Gujarat High Court
Hariprasad Mohanlal Mehta & Ors vs Bhanumatiben Alias Babuben on 20 February, 2018
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/AO/368/2016 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 368 of 2016
With
APPEAL FROM ORDER NO. 369 of 2016
With
APPEAL FROM ORDER NO. 367 of 2016
With
APPEAL FROM ORDER NO. 316 of 2016
With
APPEAL FROM ORDER NO. 34 of 2018
============================================
HARIPRASAD MOHANLAL MEHTA & ORS ....Appellants Versus BHANUMATIBEN ALIAS BABUBEN D/O. MOHANLAL AMBARAM MEHTA & ORS ....Respondents ============================================ Appearance:
Appeal from Order No.368 of 2016 :
MR MEHUL S SHAH, SENIOR ADVOCATE with MR ANIRUDDH M JANI, ADVOCATE for the appellants (original defendants) MR MIHIR THAKOR, SENIOR ADVOCATE and MR P C KAVINA, SENIOR ADVOCATE with MR VIRAL K SHAH, ADVOCATE for the contesting Respondents (original plaintiffs) Respondents No. 5 to 10, 17, 19 to 33, 34.1 to 34.5 and 34.7 are served Notice is unserved expired for Respondent No.34.6 MR VIBHUTI NANAVATI, ADVOCATE for Respondents No.12 to 16 MS MEGHA JANI, ADVOCATE for Respondents No.2 to 4 MR Y N RAVANI, ADVOCATE with MR KALPESH N SHASTRI, ADVOCATE for Respondent No.11 Appeal from Order No.369 of 2016 :
MR MEHUL S SHAH, SENIOR ADVOCATE with MR ANIRUDDH M JANI, ADVOCATE for the Appellants (original defendants) MR MIHIR THAKOR, SENIOR ADVOCATE and Page 1 of 27 HC-NIC Page 1 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER MR P C KAVINA, SENIOR ADVOCATE with MR VIRAL K SHAH, ADVOCATE for the contesting Respondents (original plaintiffs) Appeal from Order No.367 of 2016 : MS MEGHA JANI, ADVOCATE for the Appellants original defendants No.29 to 31 MR MIHIR THAKOR, SENIOR ADVOCATE and MR P C KAVINA, SENIOR ADVOCATE with MR VIRAL K SHAH, ADVOCATE for the contesting Respondents (original plaintiffs) Respondents No.3 to 7, 11 to 13 and 15 to 18 are served Notice is unserved for Respondents No. 9, 10 and 14 Notice is unserved expired for Respondent No.8 Appeal from Order No.316 of 2016 MR MEHUL S. SHAH, SENIOR ADVOCATE with MR KEYUR A VYAS, ADVOCATE for the Appellants (original defendants) MR MIHIR THAKOR, SENIOR ADVOCATE and MR P C KAVINA, SENIOR ADVOCATE with MR VIRAL K SHAH, ADVOCATE for the contesting Respondents (original plaintiffs) Appeal from Order No.34 of 2018 MR Y N RAVANI, ADVOCATE with MR KALPESH N SHASTRI, ADVOCATE for Appellants original defendants No.37 and 38 MR MIHIR THAKOR, SENIOR ADVOCATE and MR P C KAVINA, SENIOR ADVOCATE for MR VIRAL K SHAH, ADVOCATE with MR RAJ A TRIVEDI, ADVOCATE for the contesting Respondents (original plaintiffs) MS MEGHA JANI, ADVOCATE for Respondents No. 5 to 7 (original defendants) ============================================ CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Page 2 of 27 HC-NIC Page 2 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER Date : 20/02/2018 CAV ORDER
1. These Appeals arise from the common order passed by the Principal Senior Civil Judge, Gandhinagar dated 25.07.2016 below applications Exh.5 in Special Civil Suit No.109 of 2006, Regular Civil Suit No.453 of 2010 and Special Civil Suit No.309 of 2012. By the impugned order, the Trial Court has allowed Exh.5 applications filed by the original plaintiff and has ordered that status quo qua the suit properties shall be maintained by the defendants, during the pendency of the suits. Some of the original defendants, by these separate appeals, have challenged the said order.
2. Heard learned advocates for the respective parties.
3. Mr. Mehul Shah, learned senior advocate, Mr. Rawani and Ms. Megha Jani learned advocates for the respective appellants have addressed the Court at length. All the learned advocates for the appellants have taken this Court extensively through the paper book. Attention of the Court is invited to the provisions of the Hindu Succession Act, 1956 and The Hindu Women's Right to Property Act, 1937, including Mitakshara as well as Dayabhag schools of law, to contend that the plaintiff does not have prima-facie case on merits. Further, reference is also made to the law of limitation to contend that there was fatal delay on the Page 3 of 27 HC-NIC Page 3 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER part of the plaintiff vis-a-vis the date of purchase of the part of the suit lands, by the respective appellants. Additionally it is contended that, keeping in view the costs involved in the project being carried on the part of the suit land, the injunction granted by the Trial Court needs to be interfered with. Grievance is also made with regard to all the parties not being joined by the plaintiff. It is also contended that the plaintiff can not be permitted to put up the case which is not pleaded in the plaint before the Trial Court. It is submitted that the impugned order needs to be interfered with. In support of their submissions, learned advocates for the appellants have referred to the following decisions.
• Mandali Ranganna v. T. Ramchandra reported in AIR 2008 SC 2291.
• Veetrage Holdings Pvt. Ltd. v. Gujarat State Textile Corporation Ltd, reported in 1996 (1) GLH 179.
• Pangu Alias Apputty (Dead) Through L. Rs. Vs. Narayani, reported in 2014 (10) scale 272 • Ramanbhai Shamalbhai Patel V.s Ravjibhai Motibhai Patel 2015 (1) GLR 494 • Dalpat Kumar v. Prahlad Singh, reported in AIR 1993 SC 276 • M.P. Housing Board v. Anil Kumar Khiwani, reported in AIR 2005 SC 1863 • Bachhaj Nahar vs Nilima Mandal & Ors, reported Page 4 of 27 HC-NIC Page 4 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER in 2008 (17) SCC 491 • L. Gowramma (Dead) by Legal Representative V.s Sunanda (Dead) by Legal Representative and Another reported in (2016) 3 SCC 356
4. On the other hand, Mr. Mihir Thakor, learned senior advocate for the original plaintiff has vehemently submitted that, the Trial Court has not committed any error while granting the injunction qua the suit properties. It is submitted that, in the facts of the case, the suit properties are required to be preserved and the Trial Court has done that only and therefore no interference be made by this Court. Learned senior advocate for the original plaintiff has taken this Court extensively through the paper book. Attention of the Court is invited to the provisions of the Hindu Succession Act, 1956 and The Hindu Women's Right to Property Act, 1937 to contend that the plaintiff does have prima-facie case on merits. It is also submitted that the balance of convenience is also in the favour of the plaintiff. It is also submitted that if the injunction as prayed for, and which is so granted by the Trial Court is continued, there will not be any irreparable loss to the present appellants - original defendants, however if it is vacated, there will be irreparable loss to the plaintiff. It is submitted that the impugned order may not be interfered with. It is submitted that the right of the plaintiff will not get extinguished for any delay. It is submitted that in the present case there was not any Page 5 of 27 HC-NIC Page 5 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER overt act of releasing such right and the said right persists in perineum. It is contended that the mofussil pleading has to be read harmoniously and there should not be hair splitting scrutiny of the pleadings. It is submitted that these Appeals be dismissed. In support of his submissions, learned senior advocate for the plaintiff has referred to the following decisions.
• Wander Ltd. And Anr. V.s Antox India P. Ltd. reported in 1990 SCC Supl. 727 • Bachhaj Nahar V.s. Nilima Mandal And Anr. reported in (2008) 17 SCC 491 • Vaddeboyina Tulasamma and Others V.s Vaddeboyina Sesha Reddi (dead) by L.Rs reported in AIR 1977 SC 1944 • Narain Prasad Aggarwal (d) by Lrs. V.s State of Madhya Pradesh reported in AIR 2007 SC 2349
5. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds as under.
5.1 The original plaintiff had, earlier moved injunction application (Exh.5) in Special Civil Suit No. 309 of 2012 before the Trail Court. The said application was considered by the 5th Additional Senior Civil Judge, Gandhinagar and was rejected vide order dated 05.05.2014. The Trial Court, at the relevant time had recorded that the plaintiff does Page 6 of 27 HC-NIC Page 6 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER not have prima facie case. The said order, rejecting Exh.5 application was challenged before this Court by the original plaintiff in Appeal from Order No.235 of 2014. The said Appeal came to be allowed by this Court (Coram:
Hon'ble Mr.Justice S.G.Shah) vide order dated 18.09.2014, which reads as under.
"1. Heard learned advocate Mr.Viral K.Shah for the appellant and learned advocate Mr.A.J.Patel for the respondent nos.2 and 3. Considering the fact that the matter is required to be remanded back for fresh consideration to the trial Court, the matter is admitted and Mr.A.J.Patel waives service of admission for respondents no.2 and 3.
2. Judgment and order dated 5.5.2014 by 5th Addl. Senior Civil Judge, Gandhinagar in Special Civil Suit no.309 of 2012 is under challenge. By such impugned judgment, the trial Court has dismissed the application for interim injunction by the plaintiff appellant. The plaintiff appellant has narrated in his application the history of previous suits pending for the same property and between plaintiff and Page 7 of 27 HC-NIC Page 7 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER defendant no.1 herein, which are regarding partition and to restrain the defendant no.1 from alienating the suit property in any manner. However, in absence of interim relief in favour of the plaintiff, defendant no.1 has alienated the properties in favour of defendant nos.2 and 3 and, therefore, plaintiff is constrained to prefer this fresh suit against such defendants.
3. Unfortunately, in the present suit, though defendants have not appeared before the trial Court and have not filed any reply, the trial Court has dismissed the application for interim relief only on the ground that since possession is not proved by the plaintiff and since sale-deeds are yet not declared as void or illegal, injunction cannot be granted. However, the trial Court has failed to consider the facts and details properly and also failed to consolidate all the suits which are referred in the pleadings.
4. As against that, learned advocate Mr.Patel is relying upon the provision of Hindu Law and decision in the cases Page 8 of 27 HC-NIC Page 8 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER of State Bank of India vs.Ghamandi Ram reported in AIR 1969 SC 1330 and Surjit Lal Chhabda vs.Commissioner of Income- tax, Bombay reported in AIR 1976 SC 109 submitted that mother of the plaintiff does not acquire any right whatsoever in the suit property since she has expired in the year 1954 i.e. before enactment of the Hindu Succession Act when family members were not recognised as coparceners in Hindu family.
5. However, the fact remains that when suit for partition is pending, wherein injunction application is not determined and when second suit for restraining the defendant no.1 from alienating the suit property is also pending with an application for interim relief, and when defendant no.1 has alienated the suit property and, thereafter, when the defendants have not appeared and have not filed their reply in the suit, instead of consolidating all these three suits, the trial Court has certainly committed haste in dismissing the application at Exh.5 for interim relief.
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6. Therefore, irrespective of right of the plaintiff to get interim relief, at this stage it would be appropriate to remand the matter back to the trial Court in following terms:-
a. The impugned judgment and order dated 5.5.2014 in Special Civil Suit no.309 of 2012 by the 5th Addl.Senior Civil Judge, Gandhinagar is quashed and set-
aside with a direction to the
trial Court to decide such
application afresh after
consolidating all the suits as
under.
b. Yadi of this order be forwarded
to the Principal District Judge
for consolidating all the pending suits between the plaintiff and defendant no.1 being Special Civil Suit no.109 of 2006, Regular Civil Suit no.453 of 2010 and present suit being Special Civil Suit no.309 of 2012 and to list it before the same Court for adjudication in accordance with law. For such consolidation, Page 10 of 27 HC-NIC Page 10 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER plaintiff and defendant no.1 may also file a formal application before the concerned Court.
c. The trial Court which is
assigned all these Civil Suits
shall decide pending application
for interim relief in all such
suits together within three months from the date of consolidation of such suits. Till then, parties shall maintain status-quo qua ownership and possession of the suit property.
7. With above direction, the present Appeal from Order is disposed of accordingly. Rule made absolute.
8. In view of the order passed in Appeal from Order, Civil Application does not survive and stands disposed of accordingly.
5.2 It is noted that, while remanding the matter back to the Trial Court, this Court had directed that, status quo qua the ownership and the possession of the suit properties shall be maintained by the parties.
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5.3 Pursuant to the above quoted order of this Court dated 18.09.2014, injunction applications, in all the three suits came to be considered together by the Trial Court, afresh. The Trial Court, after hearing the parties came to the conclusion that the plaintiff does have prima facie case. The Trial Court has also noted that, the balance of convenience is also in favour of the plaintiff and further that, if the interim injunction as prayed for qua the suit properties is not granted, the same shall result in irreparable loss to the plaintiff, as against it, if it is granted, the same shall not cause any irreparable loss to the defendant(s). Weighing all these aspects, the Trial Court ordered that the defendants shall maintain status quo qua the suit properties.
5.4 It is the above order, which is under challenge in this group of appeals. It is noted that, initially there was only one appeal before this Court being Appeal from Order No. 316 of 2016. On the said Appeal, this Court (Corum: Hon'ble Mr. Justice A.G. Uraizee) had, on 22.09.2016, passed the following order.
"1. Heard Mr. Mehul Sharad Shah, learned advocate for Mr. Keyur A. Vyas, learned advocate for the appellants and Mr. Mihir Thakore, learned senior counsel assisted by Mr. Viral K. Shah, learned advocate for respondent Nos. 1 and 2 on caveat.
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2. Notice returnable on 28th September,
2016. Mr. Viral K. Shah, learned advocate waives service of notice for the respondents.
3. It seems that three suits namely Special Civil Suit No.109 of 2006, Regular Civil Suit No.453 of 2010 and Special Civil Suit No.309 of 2012 in respect of the suit property involved in the present appeal which arises from common order passed below Exhibit-5 in the aforesaid three suits. The other two suits i.e. the Special Civil Suit No.103 of 2006 and Regular Civil Suit No.553 of 2003 are concerned in view of the pecuniary jurisdiction, three appeals being Miscellaneous Appeal No.35 of 2016, 36 of 2016 and 37 of 2016 are preferred in the District Court, Gandhinagar to challenge the selfsame common impugned order below Exhibit-5. By virtue of order passed by this Court on 18.09.2014 in Appeal from Order No.325 of 2014, the learned trial Judge was directed to hear Exhibit-5 application in the aforesaid three suits and passed a common order i.e. the common impugned order passed by the learned trial Page 13 of 27 HC-NIC Page 13 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER Judge in all the aforesaid three suits.
4. Section 24(1) of the Code of Civil Procedure, 1908 provides that on the application of any of the parties or on its own the High Court can at any stage withdraw any suit, appeal or other proceedings pending in any court subordinate to it, and transfer the same for disposal to this Court disposed of it. Thus, this Court has suo moto power under Section 24 of the Code to call for and transfer the aforesaid appeals pending in the District Court, Gandhinagar for hearing and disposal along with the present appeal.
5. Hence, the District Court, Gandhinagar is hereby directed to transmit Misc. Application Nos. 35 of 2016, 36 of 2016 and 37 of 2016 to this Court so as to reach this Court on or before 27th September, 2016.
6. Registry is directed to communicate this order to the District Court by fax.
Order in C.A. No.8471/2016 Notice returnable on 28th September, 2016.
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Mr. Viral K. Shah, learned advocate waives service of notice for the respondents."
5.5 Thereafter, on 28.09.2016, this Court (Corum:
Hon'ble Mr. Justice A.G. Uraizee) passed the following order.
"In compliance of order dated 16.09.2016 of this Court, the Registry has received Miscellaneous Appeals No.35, 36 and 37 of 2016 from the District Court, Gandhinagar wherein selfsame common order, which is impugned in the present appeal, is challenged. The Registry is directed to register the appeals which are received from the District Court, Gandhinagar on the file of this Court and list those appeals along with the present appeal on 6th October 2016.
It is clarified that the parties are at liberty to enter their appearance either in person or by duly instructed advocate in the appeals, which are received from the District Court and which are going to be taken on register of this Court."
5.6 The above referred three Appeals from the same Order of the Trial Court, which stood transferred from the District Court to this Court are numbered as Appeal from Page 15 of 27 HC-NIC Page 15 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER Order Nos. 367, 368 and 369 of 2016.
5.7 Thereafter, one more Appeal is filed by some of the defendants before this Court, being Appeal from Order No. 34 of 2018. It is in this background, all these five Appeals from Order are being considered and decided by this Court, by this common order.
6. The totality of the above process indicates that, while considering the grievance of the plaintiff in Appeal from order No. 235 of 2014, this Court had (on 18.09.2014), on the basis of the material available on record then, recorded its satisfaction to the effect that, status quo qua the suit properties was required to be maintained by the parties and had passed order accordingly. Thereafter the Trial Court has taken into consideration all the relevant aspects and has recorded its satisfaction qua all the three parameters in favour of the plaintiff, as noted above and has granted status quo. Thus, the status quo qua the suit properties which was granted by this Court vide order dated 18.09.2014, has continued all through out.
7. It is noted that, if the arguments of the learned advocate for the appellants (original defendants), on the merits of the suit are considered at this stage, it may prejudice the case of the parties, at the time of trial, which is under way. For this reason, only those arguments, which may have bearing qua Exh.5 applications, are considered Page 16 of 27 HC-NIC Page 16 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER by this Court at this stage while deciding these Appeals.
8.1 The first thing to be examined by this Court is, whether the plaintiff has prima facie case. The relevant provisions of law, which may have bearing in this regard, are referred as under.
8.2 Section 3 of the Hindu Women Right to Property Act of 1937 reads as under.
"3 Devolution of property. -
(1) When a Hindu governed by the
Dayabhaga School of Hindu Law dies
intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son: Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son:
Provided further that the same provision Page 17 of 27 HC-NIC Page 17 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.
(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-
section (3), have in the property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner.
(4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Indian Succession Act, 1925, applies."
8.3 Section 14 of the Hindu Succession Act 1956, reads as under.
"14. Property of a female Hindu to be her Page 18 of 27 HC-NIC Page 18 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER absolute Property.-
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.- In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of arrears of maintenance, or by gift from any person, whether a relative or note, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a Page 19 of 27 HC-NIC Page 19 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER restricted estate in such property."
8.4 Section 15 (1) (a) of the Hindu Succession Act 1956, reads as under.
"15. General rules of succession in the case of female Hindus.-
(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-
(a) firstly, upon the sons and daughters (including the children of any pre-
deceased son or daughter) and the
husband.
(b) ...............
(c) .............
(d) ............
(e) ...............
(2) ..............."
8.5 If the facts of the present case are weighed vis-a-vis the above provisions, it transpires that Mohanlal had self acquired properties, he died in the year 1945 leaving behind him his widow Gangaben, along with two other sons and one daughter. At the relevant time, the Act of 1937 being in force, Gangaben acquired her share in the property of her husband. Though her share was of limited Page 20 of 27 HC-NIC Page 20 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER interest, in view of the provisions of section 3 of the Act of 1937, subsequently the said share became absolute in view of section 14 of the Act of 1956. Further, by virtue of section 15 (1) (a) of the Act of 1956, the daughter (Bhanumatiben) and her legal heirs would be entitled to and claim their right in the suit properties, who is the predeceased daughter of Gangaben and Mohanlal. From record it transpires that, it is the case of the original plaintiff (Bhanumatiben @ Babuben daughter of Mohanlal), that her mother (Gangaben widow of Mohanlal) died in the year 1957. This is also accepted by the Trial Court. On conjoint consideration of this, this Court finds that the plaintiff has strong prima facie case in her favour, on merits.
9.1 It is noted that, on behalf of some of the appellants it is vehemently submitted that, the case pleaded in the plaint is not to the effect that, the right of the plaintiff (Bhanumatiben) flows from the right of her mother (Gangaben) and the plaintiff can not be permitted to change the line of argument. In this regard, having considered the case of the plaintiff in totality, this Court finds that, it is asserted on behalf of the original plaintiff lady, in no uncertain terms that, she has the share and right in the properties of her father (Mohanlal Ambaram Mehta). The claim of the daughter in the properties of her father, can not be permitted to be sabotaged on a technical aspect, as to whether she (Bhanumatiben) Page 21 of 27 HC-NIC Page 21 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER claims it as the daughter of the father - on the death of the father, or that she claims her share in the property of her father - after the death of father and mother both.
Under either of the circumstances, they say of the plaintiff daughter is only that she does have share and right in the properties of her deceased father. This Court does not find any substantial variation in the pleadings, as is sought to be projected by the appellants - original defendants. This contention therefore needs to be rejected keeping in view the observations of the Supreme Court in the Case of Ram Sarup Gupta (dead) by LRs., vs. Bishun Narain Inter College, reported in AIR 1987 SC 1248) (para:6) which read as under.
"6. .......It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise.
The pleadings however should receive a
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liberal construction, no pedantic approach
should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance if the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issue by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal.
[emphasis supplied]"
9.2 The above view is referred and followed by the Supreme Court in the case of Bachhaj Nanar Vs. Nilima Mandal reported in (2008) 17 SCC 491. It is noted that, though the said decision is relied by the appellants, the Page 23 of 27 HC-NIC Page 23 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER said proposition supports the case of the original plaintiff.
9.3 Reference also needs to be made to decision of the Supreme Court in the case of Des Raj V. Bhagat Ram reported in (2007) 3 SCALE 371, which was subseqnetly also followed by the Supreme Court in the case of Narain Prasad Aggarwal by LRs. VS. State of M.P. reported in AIR 2007 SC 2349.
"26. The plaint might not have been very happily drafted. But it is well known that, ordinarily, moffusil pleadings are not to be strictly construed as has been held in Des Raj Vs. Bhagat Ram [2007 (3 SCALE 371] in the following terms:
"It may be true that in his plaint, the plaintiff did not specifically plead ouster but muffosil pleadings, as is well known, must be construed liberally. Pleadings must be construed as a whole. Only because the parties did not use the terminology which they should have, ipso facto, would not mean that the ingredients for satisfying the requirements of statute are absent.
There cannot be any doubt whatsoever
that having regard to the changes
brought about by Articles 64 and 65 of Page 24 of 27 HC-NIC Page 24 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER the Limitation Act, 1963 vis-a-vis Articles 142 and 144 of the Limitation Act, 1908, the onus to prove adverse possession would be on the person who raises such a plea. It is also furthermore not in dispute that the possession of a co-sharer is presumed to be possession of the other co- sharers unless contrary is proved."
10. Keeping the above aspects in view, the finding of the Trial Court to the effect that, the plaintiff does have prima facie case, does not call for any interference. It is held that, the first issue, whether the plaintiff has a prima facie case or not, is rightly answered by the Trial Court, in favour of the plaintiff.
11. Having held that the Trial Court has committed no error while coming to the conclusion that the plaintiff does have a prima facie case, it needs to be examined, whether other two parameters are satisfied in favour of the plaintiff. This Court finds that some of the properties are already dealt with by the defendants - original land owners. Those properties are already under the order of status quo, initially pursuant to the order by this Court and subsequently by the Trial Court. The suit properties, in the facts of the case, need to be preserved, during the pendency of the suit. The balance of convenience is in favour of the plaintiff. Coming to the aspect of Page 25 of 27 HC-NIC Page 25 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER irreparable loss, this Court finds that, in the facts of the present case, if the status quo as ordered by the Trail Court is vacated, there would be irreparable loss to the plaintiff, however if the same is continued for some more time, the same is not likely to cause any irreparable loss to any of the defendant(s). In this factual background, this Court finds that, no interference is required in the impugned order passed by the Trial Court. These Appeals from Order need to be dismissed.
12. So far the aspect of delay is concerned, this Court finds that the said aspect was already there, when the co- ordinate bench of this Court granted status quo qua the suit properties vide order dated 18.09.2014. Further, the final order which is being passed by this Court, is for finalization of the suit expeditiously, since it is pending for more than a decade. Under these circumstances, the status quo operating qua the suit properties, need not be vacated, for the period which is of few more months only.
13. It also needs to be noted that during the pendency of these proceedings, parties have already settled the dispute which was agitated in Special Civil Suit No. 309 of 2012 and Regular Civil Suit No. 453 of 2010. Both the said suits are disposed of by the Trial Court on 13.10.2017, on the basis of withdrawal purshis dated 12.10.2017 and 13.10.2017 respectively. Thus now only one Civil Suit survives which is Special Civil Suit No. 109 of 2006. Since the only surviving suit is more than a decade old, the Trial Page 26 of 27 HC-NIC Page 26 of 27 Created On Tue Feb 20 23:43:03 IST 2018 C/AO/368/2016 CAV ORDER Court in any case needs to dispose it of urgently.
14. For the reasons recorded above, the following order is passed.
14.1 The impugned common order passed by the Principal Senior Civil Judge, Gandhinagar dated 25.07.2016 below application Exh.5 in Special Civil Suit No.109 of 2006, Regular Civil Suit No.453 of 2010 and Special Civil Suit No.309 of 2012 is confirmed. All these Appeals, arising from the said Order are dismissed.
14.2 With a view to see that, the status quo qua the suit properties, as ordered by the Trial Court and as confirmed by this Court, may not continue for long and further keeping in view the fact that, now the only surviving suit is the Special Civil Suit No. 109 of 2006, which is more than a decade old, the Trial Court is directed to complete the hearing of the Special Civil Suit No. 109 of 2006, expeditiously, preferably within a period of two months from the date of receipt of this order. Parties shall co- operate in the conclusion of the trial, as ordered.
14.3 In the event of non-completion of the suit within the stipulated time, liberty is reserved to the parties, to move this Court, for appropriate further orders.
(PARESH UPADHYAY, J.) M O Bhati/02 Page 27 of 27 HC-NIC Page 27 of 27 Created On Tue Feb 20 23:43:03 IST 2018