Case: Husainbhai Nabibux Kunjada Vs. Modhia Chhotalal Mansukhlal &amp; Others

2. Civil Appeal No. 316 of 1970 is directed against the judgment and decree of a Letters Patent bench of the Gujarat High Court dated April 11/12, 1967 dismissing a letters patent appeal (L. P. A. No. 9 of 1962) preferred by the appellants from the judgment of a learned single Judge of that Court dated May 4, 1962 dismissing the appellants appeal (Appeal No. 166 of 1960) under Section 47, Code of Civil Procedure from the order dated March 20, 1958 passed by the Court of Civil Judge, Senior Division, Godhra in special Darkhast, directing the delivery of actual possession of the land in dispute by the appellants to therespondent.3. Civil Appeal No. 317 of 1970 is directed against the judgment and decree of a Division Bench of the Gujarat High Court dated March 26, 1969 summarily dismissing in limine the appellants appeal (F. A 430 of 1969) from the judgment and decree of the Civil Judge, Senior Division, Godhra dated November 26, 1968 dismissing the appellants suit (Special Suit No. 8 of 1967) on the finding that they had failed to prove the decree passed in Special Suit No. 2 of 1942 to be a nullity.4. In tracing the relevant facts giving rise to these appeals we must go back to the litigation in which in 1943 a decree for possession was passed in a suit for possession against several defendants. including the tenants (defendants 4 to 15 in the suit), the appellants in these two appeals. On February 25, 1939 Modhia Mansukhlal Raiji sold to Chhotalal and Punam Chand some land bearing S. No. 533 situated within the limits of Dohad for a sum of Rs.The sale price was not paid at the time of sale. Punam Chand is said to have paid the full price after some time and sold the property to Nayak Mansinghji Mokamsinghji. Mansukhlal the original vendor died leaving behind his daughter Bai Punji as heir and successor. In 1929 she instituted a suit against Chhotalal, one of the purchasers from her father, for the unpaid sale price. Chhotalal in turn instituted a suit (Suit No. 2/42) for possession of land comprised in survey No. 533 against Bai Punji, Mansukhlal Raiji, Nayak Mansinghji Mokamsinghji, Punamchand and the tenants in actual possession of the said land.

Reasoning:
8. In our view, both appeals are without merit. As already observed, the trial Court (Civil Judge S. D. Godhra) in Suit No. 8/67 in a well considered judgment came to the conclusion that the plaintiffs (appellants in this Court) had. never recognized the defendants as their landlords and for this reason the decree in Suit No. 2/42 did not violate any provision of the Bombay . Tenancy Act, 1929. Suit No. 2/42, being for partition and recovery of possession involving title, could only be dealt with by Civil Judge and not by Mamlatdar. The decree in that suit was, therefore not a nullity and actual physical possession in execution of the decree made in that suit could be delivered. The plaintiffs (appellants in this Court) were not entitled to the declaration that they had become owners of the suit land under Sec. 32 of the Bombay Tenancy and Agricultural Lands Act, 1948. This Act came into force after the institution of Suit No. 2/42 with the result that the execution of that decree by the ordinary civil courts was permissible. This conclusion has not been shown to be erroneous, and certainly not so grossly erroneous as to justify interference by this Court on appeal by special leave. According to the settled practice of this Court, in appeals by special leave, ordinarily, this Court does not embark upon an inquiry into the correctness or otherwise of all conclusions of fact or even of law arrived at by the High Court andthe evidence for itself. This Court may examine the evidence in those rare cases where there in misreading of evidence or where the effect of evidence has been seriously misunderstood or where important evidence making a fundamental difference in the ultimate conclusion has been completely ignored and it has led to injustice. Such is clearly not the case here.9. A faint attempt was made by Shri Shukla to show that the appellants had throughout remained in actual physical cultivating possession of the suit land which is stated to be 47 acres of agricultural land in the town of Godhra and for that purpose he referred us to the evidence on the question by submitting that this evidence had been ignored by the courts below. Reference to the entries in the revenue papers to which our attention was drawn, however, does not support the appellants case. There is no clear evidence to that effect. Once it is held that the conclusion of the courts below that the appellants had not been in possession of the suit land as tenants, as alleged is not open to challenge, their claim must fail. The decree in Suit No. 2/42 being a lawful decree and not being a nullity as contended on behalf of the appellants, it is difficult to appreciate their claim to protection against dispossession. The order granting delivery of actual possession to the respondents decreeholder is, in the circumstances of the case, fully justified.10. On the conclusions of the Courts below, it is not possible to hold that the impugned judgments suffer from any serious legal infirmity which can be said to have resulted in grave in justice.11. Both the appeals must, therefore be held to be without merit. However, keeping in view the peculiar facts and circumstances of this case and particularly the fact that the appellants were originally tenants and they have lost their right by reason of their ownaction in not participating in Suit No. 2/42, we consider it to be proper to direct that the parties should bear their own costs both here and in the High Court.