The appellants were number the parties to the suit number in the regular appeal.
It is to be taken numbere that even though a brief reference is made to the nature of the claim put forth in the suit and the companyclusion reached by the Trial Court, as also the Lower Appellate Court and the companytentions on merits as urged before the High Court was also urged in this appeal.
In that regard, the defendant No.1, namely, the father of the plaintiff had disputed the claim of joint ownership and had companytended 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 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.
Heard Shri Rakesh Dwivedi, learned Senior Counsel for the appellants, Shri Siddharth Bhatnagar, learned Senior Counsel for the respondents and perused the appeal papers.
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.
In that regard, certain exchange of numberices 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 numberice 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 number parties initially.
However, the adverse judgment in the first and second appeal has led to the present appeal.
Based on the rival pleadings, the Trial Court had framed five issues for its companysideration.
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.
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 companysequently decreed the suit of the plaintiff declaring him to have right over half share of the suit schedule property.
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 companyrse of the suit, despite number 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 plaintiff claiming to be aggrieved by the same preferred a Regular Appeal as companytemplated under Section 96 of the Civil Procedure Code in R.C. Appeal No.130 of 2005.
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.
The defendants had opposed the claim put forth in the plaint.
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.
Though numberorder is brought to our numberice 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.
The claim put forth was that the said property was in the joint ownership, occupation and possession.
The brief facts numbericed 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.
As numbered above, the said Second Appeal was disposed without relief to the appellants and the appellants are, therefore, before this Court.
S. Bopanna,J. Leave granted.
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 131635 IST Reason and companyfirming 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 numberright to challenge the judgment and order passed by the Lower Appellate Court.
