1. As common question of law and facts arise in both these second appeals and they arise out of common judgement and order, both these second appeals are decided and disposed of by this common judgement and order.
2. Second Appeal No.104 of 1991 has been preferred by the appellant herein – original respondent No.1 to quash and set aside the impugned common judgement and order dated 28/07/1988 passed by learned Appellate Court in Regular Civil Appeal No.185 of 1884, by which, learned Appellate Court has allowed the said appeal preferred by the original defendant Nos.1 to 5, 7 & 8 and has quashed and set aside the judgement and decree passed by learned Trial Court in Regular Civil Suit No.620 of 1982, by which, learned Trial Court appointed Court Commissioner to partition the disputed property by meets and bounds by holding that original plaintiff is having 1/10 share along with defendant Nos.6, 8, 9 to 11 in the suit property (it appears that it should be 1/14).
Second Appeal No.105 of 1991 has been preferred by the appellant herein – original plaintiff in Regular Civil Appeal No.192 of 1986 to quash and set aside the impugned common judgement and order passed by learned Appellate Court more particularly judgement and order passed by learned Assistant Judge, Surat in Regular Civil Appeal No.192 of 1986, by which, learned Appellate Court has dismissed the said appeal preferred by the appellant herein – original plaintiff.
3. Facts leading to the present second appeals, in nutshell, are as under:
That the appellant herein – original plaintiff- son of Jashodaben instituted Regular Civil Suit No.620 of 1982 in the Court of learned Civil Judge (J.D.), Surat for partition of the suit property. It was the case on behalf of the original plaintiff that the suit property originally belonged to Bai Laxmiben – widow of Jagjivandas Bhagwandas and she expired on 04/09/1969 at Mumbai. At that time, Bhukhandas and Jashodaben, who were heirs and legal representatives of deceased Laxmiben. It was the case on behalf of the plaintiff that after the death of Bai Laxmiben, Bhukhandas Jagjivandas and and Jashodaben Jagjivandas each have 1/2 share in the suit property. It was the case on behalf of the original plaintiff that defendant Nos.1 to 5, 7 and 8 are the legal heirs and representatives of Bhukhandas and defendant Nos.6, 9 to 11 are the heirs and legal representatives of deceased Jashodaben and defendant Nos.1 to 5, 7 and 8 have 1/2 share in the suit property and they have their respective 1/14 share each in the suit property whereas the plaintiff and defendant Nos.6, 9 to 11 have their joint 1/2 share in the suit property and each has 1/3rd share in the suit property as owners. It was the case on behalf of the plaintiff that the plaintiff informed defendant Nos.1 to 5, 7 and 8 to partition the suit property and to give his share but they have not taken any care and wanted entire suit property and, therefore, plaintiff instituted the aforesaid suit for declaration that the plaintiff and defendant Nos.6, 9 and 11 each have their 1/3 share in the suit property and also asked for separate possession of the suit property.
4. That the suit was resisted by the defendants Nos.6, 9 to 11, who filed their joint written statement at Exh.16. Naturally, they admitted the suit of the plaintiff. Contesting defendant Nos. 1 to 5, 7 and 8 filed their written statement at Exh.17 and resisted the suit of the plaintiff. It was also submitted that as such Jashodaben had already withdrawn her rights from the suit property and even her statement was also recorded before City Survey Officer and necessary mutation entry was made in the revenue record and, therefore, it was submitted that Jashodaben had already withdrawn her right in the suit property, the plaintiff has no right to claim partition in the suit property. Learned Trial Court framed the issues and held that original plaintiff had 1/10 share with defendant Nos.6, 8, 9 to 11 and other defendants have 1/14 share each. However while passing judgement and decree as such learned Trial Court has passed the decree declaring that the plaintiff along with defendant Nos.6, 8, 9 to 11 have 1/10 share in the suit property and other defendants have 1/14 share each in the suit property. However appointed Court Commissioner to partition the disputed properties by meets and bounds.
5. Being aggrieved by and dissatisfied with the judgement and order passed by learned 4th Joint Civil Judge, Surat in Regular Civil Suit No.620 of 1982, original defendant Nos.1 to 5, 7 and 8 preferred Regular Civil Appeal No.185 of 1984 before learned District Court, Surat. Even original plaintiff also preferred Regular Civil Appeal No.192 of 1986 before learned District Court, Surat against the judgement and decree passed by learned Trial Court in so far as not granting relief of possession. Both the aforesaid appeals came to be heard together by the learned Appellate Court and considering the fact that mother of the plaintiff- Jashodaben waived her rights in the suit property and, therefore, it was not open for the plaintiff to claim partition in the suit property and has allowed Regular Civil Appeal No.185 of 1984 preferred by original defendants Nos.1 to 5, 7 and 8 and has dismissed the Regular Civil Appeal No.192 of 1986 preferred by original plaintiff.
Being aggrieved by and dissatisfied with the impugned common judgement and order passed by learned Assistant Judge, Surat in Regular Civil Appeal Nos.185/1984 and 192/1986, the appellant herein – original plaintiff has preferred the present second appeal u/s.100 of the Code of Civil Procedure.
6. Mr.Hemang Parikh, learned advocate appearing on behalf of the appellant herein - original plaintiff has submitted that learned Appellate Court has materially erred in quashing and setting aside the judgement and decree passed by learned Trial Court. It is submitted that merely because the mother of the original plaintiff waived her rights in the suit property, the same was not binding to the plaintiff and, therefore, as plaintiff originally belonged to Bai Laxmiben, widow of Jagjivandas Bhagwandas and after her death, Bhukhandas and Jashodaben have 1/2 share in the suit property and consequently original plaintiff will also has right in the suit property and, therefore, the suit filed by original plaintiff for declaration and partition of suit property was required to be decreed.
By making above submissions, it is requested to allow the present second appeal.
7. Mr.Vivek Bhamare, learned advocate appearing on behalf of the contesting respondents has submitted that there are concurrent findings of facts given by both the Courts below that the mother of the plaintiff had waived her right in the suit property and even she already made statement before City Survey Officer withdrawing her right from the suit property, the suit filed by the plaintiff is rightly rejected by the learned Trial Court as once the mother of the plaintiff has foregone her rights in the suit property, thereafter it will not be open for the plaintiff to claim for partition as his mother has 1/2 share in the suit property.
By making above submissions, it is requested to dismiss the present second appeal.
8. Heard learned advocates appearing on behalf of the respective parties and considered the impugned judgement and orders passed by both the Courts below and evidence on record as well as record and proceedings of the case received from the learned Trial/Appellate Court.
9. At the outset, it is required to be noted that original plaintiff instituted suit for declaration claiming 1/10th share in the suit property and for partition with a prayer for possession by submitting that suit property originally belonged to Bai Laxmi and on her death, Bhukhandas and Jashodaben (mother of the plaintiff) were legal heirs and representatives of the Bai Laxmi and they have 1/2 share in the suit property and, therefore, the plaintiff has right in the suit property. However from the evidence on record, it has come on record that Jashodaben had forgone her rights in the suit property and statement was made before City Survey Officer and the said is also reflected in the revenue record. Under the circumstances, when mother of the plaintiff foregone her right in the suit property and she did not claim any 1/2 share in the suit property, the plaintiff being her son cannot claim partition of the suit property on the ground that her mother had 1/2 share in the suit property. The aforesaid is not disputed by Mr.Parikh, learned advocate appearing on behalf of the original plaintiff. Considering the aforesaid facts and circumstances of the case, the suit preferred by the original plaintiff is rightly rejected by learned Appellate Court. Under the circumstances, no illegality has been committed by learned Appellate Court in allowing Regular Civil Appeal No.185 of 1984 preferred by defendants Nos.1 to 5, 7 and 8 by quashing and setting aside the judgement and decree passed by learned Trial Court in Regular Civil Suit No.620 of 1982 and consequently learned Appellate Court has rightly dismissed Regular Civil Appeal No.192 of 1986, which was preferred by the original plaintiff challenging the judgement and decree passed by learned Trial Court in not granting possession. It is further held that the original plaintiff is not entitled to partition and declaration as prayed for.
10. In view of the above, there is no substance in both these second appeals and the same deserve to be dismissed and are accordingly dismissed. No costs.
[M.R.SHAH,J] *dipti