MAHESHKUMAR KHUSHALDAS GOHEL Vs. JAGJIVANDAS KUVARJI DABHI

JUDGEMENT

(1.) PRESENT Second Appeal under section 100 of thew Code of Civil Procedure has been preferred by the appellants herein ­ original plaintiffs challenging the impugned judgement and order passed by the learned appellate court in Regular Civil Appeal No. 122 of 2005 dtd.28/12/2011, by which the learned appellate court has dismissed the said appeal confirming the judgement and decree passed by the learned trial court in Special Civil Suit No. 190 of 1993 dismissing the suit instituted by the appellants herein.

(2.) THAT the appellants herein ­ original plaintiffs instituted Special Civil Suit No. 190 of 1993 in the court of learned Civil Judge (S.D.), Bhavnagar for partition of suit properties in question contending inter-alia that in the properties of maternal great grandfather of the plaintiffs, they has a share as per Hindu Succession Act. It was contended that the suit properties in question were owned by one Chhaganlal Meghjibhai Dabhi - maternal great grandfather of the plaintiffs and on his death, his two sons Kunvarjibhai and Dharamshibhai became owners and on their death, mother of the appellants - plaintiffs had share in the properties in question and therefore, the aforesaid suit was filed for partition of the properties. The suit was resisted by the defendants ­ maternal uncles of the plaintiffs by submitting that as such the grandfather of the plaintiffs executed the Will and the said Will came to be executed and implemented long back during the lifetime of the mother of the plaintiffs, who died in the year 1968. It was also submitted that the suit is barred by limitation. That the learned trial court framed the Issues at Ex.67. It is also required to be noted that in the suit the plaintiffs submitted an application for amendment permitting the plaintiffs to challenge the Will executed by the plaintiffs - Kunvarjibhai ­ Maternal grandfather of the plaintiffs, which came to be dismissed and the said order is not challenged by the plaintiffs and the same has attained finality. That thereafter, on appreciation of evidence, the learned trial court by the judgement and decree dtd.19/6/2000 dismissed the said suit on the ground of limitation as well as on the ground that the plaintiffs have failed to prove that they have share in the properties of Kunvarjibhai ­ maternal grandfather of the plaintiffs. That the learned trial court also held that the plaintiffs have failed to prove the Will alleged to have been executed by Kunvarjibhai ­ maternal grandfather of the plaintiffs is false and/or concocted. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned trial court dismissing the suit, the appellants herein ­ original plaintiffs preferred First Appeal No.1155 of 2000 before this Court, however, in view of the amendment in the Act, the same came to be transferred to District Court, Bhavnagar which was registered as Regular Civil Appeal No.122 of 2005. That by the impugned judgement and order dtd.28/12/2011 the learned Additional District Judge, Bhavnagar has dismissed the said appeal confirming the judgement and decree passed by the learned trial court in dismissing the suit. That Being aggrieved by and dissatisfied with the judgement and order passed by both the courts below in dismissing the suit, the appellants herein ­ original plaintiffs have preferred the present Second Appeal under section 100 of the Code of Civil Procedure.

(3.) THAT the learned advocate appearing on behalf of the appellants ­ plaintiffs has heavily relied upon the decisions of the Hon'ble Supreme Court in the case of B.M. Narayana Gowda Versus Shanthamma (d) by Lrs. And Anr., reported in 2011 (2) GLH 432 as well as in the case of Santosh Hazari Versus Purushottam Tiwari (Deceased) By Lrs., reported in (2001) 3 SCC 179.