Jasubhai Bhagwanbhai vs Kher Kanubhai Govindbhai and Others

M.D. Shah, J.—This Second Appeal u/s 100 of the CPC has been preferred by the appellant herein original plaintiff challenging judgment and order dated 31.12.2001 passed by the learned Civil Judge (J.D.), Wadhwan in Regular Civil Suit No. 7 of 1986 confirmed by the learned Appellate Court vide judgment and order dated 15.02.2010 passed in Regular Civil Appeal No. 3 of 2002 by which learned Trial Court dismissed the suit preferred by the present original plaintiff.

Appellant herein original plaintiff instituted Regular Civil Suit No. 7 of 1986 in the Court of learned Civil Judge (JD), Wadhwan. It was contended in the Suit that plaintiff is son of defendant No. 2. Defendant Nos. 3 and 4 are brothers of plaintiff. Father of plaintiff (defendant No. 2) had transferred suit property to defendant No. 1 by executing a registered deed on 25.05.1976. The suit property is agriculture field located at Wadhwan. Said agriculture field is of 3 acres and 37 gunthas. The plaintiff filed the suit on the ground that suit property was purchased by his father from savings and earning of ancestral property jointly owned by his father. It was further averred that father of the plaintiff had disposed of suit property without any ''legal necessity'' and at the time of execution of deed of suit property, plaintiff was minor. The plaintiff preferred suit wherein he prayed for relief for declaration and injunction. The plaintiff further prayed that the registered sale deed executed by defendant No. 2 in favour of defendant No. 1 on 25.05.1976 of the suit property is illegal and void and not binding to the plaintiff. It was also prayed that suit property be handed over by defendant No. 1 to the plaintiff.

Defendant No. 1 main contesting party has filed Written Statement vide Exh.17 denying all the contentions raised by the plaintiff and defendant claimed that he is bona fide purchaser of the suit property. It was also further alleged that the suit is time barred.

On the basis of pleading and material on record, learned Trial Court framed issues arising in the Suit. Considering documentary evidence on record, learned Trial Court dismissed the suit preferred by the original plaintiff. Being aggrieved and dissatisfied with judgment and order dated dated 31.12.2001 passed by the learned Civil Judge (J.D.), Wadhwan in Regular Civil Suit No. 7 of 1986, the appellant herein original plaintiff preferred appeal being Regular Civil Appeal No. 3 of 2002 before the learned Appellate Court. The learned Appellate Court vide judgment and order dated 15.02.2010 passed in Regular Civil Appeal No. 3 of 2002 confirmed the order passed by the learned Trial Court. Hence, present appellant original plaintiff has preferred present Second Appeal.

Learned Advocate for the appellant hereinoriginal plaintiff submitted that learned Courts below have erred in not appreciating the fact that suit land was ancestral property and defendant No. 2 could not have disposed of the property at the time when plaintiff was minor. It is further submitted that Courts below committed an error in not appreciating the fact that document was executed on 25.05.1976 and suit was filed by the plaintiff on 21.01.1986, plaintiff being attaining the majority and therefore, the suit was well within permissible limit. The Courts below committed an error in dismissing the suit on the ground that the plaintiff prayed for cancellation of the entire sale deed instead of claiming cancellation of sale to the extent of share claimed by the plaintiff. Making above submissions, it is requested to allow present Second Appeal.

Heard learned Advocate for the appellant.

This Court has gone the judgment and order passed by both the Courts below. Both the Courts below have held that appellant hereinoriginal plaintiff failed to prove any evidence in support of the assertion that his ancestral had agricultural land. The original plaintiff has also not produced any evidence such as entry in revenue record in support of his contention that suit property is in the nature of ancestral property. It is held by both the Courts below that defendant No. 2 and his elder brother had purchased suit property after expiry of their father vide registered sale deed. It is also observed by both the Courts below that on perusing deed, suit property is self acquired property of defendant No. 2. After taking into consideration documentary evidence on record, both the Courts below have rightly come to the conclusion that appellant herein original plaintiff has failed to prove his case against defendants herein. There are concurrent findings given by both the Courts below on appreciation of evidence documentary as well as oral, which are not required to be interfered with by this Court in exercise of powers u/s 100 of the Code of Civil Procedure. Learned Advocate for the appellant herein has failed to establish that both the Courts below have committed any error.

This Appeal is u/s 100 of the CPC and unless any substantial question of law arise to be considered by this Court, present Second Appeal is not required to be entertained and admitted.

At this stage decision of the Hon''ble Supreme Court in the case of Rur Singh (D) th. LRS. and Others Vs. Bachan Kaur, is required to be referred to. In para 13 of the said judgment the Hon''ble Supreme Court has observed as under:

The High Court while exercising its jurisdiction u/s 100 of the CPC exercise a limited jurisdiction. It may interfere with a finding of fact arrived at by the trial Court and/or of the first appellate court only in the event, a substantial question of law arises for its consideration.

As stated above, learned Advocate for the appellants has failed to show any substantial question of law having arisen in the present Second Appeal.

In view of above, there is no substance in the present Second Appeal, which deserves to be dismissed and accordingly it is dismissed.

In view of dismissal of Second Appeal, no order in Civil Application and same is disposed of.