JAYANTILAL G CHAUHAN Vs. AMINA, ALIBHAI OSMANBHAI

JUDGEMENT

(1.) SHRI Mehul S. Shah, learned counsel for the appellants. None for the respondents though served.

(2.) THE appeal has been admitted for hearing the parties on the following substantial questions of law: -

(3.) THE plaintiffs said to be minors 7 in number, filed the suit through one Bai Amina, widow of Alibhai Osmanbhai. Sultanali Kamalali, both sons of Alibhai also joined the suit on the ground that sale of land in dispute does not bind them or adversely affect their right in the property. The suit was filed against Bai Rambhiabai, widow of Dawood, who happened to be mother of 7 minor plaintiffs, and against Jayantilal Jagibhai Chauhan, who had purchased the property from Bai Rambhiya. The defendants raised many pleadings including the plea that the suit for declaration simplicitor was not maintainable unless a prayer for possession was made. The suit was contested on the merits also, however, at the time of framing of the issues, the defendant no.2 did not remind the court that the issue relating to maintainability of the suit on the ground that suit for declaration simplicitor was not maintainable, was not framed. The parties were happy and content with the issues already raised. The trial court proceeded with the suit, evidence of the parties was recorded and ultimately the suit was dismissed by the trial court. An appeal came to be filed by all the plaintiffs. The appellate court, after hearing the parties, vide its judgment held that Bai Amina, widow of Alibhai, and Sultanali, Kamalali, both sons of Alibhai had no rights in the property and the property exclusively belonged to Dawoodbhai, son of Usmanbhai and could be succeeded only by defendant no.1 and the minor children. It is to be noted that before the first appellate court, question relating to maintainability of the suit on the ground that it was a suit for declaration simplicitor was not raised.