Decided on March 11,2014

Shah Keshavji Pashuji Vira (Decd ) And Ors Appellant
Shah Mavji Pasu -Decd And Ors Respondents


- (1.) THIS appeal is directed against judgment and decree dated 12.09.2013 passed by learned 6th Additional District Judge, Bhuj, Kutch, in Civil Regular Appeal No. 40 of 1995. Thereby, the appeal of the original defendants appellants herein came to be dismissed, and in turn judgment and decree dated 16th March, 1995 passed by the Trial Court came to be confirmed. 1.1 The court of civil judge (Junior Division), Mundra, Kutch, decreed Regular Civil Suit No. 23 of 1990 instituted by the present respondents. It declared that the sale deed at Exh. 61 exhibited by defendant No.1 in favour of defendant No. 4 was illegal and was not binding to the plaintiffs. It was further declared that in the property being agricultural field bearing survey No. 153 situated at village Deshalpr -Kanthi, the plaintiffs had 1/4th share.
(2.) HEARD learned advocate Mr. Mehul S. Shah with learned advocate Mr. C. B. Dastoor for the appellants and learned advocate Mr. J. V. Jappi for the respondents. Upon consideration of the matter and in particular on perusal of impugned judgment and decree by the first appellate court, and after hearing the learned advocates appearing for the parties, following substantial question of law was found to be arising in this appeal. "Whether the judgment and decree of the first appellant court was rendered bad in law on account of non -compliance of the requirements of Order 41 Rule 31 of Code of Civil Procedure, 1908, as the first appellate court did not formulate the points of determination - 2.1 Learned advocate for the respondents was given opportunity of being heard on the aforesaid question. In view of the above question of law surfacing, without going into the other merits in detail, the appeal is herewith admitted on the aforesaid question. 2.2 Upon request and as per consent of both learned advocates for the parties, the appeal is taken up for final disposal today.
(3.) THE relevant facts may be usefully noted. Plaintiffs and defendants were the heirs of deceased Pasu Vershi. As per the pedigree given in the plaint, Gangji Vershi and Pasu Vershi were real brothers and were the sons of Vershi Nathuvira. The dispute related to agricultural field survey No. 153 admeasuring 8 acres and 14 gunthas situated at village Deshalpar -Kutch. The plaintiffs respondents by instituting the civil suit claimed that in the suit property they had 1/4th share. They contended that the said share was undivided. The administration of the property was done by Keshavjibhai because the eldest brother Mavjibhai was suffering from Tuberculosis. It was contended that the sale deed dated 19.02.1988 executed by defendant No.1 in favour of defendant No. 4 in respect of the suit property was not binding to them. The suit was contested by defendant No. 1 and 4 by filing their written statement at Exh. 25. It was contended that entry was mutated in the revenue record in the name of defendant No. 1 as the suit property was transferred in his name, which was on the basis of a Will dated 10.01.1962 exhibited by deceased by Pasu Vershi. It was contended that by virtue of said Will, properties were divided and suit land was given to defendant No.1. It was contended that defendant No. 1 had maintained and took care of Pasu Vershi. It was contended that plaintiff had applied before the Mamaltdar for cancellation of entry, with regard to which order dated 18.09.90 was passed. 3.1 The trial court framed issues at Exh. 26. It held the same to be illegal. Further held that plaintiff was entitled to 1/4th share and held against defendant No.1 that he became owner of the property by virtue of Will. The trial court accordingly decreed the suit as above. The defendants preferred appeal. The appeal came to be dismissed by the first appellate court, which confirmed the findings and conclusions of the trial court on various counts. Learned advocate for the respondents contended that both the courts had recorded concurrent findings. He further submitted that the findings were justified even on merits and there is no scope of interference by this court in the second appellate jurisdiction which is limited in its scope. On the other hand, learned advocate for the appellant submitted that parameters required to be followed for exercise of jurisdiction were not followed by the first appellate court.;

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