SA/117/2006 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 117 of 2006 with CIVIL APPLICATION No.9846 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 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 ? ========================================================= MANGIBEN D/O NEVLABHAI DANIYABHAI & 4 - Appellant(s) Versus BHAVSINGBHAI MANCHHABHAI CHAUDHARY, & 2 - Defendant(s) ========================================================= Appearance : MR CHETAN K PANDYA for Appellant(s) : 1 - 5. MR MP SHAH for Defendant(s) : 1, MS. KRUTI M SHAH for Defendant(s) : 1, DELETED for Defendant(s) : 2, None for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 21/01/2008 ORAL JUDGMENT 1. The appellants – original opponents – SA/117/2006 2/15 JUDGMENT plaintiff Nos.3 to 7 have filed Second Appeal under Section 100 of the Civil Procedure Code, 1908 praying for quashing and setting aside the impugned judgment and decree dated 19.4.2006 passed by the learned 3rd Additional District Judge, Vyara, Dist. Surat, in Regular Civil Appeal No.18 of 2004. 2. It is the case of the appellants that the appellants are original plaintiff Nos.3 to 7 in Regular Civil Suit No.22 of 1996 filed before the 2nd Civil Judge (J.D.) at Bardoli, and respondent Nos.3 to 7 in Regular Civil Appeal No.18 of 2004 filed before the learned Additional District Judge at Vyara, Dist. Surat. The appellants have filed suit for permanent injunction against the respondents from interfering with the plaintiff's possession, administration of Block No.420 of Village Shekhpur, Taluka : Mahuva, Dist. Surat and by virtue of amendment the appellants have also challenged the will SA/117/2006 3/15 JUDGMENT produced on record by the respondents on the basis of which they are claiming the ownership of the suit land. The 2nd Jt. Civil Judge (J.D.) at Bardoli, Dist. Vyara had allowed the said Suit vide judgment and decree dated 31.7.2004 and granted permanent injunction for Block No.420 in favour of the appellants. The learned trial Judge has also declared the will dated 31.3.1989 of late Shri Sunandrai Dahyabhai under which the part of Block No.420 hectare 05-21-31 was given to Shri Bhavsingbhai Manchhabhai as null and void. 3. Being aggrieved by the said judgment and decree of the learned trial Judge, the present respondents have filed Appeal before the District Court being Regular Civil Appeal No.18 of 2004. The said Appeal was allowed and the judgment and decree passed by the Trial Court was set aside by the learned Appellate Judge vide order dated 19.4.2006. SA/117/2006 4/15 JUDGMENT It is this order of the learned trial Judge which is under challenge in the Second Appeal. 4. Mr. Chetan Pandya, learned advocate appearing for the appellants – original plaintiffs has submitted that the appellants' name have been declared as tenants since 1952-53 and they were in possession of the field more particularly Block No.420 and they were cultivating the land and growing the sugarcane. Their names were found in the revenue records. He has further submitted that the appellants' family did not have shares of the sugar factories and in those days the sugar factories were accepting sugarcane from the shareholders only and, therefore, the appellants used to give their sugarcane in the name of defendant. He has further submitted that the appellants were in continuous possession of the impugned land and they were growing sugarcane. He has SA/117/2006 5/15 JUDGMENT further submitted that the will produced by the respondent before the trial Court was not genuine will and its validity and legality was challenged before the trial Court after the same was produced and by moving the amendment application the plaint was amended to that effect. He has further submitted that the learned trial Judge has considered all the documentary evidence as well as oral evidence and came to the right conclusion whereby the decree came to be passed in favour of the appellants. He has further submitted that there was no reason for the Appellate Court to disturb the said decree and reverse the judgment and decree passed by the trial Court. He has further submitted that the learned Appellate Court has not considered all these issues in their proper perspective and come to the conclusion which is not tenable at law and accordingly he has submitted that the following substantial questions of law did arise out of the SA/117/2006 6/15 JUDGMENT judgment and decree passed by the learned Appellate Court. (a) Whether in the context of the facts, circumstances and evidence of the case the learned 3rd Additional District Judge, Vyara, Dist. Surat committed an error in not appreciating the most fundamental and relevant aspects as to the title to the land in question of the opponent No.1. (b) Whether in the context of the facts, circumstances and evidence of the case the learned 3rd Additional District Judge, Vyara, District : Surat committed an error in preferring documentary evidence produced on behalf of the opponent no.1 as against the documentary evidence produced on behalf of the appellants without any cause and valid reason. (c ) Whether in the context of the facts, circumstances and evidence of the case the learned 3rd Additional District Judge, Vyara, District : Surat had erred in holding that the opponent no.1 has proved the Will of late Shri Sunandrai Dahyabhai. (d) Whether in the context of the facts, circumstances and evidence of the case the learned 3rd Additional District Judge, Vyara, District : Surat committed an error in not properly appreciating the provisons of Section 43, 63 and 73AA of the Tenancy Act. (e) Whether in the context of the facts, circumstances and evidence of the case the SA/117/2006 7/15 JUDGMENT learned 3rd Additional District Judge, Vyara, District : Surat committed an error that the block no.420 could not have been transferred to any one without obtaining permission of Collector under Section 43 of the Tenancy Act. (f) Whether in the context of the facts, circumstances and evidence of the case the learned 3rd Additional District Judge, Vyara, District : Surat committed an error in appreciating the evidence. 5. Mr. Pandya relies on the provisions contain in Section 103 of the CPC, which enables the High Court to determine the issue of fact. The Section says that in any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal. (a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or (b) which has been wrongly determined by such court or courts by reasons of a decision on such question of law as is referred to in Section 100. He relies on the decision of the SA/117/2006 8/15 JUDGMENT Apex Court in the case of Leela Soni and others vs. Rajesh Goyal and others, reported in (2001)7 SCC 494, wherein it is held that Section 103 of the CPC authorises the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following situations; (1) when that issue has not been determined both by the trial Court as well as the lower appellate court or by the lower appellate Court; or (2) when both the trial court as well as the appellate court or the lower appellate court have wrongly determined any issue on a substantial question of law which can properly be the subject – matter of second appeal under Section 100 CPC. The court further held that in that case on both the issues relating to clauses (a) and (o), refer to in the judgment, on account of its erroneous approach the first appellate court did not determine the relevant issues, and SA/117/2006 9/15 JUDGMENT hence the court found that the High Court was well within its jurisdiction in recording the aforementioned findings of fact for which the evidence was on record as Section 103 CPC empowers the High Court to determine such issues of fact. 6. In support of his submissions Mr. Pandya relied on the decision of Apex Court in the case of Sayeda Akhtar vs. Abdul Ahad, reported in (2003) 7 SCC 52, wherein while considering the question “whether the appellant had created nuisance in the premises in question ?”, the Court has held that on the point of nuisance, though, no issue was framed by the lower court, yet it is clear on the basis of relevant pleadings and evidence produced that the parties were well familiar with the existence of the said issues. Under the circumstances, in face of the want of framing of issues, prejudice was not caused nor were the proceedings vitiated. SA/117/2006 10/15 JUDGMENT It is not proper to remand the case back in view of the decision of the Supreme Court reported in Nedunuri Kameswaramma vs. Sampati Subba Rao, AIR 1963 SC 884. The Court further held that the Court of appeal considered the pleadings of the parties as also the materials brought on record by the parties to the suit on the said issue and held that; “the evidence produced by the respondent proves that the appellant had created nuisance because quarreling falls under the mischief of nuisance. The Court further held that the High Court did not advert to the said question at all. It set aside the finding of the appellate court purported to be on the ground that no issue was framed by the trial court on the point of nuisance. The Court therefore held that the High Court in the second appeal could not have without sufficient and just reasons interfered with the concurrent findings of fact of the courts below. The Court therefore SA/117/2006 11/15 JUDGMENT held that the judgment of the High Court cannot be sustained. 7. Ms. Kruti Shah, learned advocate appearing for the respondent No.1 on the other hand has strongly urged that no substantial question of law arises out of the order and judgment passed by the learned Appellate Court. She has further submitted that the issue regarding validity of will was not at all framed by the trial Court. Not only this, the beneficiaries are not joined as party in the suit and in their absence the learned trial Judge has decided the validity of the will and held that the will was not genuine and accordingly it was declared as null and void. She has, therefore, submitted that this course adopted by the learned trial Judge is not tenable at law and the learned Appellate Judge has, therefore, rightly interfered in the decree and judgment passed by the learned trial Judge. She has submitted that the SA/117/2006 12/15 JUDGMENT learned Appellate Judge at length discussed all the oral as well as documentary evidence and after proper appreciation thereof drew the correct inference there from which are findings of fact and the same cannot be disturbed in the Second Appeal. She has further submitted that the learned Appellate Judge has given a specific finding on the issue that there was no increase in the land holding of the respondent. Hence, the findings given by the learned trial Judge is not tenable. She has, therefore, submitted that in absence of any question of law, much less substantial question of law, this Court should not entertain this Second Appeal and it should summarily be dismissed. 8. This Court has called for the records and proceedings vide order dated 9.8.2007. After having heard learned advocates for the respective parties and after having gone through the orders and judgments passed by SA/117/2006 13/15 JUDGMENT the trial as well as Appellate Judge, and the memo of Appeal, Civil Application and reply affidavit, this Court is of the view that no substantial question has arisen out of the order and judgment passed by the learned Appellate Judge. There is a specific finding given by the learned Appellate Judge to the effect that the the beneficiaries have not been joined as party and in their absence the will was declared as null and void. In para- 40 of the judgment the learned Appellate Judge has specifically held that the learned trial Judge has misconceived and misunderstood the position. There was no question to discuss the authenticity of will and for declaring the will null and void. It is further held that in absence of beneficiaries and/or heirs of the deceased Sunandray Dahyabhai any portion of the will cannot be declared as null and void. On proper and detailed appreciation of the documentary and oral evidence produced on SA/117/2006 14/15 JUDGMENT record by the parties to the suit, the learned Appellate Judge has come to the conclusion that there was no increase in the land holding of the appellants. The question of law framed by the appellants do not indicate remotely that any substantial question of law arises out of the order and judgment passed by the learned Appellate Judge. Reliance placed on the decision of the Apex Court by Mr. Pandya would not lead his case any further. Non framing of the issue regarding the legality and validity of issue and finding given thereon in absence of and without joining the beneficiaries and/or legal heirs of the deceased in the suit, would certainly justify the interference by the learned Appellate Judge and this Court finds in complete agreement with the finding arrived at and conclusion drawn by the learned Appellate Judge. 9. Considering the entire facts and SA/117/2006 15/15 JUDGMENT circumstances of the case and having perused the evaluation of the oral as well as documentary evidence and the discussion made and findings given by both the Courts below, this Court is of the view that the issue has been correctly decided by the learned Appellate Judge which does not give rise to any substantial question of law and Second Appeal, therefore, fails. 10. Since the Appeal is dismissed, Civil Application does not survive and it is accordingly rejected. (K. A. PUJ, J.) kks