiffs claimed the aforesaid relief on the
averment that the plaintiff Lilaben and the defendant No.1
Samuben are real sisters, whereas, deceased Kacharaji was
their father. Kacharaji died on 20.11.2000 survived by three
daughters viz. plaintiffs Lilaben and Punjiben and defendant
Samuben. According to the plaintiffs, the ancestral properties
were situated in village Jodhpur and Vejalpur of Ahmedabad
district. Said ancestral properties consisting of land bearing
survey Nos.284/1, 321, 325/2,327/2,408, 707/2 and some
other parcels of land of Mouje village Jodhpur and Vejalpur
ran in name of Kacharaji Antaji. The plaintiffs and defendant
No.1 have right by birth in the ancestral properties and they
were coparceners in the ancestral properties. Kacharaji sold
lands at village Jodhpur and Vejalpur and out of sale
consideration received from selling of those lands, purchased
land bearing survey No. 682 and 683 in village Tintoda, Dist:
Gandhinagar. These are the subject matter of the suit.
4.3 The suit land was purchased by way of registered sale
deed on 19.5.1980 jointly in name of Kacharaji Antaji, plaintiff
Lilaben and defendant No.1 Samuben. Land bearing survey
No. 683 was purchased on 31.5.1995 in name of defendant
No.1, however, it is claimed by the plaintiff that sale
consideration for purchasing land bearing survey Nos. 682
and 683 are paid from the sale consideration received by
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selling ancestral lands at village Jodhpur and Vejalpur and
therefore, though land bearing survey Nos. 682 and 683 are
standing either jointly in name of plaintiff Lilaben, Kacharaji
and defendant No.1 or only in name of defendant No.1, they
are the ancestral properties being undivided properties of
joint Hindu family. The plaintiffs thereafter, pleaded that the
defendant No.1 taking undue advantage, by playing fraud, got
revenue entry mutated in regards to land bearing survey Nos.
682 and 683 in her favour. However, such revenue entry does
not create any title nor it extinguished any right or title.
4.4 Upon above pleadings, the plaintiffs prayed relief for
declaration for partition and for perpetual injunction stated
herein above.
4.5 The defendant No.1 having been served, filed written
statement and raised contentions to deny the plaintiffs' suit.
It is denied that land bearing survey Nos. 682 and 683 are
purchased out of sale consideration received by selling
ancestral lands at village Jodhpur and Vejalpur. The
execution of the sale deed, however, is admitted and it is
claimed by the defendant No.1 that she has paid the sale
consideration out of her income and ultimately, she prayed to
dismiss the suit.
4.6 The learned trial Court after fixing the issues permitted
both the parties to lead evidence. The plaintiffs entered into
the witness box, but the defendants did not. The learned trial
Court was pleased to dismiss the suit.
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4.7 Being aggrieved, the plaintiffs preferred Regular Civil
Appeal u/s 96 of the Code before the learned Principal District
Judge, Gandhinagar. The learned Principal District Judge was
pleased to partly allow the appeal and decreed the suit of the
plaintiffs in sofar as land bearing survey No. 682 is concerned
and directed to draw preliminary decree. Insofar as land
bearing survey No. 683 is concerned, the appeal was
dismissed.
4.8 Being aggrieved by judgment and decree passed by the
learned appellate Court insofar as allowing the appeal qua the
suit land, the defendants have preferred present Second
Appeal on the following questions of law posing them as
substantial questions of law:-
"1. Whether the appellant court was right in
reversing the well- reasoned judgment by the trial
court and there upon decreeing the suit ?
2. Whether in the facts the suit was maintainable and
barred under the law of limitation ?
3. Whether the appellant court has erred in shifting
the onus of proof upon the defendants, more as the
plaintiff had not discharged the burden as well as
onus obligated upon her in the facts of the case ?
4. Whether the appellant court was right in
decreeing the suit holding that the suit lands were
ancestral property ?
5. Whether the appellant court has erred in not
appreciating the effect of the relinquishment of right
by the plaintiff.
6. Whether the learned Appellate court - District
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Court had erred in law not appreciating that the suit
was barred by limitation and whether the learned
appellate court was correct in reversing such finding
of the learned trial court which was passed, by
appreciating and leading the evidences in detail?
7. Whether the First Appellate Court could have
reversed the findings of the Trial Court without any
fresh evidence?
8. Whether the First Appellate court misapplied
principles of partition and co-ownership and whether
the First Appellate Court incorrectly assume joint
ownership despite the lack of supporting legal or
documentary evidence?"
5. For seeking admission of the Second Appeal, learned
Senior Counsel Mr. Dhaval Vyas assisted by learned advocate
Ms. Poonam Mehta appearing for the defendants, having
referred to the above questions of law, mainly argued that the
learned appellate Court has committed serious error in
reversing the well reasoned judgment and decree passed by
the learned trial Court and thereby, decreeing the suit partly.
Firstly, he would further submit that the learned appellate
Court did not touch the issue of limitation in its proper
perspective. The limitation is clearly applied to the facts of
the present case. He would further submit that the suit of the
plaintiffs claiming partition and separate possession was
hopelessly time barred as hit by provisions of Limitation Act,
1963, more particularly, since relief claimed in the suit
directly and substantially relates to posting of revenue entry,
as the revenue entry for the suit land was mutated in 1983 in
favour of the defendant No.1. He would further submit that
the plaintiffs have relinquished their right from the suit land
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and subsequently, revenue entry No.1706 was mutated on
11.8.1983 and it was certified on 21.11.1983. Thus, the
plaintiff was having knowledge that her right of share in the
suit land has been oust in 1983. Yet, the plaintiff did not take
any action within three years or even within 12 years
therefrom. Learned Senior counsel Mr. Vyas would further
submit that the defendant No.1, after confirmation of the
revenue entry, obtained loan of Rs.50,000/- from Sardar
Krushi Udhyog Seva Sanstha Mandli LImited by mortgaging
suit land, which happened in front of the plaintiffs, whereby
the defendant No.1 claimed that she is the exclusive owner of
the suit land and obtained loan facility and yet, the plaintiffs
did not question the act of the defendant No.1. Thus, this act
clearly postulated that the plaintiff Lilaben was knowing that
she has relinquished her right and is oust from the HUF
property and therefore, the plaintiffs cannot claim that they
have undivided right in the ancestral properties by filing
Special Civil Suit in the year 2011. The suit is hopelessly
barred by law of limitation, 1963 (in short "the Act"). He
would further submit that Article 110 of the Limitation Act
provides period of limitation for 12 years and the time begins
to run when exclusion becomes known to the plaintiff clearly
applies to the facts of the present case, as the plaintiff No.1
knows that she has been excluded from the joint HUF
property in the year 1983 because she has relinquished her
right in favour of the defendant No.1 and therefore, she
cannot claim any right in 2011 in very same property.
5.1 It is also argued that relief of declaration governed by
Article 58 of the Act provides limitation of 3 years when the
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right to sue first accrues. In the present case, revenue entry
was posted and certified in the year 1983 was within the
knowledge of the plaintiffs since then, clearly oust the
plaintiffs from claiming share in the joint family property, as
the plaintiffs can claim the relief of declaration only within
three years from posting of the revenue entry, however, the
suit is filed in the year 2011 and thus, it is hopelessly time
barred.
5.2 Learned Senior Counsel Mr. Vyas, relies upon the
judgment in case of Prabhakat Gones Prabhu Navelkar
(Dead) through legal representatives and others Vs.
Saradchandra Suria Prabhu Navelkar (Dead) through
legal representatives and others, 2020(20) SCC 465, to
submit that in view of Order 41 Rule 22 of the Code, the
successful litigant can assail findings of any particular issue,
which does not have any baring upon the final outcome of the
original dispute in appeal proceedings filed by unsuccessful
litigant.
5.3 In light of above submission, learned Senior counsel Mr.
Vyas would submit that the learned trial Court has framed
issue Nos.5 and 8 that whether the suit is time barred and
answered the same in negative in favour of the original
plaintiffs. The suit was dismissed in favour of the defendants.
In appeal proceedings, filed by the original plaintiffs, the
successful defendant - appellant can invoke Order 41 Rule 22
of the Code and assail the findings of the learned trial Court
qua issue Nos.5 and 8 without filing memorandum of cross
objection and can ask the learned appellate Court to held that
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the suit is time barred. He would further submit that since
the learned appellate Court did not consider this issue of
limitation in correct perspective, the defendants has
legitimate right to contend the same issue again in the Second
Appeal.
5.4 Learned Senior Counsel Mr. Vyas refers to the judgment
of the Hon'ble Apex Court in case of Ramanbhai
Shamalbhai Patel, heirs Vs. Ravjibhai Motibhai Patel,
2015(1) GLR 494, and would submit that the suit for
partition cannot have any continuous cause of action if ouster
of the plaintiffs is established. In regards to same proposition,
another judgment relied upon by learned Senior Counsel Mr.
Vyas is in case of Jamnadas Mangaldas Sharma Vs.
Rajeshkumar Somabhai Parekh, 2019 JX (Guj) 480.
5.5 Learned Senior counsel Mr. Vyas would further submit
that the plaintiffs did not challenge relinquishment of the
right and thereby, revenue entry mutated in favour of
defendant No.1 has openly confirmed that the defendant No.1
became the absolute owner of the suit land. He would further
submit that the learned Courts below have not believed that
the suit land has been purchased out of the sale consideration
received from selling of lands situated village Jodhpur and
Vejalpur and in that circumstances, the theory premised by
the plaintiffs that land bearing survey Nos. 682 and 683 were
purchased from selling of ancestral land collapse and
consequently, the theory that the plaintiff No.1 has share in
the suit land as she is coparcener, also does not survive, but
yet, the learned appellate Court passed the decree and
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partitioned the suit land and thereby, has committed manifest
error.
5.6 Mainly upon above submissions, learned Senior Counsel
Mr. Dhaval Vyas prays to admit the Second Appeal.
6. As against aforesaid submissions, learned Senior
Counsel Mr. Mehul S. Shah assisted by learned advocate
Mr.Pinank Raiyani for the plaintiffs would mainly submit that
the the suit land was originally purchased by three persons,
namely, late Kacharaji Antaji, plaintiff Lilaben and defendant
No.1 Samuben, by registered sale deed. This transaction took
place as per Transfer of Properties Act to establish the title of
the suit land in name of these three persons. Thus, the
plaintiffs possessed the title and undisputed share in the suit
land. And thus, plaintiffs' title as nucleus share cannot be
extinguished merely on posting revenue entry, which
otherwise, is for the fiscal purpose. He would further submit
that until partition by way of metes and bounds is effected qua
the suit land, no other proceedings can extinguish the title of
the plaintiffs. In that circumstances, he would submit that
suit for partition since has continuous cause of action is
rightly decreed by learned appellate Court and for that, he has
relied upon the judgment of the Hon'ble Apex Court in case of
Govindammal Vs. R. Perumal Chettiar and others,
(2006) 11 SCC 600.
6.1 Taking this Court through the revenue proceeding taken
place qua the suit land, learned Senior Counsel Mr. Shah
firstly would submit that revenue entry No.1706 was mutated
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on 11.8.1983 regarding relinquishment of right of the
plaintiffs without execution of any document recognized by
the Transfer of Properties Act as well as Registration Act. He
would further submit that later on, revenue entry No.2285
was mutated on 29.3.1997 on an application filed by the
defendant No.1 to mutate name of the plaintiffs and defendant
No.1. This application was rejected.
6.2 Learned Senior counsel Mr. Shah referred Annexure "C"
(Exh.44) and submitted that the defendant No.1, plaintiff No.1
and Kacharaji all have jointly preferred RTS case before the
Prant Officer vide Case No.24 of 1998 against the order of the
Deputy Mamlatdar, Gandhinagar declining to mutate revenue
entry No.2285, the Prant Officer, vide order dated 10.3.1998,
allowed the RTS appeal and set aside revenue entry No.1706
and confirmed revenue entry No.2285. The defendant No.1,
who has accepted such order, under the ill-advice, preferred
revision before the Collector after passing of 8 years and
whereby, the Collector, without issuing notice to the affected
party, remanded the matter to the Prant Officer to decide the
issue afresh. On remand, the Prant Officer decided the issue
afresh and passed fresh order on 20.8.2011, modified entry
No.2285 by limiting it qua the suit land. Insofar as land
bearing survey No. 683 is concerned, it has restored revenue
entry No.1706 and against that order, the plaintiffs had
preferred revision before the Collector, which was pending
during the suit proceedings. In the aforesaid submission,
learned Senior Counsel Mr. Shah would submit that the suit
land thus, even on revenue side, remained joint in name of the
plaintiff No.1 Lilaben, defendant No.1 and their father
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Kacharaji.
6.3 Learned Senior Counsel Mr. Shah would further submit
that initially, to post revenue entry No.2285, the defendant
No.1 herself has given an application before the Mamlatdar
and thereafter, even to the Prant Officer. This fact is
established from the deposition of Manaji Hiraji at Exh.74 and
deposition of Patel Hasmukhlal Shankarlal, Talati-cum-Mantri
at Exh.85 (page 136 of the compilation). In their
depopsitions, they have deposed, referring to the record and
proceedings that the application for mutation of entry
No.2285 was preferred by the defendant No.1. he has also
referred to Exh.64, an application given by the defendant
No.1 to mutate revenue entry No.2285 and also referred to
Exhs.66, 67 and 75, which are Panchkyas etc. Referring these
documents, learned Senior Counsel Mr. Shah would submit
that it is defendant No.1 herself, says that suit land is a joint
family property, but subsequently, after eight years, she,
under ill-advice, has filed an application before the Collector
to contend that the plaintiffs have relinquished right. Raising
of such contention by the defendant No.1 in the argument is
therefore, barred by principles of estoppel. To buttress this
contention, learned Senior Counsel Mr. Shah relied upon
judgment of the Hon'ble Apex Court in case of Joint Action
Committee of Air Line Pilots' Association of India
(ALPAI) and others Vs. Director General of Civil Aviation
and others, (2011) 5 SCC 435.
6.4 Learned senior Counsel Mr. Shah referred to the
judgment of this Court in case of Roshanben Hajibhai
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Deraiya Wd/o Ganibhai Sorathiya Vs. State of Gujarat,
2022(1) GLR 480 as well as in case of Yellapu Uma
Maheswari and another Vs. Buddha Jagadheeswararao
and others, (2015) 16 SCC 787 to submit that document
effecting relinquishment of right in respect of immovable
property requires compulsory registration u/s 17(1)(b) of the
Registration Act and in absence of document requiring
necessity of section 17(1)(b) of the Registration Act would not
have any effect of relinquishment of the right in respect of
immovable property.
6.5 In regards to the facts of the present case, learned
Senior Counsel Mr. Shah would submit that qua the suit land,
the plaintiff No.1 derived title from registered sale deed, so,
relinquishment or extinguishment of her right in respect of
the suit land can only be made by way of registered
relinquishment deed. Revenue entry cannot extinguish the
title of the plaintiffs. Therefore, it is submitted that the
learned appellate court has rightly assessed the facts vis-a-vis
provisions of law and passed the decree in favour of the
plaintiffs qua the suit land.
6.6 Learned Senior counsel Mr. Shah referred to the
deposition of the plaintiff No.1 at Exh.32 and submit that
learned advocate for the defendants, in cross examination,
made a suggestion that the suit land has been jointly
purchased by Kacharaji, defendant No.1 and plaintiff No.1.
This suggestion takes form of admission of the defendant No.1
itself is suffice to say that plaintiff Lilaben has share in the
suit land, and it was within the knowledge of the defendants
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and therefore, the learned appellate court has not committed
any serious error in granting decree of partition for the suit
land.
6.7 Insofar as plea of ouster is concerned, learned Senior
Counsel Mr. Shah, referred to, and relied upon the judgment
in case of Vidya Devi @ Vidya Vati (Dead) By Lrs Vs. Prem
Prakash and others, (1995) 4 SCC 496 and submitted that
since the Legislature has not prescribed any period of
limitation for filing the suit for partition, as the partition is an
incident attached to the property and it has running cause of
action, the party seeking that relief of partition is barred by
law of limitation has to prove the ouster or has to prove that
the defendants have perfected the title on the doctrine of
adverse position. It is further submitted that the ouster cannot
be completed insofar as co-sharer is concerned until the
ingredients for establishing the plea of ouster in case of co-
owner are proved. He would submit that heavy burden lies
upon the co-sharer to establish the element necessary for
establishing plea of ouster in case of co-sharer i.e. declaration
of hostile animus long and uninterrupted possession of the
person pleading ouster and exercise of right of exclusive
ownership openly and to the knowledge of other co-owners. It
is submitted that the defendants even in written statement
has not pleaded all these essential elements of ouster.
Moreover, the defendants did not enter into the witness box to
discharge the burden to prove these elements.
6.8 In the present case, learned Senior counsel Mr. Shah
would submit that even if we ignore the revenue proceeding,
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etc, the suggestion made to the plaintiffs in the cross
examination that the suit land is purchased jointly by the
parties is sufficient to say that the declaration of hostile
animus or exclusive ownership was never in mind of the
defendants. He would further submit that nonetheless, the
defendants did not enter into the witness box to discharge
burden.
6.9 Lastly, learned senior Counsel Mr. Shah would submit
that notwithstanding the issue of limitation has been decided
against the defendants by the learned trial court, no cross
appeal / cross objection has been filed against these findings.
He would submit that plain reading of the judgment and
decree passed by the learned appellate court indicates that
the defendants have never assailed finding of the learned trial
Court in regards to limitation by filing any cross objection or
cross appeal, which was decided by the learned trial court
against the defendants and in absence thereof, the defendants
cannot raise any contention in the second appeal about the
issue of limitation and can say that the suit is time barred. To
buttress his argument, learned senior Counsel Mr. Shah,
relied upon the judgment of the Hon'ble Apex Court in case of
Banarsi Vs. Ram Phal, AIR 2003 SC 1989 as well as in
case of Shingara Singh Vs. Daljit Singh and another, AIR
2024 (Suppl) SC 1898.
6.10 At the end, learned senior Counsel Mr. Shah argue that
the defendants did not enter into the witness box and did not
discharge the burden and therefore adverse inference is
required to be taken against the defendants. He would
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further submit that heavy burden was lying upon the
defendants to disprove the fact that the suit land is in
exclusive ownership of the defendant No.1, and she has oust
the plaintiffs from the title. However, she did not enter into
the witness box to contrast the assertion made by the
plaintiffs on oath, and therefore adverse inference is required
to be drawn against the defendant No.1.
6.11 Upon above submissions, learned Senior Counsel Mr.
Shah, request the court to dismiss the second appeal at
threshold.
7. In reply, learned senior Counsel Mr. Vyas referred to the
judgment of this court in case of Balwantbhai Hirabhai
Patel Vs. Sushilaben Naranbhai Patel Wd/o Hirabhai
Channabhai Patel, 2024 JX (Guj) 1039 and submitted that
the defendants are not required to enter into the witness box
to deny the case of the plaintiffs until the onus is shifted upon
the defendants to disprove certain facts. This argument was
made in regards to the argument made by learned Senior
Counsel Mr. Shah that the defendants did not enter into the
witness box to deny the contention.
8. Heard learned Senior Counsel Mr. Dhaval Vyas assisted
by learned advocate Ms. Poonam Mehta appearing for the
defendants and learned Senior Counsel Mr. Mehul S. Shah
assisted by learned advocate Mr.Pinank Raiyani for the
plaintiffs. I have also perused the impugned judgment and
decree passed by the learned Courts below so also the paper
book placed on record by both the parties. None remained
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present for rest of the defendants.
9. Regard being had to the rival submissions of both the
parties, at the outset, let refer judgment of the Hon'ble Apex
Court in case of State Bank Of India Vs. S.N.Goyal, 2008
(8) SCC 92 to understand the term "substantial questions of
law". The Hon'ble Apex Court held as under:-
"Second appeals would lie in cases which involve
substantial questions of law. The word 'substantial'
prefixed to 'question of law' does not refer to the
stakes involved in the case, nor intended to refer only
to questions of law of general importance, but refers
to impact or effect of the question of law on the
decision in the lis between the parties. 'Substantial
questions of law' means not only substantial
questions of law of general importance, but also
substantial question of law arising in a case as
between the parties. In the context of Sec. 100 CPC,
any question of law which affects the final decision in
a case is a substantial question of law as between the
parties. A question of law which arises incidentally or
collaterally, having no bearing in the final outcome,
will not be a substantial question of law. Where there
is a clear and settled enunciation on a question of
law, by this Court or by the High Court concerned, it
cannot be said that the case involves a substantial
question of law. It is said that a substantial question
of law arises when a question of law, which is not
finally settled by this court (or by the concerned High
Court so far as the State is concerned), arises for
consideration in the case. But this statement has to
be understood in the correct perspective. Where
there is a clear enunciation of law and the lower
court has followed or rightly applied such clear
enunciation of law, obviously the case will not be
considered as giving rise to a substantial question of
law, even if the question of law may be one of
general importance. On the other hand, if there is a
clear enunciation of law by this Court (or by the
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concerned High Court), but the lower court had
ignored or misinterpreted or misapplied the same,
and correct application of the law as declared or
enunciated by this Court (or the concerned High
Court) would have led to a different decision, the
appeal would involve a substantial question of law as
between the parties. Even where there is an
enunciation of law by this court (or the concerned
High Court) and the same has been followed by the
lower court, if the appellant is able to persuade the
High Court that the enunciated legal position needs
reconsideration, alteration, modification or
clarification or that there is a need to resolve an
apparent conflict between two view points, it can be
said that a substantial question of law arises for
consideration. There cannot, therefore, be a strait-
jacket definition as to when a substantial question of
law arises in a case. Be that as it may."
10. Yet, in another case of Hero Vinoth v. Seshammal,
reported in (2006) 5 SCC 545, the Apex Court set out phrase
'substantial question of law' as occurring in the amended
Section 100 of "the Code", as under:-
"21. The phrase 'substantial question of law', as
occurring in the amended Section 100 CPC is not
defined in the Code. The word substantial, as
qualifying 'question of law', means of having
substance, essential, real, of sound worth,
important or considerable. It is to be understood as
something in contradistinction with-technical, of no
substance or consequence, or academic merely.
However, it is clear that the legislature has chosen
not to qualify the scope of 'substantial question of
law' by suffixing the words 'of general importance'
as has been done in many other provisions such as
Section 109 of the Code or Article 133(1)(a) of the
Constitution. The substantial question of law on
which a second appeal shall be heard need not
necessarily be a substantial question of law of
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general importance. In Guran Ditta v. Ram Ditta
[(1927-28) 5I5 IA 235 : AIR 1928 PC 172] the
phrase substantial question of law as it was
employed in the last clause of the then existing
Section 100 CPC (since omitted by the Amendment
Act, 1973) came up for consideration and their
Lordships held that it did not mean a substantial
question of general importance but a substantial
question of law which was involved in the case. In
Sir Chunilal case [1962 Supp (3) SCR 549 : AIR
1962 SC 1314] the Constitution Bench expressed
agreement with the following view taken by a Full
Bench of the Madras High Court in Rimmalapudi
Subba Rao v. Noony Veeraju [AIR 1951 Mad 969 :
(1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962
Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p.
557)
'When a question of law is fairly arguable, where
there is room for difference of opinion on it or
where the Court thought it necessary to deal with
that question at some length and discuss
alternative views, then the question would be a
substantial question of law. On the other hand if
the question was practically covered by the
decision of the highest court or if the general
principles to be applied in determining the
question are well settled and the only question was
of applying those principles to the particular fact of
the case it would not be a substantial question of."
11. Thus, the word 'substantial' as qualifying "question of
law" means of having substance, essential, real of sound
worth, important, or considerable. It is to be understood as
something in contradistinction with-technical, of no substance
or consequence, or merely academic. However, it is clear that
the legislature has chosen not to qualify the scope of
"substantial question of law" by suffixing the words "of
general importance" as has been done in many other
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provisions such as Section 109 of the Code or Article 133(1)
(a) of the Constitution.
12. The Hon'ble Apex Court in Boodi Reddy v Arigela
Laxmi (2007)8 SCC 155 has, with reference to the fact said
case, laid down the principles relating to Section 100 of the
Code. These principles are as follows:
"(i) An inference of fact from the recitals or
contents of a document is a question of fact. But
the legal effect of the terms of a document is a
question of law. Construction of a document
involving the application of any principle of law, is
also a question of law. Therefore, when there is
misconstruction of a document or wrong
application of a principle of law in construing a
docu- ment, it gives rise to a question of law.
(i) The High Court should be satisfied that the case
involves a substantial question of law, and not a
mere question of law. A question of law having a
material bearing on the decision of the case (that
is, a question, answer to which affects the rights of
parties to the suit) will be a substantial question of
law, if it is not covered by any specific provisions
of law or settled legal principle emerging from
binding precedents, and, involves a debatable
legal issue. A substantial question of law will also
arise in a contrary situation, where the legal
possession is clear, either on account of express
provisions of law or binding precedents, but the
court below has decided the matter, either
ignoring or acting contrary to such legal principle.
In the second type of cases, the substantial
question of law arises not because the law is still
debatable, but because the decision rendered on a
material question, violates the settled possession
of law.
(iii) The general rule is that the High Court will
not interfere with the concurrent findings of the
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courts below. But it is not an absolute rule. Some
of the well-recognised exceptions are were (1) the
courts below have ignored material evidence or
acted on no evidence; (ii) the courts have drawn
wrong inferences from proved facts by applying
the law erroneously; or (iii) the courts have
wrongly cast the burden of proof. When we refer
to 'decision based on no evidence', it not only
refers to cases where there is a total dearth of
evidence, but also refers to any case where the
evidence, taken as a whole, is not reasonably
capable of supporting the finding. [See also Hero
Vinoth v Seshammal (2006)5 SCC 545."]
13. Apropos, to be 'substantial' a question of law must be
debatable, not previously settled by law of the land or a
binding precedent, and must have a material bearing on the
decision of the case, if answered either way, insofar as the
rights of the parties before it are concerned. To be a question
of law 'involving the case', there must first be a foundation for
it laid in the pleadings and the question should emerge from
the sustainable findings of fact arrived at by Court of facts,
and it must be necessary to decide that question of law for a
just and proper decision of the case. Therefore, it will depend
on facts and circumstances of each case whether a question of
law is a substantial one and involved in the case or not, the
paramount overall consideration being the need for striking a
judicious balance between the indispensable obligation to do
justice at all stages and impelling necessity of avoiding
prolongation in the life of any lis.
14. Considering the aforesaid settled provisions of law, if we
refer to certain admitted facts of the case, it appears
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following:-
(1) that the dispute is now only confined to the suit land.
(2) that the plaintiff No.1 and defendant No.1 are real sisters
and late Kacharaji was their father.
(3) that the suit land was jointly purchased in name of
Kacharaji, defendant No.1 and plaintiff No.1 by way of
registered sale deed No.816 on 19.5.1980.
(4) that the Revenue entry No.1595 dated 21.11.1981 was
posted jointly in name of Kacharaji, defendant No.1 and
plaintiff No.1.
(5) that Entry No.1706 was mutated on 11.8.1983 qua the suit
land, whereby according to the revenue entry, the plaintiff
No.1 and Kacharaji have relinquished their right over the suit
land.
(6) that the defendant No.1, after confirmation of the revenue
entry, obtained loan of Rs.50,000/- from Sardar Krushi
Udhyog Seva Sanstha Mandli LImited by mortgaging suit
land. Revenue entry No.1767 was mutated, but later on,
charge was removed, as loan were paid and revenue entry to
that effect was posted on 8.3.1996.
(7) That Revenue entry No.2285 was posted qua suit land and
land bearing survey No. 683 in name of plaintiffs Lilaben,
Punjiben and defendant Samuben.
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(8) That the plaintiff No.1 have never executed any registered
deed to relinquish her right.
15. In the background of aforesaid admitted facts, let
examine the dispute between the parties. It is claimed that an
application to mutate revenue entry NO.2285 was given by
defendant No.1 Samuben herself. Initially, this revenue entry
was posted, but later on, it was cancelled on the ground that
name of Punjiben is not reflected in the sale deed. Annexure
C - Exh.44 indicates that plaintiffs Lilaben, Punjiben and
defendant Samuben and their father Kacharaji jointly
preferred RTS Appeal No.24 of 1998 before the Prant Officer,
Gandhinagar. Late on, defendant No.1 Samuben claimed that
she has not signed this application. However, she did not
enter into the witness box to buttress/prove such contention.
As against said aspect, the plaintiffs examined Patel
Hasmukhlal Shankarlal, Talati-cum-Mantri at Exh.85, who,
based upon records, confirmed that the applications were
tendered by defendant No.1 Samuben to mutate revenue
entry in name of all four persons i.e. herself, plaintiffs Lilaben
and Punjiben and their father late Kacharaji. The Prant
Officer, Gandhinagar allowed the RTS appeal and restored
revenue entry No.2285. Subsequently, nearly after eight
years, the defendant No.1 Samuben preferred the revision
application before the District Collector. The Collector
ordered to remand the matter to decide the issue afresh. The
Prant Officer, by its fresh order (Exh.70, Annexure E),
confirmed the order of the Talati-cum-Mantri to mutate
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revenue entry for the suit land in name of the plaintiff No.1
along with defendant No.1 Samuben, but set aside the order
of the Talati-cum-Mantri to mutate the name of all the parties
in respect of land bearing survey No.683.
16. Apt to note that the learned trial Court went into trial by
fixing as many as 10 issues, they read as under:-
"1) Whether the plaintiffs proves properties are
ancestral properties ?
2) Whether the plaintiffs proves that the Deceased
Kacharaji Aataji has the purchased suit properties
from the agricultural income of lands of village
Vejalpur and from the amount of sale of those
lands. ?
3) Whether the plaintiffs proves that the suit
properties are of joint ownership and in joint
possession of plaintiffs and defendant no.1 ?
4) Whether the plaintiffs proves that the Entry no.
1706 is carried out at the behest of defendant no.1
plaintiffs ? behind the back of the
5) Whether the defendant no.1 to 5 proves that the
suit is time barred ?
6) Whether the defendants nos. 1 to 5 proves that the
suit is filed in collusion with defendants nos. 6 to 9 ?
7) Whether the defendants nos. 1 to 5 proves that the
plaintiffs have waived their right from the suit
properties by accepting amount ?
8) Whether the suit is time barred ?
9) Whether the plaintiffs are entitled to get the relief
as prayed for ?
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10) What order and decree ?"
17. Issue Nos.1 to 8 are answered in 'negative', issue No.7
in 'partly affirmative' and the suit was dismissed as per final
order. Amongst issues, issue Nos.5 and 8 are in regards to
limitation. The issues say that whether the suit is time barred
and whether the defendants prove that? Both the issues are
answered "in negative" and thereby, the learned trial Court
held that the suit is within the limitation.
18. In appeal proceedings filed by the plaintiffs, perusal of
record discerns that defendant No.1 has not filed cross appeal
or cross objection challenging the findings on issue Nos.5 and
8. The judgment and decree passed in the appeal does not
pellucid that the defendants ever raised oral cross objection to
assail the findings on issue Nos.5 and 8.
19. Learned senior Counsel Mr. Dhaval Vyas referred to
Order 41 Rule 22 of the Code and submitted that there is no
need to file memorandum of cross objection to take the
exception to finding of particular issue, which has no baring
on final outcome of the suit, but same can be done by arguing
against said finding while supporting the final outcome of the
suit. This Court is in complete agreement with the
submissions of learned senior Counsel Mr. Vyas that the
party, who otherwise, has secured the final outcome in his
favour, need not to file memorandum of cross objections to
challenge the findings of particular issue, but one has to argue
invoking Order 41 Rule 22 of the Code to challenge the
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findings of a particular issue. The Judgment and Order of the
appeal demonstrate that no such argument was ever made by
the defendants before the learned appellate Court. In view of
that, the appellants, without raising argument in First Appeal
regarding adverse finding on the issue of limitation, cannot
raise in present second appeal.
20. In Banarasi (supra), in para 10 to 13, the Hon'ble Apex
Court held as under:-
"10. CPC Amendment of 1976 has not materially or
substantially altered the law except for a marginal
difference. Even under the amended Order 41 Rule 22
sub-rule (1) a party in whose favour the decree stands
in its entirety is neither entitled nor obliged to prefer
any cross objection. However, the insertion made in
the text of sub-rule (1) makes it permissible to file a
cross objection against a finding. The difference which
has resulted we will shortly state. A respondent may
defend himself without filing any cross objection to
the extent to which decree is in his favour; however, if
he proposes to attack any part of the decree he must
take cross objection. The amendment inserted by
1976 amendment is clarificatory and also enabling
and this may be made precise by analysing the
provision. There may be three situations: - (i) The
impugned decree is partly in favour of the appellant
and partly in favour of the respondent; (ii) The decree
is entirely in favour of the respondent though an issue
has been decided against the respondent; (iii) The
decree is entirely in favour of the respondent and all
the issues have also been answered in favour of the
respondent but there is a finding in the Judgement
which goes against the respondent.
11. In the type of case (i) it was necessary for the
respondent to file an appeal or take cross objection
against that part of the decree which is against him, if
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he seeks to get rid of the same though that part of the
decree which is in his favour he is entitled to support
without taking any cross objection. The law remains
so post amendment too. In the type of cases (ii) and
(iii) pre-amendment CPC did not entitle nor permit
the respondent to take any cross objection as he was
not the person aggrieved by the decree. Under the
amended CPC. read in the light of the explanation,
though it is still not necessary for the respondent to
take any cross objection laying challenge to any
finding adverse to him as the decree is entirely in his
favour and he may support the decree without cross
objection; the amendment made in the text of sub-rule
(1), read with the explanation newly inserted, gives
him a right to take cross objection to a finding
recorded against him either while answering an issue
or while dealing with an issue. The advantage of
preferring such cross objection is. spelled out by sub-
rule (4). In spite of the original appeal having been
withdrawn or dismissed for default the cross objection
taken to any finding by the respondent shall still be
available to be adjudicated upon on merits which
remedy was not available to the respondent under the
unamended CPC. In pre-amendment era. the
withdrawal or dismissal for default of the original
appeal disabled the respondent to question the
correctness or otherwise of any finding recorded
against the respondent.
12. . The fact remains that to the extent to which the
decree is against the respondent and he wishes to get
rid of it he should have either filed an appeal of his
own or taken cross objection failing which the decree
to that extent cannot be insisted on by the respondent
for being interfered, set aside or modified to his
advantage. The law continues to remain so post-1976
amendment. In a suit seeking specific performance of
the agreement to sell governed by the provisions of
the Specific Relief Act. 1963 the Court has a
discretion to decree specific performance of the
agreement. The plaintiff may also claim compensation
under Section 21 or any other relief to which he may
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be entitled including the refund of money or deposit
paid or made by him in case his claim for specific
performance is refused. No compensation or any
other relief including the relief of refund shall be
granted by the Court unless it has been specifically
claimed in the plaint by the plaintiff. Certainly the
relief of specific performance is a larger relief-for the
plaintiff and more onerous to the defendant compared
with the relief for compensation or refund of money.
The relief of compensation or refund of money is a
relief smaller than the relief of specific performance.
A plaintiff who files a suit for specific performance
claiming compensation in lieu of or in addition to the
relief of specific performance or any other relief
including the refund of any money has a right to file
an appeal against the original decree if the relief of
specific performance is refused and other relief is
granted. The plaintiff would be a person aggrieved by
the decree in spite of one of the alternative reliefs
having been allowed to him because what has been
allowed to him is the smaller relief and the larger
relief has been denied to him. A defendant against
whom a suit for specific performance has been
decreed may file an appeal seeking relief of specific
performance being denied to the plaintiff and instead
a decree of smaller relief such as that of
compensation or refund of money or any other relief
being granted to the plaintiff for the former is larger
relief and the latter is smaller relief. The defendant
would be the person aggrieved to that extent. It
follows as a necessary corollary from the above said
statement of law that in an appeal filed by the
defendant laying challenge to the relief of
compensation or refund of money or any other relief
while decree for specific performance was denied to
the plaintiff, the plaintiff as a respondent cannot seek
the relief of specific performance of contract or
modification of the impugned decree except by filing
an appeal of his own or by taking cross objection.
13. We are. therefore, of the opinion that in the
absence of cross appeal preferred or cross objection
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taken by the plaintiff-respondent the First Appellate
Court did not have jurisdiction to modify the decree in
the manner in which it has done. Within the scope of
appeals preferred by the appellants the First
Appellate Court could have either allowed the appeals
and dismissed the suit filed by the respondent in its
entirety or could have deleted the latter part of the
decree which granted the decree for specific
performance conditional upon failure of the defendant
to deposit the money in terms of the decree or could
have maintained the decree as it was passed by
dismissing the appeals. What the First Appellate
Court has done is not only to set aside the decree to
the extent to which it was in favour of the appellants
but also granted an absolute and out and out decree
for specific performance of agreement to sell which is
to the prejudice of the appellants and to the
advantage of the respondent who has neither filed an
appeal nor taken any cross objection."
21. In view of above settled position of law and applying the
principles culled from the aforesaid judgment, the defendants
cannot argue on the point of limitation, in Second Appeal, as
the learned trial Court has put it to the rest.
22. Next issue arise for consideration that can a title in
immovable property, acquired through registered sale deed,
extinguish merely on posting of revenue entry, without
executing registered relinquishment deed. It is an admitted
position that the suit land has been purchased by Kacharaji,
defendant No.1 and plaintiff No.1 by way of registered sale
deed. Thus, the plaintiffs derived title of the suit land by way
of registered document. This title cannot be extinguished
merely on posting some revenue entries. It is settled
provisions of law that the revenue entries cannot create or
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extinguish the title. The relinquishment, if any, has to be
made through registered relinquishment deed. At this
juncture, section 17(1)(b) of the Registration Act would come
in picture, which reads as under:-
"17. Documents of which registration is
compulsory.
(b)other non-testamentary instruments which
purport or operate to create, declare, assign, limit
or extinguish, whether in present or in future, any
right, title or interest, whether vested or
contingent, of the value of one hundred rupees and
upwards, to or in immovable property."
23. Thus, other non-testamentary instruments which purport
or operate to create, declare, assign, limit or extinguish,
whether in present or in future, any right, title or interest,
whether vested or contingent, of the value of one hundred
rupees and upwards, to or in immovable property has to be
done by way of registered document. The entire case of the
defendants is based upon revenue entry No.1706, by which,
the defendants claimed that the plaintiff No.1 has
relinquished her right over the suit land and therefore, she
cannot assert her right qua the suit land. However, it is an
admitted position that there is no relinquishment deed made
by the plaintiff No.1 relinquishing her right over the suit land.
Merely posting of revenue entry cannot dilute right and title
of the plaintiffs over the suit land, which she derived by way
of registered document in the form of sale deed.
24. Worthy assistance can be availed from the decision of
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the Hon'ble Apex Court in case of Yellapu (supra), in para 12
to 16. The Hon'ble Apex Court held as under:-
"12. Before we go in to the merits of the matter, we
deem it appropriate to extract the relevant provisions
of the Registration Act, 1908 .
Sec. 17 of the Registration Act, 1908 Documents
of which registration is compulsory.-
(l) The following documents shall be registered,
if the property to which they relate is situate in a
district in which, and if they have been executed
on or after the date on which, Act No. XVI of
1864, or the Registration Act, 1866, or the
Registration Act, 1871, or the Registration Act,
1877, or this Act came or comes into force,
namely:-
(a) Instruments of gift of immovable property;
(b) other non-testamentary instruments which
purport or operate to create, declare, assign,
limit or extinguish, whether in present or in
future, any right, title or interest, whether
vested or contingent, of the value of one
hundred rupees and upwards, to or in
immovable property;
(c) non-testamentary instruments which
acknowledge the receipt or payment of any
consideration on account of the creation,
declaration, assignment, limitation or extinction
of any such right, title or interest; and
(d) leases of immovable property;
(e) non-testamentary instruments transferring or
assigning any decree or order of a Court or any
award when such decree or order or award
purports or operates to create, declare, assign,
limit or extinguish, whether in present or in
future, any right, title or interest, whether
vested or contingent, of the value of one
hundred rupees and upwards, to or in
immovable property:
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(f) any decree or order or award or a copy
thereof passed by a Civil Court on consent of the
defendants or on circumstantial evidence but not
on the basis of any instrument which is
admissible in evidence under section 35 of the
Indian Stamp Act, 1899 (2 of 1899), such as
registered title deed produced by the plaintiff,
where such decree or order or award purports
or operate to create, declare, assign, limit,
extinguish whether in present or in future any
right, title or interest whether vested or
contingent of the value of one hundred rupees
and upwards to or in immovable property; and
(g) agreement of sale of immovable property of
the value of one hundred rupee and upwards",
Provided that the State Government may, by
order published in the Official Gazette, exempt
from the operation of this sub-section any lease
executed in any district, or part of a district, the
terms granted by which do not exceed five years
and the annual rents reserved by which do not
exceed fifty rupees.
Section 49 of the Registration Act,1908
Effect of non-registration of documents required
to be registered.- No document required by
section 17 or by any provision of the Transfer of
Property Act, 1882 (4 of 1882), to be registered
shall-
(a) affect any immovable property comprised
therein, or
(b) confer any power to adopt; or
(c) be received as evidence of any transaction
affecting such property or conferring such
power, unless it has been registered:
Provided that an unregistered document
affecting immovable property and required by
this Act or the Transfer of Property Act, 1882 (4
of 1882), to be registered may be received as
evidence of a contract in a suit for specific
performance under Chapter-II of the Specific
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Relief Act, 1877 (3 of 1877) or as evidence of
any collateral transaction not required to be
effected by registered instrument.
13. Section 17 (1) (b) of the Registration Act
mandates that any document which has the effect of
creating and taking away the rights in respect of an
immovable property must be registered and Section
49 of the Act imposes bar on the admissibility of an
unregistered document and deals with the documents
that are required to be registered u/s 17 of the Act.
14. Coming to the facts on hand, the defendant No.1
wanted to mark Exhibits B21 and B22, according to
her, these two documents are Agreement and a
Memorandum which were unregistered and
unstamped documents and do not require
registration. We have seen Exhibits B21 and B22
which are placed before us. Exhibit B22, dated
04/06/1975 as per the recitals, an Agreement between
the plaintiff/respondent No.1, defendant
No.1/appellant No.1 and late Mahalakshamma. Clause
1 of the Agreement speaks about relinquishment of
rights of Mahalakshamma in favour of
plaintiff/respondent No. 1 and defendant
No.1/appellant No. 1 and Clause 4 specifies that the
life estate of Mahalakshamma is devolved upon the
plaintiff/respondent No.1 and the defendant
No.1/appellant No.1 equally. It is further specified
that the stock amount of Rs 50,000/- in the shop was
given to Mahalakshamma and left over amount will be
divided between plaintiff/respondent No.1 and
defendant No.1/appellant No.1 and further it was
agreed upon that Mahalakshamma was entitled to
reside in the house where she was residing. She was
at liberty to reside in the house of the
plaintiff/respondent No. 1 and the plaintiff/respondent
No.1 and the defendant No.1/appellant No.1 shall not
raise any dispute over this. Coming to Exhibit B21,
date 05/06/1975 which is an agreement between
Mahalakshamma, plaintiff/respondent No.1 and
defendant No.1/appellant No.1 wherein at Clauses 4
to 6 the recitals pertain to relinquishment of shares
between the parties to the agreement. It is stated in
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the Memorandum, Ext. B 22, that each of them having
partitioned the properties by good and bad qualities,
have been enjoying the respective properties that fell
to their shares, in proof thereof, the Deed of
Memorandum is executed. Taking us through the
recitals of these two documents, the learned senior
Counsel tried to impress upon this Court particularly
through the last few lines from Exhibit B-21, that
these documents are only evidencing the past
transaction of partition that has taken place but
through these documents no rights in immovable
property have accrued to the parties as envisaged
under Sec. 17 of the Registration Act and which
makes these documents out of the purview of Section
49 of the Registration Act.
15. It is well settled that the nomenclature given to
the document is not decisive factor but the nature and
substance of the transaction has to be determined
with reference to the terms of the documents and that
the admissibility of a document is entirely dependent
upon the recitals contained in that document but not
on the basis of the pleadings set up by the party who
seeks to introduce the document in question. A
thorough reading of both Exhibits B-21 and B-22
makes it very clear that there is relinquishment of
right in respect of immovable property through a
document which is compulsorily registerable
document and if the same is not registered, becomes
an inadmissible document as envisaged under Section
49 of the Registration Act. Hence, Exhibits B-21 and
B-22 are the documents which squarely fall within the
ambit of section 17 (i) (b) of the Registration Act and
hence are compulsorily registerable documents and
the same are inadmissible in evidence for the purpose
of proving the factum of partition between the parties.
We are of the considered opinion that Exhibits B 21
and B22 are not admissible in evidence for the
purpose of proving primary purpose of partition.
16. Then the next question that falls for consideration
is whether these can be used for any collateral
purpose. The larger Bench of Andhra Pradesh High
Court in Chinnappa Reddy Gari Muthyala Reddy Vs.
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Chinnappa Reddy Gari Vankat Reddy , AIR 1969 A.P.
(242) has held that the whole process of partition
contemplates three phases i.e. severancy of status,
division of joint property by metes and bounds and
nature of possession of various shares. In a suit for
partition, an unregistered document can be relied
upon for collateral purpose i.e. severancy of title,
nature of possession of various shares but not for the
primary purpose i.e. division of joint properties by
metes and bounds. An unstamped instrument is not
admissible in evidence even for collateral purpose,
until the same is impounded. Hence, if the
appellants/defendants want to mark these documents
for collateral purpose it is open for them to pay the
stamp duty together with penalty and get the
document impounded and the Trial Court is at liberty
to mark Exhibits B-21 and B- 22 for collateral purpose
subject to proof and relevance. "
25. The Coordinate Bench of this Court in Roshanben
Hajibhai Deraiya (supra), follows the judgment of the
Hon'ble Apex Court in case of Yellapu (supra) and held that
unregistered document of relinquishment of right cannot be
treated to have extinguished right of the petitioner in the
share of the father's property after his death.
26. In the present case, there is no relinquishment deed.
The claim of the defendants is mainly based upon the revenue
entry No.1706 and they claimed that the plaintiff No.1 has
relinquished her right over the suit land. Learned senior
Counsel Mr. Vyas referred to subsequent revenue entry
No.1767 dated 8.3.1996 to claim that the defendant No.1
asserted that she is exclusive owner of the suit land and upon
such, she obtained loan from the Cooperative Society and also
repaid the loan. Thus, according to learned Senior counsel
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Mr. Vyas subsequent act of the defendant No.1 makes it clear
that the plaintiffs were oust from holding title over the suit
land, and it proved that the suit land is exclusively owned by
the defendant No.1. I am not impressed by such submission.
Merely because, the Cooperative Society having considered
revenue entry and granted loan to the defendant No.1 would
not mean to construe that the defendant No.1 is having
exclusive ownership of the suit land and title is perfected in
her favour. When the title of the plaintiffs is perfected by way
of registered sale deed, the same cannot be diluted or
denuded merely upon some revenue entry saying that the
plaintiff No.1 has relinquished her right over the suit land.
Apposite to note that, revenue entry noting relinquishment of
the right of the plaintiffs did not refer any registered
document or legal proceeding. In fact, the defendants did not
justify posting of such revenue entry being result of any legal
instrument or order in legal proceedings.
27. The Hon'ble Apex Court in case of Hemalatha (D) By
Lrs. Versus Tukaram (D) By Lrs., AIR 2026 SC 615, in para
63, set the principle that the revenue records is of no
consequence as it is for fiscal purpose and did not prove
ownership, which reads as under:-
"63. Further, the Respondent-Plaintiff's contention
that Appellant-Defendant No. 1's name was not
mutated in the revenue records is of no consequence,
as it is settled law that revenue entries in the
municipal records do not prove ownership. [See
Suraj Bhan & Ors. vs. Financial Commissioner &
Ors. (2007) 6 SCC 186 ; Suman Verma vs. Union
of India & Ors. (2004) 12 SCC 58 ; Municipal
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Corporation, Aurangabad Through its
Commissioner vs. State of Maharashtra & Anr.
(2015) 16 SCC 689 ; Ajit Kaur alias Surjit Kaur
vs. Darshan Singh (Dead) through LRs. and Ors.
(2019) 13 SCC 70 ]. "
28. In view of above, assertion of right based upon the
revenue entry by the defendants is totally baseless and
meritless. The case of the defendants that plaintiff No.1 has
relinquished her right from the suit land by revenue entry,
which perfected title in favour of the defendants, has no legs
to stand. In absence of registered relinquishment deed, the
plaintiffs' right, title and interest would not be extinguished.
29. The above finding takes me to decide next question that
whether the plaintiffs were oust from the joint hindu family
property by the defendant No.1.
30. In case of Vidya Devi (supra) in para 28, the Hon'ble
Apex Court held as under:-
"28. "Ouster" does not mean actual driving out of the
co-sharer from the property. It will, however, not be
complete unless it is coupled with all other
ingredients required to constitute adverse
possession, Broadly speaking, three elements are
necessary for establishing the plea of ouster in the
case of co-owner. They are (i) declaration of hostile
animus(ii) long and uninterrupted possession of the
person pleading ouster and (iii) exercise of right of
exclusive ownership openly and to the knowledge of
other co-owners. Thus co-owner, can under law, claim
title by adverse possession against another co-owner
who can, of course, file appropriate suit including suit
for joint possession within time prescribed by law."
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31. Thus, plea of ouster in case of co-owner requires
aforesaid necessary elements to be pleaded and proved.
Notably, in absence of specific ouster pleaded and proved by
the defendant No.1, the revenue entry is of no consequence to
establish ouster of the plaintiffs and cannot disturb the title of
the plaintiffs, which otherwise exists by way of registered
document.
32. The Hon'ble Apex Court in case of Sneha Gupta Versus
Devi Sarup, 2009(6) SCC 194, in para 32, in regards to
right under the Hindu Succession Act, 1956 held that if such
right inherited is relinquished, it requires registration. Said
para reads as under:-
"32. Title to a property must be determined in terms
of the statutory provision. If by reason of the
provisions of the Hindu Succession Act, 1956 the
appellant herein had derived title to the property
along with her brothers and sisters, she cannot be
deprived thereof by reason of an agreement entered
into by and between the original plaintiff and the
contesting defendants. If a party furthermore
relinquishes his or her right in a property, the same
must be done by a registered instrument in terms of
the provisions of Indian Registration Act."
33. In view of above, the submission canvassed by learned
senior Counsel Mr. Vyas that the plaintiffs have no share in
the suit land and their right to seek partition is barred by law
of limitation failed to sustain.
34. In Vidya Devi (supra), the Hon'ble Apex Court held that
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the legislature has not prescribed any period of limitation for
filing a suit for partition because partition is an incident
attached to the property, Further, it is held by the Hon'ble Apex
Court that co-share or co-owner are representatives of each
other and possession of one is a possession on behalf of all.
Therefore, the co-sharer, who intend to set the plea of limitation
has to profess hostile title against other co-sharer. Para 20 and
21 of the judgment are relevant and they read as under:-
"20. The legislature has not prescribed any period of
limitation for filing a suit for partition because partition is
an incident attached to the property and there is always
a running cause of action for seeking partition by one of
the co-sharers if and when he decides not to keep his
share joint with other co-sharers. Since the filing of the
suit is wholly dependent upon the will of the co-sharer,
the period of limitation, specially the date or time from
which such period would commence, could not have been
possibly provided for by the legislature and, therefore, in
this Act also a period of limitation, so far as suits for
partition are concerned, has not been prescribed. This,
however, does not mean that a co-sharer who is arrayed
as a defendant in the suit cannot raise the plea of
adverse possession against the co-sharer who has come
before the Court as a plaintiff seeking partition of his
share in the joint property.
21. Normally, where the property is joint, co-sharers
are the representatives of each another. The co-sharer
who might be in possession of the joint property shall
be deemed to be in possession on behalf of all the co-
sharers. As such, it would be difficult to raise the plea
of adverse possession by one co-sharer against the
other. But if the co-share or the joint owner had been
professing hostile title as against other co-sharers
openly and to the knowledge of other joint owners, he
can, provided the hostile title or possession has
continued uninterruptedly for the whole period
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prescribed for recovery of possession, legitimately
acquire title by adverse possession and can plead
such title in defence to claim for partition."
35. The aforesaid findings of the Hon'ble Apex Court
established that the suit for partition between the co-owner
and co-sharer have running cause of action since the cause of
action for suit for partition is an incident attached to the
property, till the property remains, as joint property or plea of
ouster is successfully proved. In view of above, according to
this Court, the plea of limitation is not available to the
defendants.
36. Simultaneously, considering the suggestion made to the
plaintiffs in the cross examination (Exh.32) by the defendant,
it is also proved that even it was in the mind of defendant
No.1 that she and Lilaben original plaintiff were jointly
holding the title over the suit land, as it is a joint family
property which was purchased by way of registered sale deed.
37. In wake of aforesaid reasons, no case is made out for
admission of the second appeal. Accordingly, second appeal
fails and stands dismissed at admission stage. Notice
discharged.
38. Consequently, CA does not survive and stands disposed
of accordingly. Notice discharged.
39. Registry is directed to return back the R & P, if any, to
the concerned Court forthwith.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
