GAJARABA BHIKHUBHA VADHER Vs. SUMARA UMAR AMAD

JUDGEMENT

(1.) 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 and confirming the judgment dated 07.11.2012 in Regular 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 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 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.