PATEL MANJI THAKERSHI Vs. KANTA RUGNATH LOHANA

JUDGEMENT

(1.) -The appellants before this court are plaintiffs in Special Civil Suit No 75 of 1971 and defendant Nos. 2 and 3 in Special Civil Suit No. 87 of 1971. The suits relate to the land bearing Survey No 127/1 admeasuring 19 acres 35 gunthas, situated at village Talala. Village Talala was a part of erstwhile State or Junagadh and the land belonged to one Sidi Nasar Amar. Said Sidi Nasar had two sons, namely, Amar Nasar and Abu Nasar It appears that during the lifetime of said Sidi Nasar, Amar Nasar has left the village Talala and had settled down at village Jambur and the suit land was being cultivated by Abu Nasar. Amar Nasar had one daughter, named Bai Nathi Amar (the defendant No. 1 in Special Civil Suit No. 87 of 1971). Said Bai Nathi Amar alongwith one Murjana Abu and Hirbai Abu (widow and daughter respectively of Abu Nisar) instituted a suit being Special Civil Suit No. 31 of 1966 (hereinafter referred to as the Suit of 1966) in the civil court at Veraval, against Abdullah Nasar (son of Abu Nasar) for partition and share in the suit land. Pending the said suit, on 30th June, 1967, Bai Murjana and Abdulla Abu sold a piece of land admeasuring 4 acres out of the suit land to one Kantaben Rugnath, the plaintiff in Special Civil Suit No. 87 of 1971 A sale deed (Exh. 62) was executed and was registered also. The said sale deed does refer that all the three had undivided share in the suit land admeasuring 19 acres 35 gunthas and out of the said land, 4 acres were sold to Kantaben Rugnath for a sum of Rs. 10,000/-. Thus pending the Suit of 1966, part of the suit land was transferred to Bai Kantaben Rugnath, however, she was not joined as party respondent in the said proceedings. Ultimately, the said suit was compromised. A compromise purshis (Exh. 101) was submitted to the court and a preliminary decree (Exh. 104) in terms of compromise purshis was passed on 20th December, 1967. A final decree was passed on 18th April, 1970. Under the said compromise Bai Nathi was given half the land and the descendants of Abu Nasar were given half of the suit land to be distributed amongst them in the proportion men- tioned in the compromise purshis. After passing of the final decree on 18th April, 1970, as aforesaid, Bai Nathi sold her undivided share in the suit land to the present appellants by a sale deed executed on 6th August, 1970 Pursuant to the said sale deed, the appellants filed an execution proceeding and claimed half share of the suit land being the successor- in-title to Bai Nathi The Collector divided the suit land and allotted one-half of the land and handed over a piece of land admeasuring 8 acres 12 gunthas to the appellants.

(2.) Bai Kantaben Rugnath instituted Regular Civil Suit No. 116 of 1971 before the learned civil Judge, Senior Division, Veraval and prayed for permanent injunction against the appellants. The said suit was withdrawn by Bai Kantaben Rugnath. The appellants, thereafter instituted above Special Civil Suit No. 75 of 1971 for permanent injunction against Bai Kantaben Rugnath and Bai Kantaben instituted above Special Civil Suit No. 87 of 1971 challenging the compromise decree passed in Suit of 1966. Both the suits were tried together. The suit instituted by Bai Kantaben Rugnath was allowed and the trial court declared that the compromise purshis (Exh 101) dated 20th December, 1967, the preliminary decree (Exh. 104) dated 20th December, 1967 and the final decree dated 18th April, 1970 passed in Special Civil Suit No 31 of 1966 and the execution proceedings dated 18th December, 1970 were not binding to the right, title or interest of Bai Kantaben Rugnath insofar as the suit land admeasuring 4 acres was concerned. The court further declared the sale deed dated 6th August, 1970 (Exh. 102) as illegal, null and void and not binding to the right, title and interest of Bai Kantaben Rugnath. The suit instituted by the present appellants was dismissed.

(3.) The learned trial Judge has recorded a finding that Bai Nathi was a step-daughter of Amar Nasar. He has further concluded that the land was governed by the Junagadh Land Revenue Code. Under the provisions contained in the said Code, the person actually cultivating the land alone have inherited the land from the predecessor-in-title. Since Abu Nasar was the only son of Nasar Amar who was cultivating the suit land along could have inherited the land. Thus, in any view of the matter, Amar Nasar having not cultivated the suit land, Bai Nathi could not have claimed a share through him. Further, Bai Nathi, being the step-daughter of Amar Nasar could not have claimed a share in the suit land. The learned trial Judge has also examined the provisions of the Mohammedan Law by which the parties to the Suit of 1966 were governed. The learned Judge has come to the conclusion that even under the Mohammedan Law, Bai Nathi could not have claimed a share of more than 5 acres of the suit land. Keeping these findings in view, the learned Judge has held that the compromise decree under which Bai Nathi was given a share larger than what was lawfully due to her, was a collusive decree and was not binding to Bai Kantaben Rugnath