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Supreme Court of India
Gajaraba Bhikhubha Vadher Ors. vs Sumara Umar Amad (D) Thr Legal … on 14 January, 2020Author: 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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