1. The present First Appeal has been preferred by the Appellant -Original Defendant under Section 96 of the Civil Procedure Code challenging the impugned judgment and order passed by the City Civil and Sessions Court, Ahmedabad in Civil Suit No.674 of 2005 dated 27.9.2010 on the grounds set out in the memo of First Appeal inter alia that peaceful and vacant possession of the suit property on the first floor of the premises was with the Appellant and the learned Judge has failed to appreciate the material and evidence on record. It is also contended that the suit of of the Respondent -Original Plaintiff is based on malafide intention and she has a right as per the Indian Succession Act, and therefore, the deceased husband of the Appellant was the son of the Respondent – Original Plaintiff, and therefore, she is entitled to the share in the premises on the basis of succession under the Indian Succession Act.
2. Heard learned Advocate Mr. Rajesh R.Bagdi for the Appellant. He referred to the impugned judgment and tried to submit that the court below has committed an error in appreciation of evidence. However, the submissions are without any merit in light of the bare perusal of the impugned judgment and order. The learned Judge has considered the factual background. It is very evident that the disputed premises consist of the ground floor, and the first floor of the property. The Plaintiff is in occupation of the ground floor, and infact the first floor has also been constructed by him. As it transpires, the Plaintiff is the owner of the suit property situated in Ahmedabad in Khokhara – Mahemdavad Ward, T.P. Scheme No.7, Final Plot No.124 paiki Sub-Plot No.19, which has been purchased by the father of the Plaintiff. Thereafter, by registered assignment deed dated 25.2.1975 executed by the father of the Plaintiff in favour of the Plaintiff, the Plaintiff had become the owner of the said property. The Defendant, who is the daughter-in-law of the Plaintiff and married with the son of the Plaintiff in the year 1990 was residing separately by hiring the premises. As it transpires from the record, the Plaintiff constructed the first floor, which originally consisted the ground floor, and thereafter it was given out of love and affection to the son of the Plaintiff and Defendant, daughter- in-law. However, due to the quarrels and the matrimonial disputes, including criminal cases, the son of the Plaintiff committed a suicide and the Defendant, daughter-in-law shifted the residence elsewhere. Thus, the first floor is not occupied by the Defendant, daughter-in-law, but she has applied the lock which lead to filing of the present Suit for recovery of the vacant and peaceful possession. The Court below, on appreciation of evidence, has made the observation:
“Therefore, the theory regarding the help by the defendant to the plaintiff cannot be said to be proved nor any attempt is found made to prove the help by producing documentary evidences .................... Thus, there is lack of iota of evidence in the theory of the defendant that the defendant has made the help to the plaintiff for construction of the first floor portion.”
3. Further, regarding succession, the finding has been given:
“ the defendant has resided in the first floor portion then the defendant ought to have produced the evidence showing the user of first floor portion right from 1995 upto filing of the suit I.e. 2005. If for a moment, such user is shown even then to succeed the claim by the defendant over the plaintiff, the defendant has to show the documentary evidence that the possession of the first floor is yet under the contract under which the defendant has a right to keep the possession of the first floor portion.”
4. Therefore, as could be seen from the appreciation of evidence by the court below, admittedly, the ground floor is occupied by the Respondent – Original Plaintiff and the dispute is with regard to the first floor of the premises. The Appellant is the wife of the deceased son of the Respondent – Original Plaintiff and it has a reference to the earlier litigations and the quarrels, including criminal cases.
5. It is in background of this claim made by the present Appellant regarding succession, is required to be considered. There is no question of any help in construction of the first floor. Infact it is stated by the Respondent – Original Plaintiff that it was constructed with his own resources.
6. It is in these circumstances, the Appellant – Original Defendant who is claiming succession - the right on the basis of the right of the deceased husband, also has to be examined in background of the fact whether it could be said to be a self-acquired property of the Respondent – Original Plaintiff or whether it was any hereditary property, where the late husband of the Appellant – Original Defendant could claim any right and then only she could make any claim.
7. As it appears from the impugned judgment and order, the Respondent – Original Plaintiff had himself constructed the first floor of the premises, and as stated above, he was the absolute owner of the property in question purchased by his father, and thereafter assigned to the Plaintiff. There is no evidence contrary to this part on record, and therefore, it could be said that the Plaintiff was the absolute owner of the property, and the Appellant – Original Defendant, daughter-in-law could not have any claim, as the Plaintiff was the absolute owner of the premises in question. There is no evidence with regard to the premises / property in question was a joint property or inherited by the Plaintiff. On the contrary it is clear that he was the absolute owner of the premises / property in question, and therefore, even the son could not have made any claim.
8. It is in these circumstances, though normally the First Appeal is required to be admitted, the same has been considered on merits. It is required to be appreciated that admittedly, the possession is now with the Respondent – Original Plaintiff and even after filing the First Appeal, the same has not been moved and infact for about a year there was no move for getting the decree stayed and the learned Advocate had not remained present.
9. It is in these circumstances, there is no substance in the present First Appeal which would call for any interference in the impugned judgment and order. This court is in complete agreement with the findings arrived at and the reasoning given with regard to the conclusion arrived at and does not call for any interference. Hence, the present First Appeal deserves to be dismissed and accordingly stands dismissed in limine.
10. In view of the order passed in the main matter, Civil Application No. 272 of 2011 stands disposed of.
(Rajesh H. Shukla,J) Jayanti*