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TMI Blog2020 (1) TMI 1686X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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 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 ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 passed by the Lower Appellate Court and preferred the Second Appeal No. 12 of 2014 Under Section 100 of the Code of Civil Procedure 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 Code of Civil Procedure. Having noted so, the substantial questions of law are answered only in the manner as recorded in para 27, as 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 herewi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted 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. (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 substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendants No. 6 to 9 in the suit were not bonafide 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 Appellants are considered to be th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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