FA/1353/1982 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1353 of 1982 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 ? ========================================================= SHANKERBHAI PURUSHOTTAMDAS PATEL - Appellant Versus SHARDABEN W/O PURUSHOTTAMDAS VITHALDAS PATEL & 7 - Respondents. ========================================================= Appearance : MS MINAXI A MANKAD for Appellant. MR PM DAVE for Respondents : 1 - 5. MR YS MANKAD for Respondents : 6 - 8. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 24/04/2008 ORAL JUDGMENT The appellant-original plaintiff has moved this appeal against the judgment and order dated 26th August, 1980, passed by the learned City Civil Judge, FA/1353/1982 2/4 JUDGMENT Court No.19, Ahmedabad, whereby Civil Suit No.2610/1979 filed by the present appellant-plaintiff was dismissed. 2. The facts of the case are that the plaintiff instituted the suit for partition and separate possession of the house bearing city survey No.3770 and properties situated in Raipur area of Ahmedabad City. According to the plaintiff, the suit house originally belonged to his ancestor one Vitthaldas, who died on 24.2.1949, leaving behind him his wife Naniben and sons Chimanlal and Purshottamdas. Chimanlal died on 10.2.1963, and Purshottamdas died on 3.4.1968. Chimanlal had two wives named Shakriben and Icchaben. Shakriben died during the life time of Chimanlal and his second wife Icchaben took divorce. Chimanlal had no issue. The father of the plaintiff i.e. Purshottamdas had also two wives, named Gajraben and Shardaben, and defendants No.2,3,4 & 5 are the children of defendant No.1. Defendants No.6,7 & 8 are brothers and sisters of the plaintiff, who have been made parties as defendants, as they have not claimed any separation of their share. It is the case of the plaintiff that Vitthaldas, under a testament bequeathed the disputed property to his wife Naniben absolutely with a condition that after her death, the property shall go to Gajraben, the first wife of Purshottamdas. Thus, according to the plaintiff, after the death of Vitthaldas and Naniben, the plaintiff's mother would become the full owner of the suit propety. It is the further case of the plaintiff FA/1353/1982 3/4 JUDGMENT that deceased Vitthaldas Jetharam had executed a Will for the properties situated at Raipur, Bungla ni Pole, Khadia bearing City Survey No.3770, admeasuring 64 sq.yds, and a house situated at Vadnagar bearing Survey No.32, admeasuring 728 sq.ft., and also certain agricultural fields alongwith his movable properties, on 23rd April, 1947, and thereby he claimed that he has become the absolute owner of the disputed properties alongwith his brother and sisters 3. Defendant Nos.1 to 5 appeared before the Court and filed Written-Statement at Exh.15 and resisted the suit. 4. The learned Judge framed several issues at Exh.35, including issue on limitation. The main issues on which the trial Court has dismissed the suit are Issue Nos.8 & 9, which are as under : “(8) Whether, plaintiff proves that he is a member of joint undivided Hindu family and that he is a co-parcener and that the suit property is ancestral joint Hindu undivided family co-parcenery property ? (9) Whether, plaintiff proves that alleged possession of two rooms of suit house is as an heir of /owner, deceased Purshottamdas ?” 5. The learned Judge considered the evidence led by FA/1353/1982 4/4 JUDGMENT the plaintiff as well as the evidence produced by the defendants, and after discussing the above-quoted issues, in great detail, in paragraphs 14 & 15 of his judgment, dismissed the suit filed by the plaintiff, giving rise to filing of the present appeal. 6. Heard the learned counsel for the parties at length and in great detail, and also considered the documents forming part of the appeal. 7. The trial Court, after appreciating the oral as well as documentary evidence, has dismissed the suit on the grounds of partial dissolution by the plaintiff and that the suit was filed after almost 11 years, which are legal and valid. I am in complete agreement with the reasonings given by the learned Judge of the trial Court. The learned counsel for the appellant has failed to establish any error committed by the trial Court. Hence, the appeal is dismissed with no orders as to costs. [K.S.JHAVERI,J.] (patel)