Allowed

Dr. Nirmalaben Gohil v. Rameshsinh Sajubha Jadeja

Gujarat HC9 Jun 2014SA/204/2013

Case brief

AI extract

What is this about?

Second appeal against revision of a property suit decree. The High Court held the appellate court committed procedural error by reversing findings without framing issues, restored the trial court decree, and quashed the appellate judgment.

What did the court decide?

The judgment and decree of the Appellate Court were quashed, and the trial court's judgment and decree were restored. No order as to costs.

Dr. Nirmalaben Gohil Vs Rameshsinh Sajubha Jadeja — Specific Performance | Gujarat HC (2014)

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C/SA/204/2013 CAV JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SECOND APPEAL NO. 204 of 2013

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============================================================== DR. NIRMALABEN GOHIL ....Appellant Versus RAMESHSINH SAJUBHA JADEJA & ANR. ....Respondents

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Appearance:

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MS. M.O. NARSINGHANI, ADVOCATE for the Appellant

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MR. B.M. MANGUKIA, ADVOCATE FOR MR. V.H. KANARA, ADVOCATE for the Respondent No. 1

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Respondent No. 2 SERVED

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==============================================================

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CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY

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Date : 09/06/2014

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CAV JUDGMENT

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Challenge in this Second Appeal is made by the legal heirs of the original plaintiff, to the judgment and decree dated 13.09.2013 passed by the 3^rd Additional District Judge, Jamnagar, in Regular Civil Appeal No.20 of 2011, by which, the Appellate Court below has reversed the judgment and decree dated 28.02.2011 passed by the Trial Court i.e. the 6^th Additional Senior Civil Judge, Jamnagar, in Regular Civil Suit No.778 of 2002.

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Heard Ms.M.O.Narsinghani, learned advocate for the appellant and Mr.B.M.Mangukia, learned advocate for Mr.V.H.Kanara, for the contesting respondent.

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Page 1 of 17

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3.1 The relevant facts as emerging from the record, are as under.

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3.2 The present appellant is the legal heir of the plaintiff of Regular Civil Suit No.778 of 2002 in the Court of Senior Civil Judge, Jamnagar.

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3.3 It was the case of the plaintiff before the Trial Court that, he was serving as a Warrant Officer in the Air Force. After about 39 years of service, he had retired in the year 1972. On 29.01.1973, he made an application to the Revenue Authorities of Jamnagar District for allotment of land for residential purpose. The Authorities considered the application as per the policy of the Government, and on payment of requisite amount, alloted a piece of land measuring 1000 sq. feet bearing Survey No.216, Plot No.73 and 74 [document at Exh.52, dated 18.10.1975].

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3.4 He had to construct the house on the said land within stipulated time, however because of his old age and illness, he could not do it in time. He was admitted in the hospital, initially at Jamnagar, and subsequently at Ahmedabad. When he was in a position to undertake the construction, he found that on the said piece of land, one Sajubha Navalsinh Jadeja was residing in a constructed house. On being approached, said Sajubha, entered into sale deed with his son Rameshsinh Sajubha Jadeja, to show creation of third party right.

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3.5 Being aggrieved, the land owner – the retired Air Force Officer approached the Trial Court by joining both - the father and the son as defendants, and prayed for declaration that the plaintiff was the owner of the suit land and the defendants were the trespassers over it, and that the possession of the suit property be restored to the plaintiff.

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3.6 During pendency of the suit, the father – the original defendant no.1 died and it is the defendant no.2 – the son, who gave an application [Exh.72, dated 24.07.2007] to delete defendant no.1 from the proceedings. The son – defendant no.2 was even otherwise the legal heir of the defendant no.1 and it was the application of the defendant no.2 to delete defendant no.1, which came to be allowed vide order dated 06.02.2008. Thus, it is at the instance of defendant no.2 that the proceedings were contested by him as the sole defendant.

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The Trial Court, on the basis of the pleadings, framed the following issues on 04.11.2003 vide Exh.31, and on the basis of the evidence led before it, answered them as under.

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Whether the plaintiff proves that he is the sole owner of the suit property described in schedule-A annexed with the plaint?

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(In affirmative)

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Whether the plaintiff proves that the defendant

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is the trespasser of the suit property and the defendant has got up agreement to sell dated 02.06.1996, as alleged in the plaint?

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(In affirmative)

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Whether the plaintiff proves that the defendant has encroached upon the suit property and the defendant is not in lawful possession of the suit land as alleged in the plaint?

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(In affirmative)

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Whether the plaintiff can claim possession of the suit property from the defendant?

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(In affirmative)

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Whether this suit is bad for non-joinder of necessary parties? (In negative)

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Whether the defendant No.1 proves that he has rightly sold the suit property by a deed dated 26.12.2000 to Mr.R.S.Jadeja as alleged in written statement para-10?

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(In negative)

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Whether the defendant No.2 proves that he was bonafide purchaser of the suit property? (In negative)

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Whether the plaintiff is entitled to claim any of

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the relief as alleged in the plaint Para-11? (in Affirmative)”

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The Trial Court, as noted above, answered all the issues in favour of the plaintiff and decreed the suit vide judgment dated 28.02.2011. Being aggrieved by the above judgment and decree passed by the Trial Court, the sole defendant – the son, challenged it before the District Court, Jamnagar in Regular Civil Appeal No.20 of 2011.

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The Appellate Court below, framed only one issue, as to whether the judgment and decree of the Trail Court suffers from any illegality. The said - only issue is answered by it in affirmative. The appeal thus stood allowed by reversing the judgment and decree of the Trial Court. It is this judgment and decree of the Appellate Court below, which is challenged by the legal heir of the original plaintiff before this Court. It is recorded that, while admitting this Appeal, in para:7 of the order dated 30.11.2013, this Court had, inter-alia observed that since the Appellate Court below had, while reversing the decree of the Trail Court, framed only one issue, as to whether the judgment and decree of the Trail Court suffers from any illegality or not, that by itself is a substantial question of law, as to whether that could have been legally done, without framing other issues. Over and above that, this Appeal was admitted by this Court to consider the following substantial questions of law.

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(1) Whether the Appellate Court below was justified in the facts and circumstances, to reverse the finding of the Trial Court on the issue, as to whether the plaintiff proved that he was the sole owner of the suit property described in schedule-A annexed with the plaint, when the finding of the Trial Court against that issue was in affirmative ?

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(2) Whether the Appellate Court below was justified in the facts and circumstances, to reverse the finding of the Trial Court on the issue, as to whether the plaintiff proved that the defendant was the trespasser of the suit property and the defendant had got-up agreement to sell dated 02.06.1996, as allege in the plaint, when the finding of the Trial Court against that issue was in affirmative ?

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(3) Whether the Appellate Court below was justified in the facts and circumstances, to reverse the finding of the Trial Court on the issue, as to whether the plaintiff proved that the defendant has encroached upon the suit property and the defendant is not in lawful possession of the suit land as allege in the plaint, when the finding of the Trial Court against the issue was in affirmative ?

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(4) Whether the Appellate Court below was justified in the facts and circumstances, to reverse the finding of the Trial Court on the issue, as to whether

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the plaintiff can claim possession of the suit property from the defendant, when the finding of the Trial Court against the issue was in affirmative ?

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(5) Whether the Appellate Court below was justified in the facts and circumstances, to reverse the finding of the Trial Court on the issue, as to whether this suit was bad for non-joinder of necessary parties, when the finding of the Trial Court against the issue was in negative ?

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(6) Whether the Appellate Court below was justified in the facts and circumstances, to reverse the finding of the Trial Court on the issue, as to whether the defendant No.1 proved that he had rightly sold the suit property by a deed dated 26.12.2000 to Mr. R.S.Jadeja as alleged in written statement para-10, when the finding of the Trial Court against the issue was in negative ?

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(7) Whether the Appellate Court below was justified in the facts and circumstances, to reverse the finding of the Trial Court on the issue, as to whether the defendant No.2 proved that he was bonafide purchaser of the suit property, when the finding of the Trial Court against the issue was in negative ?

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(8) Whether the Appellate Court below was justified in the facts and circumstances, to reverse the

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finding of the Trial Court on the issue, as to whether the plaintiff was entitled to claim any of the relief as allege in the plaint Para-11, when the finding of the Trial Court against the issue was in affirmative ?

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(9) Whether the Appellate Court below was justified in the facts and circumstances, to reverse the finding of the Trial Court on each issue framed by it (by the Trial Court), without framing any issue in that regard by it (the Appellate Court) ?

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Learned advocate for the appellant has contended that the Trial Court had framed as many as eight issues and detailed reasons were recorded by it, to arrive at the conclusion on each point and there was no occasion for the Appellate Court below to interfere in it, that too without framing any specific issue in that regard. It is submitted that, only one and general issue was framed by the Appellate Court below, which was not only procedurally incorrect but even in substance has resulted in miscarriage of justice. Learned advocate for the appellant has submitted that, this second appeal be allowed, and the impugned judgment and decree of the Appellate Court below be quashed and set aside and that of the Trial Court be restored. Learned advocate for the appellant has placed reliance on the following decisions :

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(2012) 8 SCC 706 - Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust.

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(2012) 1 SCC 656- Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana

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(2012) 5 SCC 370 – Maria Margarida Sequeira Fernandes Vs. Erasmo Jack De Sequeira

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AIR 2004 SC 4342 – Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra

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AIR 2005 SC 439 – Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd.

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AIR 1999 SC 1441 – Vidhyadhar Vs. Mankikrao

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(2010) 10 SCC 512 – Mankaur Vs. Hartar Singh Sangha

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1969 (3) SCC 120 – Nathulal Vs. Phoolchad

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(2005) 12 SCC 164 – Huvappa Irappa Ballari Vs. Basava

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AIR 1950 SC 1 – Maneklal Mansukbhai Vs. Hormutsji Jamshedji Ginwala

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AIR 2009 SC 2966 - T.K.Mohammed Abubucker Vs. P.S.M.Ahamed Abdul Khader

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AIR 2008 SC 2033 – Anathula Sudhakar Vs. P.Buchi Reddy

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On the other hand, learned advocate for the respondent – the original defendant has submitted that, the suit itself was not maintainable, it suffered from the vice of non-joinder of necessary party, and that in Civil Procedure Code, the say of the litigant need not be proved beyond reasonable doubt and the defendant had already discharged reasonable obligation as required under the law and therefore, it is the Trial Court which had committed error, which the Appellate Court below has corrected and this Court may not interfere in the judgment and decree passed by the Appellate Court below. It is submitted that this Second Appeal be dismissed.

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This Court had, while admitting this Second Appeal, called for Records and Proceedings from the Courts below. Both the learned advocates have, during the course of their submissions, taken this Court through the Records and Proceedings of the Courts below, to the extent necessary. This Court has gone through the evidence on record, not for the purpose of re-appreciation thereof, but to judge as to which of the Courts below misread it and arrived at erroneous conclusion.

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10.1 Having heard learned advocates for the respective parties and having gone through the Record and Proceedings, and having taken note of the relevant evidence, not for the purpose of re-appreciation thereof, but to judge as to which of the Courts below misread it and arrived at erroneous conclusion, this Court finds that,

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the Appellate Court below has committed serious error in procedure as well as in substance both, and the judgment and decree passed by the Appellate Court below is unsustainable and therefore the same needs to be quashed and set aside.

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10.2 Before the substantial questions of law are gone into, at the outset, it needs to be recorded that, the Appellate Court below was considering the regular First Appeal which was a valuable right of the parties before it, and therefore they ought to have been given fair hearing on the issues which the Appellate Court below intended to go into. The procedure to be followed is not unknown to law. Reference in this regard can be made to Order 41, Rule 31 of the Code of Civil Procedure, 1908. Nonobservance of the said procedure, more particularly when the judgment and decree of the Trial Court is reversed, is to be viewed with closer scrutiny as to whether it has resulted into miscarriage of justice. Reference in this regard can be made to the judgment of Hon’ble the Supreme Court of India in the case of A.M.Sangappa vs. Sangondeppa and anr. [2013 (14) SCALE 384]. Keeping these aspects in view, if the procedure adopted by the Appellate Court below in the present case is seen, it renders the judgment and decree passed by it unsustainable. The last of the substantial questions of law, quoted above, is thus answered by holding that, the Appellate Court below was not justified to reverse the

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finding of the Trial Court on each issue framed by it (by the Trial Court), without framing any issue in that regard by it (the Appellate Court). For this reason, the judgment and decree passed by the Appellate Court below needs to be quashed and set aside. The next question would be, as to which course should be adopted. The matter could have been remanded to the Appellate Court below for fresh consideration. However, there is ample material on record, and issues were framed by the Trial Court in detail, which are considered and answered by it and this Court has not found any perversity or misreading of evidence by the Trial Court and therefore remanding the matter back to the Appellate Court below will only add to the miscarriage of justice, which is already caused by the Appellate Court below, in the facts of this case.

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10.3.1 It is found that the title over the suit property is legally established by the plaintiff, and there is no legally acceptable evidence contrary to it, led on behalf of the respondent. Once that is so, other issues may pale into insignificance, however, on further scrutiny, it is also found that the Appellate Court below has erred at more than one places. There is complete misreading of the evidence and absolute perversity exhibited by the Appellate Court below, while writing a very slipshod order, reversing the judgment of the Trial Court. Few of them are as under.

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10.3.2 The original plaintiff, in absence of any house, had

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to stay in an age old home. While feeling form for that purpose, he was to give information as to whether he has any shelter or not and since that column was answered in negative, that is treated to be a factor against the original plaintiff by the Appellate Court below that he did not have any title over the suit property, otherwise he would not have written like this in the application form. This reason is recorded in para:8 of the judgment of the Appellate Court below. The information in the said column is read to be an evidence by the Appellate Court below to hold that the plaintiff did not have any immovable asset, much less the suit property. It is this perversity which has led to the reversal of the judgment and decree passed by the Trial Court.

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10.3.3 Further, the Appellate Court below has also considered the suit as barred by limitation, at the appellate stage, without even framing any issue in that regard. This aspect is also borne out from para:8 of the judgment of the Appellate Court below.

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10.3.4 Further, the Appellate Court below, very curiously condemned the retired Army Officer holding that, since he was to complete the construction over the suit land within stipulated time, which he had not done and therefore he was not a law abiding citizen, and therefore he was not the owner of the suit property.

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10.3.5 The Appellate Court below thus exhibited gross perversity in reading the circumstances and evidence on

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record to arrive at a conclusion leading to upset the decree passed by the Trial Court. It is this perversity which has resulted into gross miscarriage of justice, which needs to be corrected by this Court.

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10.4 This Court has found that, the original plaintiff had already proved, by documentary evidence, that he was the sole owner of the suit land and there was no evidence contrary to it. The Trial Court had started with the very root of the matter and arrived at the correct conclusion. The law in this regard is quite settled now. Reference can be made to the decision of Honourable the Supreme Court of India in the case of Maria Margarida Sequeria Fernandes vs. Erasmo Jack De Sequeira reported in (2012) 5 SCC 370.

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10.5 Considering the totality, the substantial questions of law, quoted above, are answered as under.

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(1) The Appellate Court below was not justified in the facts and circumstances, to reverse the finding of the Trial Court on the issue that the plaintiff proved that he was the sole owner of the suit property described in schedule-A annexed with the plaint.

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(2) The Appellate Court below was not justified in the facts and circumstances, to reverse the finding of the Trial Court on the issue that the plaintiff had proved that the defendant was the trespasser of the

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suit property and the defendant had got-up agreement to sell dated 02.06.1996, as alleged in the plaint.

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(3) The Appellate Court below was not justified in the facts and circumstances, to reverse the finding of the Trial Court on the issue that the plaintiff had proved that the defendant had encroached upon the suit property and the defendant was not in lawful possession of the suit land as alleged in the plaint.

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(4) The Appellate Court below was not justified in the facts and circumstances, to reverse the finding of the Trial Court on the issue that the plaintiff can claim possession of the suit property from the defendant.

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(5) The Appellate Court below was not justified in the facts and circumstances, to reverse the finding of the Trial Court on the issue that all necessary parties were there before the Trial Court.

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(6) The Appellate Court below was not justified in the facts and circumstances, to reverse the finding of the Trial Court on the issue that the defendant No.1 had failed to prove that he had rightly sold the suit property by a deed dated 26.12.2000 to Mr.R.S.Jadeja (to his son) as alleged in written statement para-10.

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(7) The Appellate Court below was not justified in the facts and circumstances, to reverse the finding of the Trial Court on the issue that the defendant No.2 had failed to prove that he was bonafide purchaser of the suit property.

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(8) The Appellate Court below was not justified in the facts and circumstances, to reverse the finding of the Trial Court on the issue that the plaintiff was entitled to claim relief as claimed in the plaint Para11.

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(9) The Appellate Court below was not justified in the facts and circumstances, to reverse the finding of the Trial Court on each issue framed by the Trial Court, without framing any issue in that regard by it (the Appellate Court).

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Considering the answers to the substantial questions of law, as noted above, and for the reasons recorded above, this Second Appeal is allowed. The judgment and decree dated 13.09.2013 passed by the 3^rd Additional District Judge, Jamnagar, in Regular Civil Appeal No.20 of 2011 is quashed and set aside. The judgment and decree dated 28.02.2011 passed by the Trial Court i.e. the 6^th Additional Senior Civil Judge, Jamnagar, in Regular Civil Suit No.778 of 2002 is restored. No order as to costs. Decree be drawn accordingly.

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(PARESH UPADHYAY, J.)

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After this judgment is pronounced, learned advocate for the respondent has requested that, this judgment be stayed for some time to enable the respondent to move the higher forum. This request is opposed by the learned advocate for the appellant. Considering the totality and with a view to see that, challenge if any to this judgment remains meaningful, it is ordered that, the appellant shall not initiate any coercive proceedings pursuant to the decree of the Trial Court, which is being restored by this Court now, for a period of two months from today.

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(PARESH UPADHYAY, J.)

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mhdave

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Dr. Nirmalaben Gohil v. Rameshsinh Sajubha Jadeja

Case brief

What is this about?

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Dr. Nirmalaben Gohil v. Rameshsinh Sajubha Jadeja

Case brief

What is this about?

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