FA/2544/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2544 of 2008 With CIVIL APPLICATION No. 6673 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RAMKRIPAL BANSIDHAR AHIR & 4 - Appellant(s) Versus SHYAMKUMAR BANSIDHAR AHIR & 4 - Defendant(s) ========================================================= Appearance : MR JITENDRA M PATEL for Appellant(s) : 1 - 5. MR AY KOGJE for Defendant(s) : 1 - 2. NOTICE SERVED for Defendant(s) : 3 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 29/07/2008 ORAL JUDGMENT 1.0 This appeal is directed against the judgment and decree dated 21.04.2008 passed by the learned 8th Addl. Sr. Civil Judge, FA/2544/2008 2/10 JUDGMENT Vadodara in Special Civil Suit No. 623 of 1995 whereby, the said suit was dismissed. 2.0 The facts in brief leading rise to the filing of the present appeal are as under; 2.1 Deceased – Bansidhar Nandubhai Ahir is the father of both the appellants, original plaintiffs and the respondents, original defendants. The appellants were born from the wed-lock of the deceased with his first wife – Dhanpatadevi while the respondents were born from the wed-lock of the deceased with his second wife – Kabutaraben. 2.2 It is the case of the appellants that during his lifetime, the deceased had purchased two properties bearing City Survey Nos.1153 to 1156 and 1176/3 of Sayajigunj, Vadodara by registered Sale Deed in the name of respondent no. 2, through his Guardian – Ramrati Nandubhai Ahir and City Survey No. 1147 to 1152, 1157 to 1174 and 1176/2 and 1176/6, of Sayajigunj, Vadodara by registered Sale Deed in the name of respondent no. 2, through his FA/2544/2008 3/10 JUDGMENT Guardian – Senapati Nandubhai Ahir. The deceased had also purchased a property bearing Bungalow No. 11 of Sayajigunj by registered sale deed on 25.05.1987 in the name of minors – Shyamkumar Bansidhar Ahir and Jitendrakumar Bansidhar Ahir, respondents no. 1 & 4, through their Guardian - Kabutaraben. 2.3 After the death of said Kabutaraben in 1995, the appellants claimed for partition of the property bearing Bungalow No. 11 of Sayajigunj on the ground that the same was purchased from the funds of the H.U.F. Since the respondents resisted their claim, the appellants filed a suit being Special Civil Suit No. 623 of 1995 before the Court of learned Addl. Sr. Civil Judge, Vadodara for getting partition and actual possession of their share in the said property. 2.4 The trial Court, after hearing the parties and after considering the evidence on record, dismissed the suit of the appellants by the impugned judgment and decree. Being aggrieved by the same, the appellants have approached this Court by way of this appeal. FA/2544/2008 4/10 JUDGMENT 3.0 Mr. J. M. Patel, learned Advocate for the appellants, has submitted that the suit property was purchased in the name of deceased – Kabutaraben from the H.U.F. funds derived from the sale consideration of three different registered Sale Deeds at Exhibits – 159 to 161, which were executed for three different Agreements to Sale at Exhibits – 156 to 158. 3.1 Learned Advocate has submitted that prior to the death of Kabutaraben in 1995, the present appellants and defendants had jointly filed a suit being Regular Civil Suit No. 1368 of 1993 before the Court of learned 4th Civil Judge (S.D.), Vadodara against the tenants and that the said suit was disposed of vide order dated 09.11.2006 wherein, it was observed that the appellants and defendants were joint owners and occupants of the suit property. Learned Advocate has further submitted that when the proceedings under the Urban Land Ceiling Act were initiated after the death of deceased – Bansidhar Nandubhai Ahir, the same was jointly contested by the plaintiffs and the defendants and they had executed a Power of Attorney in favour of one Vitthalbhai FA/2544/2008 5/10 JUDGMENT Ishwarbhai Patel and the said Power of Attorney Holder had filed an Appeal on their behalf before the Urban Land Ceiling Authority. 3.2 Learned Advocate has also submitted that they had not raised the dispute at the relevant point of time since they were unwilling to do so during the life-time of their deceased father and had raised it only after their father had expired. He has submitted that the Court below has failed to consider the evidence on record in its true perspective and hence, the impugned judgment and decree of the trial Court deserves to be quashed and set aside. 4.0 Mr. A. Y. Kogje, learned Advocate for the respondents, has supported the judgment and decree passed by the trial Court and has submitted that from the entire evidence available on record, it is established beyond doubt that the respondents, original defendants, are the sole owners of the suit property in question. Hence, the appeal deserves to be dismissed. 5.0 Before proceeding with the matter, I would like to FA/2544/2008 6/10 JUDGMENT record that when a query was put to Mr. J. M. Patel, learned Advocate for the appellants, as to whether the appellants are in a position to show that the suit property bearing Bungalow No. 11 of Sayajigunj, Vadodara purchased vide registered sale deed No. 4895 on 25.05.1987 in the name of respondents no. 1 & 4, through their mother – deceased Kabutaraben, was purchased from the funds of the H.U.F, Mr. Patel was not able to give any positive reply. 5.1 Indisputably, the sale deed pertaining to the suit property was executed in the name of the respondents, through deceased – Kabutaraben. There is nothing on record to show that the said property was inherited and an undivided property. Moreover, as stated herein above, the appellants are not able to show that the suit property was purchased from the funds of the H.U.F. The Court below has discussed the aforesaid aspect in detail in Paragraphs No. 5 to 12 of the impugned judgment and decree and has rightly held the issues qua the same against the appellants. 5.2 On the other hand, by producing cogent evidence on FA/2544/2008 7/10 JUDGMENT record, the respondents have been able to prove that their deceased father, Bansidhar Nandubhai Ahir, had partitioned the properties situated in the State of Uttar Pradesh and had given the share thereof to the appellants and had also purchased the Plots in Nizampura, Vadodara, Gujarat in the name of the appellants. 6.0 The appellants have tried to take shelter under the umbrella that the suit property was purchased from the sale consideration of three different properties at Exhibits – 159 to 161, belonging to the H.U.F. However, as stated herein above, there is nothing on record to show that the suit property was purchased from the funds of the H.U.F. Merely on the say of the appellants that the suit property was purchased from the sale consideration of three different properties, no Court can draw a conclusion, more particularly, when it has been challenged after almost thirteen years and the suit property had stood in the name of the mother of the respondents for almost nine years and that to during the life- time of deceased – Bansidhar Nandubhai Ahir. 7.0 In my opinion, the filing of the suits in question against FA/2544/2008 8/10 JUDGMENT the tenants will not confer any right on the appellants, original plaintiffs, inasmuch as the sale deed in question is the document on which the rights of the respondents have been established. Looking to the age of the family members at the relevant point of time, it appears that the deceased father might have purchased the suit property in the name of the minor sons, through their legal guardian, i.e. deceased – Kabutaraben, keeping in mind their future. Deceased - Bansidhar Nandubhai Ahir expired in 1991 and the suit in question was filed on 16.09.1995. Therefore, the say of the appellants that they had not raised the dispute, as they were not willing to raise it during the life-time of deceased – Bansidhar Nandubhai Ahir, is difficult to believe as the cause of action had arisen only after the death of deceased – Kabutaraben on 26.04.1995. The said aspect also gets support from the fact that at that point of time , the suit property was registered in the name of deceased – Kabutaraben. On a bare perusal of the title-clause of the suit being Regular Civil Suit No. 623 of 1995, it appears that the appellants, original plaintiffs, were aged between 35 – 40 years and that the respondents, original defendants, were aged between 15 – 23 years, meaning thereby, that on the date on which the suit FA/2544/2008 9/10 JUDGMENT property was purchased in the name of deceased – Kabutaraben, the respondents, original defendants, were aged between 2 – 10 years, which leads us to the only conclusion that the deceased father had purchased the suit property, through deceased – Kabutaraben, keeping in mind the future of their minor sons. 8.0 It is well-settled that if the 'karta' of an H.U.F. has done a legal act, keeping in mind the interest of the coparcenors, then it will not be open to the other coparcenors to challenge the same and that to after almost thirteen years. It is a matter of record that the suit property was never registered in the name of deceased – Bansidhar Nandubhai Ahir. The intention of the deceased father is clear that the suit property was required to be given to deceased – Kabutaraben. If the case of the appellants is accepted, then it would amount to disturbing the rights of the parties, which are prevailing since 1982. Hence, I am of the opinion that the view taken by the Court below is just and proper. I am in complete agreement with the reasonings given by and the findings arrived at by the Court below and hence, find no reasons to interfere in this appeal. No other contention has been raised by the learned FA/2544/2008 10/10 JUDGMENT Advocate for the appellants. 9.0 This Court vide order dated 16.06.2008 had directed both the sides to maintain status-quo as on date in respect of the suit property. Learned Advocate for the appellants has requested to extend the same for a reasonable period. Since the matter has been summarily dismissed, the order of status-quo does not deserve to be continued. However, Mr. A. Y. Kogje, learned Advocate for respondent nos. 1 & 2, has stated that he would not initiate any action to dispossess the appellants, original plaintiffs, for a period of two months. The appeal stands disposed of as dismissed. No order as to costs. Consequently, the civil application also stands disposed of. [K. S. JHAVERI, J.] Pravin/*