Gujarat High Court
Ravjibhai Manorbhai Patel Himself And ... vs Deceased on 19 December, 2013
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
RAVJIBHAI MANORBHAI PATEL HIMSELF AND AS AND ADMI.OF PROP.OF....Appellant(s)V/SDECEASED CHANCHALBEN WD/O SOMABHAI RANCHHODBHAI PATEL C/SA/71/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL NO. 71 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE PARESH UPADHYAY ================================================================ 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 ?
=============================================================== RAVJIBHAI MANORBHAI PATEL ....Appellant Versus DECEASED CHANCHALBEN WIDOW OF SOMABHAI RANCHHODBHAI PATEL AND ORS. ...Respondents ============================================================== Appearance:
Mr.Mehul S. Shah, Advocate with Mr.Japan Dave, Advocate for the Appellant Mr.Anshin Desai, Advocate for Respondents No.1 -5 Mr.Hriday Buch, Advocate for Respondent No.6 ============================================================== CORAM:
HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 19/12/2013 CAV JUDGEMNT
1. Challenge in this Second Appeal is made by the original plaintiff, to the concurrent findings of both the Courts below against him, inter-alia that the suit was barred by limitation. The details of the judgment and decree of both the Courts below are as under.
Trial Court : Principal Civil Judge, Borsad, Regular Civil Suit No.49 of 1998, judgment dated 12.03.2007, Appellate Court below : Additional District Judge, Anand, Regular Civil Appeal No.27 of 2007, judgment dated 16.02.2013
2. This Second Appeal was admitted by this Court vide order dated 21.03.2013 on the following substantial questions of law. The said issues were framed ex parte, on hearing the appellant only.
1. whether in the facts and circumstances of the case, the suit of the original plaintiffs could have been treated as time barred in view of the Article 110 of the Limitation Act?
2. whether the Court below have committed error of law in holding that the suit properties were not the ancestral properties, even as the names of the original plaintiffs were held liable to be included to be the part of family pedigree which was produced by the defendants?
3. whether the lower Appellate Court has committed substantial error in confirming the judgment and decree passed by the learned Trial Court without framing the points for determination and by not recording independent findings on such points for ultimate decision in the appeal as required under Order 41 Rule 31 of the Code of Civil Procedure, 1908?
4. whether the Courts below have committed grave error of law by not stating that the Kalyanbhai Raghnathbhai becomes the deeded/ statutory owner of the suit properties in pursuance of the Tiller's day i.e. 01.04.1957 and therefore, the present appellant, being the heir, has a right, title and interest in the suit lands.
3. A preliminary issue is raised on behalf of respondents - original defendants that, no question of law arises in the facts of this case, inasmuch as, the suit itself was hopelessly time barred and both the Courts below have specifically gone into this aspect and have held against the plaintiff. It is contended that, in view of the settled position of law that, though the questions of law might have been framed by the Court while admitting the Second Appeal, but if it is without hearing the respondents, it is always open to the respondents to first contend that, no question of law arises in the facts of the case on hand. It is further contended that, even the first question framed by this Court is regarding limitation, and therefore, if the respondents can satisfy that, no error is committed by the Courts below, on the issue of limitation, that would also answer the first issue framed by this Court, and therefore other issues may not survive at all.
4. Since the first and one of the questions of law framed by this Court, while admitting this appeal is, as to whether the suit was time barred, this Court has thought it fit, first to adjudicate this question and if the answer thereto is in affirmative, other questions would remain academic and would not be required to be gone into.
5. This Court had called for the Records and Proceedings from the courts below. Learned advocates have taken this Court through the relevant record.
6.1 The relevant facts, as emerging from record are as under.
6.2 One Raghnathbhai had two sons, Kalyanbhai and Ranchhodbhai.
6.3 The first son Kalyanbhai was a tenant and cultivator of the land at village Borsad. He did not have any child or any other legal heir, and he died on 10.08.1957.
6.4 The second son Ranchhodbhai had two sons viz. Manorbhai and Somabhai.
6.5 Of the above two brothers, Somabhai died in the year 1962.
6.6 His brother Manorbhai was staying out of the State since decades and he had settled with his family in the State of Maharashtra. Said Manorbhai had, way back in the year 1930, given up all his rights and interests in the joint properties. He had also given this in writing to his father Ranchhodbhai, on a stamp paper, on 19.03.1930. Said Manorbhai also died on 27.06.1960.
6.7 The present litigation is at the hands of son of Manorbhai, named Ravjibhai. He instituted Regular Civil Suit No.49 of 1998 in the Civil Court, Borsad, claiming one half share in the three parcels of land, which are in the name of legal heirs of his uncle late Somabhai. His case is that, the suit land is joint property, since according to him, in the year 1957, when brother of his grandfather Kalyanbhai Raghnathbhai died, he was a tenant on the suit land, and he did not have any child or any other legal heir. In the suit, it is also agitated that, in revenue record, on 07.09.1963, the names of legal heirs of Somabhai got entered, illegally. Declaration in this regard is also prayed in the Civil Suit of the year 1998.
6.8 The plaintiff - Ravjibhai, son of Manorbhai also had resided in the State of Maharashtra for decades, and returned to village Borsad, where the suit property is situated, only in the year 2005. [His evidence Exhibit-79]. It has also come on record by way of evidence of plaintiff himself that, he was aware from the year 1963 itself that, the name of his father (Manorbhai) was not entered in the revenue record.
6.9 In this factual background, both the Courts below, have recorded finding that, the suit was hopelessly time barred, in view of the stipulation of twelve years, as contained in Article 110 of the Limitation Act, 1963. Both the Courts below have recorded exhaustive reasons and finding as to how the suit was time barred.
6.10 The Trial Court had framed as many as ten issues, including the issues as to whether, on merits also the plaintiff had any case. Even those issues are answered against the plaintiff. Since, for the present, only point of limitation is being examined, further details of those issues are not reflected here.
7. Mr. Mehul S. Shah, learned advocate for the appellant has raised various contentions, however, for the present, contention with regard to the issue of limitation only is examined. It is contended that, the suit was not barred by limitation, since the plaintiff came to know about the non-inclusion of the branch of his father Manorbhai on the revenue record, only in the year 1995, and therefore the institution of Civil Suit in the year 1998 was within limitation. It is further contended that, on coming to know about this aspect, the plaintiff had initiated the proceedings before the competent authority of the Government under the tenancy laws, and at the worst it can be said that he had agitated the issue before a wrong forum, and considering that, the time spent in pursuing that litigation should be given credit to, to the plaintiff. It is contended that, even if that is not done, if the say of the plaintiff that, he came to know about the fact detrimental to his interest only in the year 1995, the suit of the year 1998 could not have been termed as time barred. It is contended that, the Appellate Court below had not framed the issues for adjudication which is legally required and having failed to do so, the impugned judgment of the Appellate Court below needs to be quashed and set aside. It is contended that, even for the purpose of adjudicating the point of limitation, the Appellate Court below ought to have framed an issue in that regard, and should have gone into it, strictly in accordance with procedure prescribed under the Code of Civil Procedure, 1908, with specific reference to Order 41 Rule 31 of the Code. In support of this contention, reliance is placed on the following decisions of Hon'ble the Supreme Court of India.
(i) M/s. United Engineers & Contractors Vs. Secretary of Govt. A.P. and another reported in 2013 (1) SCALE 530.
(ii) A.M. Sangappa @ Sangappa Vs. Sangondeppa and another reported in 2013 (14) SCALE 384.
(iii) Ningawwa Vs. Byrappa Shiddappa Hireknrabar and others reported in AIR 1968 SC 956
(iv) Minish K. Sheth and others Vs. State of Gujarat and others reported in 1985 (1) GLR 202
8.1 On the other hand, Mr.Anshin Desai learned advocate for respondent Nos.1 to 5 - who are original defendants and legal heirs of Somabhai, and Mr.Buch learned advocate for respondent No.6 - who is newly added respondent in this Appeal since he is the purchaser of the suit property, both have contended that, on the point of limitation, both the Courts below have gone into in detail and have held against the appellant - plaintiff. It is submitted that, what is the period of limitation can be a question of law, but from which date limitation would start operating against a party, is always a question of fact, and in the present case, both the Courts below have held that, it was the year 1963. It is contended that, since this finding is inter-alia based on the evidence of the plaintiff himself, which was over and above other overwhelming material on record in that regard, this Court may not disturb that finding and the first question framed by this Court vide order dated 21.03.2013 be answered accordingly. It is contended that, over and above the knowledge of the plaintiff about the cause of action of the year 1963, from the year 1963, even there are other factual aspects, which have come on record and are gone into by both the Courts below, additionally holding against the plaintiff. Attention of this Court is invited to the evidence at Exhibits - 89 to 93 and the order of the Gujarat Revenue Tribunal dated 15.06.2006 [Exhibit-94]. It is contended that, though the entry in revenue record may be termed as not conferring any right or title, the above referred documentary evidences are not mere reflection of entry in the revenue record, but are the certificates issued by the competent authority about the payment of purchase price by the tenant under the Tenancy Laws and issuance of certificates by the competent authority in that regard, which was the subject matter of proceedings before the Revenue Authorities, in which the plaintiff has lost right upto the Gujarat Revenue Tribunal not only on the ground of delay but on merits as well, and there is no further challenge to the said order. It is vehemently contended that, the said order of the Revenue Tribunal is pursuant to the proceedings initiated in the year 1995-96, which was much prior to institution of suit in question and there is not even a whisper about these proceedings in the plaint Exhibit-1, which is dated 10.05.1998. Further, the certificates issued by the competent authorities in favour of the present defendants between the years 1972 to 1977, conferred independent right on the defendants over the suit property, and going by that also the suit of the year 1998, claiming share in the said property, was barred by limitation, coupled with the fact that, even on merits no relief could have been granted, which is not granted, and this Court may not interfere.
8.2 Learned advocates for the respondents have specifically drawn the attention of the Court to the plaint to contend that, the cause of action shown is of the year 1963, and declaration and relief is sought in the year 1998, without any assertion or explanation regarding delay, which necessitated the rejection of plaint at the threshold, however the Trial Court tried the suit and after framing of issues, including the issue of limitation, the suit is dismissed, even on merits, and this Court may not interfere.
8.3 Learned advocates for the respondents have additionally contended that, the plaintiff Ravjibhai is son of Manorbhai. He claims his right over the suit property, through his father Manorbhai, who was brother of Somabhai. It was the assertion of the defendants in the Civil Suit that, said Manorbhai, during his life time had already relinquished his share in the ancestral property. Attention of this Court is invited to the contents of document dated 19.03.1930 (Exh.82) which was a writing on a stamp paper by Manorbhai to his father Ranchhodbhai that, from that date onwards Manorbhai will not have any claim on the joint property and vis-a-vis Ranchhodbhai or his legal heirs will not have any claim over the properties of Manorbhai. Against this assertion of the defendants, the say of the plaintiff in his cross examination was only his ignorance about this. Further, said Manorbhai did not agitate about his share during his lifetime. Further, the said share was to be claimed from the brother of Manorbhai viz. Somabhai. It was not claimed even during the lifetime of Somabhai either. Thus, the present plaintiff Ravjibhai, who is son of Manorbhai, claims his right over the suit property, from the legal heirs of his uncle Somabhai, after the death of his father and uncle both. Further, the said share also because of death of brother of grandfather- Kalyanbhai in the year 1957. It is contended that, the plaintiff could not have better right than his father, and therefore he cannot be heard even on merits. Further, this also, on the face of his own evidence to the effect that, he knew about the exclusion of the branch of his father from the revenue record since year 1963.
8.4 On behalf of the respondents, it is further submitted that, it is not that the respondent- defendants had inherited the property from Ranchhodbhai, as brother of Kalyanbhai. In fact, the name of Chanchalben- widow of Somabhai (son of Ranchhodbhai) was on revenue record as a tenant. It is the said parcels of land, which the present appellant, who is legal heir of Manorbhai, is claiming now. It is contended that, even if it is assumed that the branch of Manorbhai had anything to say, it is not only admitted position, but it is the case of the plaintiff himself that Manorbhai had stayed out of State of Gujarat, all throughout his lifetime. Not only that even plaintiff- Ravjibhai, has also remained out of Gujarat, almost throughout his life, and only in the year 2005 he has shifted back to village Borsad (in Gujarat), where the suit property is situated. It is contended under these circumstances, on plain reading of the provisions of the Tenancy Act, no one from the branch of Manorbhai can claim any right over the suit property. Not only that, but even if they had held any land as a tenant, even that could not have been continued with them in view of the provisions of the Tenancy Laws. It is therefore, contended that, this Second Appeal be dismissed.
8.5 It is further contended that, this is not even the case of remand to the Appellate Court below, since the Appellate Court has only confirmed the finding of the Trial Court and while doing this also, all the issues framed by the Trial Court are reproduced by the Appellate Court below and the reasons recorded by the Appellate Court below reflects due application of mind on all issues, including on the issue of limitation. Reliance is placed on the decision of Honourable the Supreme Court of India in the case of Nopany Investment Pvt. Ltd. Vs. Santokh Singh (HUF), reported in (2008) 2 SCC 728, with specific reference to para:16 thereof, to contend that, it is well settled that, in the case of reversal, the First Appellate Court ought to give some reason for reversing the finding of the Trial Court whereas in the case of affirmation, the First Appellate Court accepts the reasons and findings of the Trial Court.
9.1 Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds that, the plaint of the suit in question (Exhibit-1) makes it clear that, principally the cause of action is the exclusion of the plaintiff from the joint family property which had taken place in the year 1963. The institution of the suit is in the year 1998. There is no averment in the plaint about this delay.
9.2 The defendants, while filing written statement, specifically raised the point of limitation.
9.3 The Trial Court also framed an issue in this regard, as one of the issues.
9.4 Since, the cause of action of the year 1963 was being challenged in the year 1998, it was for the plaintiff to give explanation in this regard. Not only, no explanation, muchless acceptable explanation, has come on record, on the contrary it has come on record by the evidence of the plaintiff himself that, he was aware about his cause since the year 1963 itself. On the face of this, no error can be traced in the finding of the Courts below that the suit was time barred, in view of Article 110 of the Limitation Act, 1963. Further, ample material has additionally come on record, against the plaintiff, which is exhaustively referred to by both the Courts below, to base the finding that the suit was barred by limitation.
9.5 The Trial Court had framed specific issue in this regard, and it is answered against the plaintiff. The Appellate Court below has referred to the issues framed by the Trial Court, including the one pertaining to limitation, and has specifically dealt with this point in detail, by recording reasons in that regard. This Court has carefully gone through the material on record, and the reasons recorded by both the Courts below, on the point of limitation, and it is found that, the findings recorded by the Courts below in this regard do not suffer from any perversity, there is no non-reading or misreading of evidence on record and the suit in question was barred by limitation, on both the counts. Firstly, the onus was on the plaintiff to explain the delay, and there is complete absence of explanation by the plaintiff in this regard, and secondly, there is positive evidence brought on record by the defendants against the plaintiff that, he was having knowledge of the cause of action of the year 1963, from the year 1963 itself. Under these circumstances, it is held that, the suit was hopelessly time barred and the Courts below have not committed any error in recording the finding in this regard. The first question of law framed by this Court vide order dated 21.03.2013, which is quoted above, is answered in affirmative.
9.6 In view of above, other questions would remain academic and need not be gone into.
9.7 So far the authorities cited by the learned Advocate for the appellant are concerned, there can not be any dispute with regard to proposition of law enunciated in those judgments, however the Appellate Court below has, in effect, affirmed the finding of the Trial Court on the point of limitation, and even that is done by separately written reasons on the point of limitation, after referring to the issue of limitation, which was already framed by the Trial Court. Under these circumstances, this will not take the case of the appellant any further, in the facts of this case, more particularly keeping in view the judgment of Honourable the Supreme Court of India in the case of Nopany Investments Pvt. Ltd. (supra).
9.8 Considering the totality, this Second Appeal needs to be dismissed.
10. For the reasons recorded above, this Second Appeal is dismissed.
11. At the request of learned advocate for the appellant, ex parte order, earlier granted by this Court, restraining Respondent No.6 from creating any third party right in the suit property, stands extended for a period of six weeks from today.
(PARESH UPADHYAY, J.) Amit/1 Page 17 of 17