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2020 DIGILAW 148 (GUJ)

Vestabhai Keshrahai Charel's Heirs v. Bai Jamkudi

2020-01-23

PARESH UPADHYAY

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JUDGMENT : Paresh Upadhyay, J. 1. This appeal is filed by the original plaintiffs and is directed against the concurrent findings of both the Courts below. 2. The plaintiffs had filed Regular Civil Suit No. 28 of 1980 in the Court of Civil Judge (Junior Division) Santarampur, District : Panchmahal for declaration and permanent injunction against one of the branches of their forefathers, which the trial Court disbelieved and dismissed the suit vide judgment and decree dated 07.02.1992. This was challenged before the District Court in Regular Civil Appeal No. 17 of 1992, which is dismissed by the Assistant Judge, Panchmahals at Godhra vide judgment and decree dated 19.12.2000. 3. Mr. Dhiraj Patel, learned advocate for the appellants has vehemently submitted that the Courts below fell in error in rejecting the claim of the appellants qua ownership, so also qua possession. It is submitted that both the Courts below arrived at the conclusion, which is inconsistent with the material on record. Attention of this Court is invited to the order dated 27.04.2004 to contend that substantial question of law has arisen in this matter and the same be answered in favour of the appellants. It is submitted that the impugned judgment and decree be quashed and set aside and the suit be allowed. 4. Having heard learned advocate for the appellants and having considered the material on record, this Court finds as under. 4.1. The very foundation of the suit was that the sole defendant, which is one of the branch of the joint family, was daughter of one Mavjibhai and not Kalvabhai. A copy of the Pedigree was also placed on record by the plaintiffs, in support of their claim. This was disputed by the other side. A question of fact therefore cropped up before the trial Court, whose daughter the defendant was - whether-the said lady Jamkudi or Jaludi was daughter of Mavjibhai or Kalvabhai. Specific issues being issue Nos. 2 and 3 were framed and answered by the trial Court in that regard, which read as under. "2. Whether the plaintiff's prove that Pedinama as shown in Para-2 of the plaint is correct? (In negative). 3. Whether the plaintiff's prove that the defendant is a daughter of Mayji Deva and not of Kalva Deva? (In negative)" 4.2. The trial Court thus held that the Pedinama (Pedigree) relied by the plaintiffs was not correct. "2. Whether the plaintiff's prove that Pedinama as shown in Para-2 of the plaint is correct? (In negative). 3. Whether the plaintiff's prove that the defendant is a daughter of Mayji Deva and not of Kalva Deva? (In negative)" 4.2. The trial Court thus held that the Pedinama (Pedigree) relied by the plaintiffs was not correct. The trial Court further held that the plaintiffs have not proved that the sole defendant was daughter of Mavjibhai as claimed by them. 4.3. This Court has considered the issues framed, answers to it and the reasons recorded by the trial Court in that regard. The issue Nos. 2 and 3 as noted above are pure question of fact and are answered against the plaintiffs. The Appellate Court, which is the final Court, so far the findings of facts are concerned, has also independently arrived at the same conclusion. It would not be open for this Court to exercise the powers under Section 100 of the Code of Civil Procedure to go into those findings of fact. 4.4. Once those findings stand, it could not be said that the Courts below have committed any error in holding that the plaintiffs have failed to prove ownership over the suit. The said question, as framed by this Court vide order dated 27.04.2004, is answered against the appellants. This Court finds that no other question of law, much less any substantial question of law arises in this case, worth being gone into by this Court. This Second Appeal therefore needs to be dismissed. 5. For the reasons recorded above, this Second Appeal is dismissed.