Gajaraba Bhikhubha Vadher Ors. vs Sumara Umar Amad (D) Thr Legal … on 14 January, 2020


Supreme Court of India

Gajaraba Bhikhubha Vadher Ors. vs Sumara Umar Amad (D) Thr Legal … on 14 January, 2020

Author: A.S. Bopanna

Bench: R. Banumathi, A.S. Bopanna, Hrishikesh Roy

                                                            NON­REPORTABLE


                                  IN THE SUPREME COURT OF INDIA

                                   CIVIL APPELLATE JURISDICTION

                                 CIVIL APPEAL NO. 260           OF 2020
                              (Arising out of SLP (Civil) No.33722 of 2016)


                         Gajaraba Bhikhubha Vadher & Ors.        .…Appellant(s)

                                                 Versus

                         Sumara Umar Amad (D) Thru Legal      …. Respondent(s)
                         Heirs & Ors.


                                           JUDGMENT

A.S. Bopanna,J.

Leave granted.

2. The appellants are before this Court assailing the

judgment dated 19.10.2016 passed by the High Court of

Gujarat at Ahmedabad in Second Appeal No.12 of 2014.

Through the said judgment, though the appeal is allowed

in part to the extent of setting aside the decree dated

03.12.2012 passed in the Regular Appeal No.130 of 2005
Signature Not Verified

Digitally signed by
MADHU BALA
Date: 2020.01.14
13:16:35 IST
Reason:

and confirming the judgment dated 07.11.2012 in Regular

Page 1 of 19
Civil Appeal No.130 of 2005, the High Court has held that

insofar as the locus of the appellants, they being third

parties had no right to challenge the judgment and order

passed by the Lower Appellate Court. The appellants

being purchasers of plot in the land bearing Survey No.36

of Dhinchna, Taluk and District Jamnagar which is the

subject matter of the suit are therefore, before this Court

claiming to be aggrieved by the impugned judgment.

3. The appellants were not the parties to the suit nor

in the regular appeal. However, the adverse judgment in

the first and second appeal has led to the present appeal.

The brief facts noticed for the limited purpose of disposal

of this appeal is that the predecessors of the respondents

No.1/1 to No.1/4, namely, Sumara Umar Amad instituted

a suit bearing Special Civil Suit No.77/1974 against his

father Sumara Amad Osman seeking for partition of the

land bearing Survey No.36 situate in Dhinchna village

Jamnagar measuring 23 Acres, 27 Guntas. The claim put

forth was that the said property was in the joint

ownership, occupation and possession. The plaintiff

referred to certain mortgage transaction with his father

Page 2 of 19
and in that light claiming to have a joint ownership right

to the extent of half share in the said property, had sought

for partition of the property, more fully described in

Schedule A to the plaint. In that regard, certain exchange

of notices by way of paper publication was referred as the

cause of action since the defendant No.1, namely, the

father of the plaintiff is stated to have published a notice

in the daily Newspaper “Nobat” on 29.03.1974 expressing

the intention to sell the property. In the said suit the

defendants 2 to 4 who were purchasers of the property

under the Sale Deed dated 29.07.1975 were subsequently

arrayed as defendants 2 to 4 though they were not parties

initially. The defendants had opposed the claim put forth

in the plaint. In that regard, the defendant No.1, namely,

the father of the plaintiff had disputed the claim of joint

ownership and had contended that the defendant had

purchased the suit land before the birth of the plaintiff

and the parties being Mohammedans, the plaintiff cannot

have any right in the suit land based on his relationship

as a son, during the lifetime of the father. The defendant

No.1, therefore, claimed absolute right and the authority

Page 3 of 19
to sell the property which was due to the bad financial

situation of the defendant father. During the pendency of

the suit the defendant No.1 father expired on 21.02.1978

and his heirs, namely, the siblings of the plaintiff were

joined as defendants No.1/1 to 1/4.

4. Based on the rival pleadings, the Trial Court had

framed five issues for its consideration. During the course

of the suit, despite not having pleaded in the plaint, the

plaintiff put forth a different version about his right to the

property claiming right to the property under an oral gift

from his grandfather. The Trial Court on having adverted

to all aspects of the matter, through its detailed judgment

had dismissed the suit by judgment and decree dated

17.04.1982. The plaintiff claiming to be aggrieved by the

same preferred a Regular Appeal as contemplated under

Section 96 of the Civil Procedure Code in R.C. Appeal

No.130 of 2005. In the said Regular Appeal the Lower

Appellate Court had reversed the judgment and decree

dated 17.04.1982 passed by the Trial Court and

consequently decreed the suit of the plaintiff declaring him

to have right over half share of the suit schedule property.

Page 4 of 19
The appellants herein who had purchased plots formed in

the layout in a portion of the property were thus aggrieved

by the judgment dated 07.11.2012 and decree dated

03.12.2012 passed by the Lower Appellate Court and

preferred the Second Appeal No.12 of 2014 under Section

100 of the Civil Procedure Code before the High Court. As

noted above, the said Second Appeal was disposed without

relief to the appellants and the appellants are, therefore,

before this Court.

5. Heard Shri Rakesh Dwivedi, learned Senior

Counsel for the appellants, Shri Siddharth Bhatnagar,

learned Senior Counsel for the respondents and perused

the appeal papers.

6. It is to be taken note that even though a brief

reference is made to the nature of the claim put forth in

the suit and the conclusion reached by the Trial Court, as

also the Lower Appellate Court and the contentions on

merits as urged before the High Court was also urged in

this appeal. The learned Senior Counsel for the appellants

would at the outset refer to the apparent error committed

by the High Court while disposing of the Second Appeal

Page 5 of 19
contrary to the established position of law. In that regard,

it is contended that in an appeal under Section 100 of the

Civil Procedure Code the established position is that an

appeal would arise for consideration only if substantial

question of law is made out. In that light, it is pointed out

that in the instant facts the High Court having taken note

of the contentions had framed as many as six substantial

questions of law for consideration through the order dated

20.02.2014 while admitting the appeal, but while

disposing of the appeal through the impugned judgment

dated 19.10.2016 the High Court has failed to consider

and answer the said substantial questions of law which

had been framed for consideration.

7. It is further contended by the learned Senior

Counsel for the appellants that even though the reasoning

is in favour of the appellants the conclusion to nonsuit the

appellants as being subsequent purchasers would be

unmerited. The learned Senior Counsel would contend

that apart from the claim of the plaintiff not being

sustainable either for a share during the lifetime of his

father or under the oral gift as claimed, the plaintiff had

Page 6 of 19
executed Confirmation Deeds dated 28.06.2012 bearing

6523, 6525 and the Confirmation Deed dated 29.06.2011

bearing Registration No.6195 whereunder the Sale Deed

dated 29.07.1975 which was executed by the father of the

plaintiff had been ratified. If that be the position, the

plaintiff in any event could not have claimed right to the

extent indicated in the said documents and the appellants

being purchasers from such parties in whose favour the

Confirmation Deed was executed would have a right over

the property and the plaintiff cannot make out a right over

the said properties. As such the claim for half share

would not subsist. These were the aspects which were

required to be taken note by the First Appellate Court and

High Court in the Second Appeal but there was failure in

that regard. In that light, the learned Senior Counsel

would contend that consideration is required to be made

by the High Court on all these aspects which would call

for a remand of the matter without this Court going into

the factual aspects herein.

8. The learned Senior Counsel for the respondents

would, however, seek to sustain the judgment passed by

Page 7 of 19
the High Court in the Second Appeal. It is contended that

the Sale Deeds relied on is not placed on record. It is

further contended that the original purchasers who were

parties to the suit are held to be not bonafide purchasers

in the suit itself and, therefore, the appellants even if they

could establish that they had purchased plots from such

of those purchasers, they cannot be held as bonafide

purchasers and as such no right is made out. It is

contended that the respondent, namely, the plaintiff is

interested in the property bearing Survey No.36/4 and the

appellants having no claim over the same cannot make

out any grievance. The learned Senior Counsel would

further point out that the High Court has taken note that

the main grievance of the appellants was that the decree

travels beyond the judgment and to that extent the High

Court having taken note of the same, as also the legal

position and has in that regard indicated that the decree

would be in conformity with the judgment. It is further

contended that the sale made was under two Sale Deeds

dated 29.07.1975 to the extent of 12 Acres and Sale Deed

dated 01.02.1978 to the extent of 11 Acres 27 Guntas.

Page 8 of 19
The confirmation claimed by the appellants would not

relate to the entire extent and as such the appellants

cannot attempt to defeat the claim of the plaintiff. It is

contended that the High Court taking note that the

purchase was made by the appellants during the

pendency of the proceedings before the Court has

indicated that they would be governed by Section 52 of the

Transfer of Property Act which is in accordance with law.

Insofar as the contention relating to the substantial

questions of law, it is contended that reference to that

effect is available in the judgment of the High Court and

therefore the questions stand answered.

9. As noticed the issue for consideration is limited at

this stage to notice whether the substantial questions of

law as framed by the Court has been dealt with

appropriately. If the conclusion is in the negative, the

matter would require reconsideration by the High Court

and this appeal will stand disposed in terms thereof.

However, if our conclusion is that the substantial

questions have been adverted to in an appropriate

manner, in such event a further consideration will be

Page 9 of 19
required on the other aspects in this appeal itself for

which the parties will have to be provided an opportunity

to argue on merits. In that background, we have adverted

to the appeal papers in the light of the limited contentions

on that aspect.

10. In that regard, a perusal of the judgment passed by

the High Court would indicate that the substantial

questions of law framed at the time of admission of the

appeal on 20.02.2014 is taken note in para 5 of the

judgment. The questions of law as framed for

consideration reads as hereunder:

1. “Whether the Lower Appellate Court has not
erred in overlooking the principles of
Mohamedan Law while holding that the plaintiff
was entitled to a half share in the ancestral
property even during the lifetime of his father?

2. Whether the Lower Appellate Court has not
erred in considering the evidence adduced by
the plaintiff to establish that he had been gifted
a half share in the suit property by this
grandfather, when the same was clearly beyond
the pleadings in the plaint?

3. Whether the finding of the Lower Appellate
Court that there was a valid gift of half share in
the suit property in his favour by this

Page 10 of 19
grandfather is not perverse and unsupported by
any evidence whatsoever?

4. Whether the Lower Appellate Court has not
erred in overlooking the fact that the two
findings regarding ownership of the plaintiff of
half share in the suit property by gift and by
share in the ancestral property are mutually
inconsistent and cannot stand together?

5. Whether the decree drawn up by the Lower
Appellate Court is in accordance with the
judgment passed by the Court and in
accordance with law?

6. Whether the Lower Appellate Court was justified
in drawing up the decree on the basis of a
compromise entered into by the plaintiff with
third parties, particularly in the absence of
partition of the property by metes and bounds
pursuant to the judgment and in the absence of
any challenge to the sale deeds executed by the
original defendant no.1 pending the suit?”

11. The High Court after taking note of the substantial

questions has only recorded the contentions of both sides

from para 6 to para 19. Thereafter, a reference has been

made to the requirement of answering the questions

keeping in view Section 100 of the Civil Procedure Code.

Having noted so, the substantial questions of law are

answered only in the manner as recorded in para 27, as

Page 11 of 19
hereunder:

“Therefore, it is clear that the Second Appeal is
based on the substantial questions of law. The
answers of such questions based on the same,
this Court vide order dated 20.02.2014, admitted
the Appeal, are as under:

1. So far as question No.1 is concerned, the Lower
Appellate Court held the plaintiff’s entitlement for
half share in the ancestral property as per
Mohamedan Law. The question is not required to
be dealt herewith because this Court has
jurisdiction under Section 100 of the Code of Civil
Procedure and here this Court is not required to
reappreciate the evidence about half share of the
plaintiff as per Mohamedan law. So far as the
facts of the present case is concerned, the original
plaintiff never claimed the ownership of the suit
land and at the first time, said fact came to be in
knowledge by way of oral evidence of the original
plaintiff. Therefore, this Court is not inclined to
deal with this question.

2. With regard to question No.2, the plaintiff had
been gifted a half share in the suit property by his
grandfather and it is also matter of evidence and
looking to the facts of this case, there is only
pleadings but no evidence in that regard is
produced by the plaintiff.

3. The question No.3 pertains to the valid gift of
half share in the suit property of the original
plaintiff by his grandfather. It is also a matter of
evidence and the same is required to be
determined by the lower Appellate Court.
Therefore, this question is not required to be
dealt with by this Court.

Page 12 of 19

4. So far as question No.4 is concerned, the two
findings regarding ownership of the plaintiff of
half share in the suit property by gift and by
share in the ancestral property are mutually
inconsistent and cannot stand to be rejected.
Further, this question is not required to be dealt
with by this Court so far to exercise powers under
Section 100 of the Code of Civil Procedure.

5. This question No.5 pertains to the decree drawn
up by the lower Appellate Court is in accordance
with the judgment passed by this Court and in
accordance with law. Here the submissions of
the appellants is that decree travels beyond the
judgment because on 07.11.2012, the judgment
was declared by the lower Appellate Court holding
that the plaintiff has half share in the suit land
and directed to draw preliminary decree. In the
decree dated 3.12.2012, the lower Appellate
Court decreed that (1) the sale deed dated
29.7.1975 is illegal along with other directions.
In this regard, Order 20 Rule 6 of the Code of
Civil Procedure is required to be quoted herein:

6. Contents of decree

(1) The decree shall agree with the judgment;
it shall contain the number of the suit, the
[names and descriptions of the parties, their
registered addresses,] and particulars of the
claim, and shall specify clearly the relief granted
or other determination of the suit.

(2) The decree shall also state the amount of
costs incurred in the suit, and by whom or out
of what properly and in what proportions such
costs are to be paid.

Page 13 of 19

(3) The Court may direct that the costs
payable to one party by the other shall be set off
against any sum which is admitted or found to
be due from the former to the latter.”

12. We have extracted the substantial questions of law

and the manner in which it has been dealt by the Court to

only to indicate that apart from the consideration in para

27 extracted (supra), the substantial questions of law have

not been considered in the light of the contention and

answered with reference to the questions raised therein.

Through the order dated 20.02.2014 when the

substantial questions of law were formulated on

admission, those were required to be answered one way or

the other by providing High Court’s reasonings and to

arrive at a conclusion on that basis. On the other hand, if

the Court was of the opinion that any of the substantial

questions of law framed was to be modified, altered or

deleted, a hearing was required to be provided on the

same and thereafter, appropriate substantial questions of

law could have been framed and answered. Without

resorting to any such procedure, on taking note of the

substantial questions of law as it existed, a brief reference

Page 14 of 19
is made thereto and the same is disposed of without

answering the same, which would not be justified.

13. That apart, the Second Appeal had been filed

before the High Court by the appellants herein on seeking

leave to file the same as they were not parties before the

Courts below but have interest in the subject matter and

such of those parties who had been arrayed in the said

proceedings did not have any interest in the subject

matter due to sale of the property. In that view, the

appellants were seeking to protect their interest. The

learned Senior Counsel for the appellants would point out

that an application bearing Civil Application No.4927 of

2013 (Annexure A17) was filed along with the appeal, a

copy of which is filed along with an application for

additional documents. The said application was filed in

the Second Appeal before the High Court seeking leave to

file the Second Appeal and challenge the impugned

judgment dated 07.11.2012 and the decree dated

03.12.2012 passed in Appeal No.130 of 2005. Though no

order is brought to our notice about the said application

being formally allowed, the fact remains that the Second

Page 15 of 19
Appeal had been admitted by the High Court on

20.02.2014 and the substantial questions were framed in

the appeal filed by the appellant herein. In such situation

when the appeal was considered after admission and to

that extent when certain observations are also made to the

extent of modifying the decree to bring it in conformity

with the judgment, the nature of right claimed by the

appellants was also to be adverted and a decision be taken

in that regard instead of merely stating that the appellants

would be governed by Section 52 of Transfer of Property

Act.

14. Such exercise was required for the reason that in

the application seeking leave, the appellants while

claiming right to the property had also referred to the

Deed of Confirmation dated 28.06.2012 and 29.06.2011

whereunder the Sale Deed dated 29.07.1975 executed by

the father of the plaintiff had been confirmed by the

plaintiff and if that be the position, the effect of the same

was also required to be examined and determined. This is

for the reason that even if the Trial Court had held the

defendants No.6 to 9 in the suit were not bonafide

Page 16 of 19
purchasers, the said Confirmation Deeds dated

28.06.2012 and 29.06.2011 had come into existence

subsequent to disposal of the suit on 17.04.1982 and

prior to disposal of the Regular Appeal on 07.11.2012. In

that regard, even if the contention on behalf of the plaintiff

that there was another Sale Deed dated 01.02.1978 for the

extent of 11 Acres 27 Guntas regarding which there is no

confirmation is taken note, the existing Confirmation

Deeds would in any event exclude the extent of 12 Acres

sold under the Sale Deed dated 29.07.1975. Further the

question would also arise as to whether the plaintiff could

still claim a share in the property after having confirmed

the sale to the extent of half of the property by ratifying

the sale.

15. In that circumstance, if the said documents which

had come into existence at the fag end of the Regular

Appeal was to alter the right of the parties and the

purchase made by the appellants is in the extent to which

the Confirmation Deed relates, the effect thereto was also

to be examined. The said consideration would be

necessary in that circumstance since even if the

Page 17 of 19
appellants are considered to be the purchasers during the

pendency of the suit which was still a subject matter of

the suit, whether Section 52 of the Transfer of Property

Act will come into play if it stood excluded in view of

confirmation. Even otherwise the working out of the

equities in the final decree proceedings in the manner of

allotment of shares thereto despite purchase during

pendency of suit is also an issue which will arise after a

proper consideration is made by the High Court, while

answering the substantial questions of law and if need be

by framing additional substantial questions in that

background.

16. Needless to mention, in the course of such

consideration, keeping in view the subsequent

developments, if any additional evidence is required, in

order to meet the ends of justice certainly it would also be

open for the High Court to remit the matter either to the

Trial Court or the Lower Appellate Court. In that view,

since we are of the opinion that the substantial questions

raised have not been appropriately dealt with and

answered the matter would require reconsideration by the

Page 18 of 19
High Court.

17. To enable the same, the judgment dated

19.10.2016 passed in Second Appeal No.12 of 2014

passed by the High Court of Gujarat at Ahmedabad in

Second Appeal No.12 of 2014 is set aside. The matter is

remitted to the High Court of Gujarat at Ahmedabad to

restore Second Appeal No.12 of 2014 on file and

reconsider the same in the light of the above observation

and in accordance with law.

18. The appeal stands disposed of accordingly. In the

facts and circumstances of the case, the parties to bear

their own costs. All pending applications shall stand

disposed of.

……………………….J.

(R. BANUMATHI)

……………………….J.

(A.S. BOPANNA)

……………………….J.

(HRISHIKESH ROY)

New Delhi,
January 14, 2020

Page 19 of 19



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