VASANTIBEN Vs. AMBALAL CHELDAS GANCHI

JUDGEMENT

(1.) This First Appeal under S.96 of the Code of Civil Procedure, 1908 (for short 'the C.P.C.') has been directed against the impugned order dated 22-4-1997 rendered by the learned Judge of the executing Court in Special Darkhast No. 7 of 1992 [Civil Judge (S.D.), Palanpur]. For the purpose of proper appreciation of the factual background of the matter, it would be necessary to first set out the pedigree for locating where the parties to this appeal stand in that pedigree. Cheldas Bhikhabhai died on 2-5-1950 Kashibai, widow of Cheldas Bhikhabhai died on 27-1-1957 Amrutlal Narmada Mangu Hira Adopted son (son) died on (daughters .. .. .. .. .. .. ) Ambalal Cheldas 29-2-1948 (respondent-orgn. plaintiff-decree Kantaben (wife) holder-Execution died on 22-7-1992 petitioner). (Orgn. Deft. Judgment-debtor) Vasanti (daughter) (appellant-objector). Once again, it would be important to note what are the properties, which were the subject-matter of the suit, decree in which is sought to be executed by the respondent. They are : (1) House property bearing Municipal No. 619 situated in Rajpur, Deesa. (2) House property bearing Municipal No. 685 situated in Rajpur, Deesa. (3) House property bearing Municipal No. 684 situated in Rajpur, Dessa. (4) House property bearing Municipal Nos. 679 and 680 situated in Rajpur, Deesa. (5) House property bearing Municipal No. 682 situated in Rajpur, Deesa. (6) House property bearing Municipal Nos. 113 and 114 situated in Rajpur, Deesa. (7) Godown bearing Gram Panchayat No. 4/5 in village Sherganj. Out of the aforesaid properties house bearing Municipal No. 684 is occupied by the present appellant and is one of the properties being the subject-matter of the execution application. Factual Background :

(2.) Cheldas Bhikhabhai had a son Amratlal by name, who died on 29-2-1948 leaving behind his wife Kantaben, who happened to be the judgment-debtor insofar as the present proceedings are concerned. She is presently not alive having died on 22-7-1992. At the time of Amratlal's death she was pregnant and gave birth to a daughter Vasanti by name being appellant-objector insofar as present proceedings are concerned. As there was no male member in the family, Cheldas and his wife Kashibai being aged, adopted the present respondent Ambalal on April 14, 1950. After his adoption the respondent had gone to reside with his adoptive parents, one of whom, namely, Cheldas died after about a month of the adoption. After the death of Cheldas, his widow Kashibai the plaintiff- decree-holder, Kantaben (the judgment-debtor) and her daughter were residing together. The plaintiff was got married and his wife also came to reside in the family. Bai Kashi died on January 27, 1957. During her life-time she was in possession of the properties of Cheldas and after her death judgment-debtor came in possession of the properties, both movable and immovable. The plaintiff claiming to be entitled to the properties of deceased Cheldas being his adopted son, filed Special Civil Suit No. 4 of 1962 in the Court of Civil Judge (S.D.) at Palanpur, claiming possession of 7 properties detailed in the plaint on the ground that he was the absolute owner thereof. The suit was contested by the judgment-debtor Kantaben (respondent's mother) and ultimately the trial Court came to the conclusion that the plaintiff has successfully established his case with regard to his legal and valid adoption and with regard to his legal title to the suit properties. The trial Court, therefore, decreed the respondent's suit for possession and directed the judgment-debtor to render account in respect of profits and expenses.

(3.) The matter was carried in First Appeal bearing First Appeal No. 417 of 1963 by the judgment-debtor before this Court. A Division Bench consisting of A. D. Desai and S. S. Sheth, JJ.-per Desai, J. (as their Lordships then were) by judgment dated 21/22-12-1970 confirmed the decree for possession in favour of the respondent while observing as under :