Gujarat High Court
Patel Jivabhai Mafatbhai vs Patel Khodabhai Harjivandas on 19 July, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/179/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 179 of 2018
With
CIVIL APPLICATION NO. 1 of 2018
With
R/SECOND APPEAL NO. 180 of 2018
With
CIVIL APPLICATION NO. 1 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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PATEL JIVABHAI MAFATBHAI
Versus
PATEL KHODABHAI HARJIVANDAS
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Appearance:
MR JIGNESHKUMAR M NAYAK(8558) for the PETITIONER(s) No. 1
MR VIJAY H NANGESH(3981) for the PETITIONER(s) No. 1
MR MEHUL S.SHAH, SR.ADVOCATE with MR AJAY S JAGIRDAR(2688) for
the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 19/07/2018
COMMON ORAL JUDGMENT
These Second Appeals under Section 100 of the Civil Procedure Code are at the instance of the original defendant no.1 Page 1 of 20 C/SA/179/2018 JUDGMENT and are directed against the judgment and order dated 23rd April 2018 passed by the 2nd Additional District Judge, Kalol, in the Regular Civil Appeal Nos.34 of 2016 and 33 of 2016 respectively arising from the judgment and decree dated 2nd July 2016 passed by the 6th Additional Civil Judge, Kalol, in the Regular Civil Suit Nos.129 of 2011 and 128 of 2011 respectively.
The facts giving rise to these Second Appeals in the words of the appellants as pleaded in the memorandum of the Second Appeals are as under :
"2.1 The appellant submits that the appellant and his brother and sister are original owners of land bearing the following lands of village : Kalol, Taluka Kalol, District :
Gandhinagar are joint family property of the appellant and his family members which are as under :
Sr. Survey Hectare Sq.Mtrs. Land
No. Number Tax
Rupees
1. 872/2 0-14-16 0-78
2. 872/3 0-13-15 0-78
3. 873/1 0-43-50 2-44
4. 873/2 0-42-09 2-43
5. 1095/1 0-41-48 2-44
6. 1096/5 0-35-41 2-02
7. 900/3 0-30-35 1-56
8. 923/1 0-46-54 2-94
9. 923/2 0-45-43 2-93
10. 924 0-89-03 5-69
The above lands except Survey No.924 are ancestral properties and in name of grandfather of the present Page 2 of 20 C/SA/179/2018 JUDGMENT appellant namely Madhabhai Gopaldas Patel and Survey No.924 was purchased by father of the appellant - plaintiff in the year 1932.
2.2 The appellant submits that sister of the appellant who was married in 1968 and all the social obligations of the marriage and other are performed by plaintiff and plaintiff is in possession of above land and doing agricultural activity.
2.3 The appellant submits that the sister of appellant and other filed Regular Civil Suit No.83 of 2001 before learned Civil Court, Kalol for declaration that the above properties are ancestral and joint family property and also other reliefs, that suit was dismissed for default vide order dated 08.02.2004.
2.4 The appellant submits that on 05.01.2007, appellant made an application to Mamlatdar, Kalol, by containing that above lands of Account No.357 are joint name and present appellant in possession of last 40 years and defendants may disposed off the above property and therefore, made a request not to grant title clearance or any changes in the above land.
2.5 The appellant submits that the appellant gave public notice in Gujarati Samachar Daily newspaper in Gandhinagar edition on 18.04.2007 by containing that above properties are not to transfer without written permission from the appellants.
2.6 The appellant submits that the appellant - plaintiff filed Regular Civil Suit No.94 of 2007 before learned Principal Page 3 of 20 C/SA/179/2018 JUDGMENT Civil Judge, Kalol with a prayer that above lands are in possession of present appellant and not to sale, transfer, mortgage, gift or assign without written permission and not to take forcefully possession and also other reliefs not to transfer or sale and disturb the legal possession of the appellant, the above suit was filed on 21.04.2007.
2.7 The appellant submits that the appellant also filed an application under Order 39 Rule 1 & 2 for interim injunction and learned 2nd Additional Civil Judge, Kalol, partly allowed the application under Exh.5 and also directed to maintain the status quo till final disposal of suit.
2.8 The appellant submits that the defendant nos.1 and 2 sold the revenue survey No.872/2, 872/3, 873/1, 873/2, 1095/1, 1096/5 for their share to Pravinbhai Bechardas Prajapati (original plaintiff) on 08.05.2007 on sale consideration of Rs.3,14,000/- vide registered sale deed No.2885.
2.9 The appellant submits that family members of appellant also sold the land bearing Survey No.900/3, 923/1, 923/2 and 924 by way of registered sale deed to Patel Kanubhai Dhulabhai on sale consideration of Rs.3,92,000/- by registered sale deed No.2886 on 08.05.2007.
2.10 The appellant submits that the plaintiff sold the land to Patel Khodabhai Harjivandas by registered sale deed no.4208 on sale consideration of Rs.4,95,000/- to Patel Khodabhai Harjivandas on 25.04.2008.
Page 4 of 20C/SA/179/2018 JUDGMENT 2.11 The appellant submits that the Prajapati Pravinbhai Becharbhai also sold the land to Pravinbhai Bhagubhai Patel by registered sale deed on 23.04.2008.
2.12 The appellant submits that the defendant nos.1 and 2 gave general power of attorney to the above lands to Patel Maheshbhai Bhagwandas on 30.04.2008.
2.13 The appellant submits that the plaintiffs filed Regular Civil Suit No.129 of 2011 before learned Additional Civil Judge, Kalol with a prayer that the plaintiff became owner of the above land by way of registered sale deed on 08.05.2007 and therefore, also prayer to partition by appointing court commissioner.
2.14 The appellant submits that the appellant - plaintiff also filed written arguments by contending that the plaint filed by the plaintiff is false and frivolous and also suppression of the material facts and non-joinder of the necessary parties. Also contended that sale transaction and land purchased by plaintiff is illegal.
2.15 The appellant submits that present appellant had filed Civil Suit No.94 of 2007, on 21.04.2007 and after filing of suit, learned Civil Court, issued notice to defendant on 21.04.2007 and made returnable on 11.05.2007 and before the returnable date i.e. on 11.05.2007 on 08.05.2007, defendant nos.1 and 2 sold the land by way of registered sale deed.
Page 5 of 20C/SA/179/2018 JUDGMENT 2.16 The appellant submits that learned Civil Court, framed the following questions for determination of the suit and passed the impugned order whereby suit of the plaintiff is partly allowed and declared that land bearing Survey No.872/2 area admeasuring 0.14.16 sq.mtrs. of village Kalol, Taluka Kalol, District Mehsana half part of the share 708 sq.mtrs. and for land bearing Survey No.872/3 area admeasuring 0.13.15 sq.mtrs. and half part of the share 657.50 sq.mtrs. and land bearing Survey No.873/1 total area 0.43.50 and half part of the share 2175 sq.mtrs. and for land bearing Survey No.873/2 total admeasuring 0.42.09 sq.mtrs. and half part of the share 2104.50 sq.mtrs. and for land bearing Survey No.1095/1 half share 2074 sq.mtrs. and for Survey No.1096/5 half share 1770.50 sq.mtrs. Plaintiff/Respondent herein are entitled and also directed to Ld. Court Commission for partition under Section 54 of the Code of Civil Procedure. A copy of the jugment and decree passed by learned 6th Additional Civil Judge, Kalol in Regular Civil Suit No.129 of 2011 dated 02.07.2016 is annexed hereto and marked as Annexure-G."
Thus, the respondent herein - original plaintiff preferred the Regular Civil Suit Nos.129 of 2011 and 128 of 2011 for partition, declaration and permanent injunction with respect to the respective suit properties. The suits filed by the original plaintiff came to be partly allowed.
The trial Court framed the following issues vide Exhs.22 and 26 in the respective suits :
"1. Whether the plaintiff proves that the suit properties are of the ownership of Joint Hindu Family ?Page 6 of 20
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2. Whether the plaintiff proves that the each defendant is having only 1/4 share each in the suit properties ?
3. Whether the plaintiff proves that he is the bonafide purchaser of the half share of the co-sharer of the suit properties?
4. Whether the defendants prove that the co-sharer of the suit properties has no right to transfer the suit properties ?
5. Whether the defendants prove that the suit is bad for non-joinder of necessary parties ?
6. Whether the plaintiff proves that the suit properties are liable to be partitioned ?
7. What is the share of each party ?
8. What order and decree ?"
The issues framed by the trial Court came to be answered as under :
"1. In the affirmative.
2. In the affirmative.
3. In the affirmative.
4. In the negative.
5. In the negative.Page 7 of 20
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6. In the affirmative.
7. The defendant no.1 has 1/4, the defendant no.2 has 1/4 and the plaintiff has 1/2 share.
8. As per final order."
Upon appreciation of the oral as well as the documentary evidence, the suits filed by the original plaintiff came to be partly allowed. The operative part of the order passed by the trial Court in the Regular Civil Suit No.129 of 2011 reads as under :
"(1) The plaintiff's suit is partly allowed.
(2) The plaintiff - Patel Khodabhai Harjivandas is the owner and entitled to have one-half share of 708 sq.meters of land out of the total area of the land admeasuring 0.14.16 sq.meters bearing Survey No.872/2 of village Kalol, Taluka Kalol, District Gandhinagar, one-half share of 657.50 sq.meters of land out of the total area of the land admeasuring 0.13.15 sq.meters bearing Survey No.872/3, one-half share of 2175 sq.meters of land out of the total area of the land admeasuring 0.43.50 sq.meters bearing Survey No.873/1, one-half share of 2104.50 sq.meters of land out of the total area of the land admeasuring 0.42.09 sq.meters bearing Survey No.873/2, one-half share of 2074 sq.meters of land out of the total area of the land admeasuring 0.41.48 sq.meters bearing Survey No.1095/1 and one-half share of 1770.50 sq.meters of land out of the total area of the land admeasuring 0.35.41 sq.meters bearing Survey No.1096/5.
(3) As the lands mentioned in para-2 above are undivided, the Collector, Gandhinagar, is appointed as the Court Page 8 of 20 C/SA/179/2018 JUDGMENT Commissioner under Section 54 of the Code of Civil Procedure for effecting the partition. In this regard, for the purpose of proceeding to partition the lands and obtaining the necessary permission, it is directed to obtain a separate writing and the Court Commissioner to submit his report within 60 days before this Court, and on receiving the complete report, to draw the final decree. A certified copy of this order along with all the necessary evidence be sent to the Court Commissioner for the execution/implementation of this order and the Court Commissioner can obtain the necessary documents/evidence for the execution/ implementation of this order from this Court as per law.
(4) Looking to the circumstances of the case, the parties to bear their own costs."
The operative part of the order passed by the trial Court in the Regular Civil Suit No.128 of 2011 is also identically worded with the only change in the description of the lands in question.
The appellant herein - original defendant no.1, being dissatisfied with the judgment and decree passed by the trial court, preferred the Regular Civil Appeal Nos.34 of 2016 and 33 of 2016 in the District Court at Kalol. The lower appellate court, upon re-appreciation of the oral as well as the documentary evidence, dismissed the appeals and thereby confirmed the judgment and decree passed by the trial court.
Being dissatisfied with the judgment and order passed by the lower appellate court dismissing the first appeal, the appellant has come up with these Second Appeals before this Court.
Page 9 of 20C/SA/179/2018 JUDGMENT The following questions have been formulated as the substantial questions of law in the memorandum of the Second Appeals :
"(A) Whether both the learned lower courts had failed to appreciate the documentary as well as oral evidence produced by the appellants herein ?
(B) Whether both the learned lower courts have considered Section 6 of the Hindu Succession Act, 1956 and amendment w.e.f. 09.09.2005 ?
(C) Whether both the learned lower courts have considered Section 52 of the Transfer of Property Act, 1882 and doctrine of lies pendens ?
(D) Whether both the learned lower courts have considered Section 44 and 47 of Transfer of Property Act, 1882 ?
(E) Whether learned court below considered the aspect that sale deed made in favour of other defendants for family benefit or legal necessity ?
(F) Whether the learned court below considered the aspect that is there any partition by metes and bounds ?
(G) Whether both the learned lower courts had not fail to consider the issue and recorded finding without any evidence on record ?
(H) Whether both the learned lower courts misconstrued, misread and misunderstood evidence of documents ?Page 10 of 20
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(I) Whether both the learned lower courts relying upon
documents which are not properly deciding controversy involved in suit and thereby committed gross miscarriage of justice where done ?
(J) Whether both the learned lower courts fail to consider the aspect that suit property is partitioned or not ?
(K) Whether finding recorded by Ld. Lower courts are perverse finding ?
(L) Whether the first appellate court is required to frame the various questions for its determination, based upon fact and circumstances of the case and evidence adduced on record or whether a solitary question for its determination that the judgment of the lower court requires any interference or not ?
(M) Whether the first appellate court is not expected to re-
appreciate entire evidence as afresh and to give its own finding based upon facts and circumstances of the case and evidence adduced on record or it can simply discharge its judicial duty only by verbatical re- producing the finding of the trial court in its own judgment, certifying the same as just and proper ?"
Mr.Nangesh, the learned counsel appearing for the appellant, has filed his written submissions. The same are as under :
"2. The appellant/plaintiff and defendant no.1 is mother and defendant nos.2 and 3 both are married and residing at Page 11 of 20 C/SA/179/2018 JUDGMENT their matrimonial home since 1968. All the social obligations were performed by the appellant from his income.
3. The appellant submits that the following lands of village Kalol, Ta. Kalol, District Gandhinagar, are the joint family properties of the plaintiff and original defendant nos.1 to 3, which are as under :
Sr. Survey Hectare Sq.Mtrs. Land
No. Number Tax
Rupees
1. 872/2 0-14-16 0-78
2. 872/3 0-13-15 0-78
3. 873/1 0-43-50 2-44
4. 873/2 0-42-09 2-43
5. 1095/1 0-41-48 2-44
6. 1096/5 0-35-41 2-02
7. 900/3 0-30-35 1-56
8. 923/1 0-46-54 2-94
9. 923/2 0-45-43 2-93
10. 924 0-89-03 5-69
The above lands except Survey No.924 is ancestral property and in name of grandfather of the present appellant namely Madhabhai Gopaldas Patel and Survey No.924 was purchased by father of the appellant - plaintiff in the year 1932. The appellant/plaintiff is in possession of above land and doing agricultural activity.
4. The appellant submits that the defendant nos.1 to 3 filed Regular Civil Suit No.83 of 2001 before learned Civil Court, Kalol for declaration that the above properties are ancestral and joint family property and also other reliefs, Page 12 of 20 C/SA/179/2018 JUDGMENT that suit was dismissed for default vide order dated 08.02.2004.
5. The appellant submits that on 05.01.2007, appellant made an application to Mamlatdar, Kalol, and also gave public notice in Gujarat Samachar Daily newspaper in Gandhinagar edition on 18.04.2007 by containing that above properties are not to transfer without written permission from the appellant, so appellant made application prior to the filing of the suit that defendant no.1 to 3 may sell the property of the appellant.
6. The appellant submits that the appellant - plaintiff filed Regular Civil Suit No.94 of 2007 before learned Principal Civil Judge, Kalol with a prayer that above lands are in possession of present appellant and not to sale, transfer, mortgage, gift or assign without written permission and not to take forcefully possession and also other reliefs not to transfer or sale and disturb the legal possession of the appellant, the above suit was filed on 21.04.2007 and Ld. Civil Court issued Urgent Notice to the defendants on 21.04.2007 returnable on 11.05.2007, Notice of the Ld. Civil Court was served to the defendants on 01.05.2007 and defendants sold land to defendant no.4 and 5 by two different registered sale-deed on 08.05.2007, so it is clear violation of Sec.52 of Transfer of Property Act, 1892, as during the pendency of the Civil Suit and after received Notice from the Ld. Civil Court, defendants sold the land just to deprive the valuable rights of the appellant.Page 13 of 20
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7. The appellant submits that the appellant - plaintiff also filed written argument by containing that defendant nos.2 and 3 are married sisters and marriage was solemnized in the year 1968 and amendment in the Hindu Succession Act, 1956 was come into force on 09.09.2005 and therefore, defendant nos.2 and 3 are not entitled for their share as father of the appellant namely - Mafatbhai Patel was passed away in year 1965, so defendant no.2 and 3 has no right in the property of the appellant as new amendment was come into force on that time father of the appellant was passed away, so Sec.6 of the Hindu Succession Act, 1956 is not applicable to the case of the appellant as father was passed away prior to the 2005.
8. That both the learned lower courts ought to have considered the fact that plaintiff and defendant nos.1 to 3 are mother and sisters, defendant no.2 & 3 are married in the year 1968 and present appellant who is brother performed all the social obligations.
9. The appellant submits that learned court below not considered the important aspect that amendment in Section 6 was come into force on 09.09.2005 by giving equal share to the daughters and therefore, the impugned orders are contrary to the Hindu Succession Act, as prior to the amendment daughter did not have any right to partition and share from joint family property since she was not co- parcener and only unmarried daughter is entitle to claim partition. In the present appeal defendant no.2 and 3 are married prior to 1968 and staying at their matrimonial home.Page 14 of 20
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10. The appellant submits that both the learned lower court considered the Sections 44 and 47 of the Transfer of Property Act but not considered the important aspect that whether defendant no.2 and 3 are co-parcener of joint Hindu family.
11. That learned court below considered the aspect that sale deed made in favour of other defendants for family benefit or legal necessity and the learned court below not considered the aspect that is there any partition by metes and bounds and/or defendants are entitled for the partition is not property discussed.
12. In view of the above, appeal of the appellant is required to be allowed in the interest of justice."
Mr.Mehul S.Shah, the learned senior counsel appearing with Mr.Jagirdar, the learned counsel appearing for the respondent - original plaintiff, has opposed these Second Appeals. Mr.Shah, the learned senior counsel would submit that no error, not to speak of any error of law, could be said to have been committed by the two courts below. According to Mr.Shah, none of the questions formulated in the memorandum of the Second Appeals could be termed as the substantial questions of law. In such circumstances, according to Mr.Shah, no case is made out to disturb the concurrent findings recorded by the two courts below in these Second Appeals under Section 100 of the Code of Civil Procedure.
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question Page 15 of 20 C/SA/179/2018 JUDGMENT that falls for my consideration is, whether these Second Appeals involve any substantial question of law.
The trial court, vide judgment and decree dated 2nd July 2016, partly allowed the suits filed by the original plaintiff. The trial court passed decree to the effect that half of the lands in question came to be declared to be of the ownership of the plaintiff, and the Collector, Gandhinagar, has been appointed as a Court Commissioner under Section 54 of the Code of Civil Procedure for effecting the partition. Accordingly, the trial court drew preliminary decrees. The first appellate court thought fit to affirm the judgments and decrees passed by the trial court.
I take notice of the fact that there are concurrent findings recorded by the two courts below to the effect that after the death of Mafatlal, all the four heirs succeeded to the lands in question jointly and each of the four heirs are entitled to hold 1/4th undivided share in the lands in question. On the appellants' own showing, as reflected from the plaint, that the lands in question are undivided and without effecting partition, the same cannot be dealt with. This fact is evident from the averments made in paragraphs 4, 7 and 8 of the plaint including paragraph 11, i.e. the prayer clause. Both the courts below have recorded a concurrent finding of fact that the sale-deeds have been executed by Dahiben (widow) and Shakriben (daughter) of their undivided share in the lands in question. The two courts below have rightly come to the conclusion that it was permissible for Dahiben and Shakriben to transfer their undivided share in the suit properties. The aforesaid fact is also reflected in the sale-deeds produced vide Exhibits 75 & 76 and 67 & 68 in the respective suits. The two courts below, upon appreciation of the Page 16 of 20 C/SA/179/2018 JUDGMENT oral as well as the documentary evidence, have held that all the heirs of Mafatlal, having succeeded to the lands in question after the demise of Mafatlal, became joint owners and possessors of the lands in question and it was only an undivided share therefrom which came to be sold by two of the heirs. The two courts below have also held that the purchasers have bonafidely purchased half undivided share in the lands in question and the lands are liable to be partitioned. Upon such findings, the Regular Civil Suits of the present appellant came to be dismissed and the suits filed by the last purchasers came to be decreed.
Mr.Shah, the learned senior counsel appearing for the purchasers, rightly pointed out that despite joining all the subsequent purchasers as parties therein, i.e. in the suit, by virtue of subsequent amendment, there is no prayer made for challenging or setting aside the subsequent sale-deeds. In my view, he is right in submitting that no effective decree can be passed in such a suit for mere declaration and injunction, where the title of the subsequent purchasers would remain intact even if the suit as prayed for was to be allowed.
Mr.Shah has placed reliance on the provision of Section 34 of the Specific Relief Act, 1963, more particularly, the proviso thereof, wherein it is clearly provided that a mere suit for declaration without seeking for any further available relief is not maintainable. In this regard, reliance has been placed on the following three decisions :
(i) Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran and others, (2017)3 SCC 702;Page 17 of 20
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(ii) Ram Saran and another v. Smt.Ganga Devi, AIR 1972
SC 2685; and
(iii) Navalram Laxmidas Devmurari v. Vijayaben
Jayvantbhai Chavda, (1997)1 GLH 841.
The two courts below have held that there is a transfer of undivided share in the lands in question by two of the co-sharers by registered sale deeds, which came to be further transferred in favour of last purchasers. Under the provisions of Section 44 of the Transfer of Property Act, the said transfer is recognised to be a valid transfer with a right to the transferee to jointly possess and to enforce partition of the same. In the present case, it is in view of the said provision of Section 44 of the Transfer of Property Act that the RCS Nos.128/2011 and 129/2011 have been filed for declaration, injunction and partition, wherein both the courts have passed preliminary decrees for declaration and partition. The position of law in this regard is also settled by the following judgments :
(i) Ramdas v. Sitabai and others, AIR 2009 SC 2735;
(ii) P.C.Raja Ratnam Institution v. Municipal Corporation of Delhi and others, AIR 1990 SC 864.
Thus, by decreeing and effecting the partition as per the judgments of both the courts below, the title of the present appellant qua his share in the lands in question is not going to be affected and the parties shall get the separate possession of their share in the lands in question upon effecting partition by the Collector which would be recognised at the time of passing the final decree.
Page 18 of 20C/SA/179/2018 JUDGMENT The provisions of the amended Section 6 of the Hindu Succession Act also would not help the appellant any further. As per the admitted position on record and as pleaded by the plaintiff himself in the RCS No.94 of 2007, it is the case of joint ownership property having devolved upon the co-owners after the death of the ancestor, namely Mafatlal. Therefore, it is not at all a case of co-parcenery property, and as such, it is the provisions of Section 8 of the Hindu Succession Act which apply in the facts of the present case and all the heirs of Mafatlal succeeded as Class-I heirs of Mafatlal and became the joint owners of the lands in question.
Even otherwise, assuming that the provisions of Section 6 of the Hindu Succession Act apply to the facts of the present case, Dahiben (widow) and Shakriben (daughter) were living as on the date of coming into force of the amendment to Section 6 of the Hindu Succession Act and therefore, as per the settled position of law, they would have the share even under Section 6 of the Hindu Succession Act. This position of law is recently settled by the Supreme Court in the case of Danamma @ Suman Surpur v. Amar (Civil Appeal Nos.188 of 2018 and 189 of 2018 of 2018, decided on 1st February 2018).
The contention of the appellant as regards the violation of Section 52 of the Transfer of Property Act, 1882, is also misconceived. First, as indicated herein above, there is no challenge by the appellant herein to the transfer having been effected by the registered sale deeds by making any prayer for setting aside the same in the plaint. Therefore, when the appellant himself does not seek any such relief, provisions of Page 19 of 20 C/SA/179/2018 JUDGMENT Section 52 which could be a ground of such relief can never be pressed into service. Secondly, so far as the State of Gujarat is concerned, there is an amendment to the provisions of Section 52 of the Transfer of Property Act which requires a notice of lis pendence to be registered under Section 18 of the Indian Registration Act, 1908, for applicability of the provisions of Section 52 of the Transfer of Property Act. No such notice of lis pendence is shown on record to have been registered and therefore, even the provisions of Section 52 of the Transfer of Property Act do not apply to the facts of the present case. Reference may be made to the following judgments in this regard:
(i) Dipakbhai Manilal Patel and another v. State of Gujarat, (2007)2 GLR 1297; and
(ii) Premchand J.Panchal v. Shahjahabanu Liyakatkhan Pathan and others, (2011)2 GLR 1121.
In view of the above, I have reached to the conclusion that there is no substantial question of law involved in these Second Appeals. I should not disturb the concurrent findings recorded by the two courts below.
In the result, these Second Appeals fail and are hereby dismissed.
In view of the disposal of the Second Appeals, the connected Civil Applications would not survive and the same are disposed of accordingly.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 20 of 20