1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant- original plaintiff to quash and set aside the impugned judgment and decree passed by the learned 4th Joint Civil Judge (Senior Division), Surat dated 14/12/1994 in Regular Civil Suit No. 1200/1990 as well as the impugned judgment and order passed by the learned Principal District Judge, Surat dated 22/12/2011 in Regular Civil Appeal No. 48/1996 by which the learned trial Court has dismissed the suit preferred by the appellant-original plaintiff, which has been confirmed by the learned appellate Court.
2. The appellant-original plaintiff instituted Regular Civil Suit No. 1200/1990 against the respondents-original defendants for partition of the suit land/properties bearing Survey Nos. 19, 57/1 and 73 and two immovable property bearing Survey Nos.
134 and 134/1 alleging interalia that the aforesaid suit land/properties were ancestral properties belonging to his grandfather Makanbhai Bhamabhai and he has right, title or interest in the aforesaid properties and, therefore, he prayed for the partition. It appears that during pendency of the suit, the appellant-original plaintiff came to know that the land bearing Survey No. 19 is already sold in favour of original defendants nos. 4 to 6 and, therefore, they were subsequently joined as party defendants. It appears that original defendant no. 1 did not file the written statement, however, original defendant no. 2 appeared. The learned trial Court framed the following issues at Exh. 29;
“(i) Whether the plaintiff proves that immovable property detailed in item no. 1 of Schedule A of the plaint is as joint hindu undivided family and that the same was mortgaged as alleged in para 2 of the plaint? If yes.
(ii) Whether it is proved that defendant no. 1 got the said property transferred in his name but the same remained Joint Hindu family property?
(iii) Whether the plaintiff proves that immovable properties detailed in item no. 2 and 5 of Schedule 'A” of the plaint purchased from joint Hindu undivided family fund?
(iv) Whether the plaintiff proves that the suit properties belonged to joint hindu undivided family as alleged?
(v) What are the shares of the parties in suit properties or in any of the suit properties?
(vi) Whether the plaintiff proves that defendant no. 1 Bhikhabhai Mekanbhai mismanaging the properties of Hindu Undivided Joint Family?
(vii) Whether it is proved that immovable property detailed in item no. 3 of schedule 'A' of the plaint in joint hindu undivided family property?
(viii) Whether it is proved that defendant no. 1 illegally sold agricultural land bearing R.S. No. 73/2 and the plaintiff is entitled to have his share from the consideration thereof?
(ix) Whether it is proved that during the pendency of the suit the plaintiff illegally transferred immovable property detailed in item no. 1 of schedule 'A' of the plaint to defendant nos. 4 to 6 and the said action is unauthorised, bogus and without consideration and is not binding to the plaintiff?
(x) What order and decree?”
2.1 The learned trial Court vide judgment and decree dated 14/12/1994 dismissed the said suit by holding all the issues in the negative. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dated 14/12/1994 in Regular Civil Suit No. 1200/1999 in dismissing the same, the appellant-original plaintiff preferred Regular Civil Appeal No. 48/1996 before the learned District Court, Surat and the learned Principal District Judge, Surat dated 22/12/2011 dismissed the said appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit. Being aggrieved and dissatisfied with the impugned judgment and orders passed by both the Courts below in dismissing the suit as well as the appeal, the appellant-original plaintiff has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3. Shri Majmudar, learned advocate appearing on behalf of the appellant-original plaintiff has vehemently submitted that original defendant no. 1 did not file the written statement and did not stepped into the witness box denying the averments and pleadings in the suit, and, therefore, the learned trial Court ought to have decreed the suit considering Order 8 Rule 5 of the Code of Civil Procedure. It is further submitted that as per the observation made by the learned appellate Court so far as the land bearing Survey No. 19 is concerned, it was originally in the name of the grandfather of the appellant- original plaintiff-Makanbhai Bhamabhai, who admittedly transferred the same in favour of original defendant no. 1, without any consideration and by unregistered document and, therefore, it is submitted that as such the transfer in favour of original defendant no. 1 was illegal and the right of the appellant-original plaintiff for partition with respect to the property ought to have been considered by the learned appellate Court.
3.1. It is further submitted by Shri Majmudar, learned advocate appearing on behalf of the appellant-original plaintiff that even with respect to the property bearing Survey No. 57/1 transferred by Makanbhai Bhamabhai in favour of one Thakorbhai Lallubhai Mistry is also illegal in as much as the same was by Makanbhai Bhmabhai-grandfather of the appellant-original plaintiff for himself as guardian of Bhikhabhai Makanbhai and Bhulabhai Makanbhai and, therefore, the learned trial Court ought to have considered the case on behalf of the appellant-original plaintiff for partition so far as the said land is concerned. Making the above submissions, it is requested to admit/allow the present Second Appeal.
4. Heard Shri Majmudar, learned advocate appearing on behalf of the appellant-original plaintiff and considered the impugned judgment and orders passed by both the Courts below dismissing the suit as well as the appeal as well as the record and proceedings, which has been received from the learned trial Court. It appears that the appellant-original plaintiff claimed partition with respect to the properties bearing Survey Nos. 19, 57/1 and 73 and two immovable property bearing Survey Nos. 134 and 134/1 contending interalia that the aforesaid properties belonged to his grandfather- Makanbahi Bhambahi, the two immovable properties, which were in the name of original defendant no. 1 i.e. property bearing Survey Nos. 134 and 134/1 were as such ancestral properties, which were purchased from income of HUF. However, it is required to be noted that so far as Survey No. 19 is concerned, though the same was originally in the name of Makanbhai Bhamabhai-grandfather of the appellant-original plaintiff the said land was transferred in favour of original defendant no. 1 by Makanbhai Bhamabhai-grandfather of the appellant-original plaintiff on 21/02/1944 (maybe without consideration). It is required to be noted that right from 1944 original defendant no. 1 continued to be the exclusive owner and in possession of the aforesaid land. It is required to be noted that the father of the appellant-original plaintiff died/expired in the year 1976 and during his lifetime he never claimed any right, title or interest in the aforesaid land. He never objected nor claimed share in the land. It is also required to be noted that the appellant-original plaintiff has not challenged the said transaction dated 21/02/1944. Under the circumstances, both the Courts below have rightly dismissed the suit and the appeal so far as the aforesaid land is concerned. Now, so far as another land bearing Survey No. 57/1 is concerned, it is required to be noted and it has come on record that the said land was sold by Makanbhai Bhamabhai- grandfather of the appellant-original plaintiff in favour of Thakorbhai Lallubhai Mistry by registered sale deed dated 08/09/1944 and thereafter, the said land was again purchased by original defendant no. 1 by registered sale deed dated 17/04/1950. It is to be noted that the said registered sale deed was transferred in favour of original defendant no. 1 and as stated hereinabove, even the father of the appellant-original plaintiff who died in the year 1976 did not claim any right, title or interest/share in the said property. Under the circumstances, with respect to the said property also both the Courts below have rightly dismissed the suit as well as the appeal. So far as the share claimed by the appellant-original plaintiff for sale proceeds with respect to the land bearing Survey No. 73 is concerned, it is required to be noted that the said land was sold by Makanbhai Bhamabhai-grandfather of the appellant-original plaintiff i.e. on 16/05/1944 and, therefore, the appellant-original plaintiff could not have prayed for share in the sale proceeds from the original defendants. As rightly observed by both the Courts below, more particularly, the learned appellate Court, the appellant-original plaintiff was required to claim the share from Makanbhai Bhamabhai, who had died in the year 1945. So far as partition claim with respect to two immovable properties i.e Survey Nos. 134 and 134/1 are concerned, the appellant-original plaintiff has failed to prove that the said properties were purchased by original defendant no. 1 from the income of HUF. Under the circumstances, merely because original defendant no. 1 has not filed the written statement and/or stepped into the witness box, the Court was not required to pass the decree automatically. Even if the original defendant has not appeared and/or not filed the written statement, in that case, as such the appellant-original plaintiff is required to prove his case by leading evidence and then and then only he can succeed in the suit. Order 8 Rule 5 does not say that irrespective of proving the case of the appellant-original plaintiff the Court is bound to pass the decree. Under the circumstances, the contention on behalf of the appellant-original plaintiff relying upon Order 8 Rule 5 that as the original defendant has not filed the written statement and, therefore, the learned trial Court ought to have passed the decree cannot be accepted and has no substance.
5. In view of the above and for the reasons stated hereinabove and considering the reasoning given by both the Courts below, it cannot be said that the learned trial Court has committed any error and/or illegality in dismissing the suit, which is confirmed by the learned appellate Court, which calls for the interference of this Court under Section 100 of the Code of Civil Procedure.
6. In view of the above and for the reasons stated hereinabove, there is no substance in the present Second Appeal, which deserves to be dismissed and is accordingly dismissed.
CIVIL APPLICATION No. 3723 of 2012 In of dismissal of the Second Appeal, no order in the Civil Application.
(M.R. SHAH, J.)
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