Gujarat High Court
Legal Heirs Of Decd. Aemankhan ... vs Legal Heirs Of Jorabibi D/O Mahomadkhan ... on 29 August, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/244/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 244 of 2018
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LEGAL HEIRS OF DECD. AEMANKHAN DILDARKHAN PATHAN
Versus
LEGAL HEIRS OF JORABIBI D/O MAHOMADKHAN HAMIDKHAN PATHAN
W/O MIRSABMIYA SHEIKH
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Appearance:
MR SP MAJMUDAR(3456) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6,1.7,2,2.1,2.2,2.3,2.4,3,4,4.1,4.2,5,6,7
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 29/08/2018
ORAL ORDER
This Second Appeal is ordered to be admitted on the following substantial questions of law.
(A) Whether the Ld. trial Court as well as the Ld. First Appellate Court have committed a substantial error of law in failing to appreciate that the original plaintiffs have challenged the registered sale deed dated 22.04.1975 after 9 years in a suit filed on 22.02.1984, which is clearly beyond the prescribed period of limitation of 3 years and is barred by the law of limitation?
(B) Whether the Ld. trial Court as well as the Ld. First Appellate Court have committed a substantial error of law failing to appreciate that a registered document such as the sale deed dated 22.04.1975 operates as deemed notice as held by the Hon'ble Supreme Court in Dilboo v. Dhanraj reported in (2007) 7 SCC 702 and following by the Division Bench of this Hon'ble Court in Mohanbhai Maganbhai Patel & Ors. v. Miral Vallabhbhai Page 1 of 4 C/SA/244/2018 ORDER Surani & Ors. reported in 2016 SCC OnLine Guj 8146?
(C) Whether the Ld. Trial Court as well as the Ld. First Appellate Court have committed a substantial error of law in failing to appreciate that Section 3 of the Limitation Act, 1963 enjoins the Court to dismiss any suit instituted after the prescribed period of limitation even though limitation has not been set up as a defence?
(D) Whether the Ld. First Appellate Court have committed a substantial error of law in failing to appreciate that Article 59 of the Limitation Act, 1963 would be applicable to facts of the present case and not Article 65 of the Limitation Act, 1963 as held by the Ld. First Appellate Court?
(E) Whether the Ld. trial Court as well as the Ld. First Appellate Court have committed a substantial error of law in failing to appreciate that under Mohammedan law, the inheritance vests immediately in his heirs and Muslim heirs are independent owners of their specific shares?
(F) Whether the Ld. Trial Court as well as the Ld. First Appellate Court have committed a substantial error of law in failing to appreciate that under Muslim law, the heirs of a deceased ancestor are never joint in estate but only tenants in common of the estate of the deceased?
(G) Whether the Ld. trial Court as well as the Ld. First Appellate Court have committed a substantial error of law in failing to appreciate that original Defendant No.1 was entitled to convey his share of the inheritance and was able to pass good title to the Original Defendant No.2 notwithstanding any debts which might be due from the deceased ancestor as held by the Privy Council in Syud Bazayet Hossein And Others V. Dooli Chand reported in (187778) 5 IA 211?
Page 2 of 4 C/SA/244/2018 ORDER(H) Whether the Ld. trial Court as well as the Ld. First Appellate Court have committed a substantial error of law in failing to appreciate that as tenants in common, the original plaintiff could not have sought recovery of possession from the original defendants without a prayer for partition of the suit property?
(I) Whether the learned trial Court and the learned First Appellate Court committed a substantial error of law in failing to appreciate the legal effect of the mutation of Revenue Entry No.45 entered on 26.04.1953, which remained unchallenged by the original plaintiff for over 30 years?
(J) Whether the learned trial Court and the learned First Appellate Court committed a substantial error of law in failing to appreciate that the original plaintiff permitted the original defendant no.1 to remain in possession of the suit property and to hold out as the ostensible owner of the plaintiff's share in the suit property?
(K) Whether the learned First Appellate Court committed a substantial error of law in failing to appreciate that original defendant No.2 is a bona fide purchaser for value without notice of the suit property from the original defendant no.1 who was the ostensible owner of the share of the original plaintiff and that such a transaction is protected by Section 41 of the Transfer of Property Act, 1882?
(L) Whether the learned First Appellate Court committed a substantial error of law in failing to appreciate that a transaction in breach of Section 63 of the Bombay Tenancy & Agricultural Lands Act, 1948 is valid until declared to be invalid by the competent authority under the Act?
(M) Whether the learned trial Court and the learned First Appellate Court committed a substantial error of law in failing to appreciate that the Page 3 of 4 C/SA/244/2018 ORDER possession of the original defendant no.1 was adverse to that of the original plaintiff?
(N) Whether the learned trial Court and the learned First Appellate Court committed a substantial error of law in failing to appreciate that the suit property was given to Azimkhan by Muhommadkhan Hamidkhan Pathan in light of the settled position that an oral transfer is valid under Muslim law?
(O) Whether the learned trial Court and the learned First Appellate Court committed a substantial error of law in failing to appreciate that the effect of the order passed in Tenancy Case No.3 of 1973 was that ownership of the suit property vests in favour of original defendant no.1?
(P) Whether the learned trial Court and the learned First Appellate Court committed a substantial error of law in failing to frame proper points for determination as required by Order 41 Rule 31 of the Code of Civil Procedure, 1908?
(J.B.PARDIWALA, J) aruna Page 4 of 4