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2017 DIGILAW 241 (GUJ)

Jamkuben N. Bhurabhai v. Shamaljibhai Govindbhai

2017-01-31

RAJESH H.SHUKLA

body2017
JUDGMENT : Rajesh H. Shukla, J. 1. The present Second Appeals have been filed by the respective appellant/third party/objector being aggrieved and dissatisfied with the judgment and decree passed in Regular Civil Appeal No. 24/2011 and Regular Civil Appeal No. 23/2011 respectively by the learned 2nd Additional District Judge, Junagadh dated 12.04.2016 and judgment and order passed below Exh. 41 passed in Sp. Execution No. 62/1999 by the learned 2nd Additional Civil Judge, Junagadh dated 07.02.2011 raising following substantial questions of law. "A. WHETHER the first Appellant Court has erred in not framing the issues as required by the Order - 41 Rule-21 of Civil Procedure Code as held by this Hon'ble Court from time to time in the matter of (1) Hon'ble Supreme Court of India in the matter of H. Siddiqui (dead) by LRS. v. A. Ramalingam reported in 2011 (1) G.L.H. at 586, (2) Hemlataben Mangalsinh v. Shantaben Chandulal Narshidas, whereby it was held that, the first Appellate Court is required to decide First Appeal as provided under Order 41 Rule 31 of the CPC r/w provisions of Bombay Civil Manual, by framing suitable points in appeal applying same principles on which issues were framed by the Trial Court. B. WHETHER the Ld. Executing Court has erred in deciding points for determination at Exh-48 by holding that the applicants of Exh-28 have failed to prove their ownership rights and occupation, though the possession of the applicants have been proved? C. WHETHER the Ld. Executing Court has erred in appreciating the provisions of Hindu Law r/w section-135J of the Gujarat Land Revenue Code while holding issue of ownership against the applicants of Exh-41? D. WHETHER both the Courts below had materially erred in appreciating the evidence as a whole, whereby on the date of filing suit i.e. on 24.07.1975 names of the third parties-objectors were appearing in the records of the rights of the suit land, however, they have not been impleaded as parties defendants and therefore such judgment and decree for specific performance cannot be executed against them? E. WHETHER the impugned common judgment and order dated 07.02.2011 passed by the Ld. Executing Court is in consonance with the provisions of Order-21, Rule-58, 97 and 1010 of the C.P.C.?" 2. E. WHETHER the impugned common judgment and order dated 07.02.2011 passed by the Ld. Executing Court is in consonance with the provisions of Order-21, Rule-58, 97 and 1010 of the C.P.C.?" 2. The background of the facts with chequered history as narrated in detail is regarding the agricultural land of the grandfather of the appellant, who is said to have partitioned the agricultural land along with other properties amongst heirs. One of sons, Bhurabhai Bhopabhai, who is father of the appellant, Narsinhbhai Bhurabhai was not interested in the agricultural activity and under the family arrangement, he was paid Rs. 25,000/- towards his share of 12.5 vigha of agricultural land. The said family arrangement was reduced into writing on 05.03.1973 produced at Exh. 122 and on 22.07.1975 produced at Exh. 123 respectively. However the said Bhurabhai Gopalbhai could not succeed in his business venture and, therefore, the respondent Nos. 1 and 2, who were also doing the business, had executed agreement for sale dated 14.04.1975 in relation to same agricultural land, which came to the share of the appellant/objector. On the basis of that, names of the appellant/objector were mutated in the revenue records. The respondent No. 1, Shyamjibhai and respondent No. 2, Vitthalbhai (now deceased) preferred this Special Civil Suit No. 78/1975 in the court of the learned Civil Judge (SD), Junagadh against Bhurabhai Gopalbhai and Gopalbhai Anandbhai for specific performance of the contract in relation to suit land situated at Galvav, Manavadar, District : Junagadh. Again the respondent Nos. 3 and 4 also preferred Special Civil Suit No. 76/1975 in the court of the learned Civil Judge (SD), Junagadh seeking cancellation of agreement to sell on the grounds stated in the said suit. After the consolidation of the suit, both the suits were tried and ultimately by common judgment and order dated 17.01.1994, suit filed by the respondent Nos. 3 and 4 came to be dismissed and the suit filed by the respondent Nos. 1 and 2 was decreed and directed Patel Bhura Gopal to execute sale deed, which has led to First Appeal No. 1798/1994 before the High Court and the Special Execution Application No. 62/1999 regarding the execution of the judgment and order for specific performance came to be filed. The objections are filed at Exh. 28 as well as Exh. 1 and 2 was decreed and directed Patel Bhura Gopal to execute sale deed, which has led to First Appeal No. 1798/1994 before the High Court and the Special Execution Application No. 62/1999 regarding the execution of the judgment and order for specific performance came to be filed. The objections are filed at Exh. 28 as well as Exh. 41 and both the applications were decided by common order on merits vide judgment and order dated 07.02.2011 dismissing the objections. Therefore being aggrieved and dissatisfied with common judgment and order passed by the 5th additional Sr. Civil Judge, Junagadh dated 07.02.2011 in Special Execution No. 62/1999 dismissing the objections of the objectors at Exhs. 28 & 41, the objectors preferred Regular Civil Appeal No. 24/2011 and Regular Civil Appeal No. 23 of 2011 before the learned Additional District Judge, which have been decided as stated above, against which, present appeals have been filed. 3. Heard learned advocate, Shri N.V. Gandhi for the appellants and learned advocate, Ms. Vashi for the respondents. 4. Learned advocate, Shri Gandhi referred to the background of the facts at length and tried to submit that the issues which are required to be framed, are not framed. He also referred to the provision of the Order 21, Rule 97 of the Civil Procedure Code and submitted that the decree cannot be executed against the heirs. Again he referred to the background of the facts and submitted that Gopalbhai was separated from the family and, therefore, none of the heirs of Gopalbhai could be liable for the execution of the decree. He referred to Section 135(j) of the Gujarat Land Revenue Code and submitted that the Courts below have not appreciated the contentions raised by the objector. Learned advocate, Shri Gandhi submitted that it was the ancestral property of the original owner and it was not his self-acquired property and, therefore, the appellant would have acquired right by birth in the family. He, therefore, submitted that whether the vendor or the co parcener would be liable and decree could be enforced against the co parcener in the execution proceedings is required to be considered. In support of his submissions, he referred to and relied upon the judgment of this High Court in case of Damanbhai Chhabildas Dhruv v. Shah Tribhovandas Balchand, reported in 1961 GLH 250. 5. Learned advocate, Ms. In support of his submissions, he referred to and relied upon the judgment of this High Court in case of Damanbhai Chhabildas Dhruv v. Shah Tribhovandas Balchand, reported in 1961 GLH 250. 5. Learned advocate, Ms. Vashi for the respondents submitted that the present Second Appeals are filed as and by way of abuse of the process as no substantial question of law can be said to have involved. She submitted that considering the scope of exercise of discretion in Second Appeal under Section 100 of the Civil Procedure Code, this Court may not disturb the concurrent findings of facts. She pointedly referred to the background of the facts and submitted that First Appeal No. 1798/1994 and First Appeal No. 1007/1997 has been considered the issues, which are sought to be raised in the present proceedings and though the decree was challenged in the aforesaid two appeals, the appeals have been dismissed and submissions and contentions raised have not been believed. She, therefore, pointedly referred to the observations made in First Appeal No. 1798/1994 and First Appeal No. 1007/1997 in paragraph No. 5 to support her contention that the present proceedings are only by way of abuse of process of the Court. 6. She further submitted that Court may also consider the delay in filing objection application as it is only by way of dilatory tactics. She submitted that the execution application came to be filed on 25.11.1999 after the order passed in the aforesaid two appeals and, thereafter, such objections are filed. She referred to the objection applications, which have been filed in the year 2002 (Exh. 28). Therefore, she submitted that the appellant is an inter-middler in the proceeding and tried to obstruct the execution of the decree in favour of the respondents. Learned advocate, Ms. Vashi also referred to the Order 21, Rule 97 of the Civil Procedure Code and submitted that objectionist cannot file such proceeding and, therefore, present Second Appeals may not be entertained. In support of the submissions, she referred to and relied upon the judgment of this High Court in case of Kesarben Dhulaji Prajapati v. Amarsingh Baldevsingh Chauhan, reported in 1996 (1) GLR 71 , in case of Gangaben Ishwarlal Bhagat v. Somabhai Maganbhai & Ors., reported in 1996 (3) GLR 76 . In support of the submissions, she referred to and relied upon the judgment of this High Court in case of Kesarben Dhulaji Prajapati v. Amarsingh Baldevsingh Chauhan, reported in 1996 (1) GLR 71 , in case of Gangaben Ishwarlal Bhagat v. Somabhai Maganbhai & Ors., reported in 1996 (3) GLR 76 . She also referred to the findings and conclusion arrived at by both the Courts below and submitted that the present appeals may not be admitted. 7. In view of these rival submissions, it is required to be considered whether the present Second Appeals deserve consideration. 8. It is well accepted that while exercising discretion under Section 100 of the Civil Procedure Code in Second Appeal, normally the High Court would not disturb the concurrent finding of facts unless there is any substantial question of law involved. The chequered history and background of the facts, which have been discussed at length by both the Courts below would suggest that the present proceedings are also filed for stalling the execution so that the fruits of the decree are not enjoyed by the respondents even after the years of litigation. 9. The contention which is sought to be raised referring to Order 41, Rule 31 of the Civil Procedure Code that the issues are required to be decided and framed and the first appellate court has not applied its mind and has considered the issues from the trial court, is devoid of any merits. The Hon'ble Apex Court in a judgment in case of B.V. Nagesh & Anr. v. H.V. Sreenivasa Murthy, reported in (2010) 13 SCC 530 while considering the same issues has made observation, "The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself (Emphasis Supplied) to all the issues of law and fact and decide it by giving reasons in support of the findings (Emphasis Supplied)." Thus, it would be clear that the first appellate court should address and decide with reasonings. In the facts of the case, the first appellate court has considered and discussed at length with reasons the issues, which are sought to be raised. Therefore, the submissions made with regard to Order 41, Rule 31 of the Civil Procedure Code are misconceived. 10. In the facts of the case, the first appellate court has considered and discussed at length with reasons the issues, which are sought to be raised. Therefore, the submissions made with regard to Order 41, Rule 31 of the Civil Procedure Code are misconceived. 10. Further the issue with regard to the ownership or the title and occupation, which are sought to be raised, are in fact concluded, which has been discussed at length by the first appellate court when it has been observed that the claim is made by the appellants as the heirs of the deceased judgment debtor, Bhura Gopal and there are no independent right, title, interest. Thus it has been clear that litigation is sought to be pursued to consume time and stall the execution inspite of the earlier judgment and order in First Appeal No. 1798/1994 and First Appeal No. 1007/1997, which is binding on the appellants as clearly observed by the first appellate court. The judgment and order by the High Court in First Appeal No. 1798/1994 and First Appeal No. 1007/1997, Exh. 82 would be binding and the appellant-objector cannot be permitted to approbate and reprobate. It has been observed by the first appellate court in aforesaid Special Civil Suit Nos. 76 & 78 of 1975 that though the claim is made in a joint property and the family arrangement as well as writing or the released-deed for Rs. 25,000/-, same has not been disputed. Therefore, the present appeals filed by the appellant, who are the heirs of the judgment debtor cannot plead ignorance about the pendency of the proceedings. 11. The so called question of law referring to the provision of Hindu Law vis-à-vis Section 135(j) of the Gujarat Land Revenue Code referring to Exh. 41, is misconceived as the provisions of the Code are only with regard to the entries and such an issue with regard to the right, title, interest based on the succession etc. are required to be decided with reference to the provision of Hindu Succession Act and as discussed above in the background of the facts. 12. A useful reference can be made to the judgment of the Hon'ble Apex Court in (2007) 1 SCC 546 in case of Gurdev Kaur & Ors. are required to be decided with reference to the provision of Hindu Succession Act and as discussed above in the background of the facts. 12. A useful reference can be made to the judgment of the Hon'ble Apex Court in (2007) 1 SCC 546 in case of Gurdev Kaur & Ors. v. Kaki & Ors., wherein it has been clearly observed, "Now, High Courts can interfere thereunder only where substantial questions of law are involved and have been formulated in the memorandum of appeal - The amendment clearly indicates that the legislature never intended the second appeal to become a third trial on facts." 13. It is in this circumstances, the broad guidelines laid down by the Hon'ble Apex Court with regard to the approach in exercising of discretion under Section 100 of the Civil Procedure Code in Second Appeals deserve to be dismissed and accordingly stand dismissed. 14. In view of dismissal of main Second Appeals, Civil Applications filed therein do no survive and stand disposed of accordingly. FURTHER ORDER After the judgment was pronounced, learned advocate, Shri Gandhi requested for stay of the operation of the order to enable the appellants to approach higher forum. The operation of the order is stayed for six weeks.