CHHOTANBEN AND ANR Vs. KIRITBHAI JALKRUSHNABHAI THAKKAR AND ORS

JUDGEMENT

(1.) This appeal, by special leave, takes exception to the judgment and order dated 13th January, 2017 of the High Court of Gujarat at Ahmedabad in Civil Revision Application No.76 of 2016.

(2.) The appellants filed a suit for declaration and permanent injunction on 18th October, 2013, against the respondents before the Principal Senior Civil Court, Anand, being Regular Civil Suit No.166 of 2015 (Old No. Special Civil Suit No.193 of 2013). The frame of the subject suit is on the assertion that the appellants and original defendant Nos.1 & 2 were in joint ownership and possession of an ancestral property inherited by them from their predecessor (father), deceased Bawamiya Kamaluddin Saiyed, bearing Survey No.113/1+2, area H.1-37-59 Ara, Akar Rs. 15-81 paise. That land is old tenure agricultural land situated at Mouje Village, Hadgud Taluka and District Anand. The said ancestral, joint, undivided land was jointly possessed and used and enjoyed by the appellants (plaintiffs) and original defendant Nos.1 & 2 (predecessors of respondent Nos.2 to 15), after the demise of their father Bawamiya Kamaluddin Saiyed, being in his straight line of heirs. The names of Jahangirmiya Bawamiya Kamaluddin Saiyed and Hussainmiya Bawamiya Kamaluddin Saiyed (original defendant Nos.1 & 2 respectively) came to be recorded in the record of rights along with the names of the appellants and since that time, all of them were jointly in possession and usage of the undivided land. The appellants assert that they have half (1/2) share, rights, powers, possession and usage rights in the property. It is their case that without their knowledge the original defendant Nos.1 & 2 transferred the said land after forging their (appellants) signatures. The appellants were not aware about the said transaction effected vide registered sale deed No.4425 dated 18th October, 1996, which they came to know from their community members, immediately whereafter they made enquiry in the office of Sub Registrar at Anand. It was revealed to them that the land has already been transferred by a registered sale deed dated 18th October, 1996 in favour of defendant Nos.4, 5 and 6 (Anilbhai Jaikrishnabhai Jerajani, Kiritbhai Jaikrishnabhai Thakkar and Kekanbhai Jaikrishnabhai Thakkar, respectively). They promptly applied for a certified copy of the registered sale deed. They were also informed that Jaikrishnabhai Prabhudas Thakkar had expired and, therefore, the defendant Nos.3 to 6 received the land as heirs. It is then asserted that from the registered sale deed, they came to know that their thumb impressions were obtained as witnesses in the presence of Bhikhansha Pirasha Divan. They asserted that they had never signed or gave their thumb impressions upon any such deed, in any manner, in front of any witness. It is then stated that some person has been fraudulently involved for putting thumb impressions on the sale deed. They have asserted that the thumb impressions on the sale deed did not belong to them and that they were ready and willing to prove that fact by providing their genuine thumb impressions in front of officers. It may be relevant to reproduce paragraph 4 of the plaint which reads thus:

(3.) In paragraph 6 of the plaint, the appellants have stated about the cause of action for filing the suit in the following words: