Second Appeal No. 292 of 2015 and Civil Application No. 13261 of 2015 in Second Appeal No. 292 of 2015. Case: Ibrahimbhai Sidikbhai Ghanchi Vs Ghanchi Huraben Jamatibhai and Ors.. Gujarat High Court

Case Number:Second Appeal No. 292 of 2015 and Civil Application No. 13261 of 2015 in Second Appeal No. 292 of 2015
Party Name:Ibrahimbhai Sidikbhai Ghanchi Vs Ghanchi Huraben Jamatibhai and Ors.
Counsel:For Appellant: Jay M. Thakkar, Adv. and For Respondents: S.P. Majmudar and Krutarth K. Pandya, Advs.
Judges:Rajesh H. Shukla, J.
Issue:Code of Civil Procedure, 1908 (CPC) - Section 100; Transfer of Property Act, 1882 - Sections 91, 92
Judgement Date:March 20, 2017
Court:Gujarat High Court
 
FREE EXCERPT

Judgment:

Rajesh H. Shukla, J.

  1. The present Second Appeal has been filed by the appellants under Section 100 of the Civil Procedure Code being aggrieved with the impugned judgment and order in Regular Civil Appeal No. 27 of 2009 by the learned Principal District Judge, Patan vide judgment and order dated 11.09.2015 confirming the judgment and decreed in Special Civil Suit No. 50/1992 passed by the Principal Civil Judge, Radhanpur dated 03.07.2009 on the grounds stated in the memo of appeal posing substantial questions of law as under:-

    "

    1. Whether the lower appellate Court erred in confirming the judgment dated 03.07.2009 and decree dated 08.07.2009 passed by learned Principal Civil Judge, Radhanpur in Regular Civil Suit No. 50/1992?

    2. Whether the Suit preferred by the original plaintiff was ex facie time barred and barred by law of limitation?

    3. Whether the suit preferred by the original plaintiff was nad on the ground of non joinder of necessary and proper party and therefore, the learned Trial Court ought to have rejected the suit on the said ground itself?"

    4. Whether the present opponent No. 1 -- original plaintiff had proved the documents on record in accordance with law?

    5. Whether the learned Trial Court committed a grave error of law in allowing the Civil Suit when the present opponent No. 1 -- original plaintiff had miserably failed to prove the exact boundaries and identification of the suit properties?

    6. Whether the learned Trial Court committed a grave error of law in allowing the suit preferred by the original plaintiff in absence of the power of attorney on record on basis of which the original plaintiff entered into document below exh. 152?

    7. Whether both the Courts below committed a grave error of law in stating that the ancestor of present appellant -- original defendant No. 2 was not the owner of the suit properties though the City Survey report reflected their name?

    8. Whether both the Courts below committed a grave error of law by not appreciating the fact that the Original Plaintiff had not established her right, title and/or interest in the suit properties and therefore, the Original Plaintiff had no locus to file the Civil Suit?"

  2. The background of the facts as referred to by learned advocate, Shri Jay Thakkar for the appellant and learned advocate, Shri S.P. Majmudar for the respondents is with regard to the mortgage deed and subsequent transaction and though there are concurrent finding of facts, same is sought to be challenged by way of present Second Appeal posing substantial questions of law as recorded hereinabove.

  3. Heard learned advocate, Shri Jay Thakkar for the appellant and learned advocate, Shri S.P. Majmudar for the respondents.

  4. Learned advocate, Shri Thakkar referred to the background of the facts with much details which has to be stretched since 1980 and submitted that the property originally belonged to one Shirchand Nanchand, which was thereafter transferred to Ghanchi Hasan Mamad. He tried to submit that the Court below has failed to appreciate that same recital in the document may not be accepted at the face value. He, therefore, submitted that the documents, which have been relied upon, are not proved and, therefore, the conclusions...

To continue reading

REQUEST YOUR TRIAL