GANGABEN ISHWARLAL BHAGAT Vs. SOMABHAI MAGANBHAI

JUDGEMENT

(1.) This Civil Appeal was admitted by N. J. Pandya, J. on 7/07/1995. It is directed against the order passed below Obstruction Application No. 154 of 1993 and Obstruction Removal Application No. 7 of 1994. The impugned order is passed by the Civil Judge (S.D.), Surat dated 27-4-1995 whereby the executing Court has rejected prayer for injunction against execution of warrant for possession. In this Court the appellant has obtained ex-parte stay of such order by filing C. A. No. 2329 of 1995. The original auction-purchasers as well as decreeholders have filed C. A. No. 5781 of 1995 for vacating such ex-parte order. By order passed on 12-12-1995 on C. A. No. 5781 of 1995 the final hearing of this F.A. was fixed with consent of rival parties and the preparation of paper-book was dispensed with. The Civil Appeal was thereafter heard finally and is being disposed of by this judgment.

(2.) One Gangaben Ishwarlal Bhagat who happens to be the daughter of one Benkorben and sister of Kantilal has filed the present appeal against the common order passed by the executing Court on 27-4-1995 in Misc. Application No. 7 of 1994. By well reasoned order the Misc. Application No. 154 of 1993 preferred by Gangaben and the application for removal of obstruction being No. 7 of 1994 filed by respondents No. 1 and 2 are directed to proceed further and for injunction against execution of warrant for possession is rejected and order for issuance of warrant for possession is passed in Misc. Application No. 55 of 1983 dated 9-1-1984 be proceeded with and possession of the suit property is directed to be handed over to the said respondents.

(3.) Facts giving rise to the present appeal are very complex and are required to be stated in brief hereunder : (i) It appears that one Chhabildas Narottam and Kashiben Chhabildas, husband and wife executed a gift deed, dated 15-5-1961 in favour of their three daughters, namely, (i) Jethiben, (ii) Benkorben and (iii) Daykorben. (ii) One of the daughters, i.e., Jethiben, thereafter, filed Special Civil Suit No. 163 of 1979 in the Court of Civil Judge (S.D.) for partition of the said house by metes and bounds and for possession of her 1/3rd share in the said house. (iii) On 20/08/1981 the preliminary decree for partition was passed in the said suit upholding 1/3rd share of each daughter. (iv) On 15-4-1983 final decree was passed in said suit. However, it may be noted that before the final decree could be passed said Jethiben expired and Somabhai and Daykorben - present respondents No. 1 and 2 were impleaded as heirs and legal representatives of Jethiben. Therefore, on the date on which final decree came to be passed both Somabhai and Daykorben were parties to the proceedings. (v) It appears that thereafter the execution petition was filed for partition of the property by metes and bounds, but the Court Commissioner found that it was not possible to partition residential house into three portions, and therefore, the executing Court directed that the property in question be sold by public auction and sale proceeds thereof be equally distributed amongst three daughters. It also permitted the parties to participate in public auction. (vi) In the year 1983 during the auction, Somabhai Maganbhai and Daykorben Ranchhodbhai also participated as heirs and legal representatives of deceased Jethiben and Daykorben was also otherwise co-sharer having 1/3rd share and their offer being the highest for an amount of Rs. 33,000.00 the same was accepted and the sale was confirmed by the executing Court. It may be stated that in all the proceedings upto the auction of the property and confirmation of sale, Benkorben and Daykorben were the parties to the proceedings as they were parties in the Special Civil Suit No. 163 of 1979. It would not be out of place to state at this stage that the present appellant-Gangaben is the daughter of said Benkorben and the present respondent No. 5 Kantilal is the son of said Benkorben. (vii) Thereafter, auction purchasers being respondents No. 1 and 2 herein deposited the balance auction amount of 2/3rd share in the executing Court on 9-2-1993 and 23-2-1983. On deposit of said amount, since the auction- purchasers were themselves the sharers as per the final decree of participation, their 1/3rd share was already satisfied and on deposit of balance amount of 2/3rd share the decree was satisfied and hence they became entitled to be put into possession of the entire suit property. (viii) The auction-purchasers thereafter filed Kirkul Application No. 55 of 1983, dated 16-9-1983 for giving over to them the possession of the property purchased by them and the executing Court had passed the order, dated 9-1-1994 for issuing warrant for possession of the property in question. At that time, Benkorben who happens to be the mother of the present appellant-Gangaben was alive and she was impleaded as party in the said proceedings for possession. She, however, did not take any steps against the issuance of warrant for possession nor did she object to execution of warrant for possession. (ix) When the warrant for possession was sought to be executed the son of Benkorben and the brother of the present appellant, namely, Kantilal-respondent No. 5 in the appeal objected and refused to hand over the possession and filed obstruction application. The auction-purchasers, thereupon, filed application for removal of objection being application No. 9 of 1984 and after proper enquiry and providing sufficient opportunity to the obstructionist-Kantilal the executing Court granted the Application for removal of obstruction by its judgment and order, dated 24-12-1989 and the application filed by Kantilal for obstruction was rejected. It may be stated that in his obstruction application it was the case of Kantilal that he was the tenant of the premises. His mother, namely, Benkorben was co-sharer and was held to be entitled to 1/3rd share in the final decree passed in partition suit. She did not claim any tenancy right in the suit premises and his son Kantilal, therefore, failed in making good his case that he was the tenant of the suit premises. His mother through whom being her heir he was claiming tenancy was in fact the co-sharer. (x) It may be stated that when the aforesaid Kirkul Application No. 53 of 1983 was pending, Benkorben, the mother of Gangaben and Kantilal expired on 26/07/1984 and Gangaben - the present appellant and Kantilal - present opponent No. 5 were impleaded as heirs and legal representatives of aforesaid Benkorben in the said proceedings. (xi) Being aggrieved by the judgment and order of the executing Court dated 24-12-1989 ordering removal of obstruction filed by Kantilal, said Kantilal and present appellant-Gangaben preferred Civil Appeal No. 30 of 1990 in the District Court at Surat. Therein he applied for stay of further execution proceedings which was not granted by the District Court. The present respondent No. 5 Kantilal thereupon preferred Civil Appeal No. 512 of 1992 in this Court and in such proceedings also present appellant-Gangaben was impleaded as party. Said First Appeal was rejected by this Court on 2/07/1992, and at that time, Kantilal requested this Court to grant some time to vacate the premises and it was granted by this Court upto 31/03/1993. It is thus clear that the son of deceased Benkorben and the brother of present appellant-Gangaben being Kantilal-respondent No. 5 herein put forward his claim of tenancy by filing his obstruction application which claim was thoroughly investigated and was rejected and he lost in appeal upto this Court. All throughout the proceedings the present appellant-Gangaben who happens to be real sister of said Kantilal was party to the proceeding and she did not file any obstruction nor did she put forward her claim of tenancy in the suit property. She also did not claim any right independent to her status as heir and legal representative of deceased Benkorben nor did she claim to be in possession of the suit house naturally because after her marriage she was residing with her husband. (xii) Having failed to illegally and unauthorisedly stick to the possession of the suit property upto the High Court, the present appellant-Gangaben who is the real sister of Kantilal instituted Regular Civil Suit No. 276 of 1993 in the Court of Civil Judge (S.D.) at Surat claiming that her late mother had 1/3rd share in the suit property and that she, therefore, has 1/9th share in the said property. She further claimed that she was not bound by the decree passed in the earlier suit for partition. It may be noted that such suit was filed by present appellant-Gangaben on 17-3-1993, i.e., 13 days before the expiry of the period granted by this Court as Kantilal was required to vacate the suit premises by 31-3-1993. (xiii) In such suit the present appellant-Gangaben also applied for ex-parte injunction against execution of possession warrant which was issued by the executing Court in execution proceedings and ex-parte injunction was granted by Civil Judge (S.D.), Surat. (xiv) However, after hearing and considering the reply filed by the auctionpurchasers the learned Civil Judge (S.D.), Surat by judgment and order dated 30-4- 1993 vacated the ex-parte injunction and directed the possession warrant to be executed. (xv) Being aggrieved by the aforesaid judgment and order passed by the learned Civil Judge (S.D.) at Surat the present appellant-Gangaben preferred Misc. Civil Appeal No. 149 of 1993 in the District Court at Surat which came to be rejected by judgment and order dated 9th November, 1993 by the District Court at Surat. (xvi) It is, thereafter, that the present appellant-Gangaben who is claiming through original co-sharer deceased Benkorben and who has never claimed anything more than 1/3rd share in the suit property which was granted by the trial Court, however, with a view to defeating the ends of justice and not permitting the auction-purchasers to realise the fruits of decree, filed obstruction application No. 154 of 1993 in the Court of Civil Judge (S.D.) at Surat. In such obstruction application present appellant- Gangaben prayed for permanent injunction restraining auction-purchasers from executing the decree passed in Special Civil Suit No. 163 of 1979 till her obstruction application was heard and finally decided. She further claimed right of residence and maintenance in the property in question.