Dismissed

Thakorebhai Bhagwanbhai v. Vijayaben Daughter of Ishwarbhai Jethabhai and Wife of Ramubhai Keshavbhai

Gujarat HC3 Feb 2020CRA/296/2017

Case brief

AI extract

What is this about?

High Court rejected a special civil revision application challenging the rejection of a plaint under Order 7 Rule 11(d) CPC. The Court held that plaintiffs claiming title via intestate succession cannot be nonsuited merely for revenue mutations and requires a trial to determine title and limitation.

What did the court decide?

Revision application rejected; oral application to continue injunction rejected; trial court to determine title and limitation.

Thakorebhai Bhagwanbhai Vs Vijayaben Daughter of Ishwarbhai… — Partition | Gujarat HC (2020)

¶1

C/CRA/296/2017 JUDGMENT

¶2

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

¶3

R/CIVIL REVISION APPLICATION NO. 296 of 2017

¶4

FOR APPROVAL AND SIGNATURE:

¶5

HONOURABLE MR.JUSTICE G.R.UDHWANI

¶6

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

¶7

1 Whether Reporters of Local Papers may be allowed to Yes see the judgment ?

¶8

2 To be referred to the Reporter or not ? Yes

¶9

3 Whether their Lordships wish to see the fair copy No of the judgment ?

¶10

4 Whether this case involves a substantial question No of law as to the interpretation of the Constitution of India or any order made thereunder ?

¶11

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

¶12

THAKOREBHAI BHAGWANBHAI & 2 other(s)

¶13

Versus

¶14

VIJAYABEN DAUGHTER OF ISHWARBHAI JETHABHAI AND WIFE OF RAMUBHAI KESHAVBHAI & 3 other(s)

¶15

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

¶16

Appearance:

¶17

MR NK MAJMUDAR(430) for the Applicant(s) No. 1,2,3 MR HARSHADRAY A DAVE(3461) for the Opponent(s) No. 1,2,3,4

¶18

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

¶19

CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI

¶20

Date : 03/02/2020

¶21

ORAL JUDGMENT

¶22

The parties to the suit being Special Civil Suit No. 315 of 2016

¶23

are descendants of Kanjibhai and it was claimed in the previous

¶24

proceedings that he had two sons namely Mavla @ Mavji and Muljibhai

¶25

however, in a suit by Dahiben being Special Civil Suit No. 548 of 1989

¶26

wherein the plaintiffs and the defendants of this suit were also parties, it

¶27

Page 1 of 9

¶28

C/CRA/296/2017 JUDGMENT

¶29

was held that Dahiben failed to prove that Kanjibhai had two sons. It was held that Kanjibhai had only one son Mavla @ Mavjibhai. However, this court is not really concerned with the controversy in relation to pedigree of Kanjibhai except to an extent that in the suit under consideration two sons i.e Jethabhai and Bhagwanbhai are the contestants. The plaintiffs of the suit are heirs of Jethabhai and the defendants are heirs of Bhagwanbhai.

¶30

It appears that the disputed property was mutated in the revenue record and elsewhere in the name of Bhagwanbhai, which fact was cited as a cause of action for the suit stating that the plaintiffs are also entitled to the share in disputed property and the act of Bhagwanbhai in getting the mutation entry from time to time in defendants' record was incapable of denying them such right. It is also stated that in the year 2015, construction was carried upon the land in question which compelled the plaintiffs to institute the suit.

¶31

2.1 The plaintiffs however did not explain and plead the facts; did not

¶32

contest the issue and ultimate decision in Civil Suit No. 548 of 2019; they rather resisted their impleadment and made declaration that they

¶33

Page 2 of 9

¶34

C/CRA/296/2017 JUDGMENT

¶35

were not concerned with the subject matter of the suit in their pursis

¶36

Exh. 95. They were however impleaded as the party by the court and even thereafter did not contest the case and made no assertion of their rights as are sought to be made herein. As would appear from the detailed discussion, in the former suit the plaintiffs and the defendants were consensus ad idem in their stand that property in question was not ancestral property but was owned by Mavla @ Mavjibhai who died intestate. In the said suit, there was no contest on intestacy of Mavjibhai. Suit was by Dahiben. Her claim for partition was dismissed. The suit was not for determination of title, however it appears that Will was executed by Bhagwanbhai Mavjibhai i.e the defendants and the former suit traces out the history in relation to rights of Bhagwanbhai Mavjibhai only on the basis of mutation entry which is made subject

¶37

matter of the present suit as pointed out hereinabove.

¶38

3, The question is whether on the strength of Order 7 Rule 11(d) of

¶39

CPC, the plaintiffs are required to be non- suited when they assert their title through Mavjibhai on intestate succession pleading that revenue mutations and revenue entries were incapable of denying the title to

¶40

them. By virtue of such title by operation of law i.e Hindu Succession

¶41

Page 3 of 9

¶42

C/CRA/296/2017 JUDGMENT

¶43

Act they have become owners to the extent of the shares specified under the said Act. Incidental question is whether the period of limitation would run against the owner who has not divested his title by recognized mode including the one contemplated under the Transfer of Property Act.

¶44

According to the learned counsel for the petitioners, the plaintiffs had no cause of action in view of the factual findings rendered in the former suit and as such the suit was barred. According to the learned counsel for the petitioners, the cause of action arose in the year 2015 as pleaded by the plaintiffs in paragraph 7 of the plaint; however there was infact no cause of action since the plaintiffs did not challenge the factual findings in the former suit and they conceded to the fact that they had no right in the disputed property.

¶45

Per contra, learned counsel for the opponents would contend that

¶46

area of inquiry in both the suits is different; whereas in the former suit the contest was between Dahiben and heirs of Kanjibhai, in the instant suit, the contest is between two proposed heirs of Mavla @Mavjibhai. It was submitted that issues raised in the instant suit were not the issues in the previous suit instituted by Dahiben. It was submitted that the plaintiffs have equal rights with the defendants in the suit property and

¶47

Page 4 of 9

¶48

C/CRA/296/2017 JUDGMENT

¶49

in absence of any valid title to the whole property with Bhagwanbhai, he

¶50

could not have dealt with the same detriment to the interest of the plaintiffs. He also contended that mere mutation would not be capable of inhibiting the title of the rightful owner.

¶51

On perusal of the decision in the former suit, it would appear that

¶52

none of the issues raised in the instant suit were involved therein. In fact, there was no occasion for such issues in the former suit. This court however would not enter into the merits of the case and the aforesaid facts are discussed only to understand the controversy between the parties.

¶53

The facts discussed hereinabove would indicate the assertion of

¶54

their title by the plaintiffs by succession under Hindu Succession Act.

¶55

There are also assertion pointing out how their rights have been adversely impacted by the defendants. Under such circumstances the plaintiffs cannot be non-suited by a mere stroke of a pen without affording them an opportunity to prove their case.

¶56

In so far as question of limitation is concerned, the divesting and

¶57

vesting of a right, title or interest in accordance with law from one

¶58

person to another would be absolutely necessary for the time to run

¶59

Page 5 of 9

¶60

C/CRA/296/2017 JUDGMENT

¶61

against the indolent. Title to immovable property can be divested by the recognized modes under the law and if that is done in accordance with law, certainly law of limitation will spring into action if the one deprived of the title has a cause to plead against such deprivation. However, where the right is not divested in the above manner, a mere revenue entry would not be sufficient to plead the deprivation of the title; nor the limitation.

¶62

In the facts of the present case, in the opinion of this court the trial court would be obliged to determine the title and the limitation only after allowing parties appropriate opportunity to plead and prove their respective case in evidence.

¶63

The cause of action, as is well settled is a bundle of acts taking place from time to time; amongst which the actionable acts would be those prejudicing or likely to prejudice or deprive or likely to deprive the right of a person. There may also exist non actionable acts preceding the actionable cause; down the line. It is not as if the plaintiffs have pleaded the cause of action only in paragraph 7; they have by making detailed averments in the entire body of the plaint pointed out the events and how the events have impacted their rights. To understand the cause of action such pleadings in entirety but certainly not in

¶64

Page 6 of 9

¶65

C/CRA/296/2017 JUDGMENT

¶66

isolation deserve consideration. Such facts cannot be excluded from

¶67

the bundle of cause of action by merely relying upon one of the paragraphs where cause of action is summarized or highlighted. The court below was therefore justified in rejecting the application under Order 7 Rule 11 of CPC.

¶68

The case of Raghwendra Sharan Singh vs. Ram Prasanna Singh

¶69

(2019) (0) AIJEL-SC 63798 relied upon by the learned counsel for the petitioners to show that the suit was barred is of no assistance to him

¶70

for the simple reason that unlike the present case, in that case a gift deed divesting the ownership right had remained unchallenged and therefore on subsequent action on the sale-deed, it was held that the suit was barred in absence of such challenge. Similarly in the case of Emrald Co-operative Housing Society Ltd. Vs. Gulamkadar s/o Gulam Husain Abdulkadar and Bai Shakarbu Decd- (2019) (0) AIJEL-HC240810, it appears that the registered sale-deed of the year 1982 had snapped the title of the plaintiffs and after failing to challenge the revenue mutations based upon the registered sale-deed in the year 2006, the suit was filed in the year 2010. The facts of the said case are

¶71

not comparable with the facts of the present case and therefore the proposition cannot be applied.

¶72

Page 7 of 9

¶73

C/CRA/296/2017 JUDGMENT

¶74

According to the learned counsel for the petitioners, present suit

¶75

was declaratory suit and it could be filed within a period of three years

¶76

from the date of accrual of right to sue. As indicated above, in the instant case, the plaintiffs are claiming the ownership/ share of the property. As noted above, it is the case of the plaintiffs that certain actions were being taken in relation to the suit property which they learnt on 27.02.2015 and the suit was filed in the year 2015 itself. According to the defendants, right to sue accrued to the plaintiffs in the year 1960 when the mutation was made in the revenue record. As indicated above, the question would be whether a mere mutation would render a cause to a person who claims ownership/ share in the property in absence of divesting of his title by recognized legal modes. It is therefore difficult to accept the submission that right to sue accrued to the plaintiffs in the year 1960.

¶77

According to the learned counsel, the prayer regarding annulment

¶78

of mutation entry is barred by Section 135 L of the Gujarat Land Revenue Code. That is not the only prayer in the suit and the principal prayer is regarding partition. It is settled law that the plaint under Order 7 Rule 11(d) of CPC cannot be rejected in part and therefore even if the

¶79

Page 8 of 9

¶80

aforesaid submission is accepted, no relief can be granted to the

¶81

petitioners. The revision application must fail and is rejected.

¶82