FA/2942/2007 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2942 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment? NO 2 To be referred to the Reporter or not? NO 3 Whether Their Lordships wish to see the fair copy of the judgment? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any Order made thereunder? NO 5 Whether it is to be circulated to the Civil Judge? NO ========================================================= MICHAEL THOMAS MECWAN AND ANOTHER - Appellants Versus JOHN DUDHABHAI MECWAN AND OTHERS – Respondents ========================================================= Appearance : MR LM CHHABLANI for the Appellants. MS NALINI S LODHA for the Respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 30/04/2008 ORAL JUDGMENT 1. This appeal is preferred under Section 96 of the Code of Civil Procedure and directed against the judgment and order dated 31-03-2008 passed by learned FA/2942/2007 2/10 JUDGMENT Judge, City Civil Court No. 8, Ahmedabad City, Ahmedabad in Civil Suit No. 3590 of 1999, by which the learned Judge decreed the suit of the respondents and held that the appellants and the respondents are the co-owners of immovable property bearing sub-plot No. 18, Survey No. 98/1-2-4 and Survey No. 99/1-2-3 situated at Khokra, Mahemdabad, Ahmedabad City. By the said judgment and order, the appellants were restrained from dispossessing the respondents and their family members personally or through agents, servants or otherwise and from interfering, obstructing in peaceful possession of respective portion of the property of the respondents on the first floor. 2. The appellants are the original defendants and the respondents are the original plaintiffs and they are narrated as the appellants and the respondents for the sake of convenience. The appellants have preferred the present appeal, mainly on the ground that the suit property was purchased by Dudhabhai Mecwan in 1959 by registered sale-deed. Dudhabhai Mecwan is the father of the appellants. The property was purchased by Dudhabhai Mecwan in the name of his eldest son Revabhai Mecwan. Thereafter, the residential house was constructed consisting of the ground-floor and the first floor. The present appellants were in possession of the ground-floor while different portions of the first-floor were in possession of respondent Nos. 1 to 4. Dudhabhai Mecwan expired somewhere in 1962. Thereafter, the FA/2942/2007 3/10 JUDGMENT names of the respondents were entered in the revenue record in 1966 by Entry No. 68/23 on 22-05-1966. The appellants challenged the said order by filing an appeal bearing No. 74 of 1997 before the Deputy Collector. The appeal was dismissed on 23-03-1998. Aggrieved by the said order, the revision was preferred before the Collector bearing No. 110 of 1998 and the revision was allowed on 30-06-1999 by which the mutation entry was cancelled. 3. It is alleged by the respondents that as the legal heirs of deceased Dudhabhai, they are entitled to get the share in the suit property and as they are in possession of the suit property, they cannot be ousted. As the appellants were contemplating to dispossess the respondents from the occupation of the property, the respondents filed the suit for declaration and permanent injunction with a prayer to restrain the present appellants from forcibly dispossessing them from the suit property. The appellants filed the written statement vide Exh. 17 inter alia contending that the suit was not maintainable. It is further contended that the appellant Revabhai Dudhabhai Mecwan is the sole owner of the suit property and he had purchased the land from his own income. He had constructed on the said land from his own fund and since the property is self-acquired property, the present respondents are having no right, title or interest in the said property. Even the proceedings before the revenue authority came to be finalized and, therefore, the FA/2942/2007 4/10 JUDGMENT prayer was made in the written statement to dismiss the suit of the respondents. 4. The learned Judge framed the issues vide Exh. 42, and after considering the entire gamut of oral deposition and documentary evidence, held that the respondents have established that the suit property is of the joint ownership of the parties. The learned Judge further held that the appellants could not prove that they are the sole owners of the suit property. As the property is of joint ownership, the learned Judge held that the present appellants are required to be restrained from dispossessing the occupation of the respondents. Thus, the suit came to be decreed. 5. Learned Advocate Mr. L. M. Chhablani representing the appellants – original defendants submitted that the evidence adduced by both the sides has not been considered by the learned Judge in proper perspective. The suit was filed by the original plaintiffs without any prayer for cancellation of the sale-deed. That itself was wrong and illegal and, therefore, the matter requires to be remanded for retrial. The learned Advocate submitted that the suit property was purchased by deceased Revabhai from his own income, funds and loan and, thereafter, he constructed on it without any contribution from the respondents – original plaintiffs. The revenue record, city survey record, municipal record – all are in favour of deceased FA/2942/2007 5/10 JUDGMENT defendant Revabhai, but the same was not appreciated by the lower Court while decreeing the suit filed by the plaintiffs. The respondents – original plaintiffs are in possession of the portion of the suit land out of sheer love and affection of deceased Revabhai Dudhabhai. When the respondents committed fraud by making false affidavit in his name, the dispute between the parties started. The respondents were not in fact legally competent to be in possession of any of the portion of the suit house. Even the revenue record and the entries made therein was managed by the respondents without the knowledge of the deceased Revabhai Dudhabhai. The learned Advocate submitted that when the deceased came to know about the change in the revenue record, he had approached the revenue authority i.e. the Collector, who ultimately passed the order dated 23-06-1998 in Revision Application No. 110 of 1998 whereby the revision was allowed and the mutation entry was cancelled. Even the name of the respondents were removed from the revenue record. However, this glaring fact was not considered by the learned Judge in his judgment. It is also on record of the case that against the judgment and order passed by the Collector, the respondents moved the State Government and also filed Civil Suit against the appellant – deceased Revabhai. This was also not appreciated by the learned Judge in his judgment. Thus, the learned Advocate submitted that considering the evidence on record of the case, since the oral and documentary evidence is not appreciated by the learned Judge in FA/2942/2007 6/10 JUDGMENT proper perspective, it is a fit case to remand the matter for retrial. 6. Learned Advocate Ms. Nalini Lodha representing the respondents submitted that the learned Judge, after considering the oral deposition and documentary evidence, has rightly held that the suit-property is of the joint ownership of both the parties and the appellants as well as the respondents have equal right over the suit property. The learned Judge has also rightly held that the appellants miserably failed to prove that Revabhai Dudhabhai was the sole-owner of the suit-property and he had purchased the suit property from his own funds. As the learned Judge has held that the appellants have not made out a case, the suit was rightly decreed in favour of the respondents and no interference is called for in the appeal preferred by the appellants and, therefore, the appeal preferred by them is liable to fail and the same be dismissed with costs. 7. Heard learned Advocate Mr. L. M. Chhablani for the appellants and learned Advocate Ms. Nalini Lodha for the respondents at length and in great detail. I have perused the judgment rendered by the learned Judge and the reasons assigned therein. Record and Proceedings of Civil Suit No. 3590 of 1999 was received by this Court and I have carefully perused the Record and Proceedings as well as the relevant oral deposition and documentary evidence in the suit. FA/2942/2007 7/10 JUDGMENT 8. On going through the entire evidence on record, the following facts are not disputed: (i) The suit-land was purchased by registered sale-deed in 1959 vide Exh. 103 in the name of the appellant – Revabhai Dudhabhai Mecwan. (ii) The appellant – Revabhai Dudhabhai Mecwan expired in 1962. (iii) Before 1962 the construction was carried out on the suit land which was having ground-floor and the first floor; (iv) After the death of Dudhabhai Mecwan, name of all the respondents (original plaintiffs) were entered in the revenue record by Entry No. 68/23 dated 22-05-1966. That was challenged by the appellants by filing Appeal No. 74 of 1997 before the Deputy Collector and the same was dismissed by the Deputy Collector. Thereafter, the appellants – original defendants filed Revision Application No. 110 of 1998 before the Collector which came to be allowed and the mutation entries were cancelled. The name of the respondents were removed by order dated 23-06-1998. The appellants - original defendants are in possession of the entire ground-floor while the respondents - original plaintiffs are in possession of different portions of the ground floor and in fact, the respondents are residing on the first floor with their family members since long. 9. In order to decide the real controversy between the parties, the deposition adduced by Revabhai at Exh. 68 is very relevant. He has filed an affidavit wherein he has stated that he had FA/2942/2007 8/10 JUDGMENT purchased the property at the age of 46 years and he was serving in the Railways for a period of 26 years. It is further stated by him that the property was purchased by him from his own savings and he purchased the property in 1959 for a sum of Rs. 3596.50 ps. However, he has not produced any evidence about his income or savings or as to how he had purchased the land by borrowing loan from Cooperative Bank of the Railways. As no evidence with regard to the income, savings or borrowing of loan for purchase of the property was produced by him, his affidavit does not inspire necessary confidence. While the respondents have produced sufficient evidence to show that they are the owners of the suit-property and they are residing on the first floor since long, it is not the case of the appellants that the respondents had committed trespass on the suit-property and no complaint was ever filed against the respondents for committing trespass over the suit land. 10. Siemon Mecwan is examined vide Exh. 56 by the respondents. In his cross-examination, he has stated that his father was the owner of “chawl” and field at Village: Bahiyan in Taluka: Dahegam and the property was purchased from the share of the field and other income of the family. Thus, on perusal of the evidence on record, it becomes clear that the respondents purchased and constructed the property, and the appellants could not prove income as well as borrowing of loan to acquire the property. In view FA/2942/2007 9/10 JUDGMENT of the aforesaid facts and circumstances, the suit property was purchased in 1959 and the two-storyed building was constructed in the year 1960-61. The appellants were not having funds to purchase and construct the property. The respondents are residing on the first floor since long along with their family members and the appellants had never demanded the possession of the suit-property or claimed any rent from the respondents. In view of the above, the learned Judge has rightly come to the conclusion that the appellants cannot be the sole-owners of the suit- property and since the respondents are residing on the first floor of the suit-property, their possession should not be disturbed and, therefore, decreed the suit filed by the respondents and restrained the appellants from disturbing the respondents from the suit-property and not interfere with the peaceful possession of the suit-property by the respondents. 11. On re-appreciating and reevaluating the entire evidence on record of the case, the appellants, in my considered view, have not established that the suit-property was purchased by Revabhai Dudhabhai Mecwan from his own income or savings but it was of joint ownership of the appellants as well as the respondents. In view of the overwhelming evidence adduced by both the sides, the learned Judge has rightly held that the suit property was of the joint ownership and, therefore, the respondents cannot be ousted from the suit FA/2942/2007 10/10 JUDGMENT property. 12. For the foregoing reasons, the appeal is liable to fail. Hence, the appeal fails and is dismissed. Decree to be drawn accordingly. No costs. [H. B. ANTANI, J.] /shamnath