JASWANTSINH ANDARSINH GOHIL Vs. FATESINH NANSINH GOHIL

JUDGEMENT

(1.) The appellants/original plaintiffs have filed this Second Appeal under Section 100 of the Civil Procedure Code, challenging the judgment and order passed by the learned District Judge, Panchmahals at Godhara on 16.7.1983 in Regular Civil Appeal No.105 of 1981, confirming the judgment and decree passed by the learned Civil Judge (J.D.) Godhara in Regular Civil Suit No.467 of 1978. This Second Appeal was admitted and following substantial questions of law was formulated by the Court;

(2.) In this appeal, learned advocate Mr. N. R. Tandel is appearing on behalf of the appellants/original plaintiffs. Originally Mr. Akshay H. Mehta, learned advocate appeared on behalf of the respondents. However, on his elevation as a judge of this Court, fresh notice was issued to the respondents. Despite, service of notice nobody appears on behalf of the respondents.

(3.) The brief facts giving rise to the present Second Appeal are that the appellants/original plaintiffs have filed Regular Civil Suit No. No.467 of 1978 on or about 1.8.1978. All the Three appellants as well as the respondent no.2 are the four brothers. The respondent no.1 is the uncle of the appellants and the respondent no.3 being the widow of Anopsinh Nansinh was joined as party in the suit and in all subsequent proceedings. The appellants contended that in sim of village Motal in Godhra Taluka, Block No.235, survey no.44/2 admeasuring about 1 Acre, 21 Gunthas is the joint property of both the parties and in possession of them jointly. The suit land was previously standing in the record of right in the name of their uncle as well as Andarsinh, father of the appellants. Except appellants and the respondents, no one has got any share in the suit land. Since the deceased Vajesinh and Anopsinh have already obtained their shares, they have not got any right , title or interest over the suit land. During the life time of the father of the appellants and respondent no.2, they were cultivating the suit land jointly with the respondent no.1 but after the death of their father, the appellants as well as the respondent no.2 and respondent no.1 are cultivating the land jointly. On 12.7.1978, the appellants had gone for the purpose of agriculture work in the suit land and the respondents obstructed them alleging that the appellants have no right, title or interest therein. The appellants, therefore, inquired and came to know that the respondent nos.1 and 2 had colluded and filed Regular Civil Suit No. 355 of 1974 in the Court of the Civil Judge (S.D.) Godhara, and the respondent no.1 had obtained a decree in his favour against the respondent no.2. It was an ex-parte as well as collusive decree. Under this decree, the respondents nos.1 and 2 did not allow the appellants to enter and cultivate the suit land in spite of the fact that the appellants have right, title or interest in the suit land. The respondent no.1 had not joined them as a party when he filed Regular Civil Suit No.355 of 1974. Under the circumstances, the said ex-parte decree is null and void and not binding on the appellants. On the basis of the said decree, if the names of the appellants are got deleted from the record of rights, it is not binding to the appellants. The appellants as well as the respondent no.2 have got one half share in the suit land and as such, the suit is filed by them for a declaration to that effect. The appellants have prayed for declaration in the suit that the lands admeasuring 1 Acre, 21 Gunthas of Revenue survey no.44/2 of Block No.235 situated in the sim of village Motal, one half share from it is belonging to the appellants and the respondent no.2. They have also prayed for consequential relief of permanent injunction against the respondents not to obstruct the cultivation and possession of the appellants.