1. This appeal challenges the judgment and decree dated 9th February, 2011 passed by the learned 2nd Additional District Judge, Navsari in Regular Civil Appeal No.14/2009 whereby he has dismissed the appeal preferred by the appellant – original defendant and has confirmed the judgment and decree dated 23rd April, 2007 passed by the learned Additional Civil Judge, Ahwa in Regular Civil Suit No.5/2003.
2. The respondents – original plaintiffs instituted the above referred suit in the court of the learned Civil Judge, Ahwa contending that the plaintiff and the defendant are brothers having ancestral properties situated in village Don, district Dang. The said lands have been partitioned several years ago, pursuant to which Mutation Entry No.143 has been made on 11th March, 1992 and as per the partition, the land bearing Khata No.52 has come to the share of the plaintiff, the land bearing Khata No.85 has come to the share of Hira Budha and land bearing survey No.104 has come to the share of Motiram Budha, that is, the defendant (the appellant herein). That the lands bearing survey No.158/1, 184/2, 236 and 237 are included in the plaintiff's Khata No.52 and that the plaintiff is holding the same as independent owner thereof and that the defendant has nothing to do with the said land. It was the case of the plaintiff that out of the said lands, the defendant was in the process of encroaching upon the land bearing survey No.158/1 and that on 20th January, 2003, the plaintiff had obstructed the defendant from entering the said land, whereupon, he had threatened to kill the plaintiff. The plaintiff had, therefore, instituted the suit to restrain the defendant from encroaching upon his land. The plaintiff, accordingly, prayed that a permanent injunction be granted against the defendant restraining him from in any manner obstructing the plaintiff in the enjoyment of the suit lands. It appears that an application Exh.5 seeking temporary injunction came to be filed by the plaintiff which was granted in his favour. Upon issuance of summons by the court, the defendant filed written statement at Exh.17 submitting that the say of the plaintiff as regards Entry No.143 is correct. However, the fact that a partition has taken place is false. The trial court on the basis of the pleadings of the parties framed five issues. During the course of the trial proceedings, the plaintiff examined his power of attorney holder Tulshirambhai Manglubhai Bhoy at Exh.27 and the plaintiff Manglubhai Budhabhai Bhoy was examined at Exh.40. The plaintiff also produced documentary evidence in support of his case. However, the defendant did not adduce any evidence nor did the learned advocate for the defendant make any submissions during the course of hearing of the matter. The trial court on the basis of the evidence on record decreed the suit in favour of the plaintiff and granted permanent injunction restraining the defendant from obstructing the plaintiff in the enjoyment of the suit lands. The court also held that the plaintiff was the owner and was in legal occupation of the suit lands. The appellant carried the matter in appeal before the learned 2nd Additional District Judge, Navsari in Regular Civil Appeal No.14/2009. The lower appellate court after reappreciating the evidence on record dismissed the appeal and confirmed the judgment and decree passed by the trial court. Being aggrieved, the appellant has preferred the present second appeal by proposing the following questions stated to be substantial questions of law:
(A) Can the properties belonging to Hindu Undivided Family (HUF) be partitioned even in absence of any documentary evidence?
(B) Can the co-sharers claim right of ownership and possession without any documentary evidence?
(C) Can the co-sharers claim right of ownership and possession by way of adverse possession?
(D) Can partition of Joint Hindu Undivided Family (HUF) be distribution among the co-sharers by way of Village Conveyance?
(E) Can the Civil Court pass judgement and decree in the nature of suit of ownership and possession without any documentary evidence?
(F) Whether or not the substantial questions of law are required to be examined under section 96 of the Code of Civil Procedure?
3. Mr. Shakeel Qureshi, learned advocate for the appellant submitted that the judgment and decree passed by the trial court stands vitiated on the ground of non-compliance with the principles of natural justice inasmuch as the appellant–defendant was not given an opportunity of leading evidence nor was his advocate granted an opportunity of making submissions before the court. The attention of the court was invited to the rojkam of the proceedings of the trial court and more particularly, the rojkam of 2nd February, 2007 to 10th April, 2007. It was submitted that on 2nd February, 2007, the evidence of the plaintiff was over and the plaintiff had filed a closing purshis and that the matter was adjourned to 12th March, 2007 for recording the evidence of the defendant. It was pointed out that on 12th March, 2007, the plaintiff filed an application (Exh.43A) for closing the stage of evidence of the defendant and the said application was kept for hearing on 26th March, 2007 and that thereafter on 26th March, 2007, as per the Rojkam the application (Exh.43A) was allowed and the right of the defendant to lead evidence was closed. Referring to the record of the case, it was pointed out that no order had been passed on the application (Exh.43A) on 26th March, 2007 and as such, it cannot be said that the right of the defendant to lead evidence was closed. It was submitted that despite the aforesaid position, the trial court proceeded further and delivered the judgment on 9th February, 2011 without affording any opportunity to the defendant to lead evidence in support of his case.
3.1 It was further submitted that the courts below have not considered the issues involved in the matter in proper perspective and have accepted the plea of the respondent – original plaintiff as gospel truth. It was submitted that the trial court has misdirected itself in not construing the written statement filed by the appellant. It was contended that in the written statement there is no direct or indirect acceptance or admission by the present appellant in respect of the so called partition by the village conveyance whereas the trial court in paragraph 3 of the impugned judgment and decree has observed that the appellant has admitted Entry No.143 and partition thereof. It was submitted that the aforesaid finding is erroneous and contrary to the material on record, thereby rendering the impugned judgment and decree perverse. It was, accordingly, urged that the appeal does give rise to substantial questions of law as proposed or as may be formulated by the court and that the appeal deserves to be admitted. It was submitted that the impugned judgment and decree passed by both the courts below are required to be quashed and set aside and the matter is required to be remitted to the trial court for deciding the suit afresh after giving the appellant – defendant an opportunity of leading evidence in support of his case.
4. On the other hand, Mr. Zubin Bharda, learned advocate for the respondent – original plaintiff submitted that the appellant herein has not adduced any evidence before the trial court despite ample opportunities having been granted to him. It was submitted that the appellant has slept over his rights throughout and, is now trying to clutch at a straw by relying upon the fact that no order had been passed on the application Exhibit- 43A made by the plaintiff for closing the evidence of the defendant. Inviting the attention of the court to the rojkam of the proceeding before the trial court, it was pointed out that on 2nd February, 2007 the plaintiff had given a purshis for closing his evidence. Accordingly, the matter was adjourned to 12th March, 2007 for recording of evidence of the defendant. On 12th March, 2007, the parties as well as their advocates were present before the court and that as the defendant did not submit any affidavit of examination-in-chief nor did he submit any application seeking adjournment for leading evidence, the plaintiff submitted an application for closing the defendant's right to lead evidence. The said application was kept for hearing on 26th March, 2007, on which date, as per the rojkam, the right of the defendant to lead evidence had been closed which fact is duly reflected in the rojkam dated 26th March, 2007. It was submitted that thereafter the matter was adjourned to 10th April, 2007 on which date, the plaintiff and his advocate were present whereas the defendant and his advocate were not present hence, the trial court recorded the submissions made by the learned advocate for the plaintiff and adjourned the matter for orders on 23rd April, 2007. On 23rd April, 2007, the court declared its judgment. It was submitted that thus, the appellant, at all times, was negligent in attending to the suit proceedings and as such the trial court was justified in proceeding further and deciding the suit. It was submitted that the lower appellate court has, therefore, rightly dismissed the appeal and confirmed the judgment and decree passed by the trial court. It was submitted that the impugned judgment and decree being based on concurrent findings of fact recorded by both the courts below does not give rise to any question of law so as to warrant interference.
5. A perusal of the judgment and decree passed by the trial court indicates that pursuant to the summons issued by the court, the appellant – defendant had filed written statement at Exh.17. The trial court has further recorded that the defendant in the written statement has admitted that the fact regarding Entry No.143 stated in paragraph 2 of the plaint is correct and that the averments made in the written statement are only in the nature of denial. The trial court has further observed that the power of attorney of the plaintiff – Tulshirambhai Manglubhai Bhoy has been examined at Exh.27 and the plaintiff – Manglubhai Budhabhai Bhoy has been examined at Exh.40 and has produced documentary evidence in the nature of extract of village form No.7/12 at Exh.29, copy of village form No.6 at Exh.30, copy of special power of attorney at Exh.31, extract of village form No.8A at Exh.32 and caste certificate at Exh.33. Vide Exh.43, the plaintiff has filed a purshis for closing his evidence. It is further recorded that the defendant has not led any evidence whatsoever nor have any submissions been advanced on behalf of the defendant. The trial court has also recorded that the defendant has not challenged the deposition of the plaintiff by cross-examining him. After appreciating the evidence on record, the trial court has decreed the suit in favour of the plaintiff and has held that the plaintiff is the legal owner and in possession of the suit property.
6. The lower appellate court in the impugned judgment and decree has found that on a perusal of the plaintiff's deposition (Exh.40), it appears that he is cross-examined by the learned advocate who was engaged by the defendant. As regards the contention that no order had been passed on the application filed by the plaintiff for closing the stage of the evidence of the defendant, the lower appellate court has observed that the application (Exh.43A) is found kept for hearing so as to afford an opportunity to the defendant to adduce his oral evidence and the said application is found decided on 5th May, 2007. Thus, the record shows that sufficient time is given to the defendant.
7. The lower appellate court by recording that the defendant had been given sufficient opportunity but had failed to avail of the same has dismissed the appeal.
8. Vide order dated 16th February, 2010, this court had, after recording the submissions of the learned advocates for the respective parties called for the record and proceeding of the case.
9. At this juncture it may be germane to take note of certain facts which have come to the notice of the court upon a close scrutiny of the record. A perusal of the rojkam maintained by the trial court along with the record of the case shows that on 8th February, 2006, the plaintiff through his power of attorney Tulshiram Manglubhai Bhoy, filed his affidavit of examination-in-chief at Exh.27 alongwith a list of documents at Exh.28. Thereafter, the case was adjourned from time to time at the stage of cross-examination in respect of Exh.27 for about thirteen times at the instance of either of the parties. On 6th December, 2006, the plaintiff – Manglubhai Budhabhai Bhoy filed his affidavit of examination-in-chief at Exh.40 after which the matter was adjourned to 26th December, 2006 for cross- examination at Exh.40, on which date, there was an adjournment application on behalf of the defendant hence the matter was adjourned to 29th December, 2006. On that date, again, there was an application for adjournment made by the defendant and the matter was adjourned to 12th January, 2007. On the said date, the plaintiff came to be cross-examined by the learned advocate for the defendant and the matter was adjourned to 9th February, 2007. On 9th February, 2007, the plaintiff and the defendants as well as their learned advocates were present, whereupon the plaintiff filed a purshis for closing his evidence. Accordingly, the stage of the plaintiff's evidence was closed and the matter was kept on 12th March, 2007 for the defendant's evidence. On the said date, that is 12th March, 2007 as per the rojkam, the respective parties and their learned advocates were present, and that pursuant to the application filed by the plaintiff for closing the stage of evidence of the defendant, the matter is adjourned for hearing the application Exh.44 to 26th March, 2007. In the rojkam, under the column bearing the title “No. of exhibit” the exhibit No. of the said application is shown as Exh.43A by writing over the earlier number 44 whereas in the corresponding column which records particulars of the proceedings of the day the application is referred to as exhibit No.44. The rojkam of 26th March, 2007 records that on that day, the plaintiff and his advocate were present whereas the defendant and his advocate were not present and that the defendant's stage of evidence was closed and the matter was adjourned to 10th April, 2007 for arguments. However, on a perusal of the record of the case, no order appears to have been made on the said application (Exh.43A) on the said date. The rojkam of 10th April, 2007 shows that the plaintiff and his advocate were present and the defendant and his advocate were not present. Arguments were heard and the matter was kept for orders on 23rd April, 2007. The rojkam of 23rd April, 2007 shows that the judgment had been declared vide Exh.44. It may be pertinent to note that again in the column of “No. of exhibit” the number 44 appears to have been overwritten on 45.
10. From the facts noted hereinabove, it is apparent that the suit came to be decreed vide the judgment and order dated 23rd April, 2007 vide Exh.44. Curiously, after the disposal of the suit, the application made by the plaintiff for closing the stage of evidence of the defendant was again referred to as Exh.44 and came to be decided by an order dated 5th May, 2007 passed by the very same learned Judge, Shri J.L. Shrimali, who has passed the judgment and decree dated 23rd April, 2007, which as translated into English, reads thus:-
“Heard. The application Exh.44 as well as the record has been perused. The plaintiff and his learned advocate are present, neither the defendant nor anyone on his behalf is present. No application has been received till 5:30 in the evening. Despite granting opportunities to the defendant to adduce evidence, he has not remained present and adduced evidence nor has he given any reason for the same. Thus, considering the circumstances as a whole, in the larger interest of justice, the right of the defendant to lead evidence is closed and it is ordered to hear the suit ex parte.”
11. On a conjoint reading of the judgment and decree dated 23rd April, 2007 and the order dated 5th May, 2007, the order dated 5th May, 2007 passed by the trial court is inexplicable. When, the suit was already decreed on 23rd April, 2007 and the rojkam indicated that the application Exh.43A had been decided and the stage of the defendant's evidence had been closed, there was no question of the said application being alive. Moreover, from the order dated 5th May, 2007, it is apparent that the trial court has passed the order after perusing the record of the case. One fails to understand as to how the learned Judge, if he had perused the record of the case could have overlooked the fact that the suit had itself been adjudicated by then, that too, when the order had been passed after hearing the learned advocate for the plaintiff. Under the circumstances, there appears to be more than meets the eye in the proceedings conducted by the trial court. The rojkam of 12th January, 2007 and more particularly the date to which the case is adjourned shows overwriting in respect of the date which appears to have been changed subsequently from 12th March, 2007 to 12th February, 2007. Likewise, in the rojkam of 12th February, 2007, in the column “the date on which the case comes before the court proceeding”, there is overwriting in the date 12.2.2007 which appears to have been changed from 12.3.2007 to 12.2.2007. Similar overwriting is there in respect of the next date 12th March, 2007 and the exhibit number has been changed from 44 to 43A by overwriting, though the order part refers to the same as Exh.44. The rojkam of 26th March, 2007 records that the right of the defendant to lead evidence is closed; however, there is no corresponding order of the said date evidencing closure of the defendant's evidence. The fact that the trial court has subsequently on 5th May, 2007 passed an order on the said application referring to it as Exh.44, and closing the defendant's right to lead evidence, fortifies the fact that the said application had not been decided earlier. Besides, though the record of the case shows that the plaintiff had been cross examined by the defendant’s advocate, the trial court in its judgment and decree has recorded that the defendant has not cross examined the plaintiff and the deposition of the plaintiff remains unchallenged. Thus, it appears that there are serious irregularities in the conduct of the suit proceedings. Under the circumstances, the appellant appears to be justified in his grievance that he was not given proper opportunity to lead evidence.
12. For the foregoing reasons, the judgment and decree passed by the trial court is rendered unsustainable. The lower appellate court though has referred to the order dated 5th May, 2007 passed by the trial court on the application Exh.44/43A, has failed to examine a significant aspect as to how the said application was decided after the judgment and decree had already been delivered by the trial court on 23rd April, 2007 nor does the lower appellate court appear to have perused the order deciding the said application. The impugned judgment and decree passed by the lower appellate court also, therefore, cannot be sustained.
13. In the light of the aforesaid discussion, the appeal does raise substantial questions of law. Hence, admit. The following substantial questions of law arise for determination:-
(1) Whether the lower appellate court has failed to appreciate the evidence on record in proper perspective in holding that the defendant was given proper opportunity of leading evidence by the trial court, thereby rendering the impugned judgment and decree perverse?
(2) Whether the judgment and decree passed by the trial court stands vitiated on the ground of irregularity in the conduct of the suit proceeding?
14. For the reasons recorded in the preceding paragraphs, the questions are answered in the affirmative. The lower appellate court was not justified in holding that the appellant defendant had been given sufficient opportunity to adduce evidence. The judgment and decree passed by the trial court stands vitiated on account of the irregularities referred to hereinabove and as such, cannot be sustained. The lower appellate court was, therefore, not justified in confirming the judgment and decree passed by the trial court.
15. The appeal, therefore, succeeds and is accordingly allowed. The impugned judgment and decree passed by the lower appellate court as well as by the trial court are hereby quashed and set aside. The suit being Regular Civil Suit No.5/2003 is hereby restored to file. Considering the observations made hereinabove, the very filing of the application Exhibit-44/43A by the plaintiff for closing of the stage of evidence of the defendant appears to be suspicious, hence, the said application shall be ignored and the trial court shall proceed further with the trial from the stage of recording of evidence of the defendant. However keeping in view the fact that the suit has been instituted in the year 2003, it would be in the interest of justice that the trial be concluded expeditiously. Under the circumstances, it is further directed that the defendant shall, at the first instance, appear before the trial court on 18th April, 2012 and submit his affidavit of examination-in-chief. Thereafter, the defendant may adduce such evidence as he so deems fit. The trial court shall thereafter proceed further with the trial and shall dispose of the suit preferably within a period of four months thereafter. The learned advocate for the appellant – defendant assures the court that he shall not ask for any adjournment in the proceedings before the trial court.
16. In the light of the findings regarding irregularities in the conduct of the trial proceedings recorded hereinabove, the registry is directed to bring this order to the notice of the Honourable the Acting Chief Justice as well as the concerned Administrative Judge by placing the same along with a copy of the judgment and decree passed by the trial court as well as with duly authenticated copies of the Rojkam of the Case, the application Exhibit-43A (page 137), as well as the order dated 5th May, 2007 passed on the application Exhibit-43A (unnumbered page 138) as well as the order dated 5th May, 2007 passed below Exhibit 1 (unnumbered page 25).
17. After obtaining duly authenticated copies of the documents as aforesaid, the Registry shall forthwith send back the record and proceedings to the trial court so as to reach the said court on or before 16th April, 2012.
( Harsha Devani, J. ) hki