9911796707
TMI Blog2020 (1) TMIX X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Thus, 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 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 wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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 purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned 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 contrary to the established position of law. In that regard, it is contended that in an appeal Under Section 100 of the Code of Civil Procedure 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 non-suit 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78 to the extent of 11 Acres 27 Guntas. 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 required on the other aspects in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 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 q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstance, 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 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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