4 Whether This Case Involves A ... vs Heirs Of Cholaviya Jiva Haksi

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

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== KAVJI LALAJI CHOLAVIYA & 1....Appellant(s) Versus HEIRS OF CHOLAVIYA JIVA HAKSI....Respondent(s) ========================================================== Appearance:

MR MAULIK SONI for MR NK MAJMUDAR, ADVOCATE for the Appellant(s) No. 1 - 2 (MR BR GUPTA), ADVOCATE for the Respondent(s) No. 1 - 1.1 APPEARANCE DELETED for the Respondent(s) No. 1.2 , 1.7 MR MITUL K SHELAT, ADVOCATE for the Respondent(s) No. 1.3 - 1.6 NOTICE SERVED for the Respondent(s) No. 1.3.1 , 1.7 ========================================================== CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 03/05/2016 CAV JUDGMENT Heard Ld. Advocate Mr. Maulik Soni for Page 1 of 11 HC-NIC Page 1 of 11 Created On Wed May 04 05:29:44 IST 2016 C/SA/162/1993 CAV JUDGMENT Mr. Majmudar for the appellants and Ld. Advocate Mr. Mitul Shelat for the respondents.

2 The appellants herein are original defendants - respondents, whereas respondents herein are legal heirs of original plaintiff - appellant before the trial Court and first appellate Court. For the sake of convenience, they are referred as per their original nomenclature in the suit.

3 The plaintiff has filed Regular Civil Suit No. 178/1974 in the Court of Civil Judge [S.D.] Sabarkantha at Himatnagar [for short 'the trial Court'] for declaration and permanent injunction, so also for partition and possession of the suit properties. The details of suit properties are well described in the pleadings as well as in the judgments and, therefore, when dispute is not with reference to the nature, type and details of the properties in question, but it is mainly on the issue of actual partition of the suit properties and entitlement of concerned litigant to continue the possession and to get share in the suit properties as legal heirs of the deceased Haksi Chatura, the factual minute details of the properties are not much material except to disclose that the suit properties are in the form of agricultural land bearing survey Page 2 of 11 HC-NIC Page 2 of 11 Created On Wed May 04 05:29:44 IST 2016 C/SA/162/1993 CAV JUDGMENT nos. 17, 20 and 207/2 of village Dhansor of Bhiloda Taluka of Sabarkantha district.

4 The plaintiff's case is to the effect that his father Haksi Chatura has got suit land as a Jagir and on abolition of Jagir since his father was occupying the land, the Prant Officer of Himatnagar, had by order dated 23/6/1954 granted the land to his father.

5 The suit was decreed by the judgment and order dated 3/5/1996 by the trial Court confirming that the plaintiff is the legal heir of deceased Haksi Chatura along with the defendants, who are sons of Lala Haksi, one of the heirs of deceased Haksi Chatura and, therefore, ½ share is declared in favour of the plaintiff and ¼ share to each of the defendants. It is further held that the plaintiff is entitled to separate possession of his share, so also the defendants and for the purpose, they are entitled to partition and separate possession as per their respective share. Therefore, there is a direction to draw preliminary decree in terms of above order. Such judgment and order was challenged by the plaintiff in Regular Civil Appeal No. 41/1986. Though the judgment by the trial Court is in favour of the plaintiff, the plaintiff has challenged the same claiming that Page 3 of 11 HC-NIC Page 3 of 11 Created On Wed May 04 05:29:44 IST 2016 C/SA/162/1993 CAV JUDGMENT the defendants are not legal heirs of his deceased father.

6 However, present situation has arisen because of the first round of appeal in the form of Civil Appeal No. 6/1978 against which Second Appeal was preferred before this High Court being Second Appeal No. 287/1978, wherein by judgment and order dated 11/4/1983 this High Court has, while allowing the appeal of the plaintiff and rejecting the cross objections of the defendants, categorically held that it is fit and proper for the appellants - plaintiff to claim partition and possession of the suit field which they jointly owned with the defendants, who are their half brothers i.e. same father but from different mothers. In view of such categorical findings by this High Court in Second Appeal No. 287/1978, the plaintiff has prayed for some amendment in the suit to add relief for partition and possession and such amendment was allowed at the stage of second appeal by the High Court and thereafter, above referred judgment and decree dated 3/5/1986 was passed by the concerned trial Court as recorded hereinabove.

7 However, surprisingly the judgment and order rendered by the trial Court was again under challenge in Regular Civil Appeal No. 41/1986 by Page 4 of 11 HC-NIC Page 4 of 11 Created On Wed May 04 05:29:44 IST 2016 C/SA/162/1993 CAV JUDGMENT the plaintiff, wherein also the defendants - respondents have filed cross objections, but ultimately by impugned judgment and order dated 7/1/1989 the Assistant District Judge, Sabarkantha at Himatnagar [for short 'the appellate Court'] has modified the judgment and order of the trial Court to the extent that the defendants are entitled to ¼ share in all survey nos. i.e. 17, 20 and 207/2 and, therefore, directed the Collector, Sabarkantha to execute the decree with a direction to the trial Court to draw preliminary decree.

8 Now the defendants have preferred this appeal challenging concurrent judgments and orders by two lower Courts i.e. trial Court as well as the appellate Court contending that when initially plaintiff's suit was dismissed, now it cannot be allowed. However, the defendants have failed to realize that such dismissal of the suit was challenged till this High Court in Second Appeal No. 287/1978 wherein High Court has allowed the appeal by the plaintiff and thereby plaintiff's suit and an application for amendment of plaint was also allowed to amend plaint for certain relief of partition and possession, then at least such ground is not in favour of the defendants to succeed in this second appeal.

defendants - appellants is to the effect that the trial Court has erred in relying upon exh. 150 and considering it as a settlement between the plaintiff and the father of the defendants, submitting that such settlement is not made during any judicial proceedings and, therefore, it cannot be admitted in evidence and cannot be relied upon. However, there is no substance in the submission for the simple reason that when certified copy of such settlement is produced on record, then it cannot be said that the revenue authority has wrongly created such document in favour of any one of the parties and issued certified copy of it and, therefore, only because the defendants were not aware about such settlement between their father and the plaintiff, it cannot be said that such document cannot be relied upon. If we peruse said document at exh. 150, practically it is a statement recorded under section 122-A of Land Revenue Code by the Talati of Dhansor village in presence of the witnesses and it is proved on record by the plaintiff's witness no. 6 at exh. 148, namely Devisinh Chauhan being Talati of Vankor being in- charge of the revenue record of Dhansor village also. Therefore, Talati has brought document from his custody and he produced the original before the Court, wherein father of the defendants has Page 6 of 11 HC-NIC Page 6 of 11 Created On Wed May 04 05:29:44 IST 2016 C/SA/162/1993 CAV JUDGMENT categorically stated that after death of Haksi Chatura, they - two brothers i.e. father of the defendants and the plaintiff are legal heirs of deceased Haksi Chatura and, therefore, they requested to mutate the land running in the name of deceased Haksi Chatura, in the names of both the brothers i.e. present plaintiff and father of the defendants and that too in presence of Talati of Dhansor and in presence of two witnesses, namely Nathabhai Rajabhai being Sarpanch [Mukhi of the village] and another witness, namely Adera Arkha. There is no reason to disbelieve such statement. The record also shows that pursuant to such statement recorded on 20/10/1955 the suit property has been mutated in the joint names of the parties and, therefore, also there is no substance in the submission by the appellants that such document cannot be relied upon. The same set of evidence confirms that the plaintiff is also legal heir of deceased Haksi Chatura. The same set of evidence also negatived the contention by the defendants - appellants that there is oral evidence of one Rupaji Gobarji at exh. 110 that the plaintiff is not legal heir of Haksi Chatura for the simple reason that when father of the defendants admits the plaintiff as his brother and heir of Haksi Chatura, witness Rupaji at exh. 110 being third party cannot be relied upon. Though there is a little scope to Page 7 of 11 HC-NIC Page 7 of 11 Created On Wed May 04 05:29:45 IST 2016 C/SA/162/1993 CAV JUDGMENT reappreciate the evidence in the second appeal, it would be not out of place to recollect here that perusal of such deposition of Rupaji at exh. 110, on the contrary shows that though he is witness no. 2 for defendants and though he has the audacity to say that mother of the plaintiff has been kept by the deceased Haksi Chatura in addition to his wife Kamla, he has to admit that the deceased Haksi Chatura has handed over the suit land to the plaintiff, but then he added that the land was partitioned while handing over to the plaintiff. However, he admits that he was also serving in SRP with the defendant no. 2 and they had served together for six years at the same place i.e. Baroda and that he has good relations with the defendants and that defendants have not only brought him to the Court for evidence, but conveyed him that what is to be deposed. It cannot be ignored that relation of Haksi Chatura with both the wives was before the commencement of Hindu law, which is in existence as on date and in fact, on such issue, there is final decision in the Second Appeal No. 287/1978 by this High Court itself that the plaintiff and defendants are half brothers i.e. same father but different mothers and, therefore, if such decision is not challenged by the defendants at the relevant time, now the same cannot be challenged in this appeal. It is not correct to Page 8 of 11 HC-NIC Page 8 of 11 Created On Wed May 04 05:29:45 IST 2016 C/SA/162/1993 CAV JUDGMENT say that lower Court has erred to conclude that Hindu Succession Act is not applicable to the parties.

10 Therefore, there is no clarity on record that whether substantial questions of law were framed at the relevant time, may be because of the fact that some documents of the record was not available and, therefore, some documents seem to be reconstructed while listing this appeal for final hearing, considering averments made in the appeal memo, the substantial questions of law would be only to the effect that 'whether Hindu law is applicable to the parties and thereby whether the plaintiff is also legal heir of deceased Haksi Chatura or not.' However, as aforesaid, practically when such issue has been dealt with in the first round of litigation in the form of Regular Civil Appeal No. 6/1978 and Second Appeal No. 287/1978 with Cross Objections No. 675/1983 and when as back as on 11/4/1983 this High Court has concluded that both the parties are half brothers of same father and thereby allowed the amendment even at the stage of Second Appeal, to add relief of partition and possession by the plaintiff, practically in the second round of litigation, at the most there can be issue regarding actual share of the parties rather than their entitlement.

Page 9 of 11 HC-NIC Page 9 of 11 Created On Wed May 04 05:29:45 IST 2016 C/SA/162/1993 CAV JUDGMENT 11 In view of above facts and

circumstances, I do not find any substance in the appeal except to confirm that pursuant to preliminary decree, the executing authority has to partition the properties amongst the heirs as has been decided by the impugned judgment. There is no substance in the appeal to interfere with at this stage in reasoned judgments given by both the Courts below.

12 I have perused both the judgments i.e. judgment of the trial Court and of the first appellate Court. Both the judgments are disclosing and appreciating available evidence and record before it in proper manner and in both the judgments, the concerned Court has taken care of all the issues raised before it. Therefore, in the Second Appeal when there are two concurrent judgments, there is no scope of re-appreciation of evidence except to consider the law point. However, as discussed hereinabove, the Second Appeal is mainly based upon the factual aspect that the plaintiff is not legal heir of deceased Haksi Chatura and, therefore, there is no scope to interfere with such judgment in the Second Appeal.

13 So far as legal issue regarding Page 10 of 11 HC-NIC Page 10 of 11 Created On Wed May 04 05:29:45 IST 2016 C/SA/162/1993 CAV JUDGMENT applicability of Hindu law to the parties is

concerned, as discussed hereinabove, it is not the issue, in any case, before the commencement of Hindu Succession Act, since the legal heirs of same ancestor are certainly entitled to equal share in their ancestral property and, therefore, there is no question of applicability of particular law except general provisions of old Hindu Code.

14 In the result, there is no substance in the appeal and the appeal is dismissed.

(S.G.SHAH, J.) * Pansala Page 11 of 11 HC-NIC Page 11 of 11 Created On Wed May 04 05:29:45 IST 2016