ASHISH HARISHBHAI PATEL vs LEGAL HEIRS AND REPRESENTATIVES OF LATE HARISHBHAI MOHANBHAI PATEL
- Court
- Gujarat High Court
C/SA/559/2026 JUDGMENT DATED: 23/10/2026
(GJHC240600442026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 559 of 2026
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
In R/SECOND APPEAL NO. 559 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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ASHISH HARISHBHAI PATEL & ANR.
Versus
LEGAL HEIRS AND REPRESENTATIVES OF LATE HARISHBHAI
MOHANBHAI PATEL & ORS.
==========================================================
Appearance:
MR MANAN B PANDYA(12491) for the Appellant(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 23/10/2026
JUDGMENT
1. Heard Mr. Manan B. Pandya, learned advocate for
the appellants.
2. This appeal is filed under Section 100 of CPC,
arising out of order judgment and decree dated
th
24.06.2026 passed by 8 Additional District Judge,
Karjan, Vadodara in Regular Civil Appeal No.9 of 2023,
whereby the Appellate Court has confirmed the order
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dated 05.04.2023 passed by the Additional Civil Judge,
Karjan, Vadodara, in Regular Civil Suit No. 51 of 2015
(Old Special Civil Suit No. 43 of 2007), whereby the Trial
Court has rejected the plaint under Order VII Rule 11 (a)
& (d) of CPC.
3. The appellants herein are original plaintiffs, whereas
the respondents herein are original defendants. For the
sake of convenience and brevity, the parties herein after
will be referred as per their original status in the suit.
4. Mr. Pandya, learned advocate for the appellants-
plaintiffs, would submit that the Courts below have
committed a serious error in law by rejecting the plaint,
which otherwise is maintainable in law. It is submitted
that the Courts below have committed a serious error in
law by rejecting the plaint by holding that the suit is time-
barred. It is further submitted that the suit was instituted
on 13.02.2007, whereby the plaintiffs challenged the
execution of registered sale deed by defendant No. 1 in
favour of defendant No. 3 on 16.11.2004 and 24.11.2004
respectively. Thus, considering Article 58 & 59 of the
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Limitation Act, 1963 (herein after referred to as “ the
Act, 1963 ”), the suit was instituted within a period of
limitation.
4.1. Mr. Pandya, learned advocate, would further submit
that the Trial Court as well as the Appellate Court has
committed a serious error in law by not appreciating that
from a bare reading of the plaint, it was not time-barred.
It is submitted that the defence of the defendant could
not have been looked into at the stage of Order VII Rule
11 of CPC. It is further submitted that the Courts below
ought to have appreciated that the suit properties were
an ancestral property in which the plaintiffs had a right,
title, interest by birth; consequently, the execution of sale
deed by their father – defendant No. 1 in favour of
defendant No. 3 was not in accordance with law, namely
the Hindu Succession Act, 1956 (herein after referred to
as “the Act, 1956 ”). Thus, the plaintiffs have all rights to
question such sale deed by way of the suit, and
accordingly, they have a right to sue. It is submitted that
the plaint in fact disclosed cause of action.
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4.2. Mr. Pandya, learned advocate, would further submit
that the Appellate Court has no jurisdiction to impose any
compensatory cost upon the plaintiffs while dismissing
the appeal. It is submitted that the Appellate Court has
grossly awarded the costs of Rs.25,000/- upon the
plaintiffs to be paid to defendant No.3.
4.3. To buttress this argument, he would rely upon the
following decisions.
1. Bhupendra H. Dalwadi Vs. Dec. Savitriben
Ganumal Krishnani reported in 2011 (1) GLR
637.
2. Balasaria Construction(P) Ltd. Vs.
Hanuman Seva Trust reported in (2006) 5 SCC
658.
3. Eldeco Housing and Industries Ltd. Vs.
Ashok Vidyarthi and Ors. reported in 2024 (11)
SCC 503.
4. Dahiben Vs. Arvindbhai Kalyanji Bhanusali
reported in (2020) 7 SCC 366.
5. P. Kumarakurubaran Vs. P. Narayanan
reported in 2025 (3) CivCC 753.
6. Savitaben Wd/o Somabhai Hathibhai Patel
Vs. Virendra Ramchandra Gandhi reported in
2022 (0) GUJHC 21219.
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7. Khilpara Krishi Sramik Vs. The State of
Tripura and Ors. reported in 2015 SCC OnLine
Tri 89.
8. Sadhana bhowmick Vs. Susanta Brahmah
reported in 2014 SCC OnLine Cal 7783.
9. Manak Lal Vs. Mahendra Singh reported in
1985 SCC OnLine Raj 26.
4.4. Making the above submissions, Mr. Pandya, learned
advocate, would request this Court to entertain this
appeal.
4.5. No other and further submissions being made by
Mr. Pandya, learned advocate.
ANALYSIS & REASONS:
5. Having heard Mr. Pandya, learned advocate for the
appellants – plaintiffs at length and upon perusal of the
impugned judgment and decree passed by the Courts
below, prima facie , it appears that this Second Appeal is
filed against the concurrent finding of fact recorded by
the Courts below against the appellants – original
plaintiffs. Both the Courts below concurrently held
against the plaintiffs that the plaint does not disclose
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cause of action and it is time barred. Accordingly, the
plaint came to be rejected.
6. Since the Trial Court rejected the plaint by
exercising its power under Order VII Rule 11 of CPC,
which was not disturbed by the Appellate Court, this
Court has thoroughly gone through the copy of plaint
made available for ready perusal of this Court by learned
advocate for the plaintiffs along with the other documents
by submitting paper-book.
7. A bare reading of the plaint would suggest that the
suit property, i.e., block No.215 in question was owned by
the grandfather of plaintiffs and as per his Will dated
15.11.1980, it was bequeathed in favour of his -
defendant No.1 (father of the plaintiffs). Accordingly, the
name of the defendant No.1 was mutated in the revenue
record. The objection raised by the plaintiffs, as stated in
the plaint, that the grandfather could not have
bequeathed the said land in favour of their father, as the
said land was owned by grandfather along with one Mr.
Chhatrasinh Pahadsinh. It is an undisputed fact that there
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was no objection so far raised by said Chhatrasinh
Pahadsinh and/or his legal heirs or representatives as far
as the mutation of entry in record of rights in favour of
the defendant No.1 pursuant to the Will of plaintiffs’
grandfather.
8. Be that as it may, even if there was no valid
execution of Will in favour of the defendant No.1, as
claimed by the plaintiffs, yet, after the death of plaintiffs’
grandfather, as per Section 8 of the Act, 1956, only class-I
legal heirs of the plaintiff’s grandfather could have
inherited his property as per rule of succession, whereby
his son - the defendant No.1 had inherited such property.
After such inheritance, as per settled law, such inherited
property became absolute and self-acquired property of
the defendant No.1. It is true that in such circumstances
defendant No.2, who happens to be defendant No. 1’s
sister and aunt of the plaintiffs’, would claim her right in
the said land. Again, it is an undisputed fact that until
date, no such right is claimed by the defendant No.2 in
the property. There was no counter-claim and/or counter-
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suit filed by defendant No.2. In any circumstances, the
plaintiffs could not have derived any right, title and
interest in the suit land, i.e., block No.215 and it cannot
be considered as an ancestral property. Such aspect is no
longer res integra as decided by the Hon'ble Apex Court
in the case of Commissioner of Wealth Tax, Kanpur
and others vs. Chander Sen and others – (1986) 3
SCC 567 . This Court recently had an occasion to dealt
with this issue in detail in the case of Sharadbhai
Premaji Rami vs. Abhishek son of Subhashbhai
Premji Bhati & ors., decision dated 22-09-2026
passed in Civil Revision Application No. 314 of
2012, wherein observed and held thus:
“[18] So far as the second issue is concerned, it was a case of the
plaintiff that, being a grandson of Premaji Rami, he has a birth right
in the family properties inherited by the defendants from his grand-
father, i.e., Premaji Rami. It is so stated in the plaint that the
plaintiff's grandfather died on 21/05/1981 and the defendants, being
his sons, inherited his properties. At none of the places in the plaint,
the plaintiff averred that the suit properties are coparcenary proper-
ties. Even after a meaningful reading of the entire plaint, what is de-
duced is that the suit properties were owned by the grandfather of the
plaintiff and upon his death on 21/05/1981, such properties were in-
herited by his sons including plaintiff's father, i.e., the defendants. If
such would be the pleading of the plaint, the plaintiff cannot claim
any right by birth in the property of his grandfather who died after the
Hindu Succession Act, 1956 (herein after referred as " the Act, 1956 ")
came into force.
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[19] This issue is no longer remain res integra, having been decided
by the Hon'ble Apex Court in the case of Commissioner of Wealth
Tax, Kanpur (supra) , followed in Yudhishter vs. Ashok Kumar, 1987
1 SCC 204 and so on. This issue and position of law has been dis-
cussed in detail by this Court in the case of Nachiketa Kantibhai
(supra) wherein it has been categorically held that after the year
1956, upon inheritance, the property in the hands of a son retains the
nature and character of individual property and not as an ancestral
property of the grandson in the hands of the son. Therefore, there is
no acquisition of right by birth in the properties which were not co-
parcenary properties. This is in view of Section 8 of the 1956 Act,
where interest now devolves by succession and not survivorship. Ulti-
mately, this Court held thus:
"32. However, this connotation "ancestral property" is often
misunderstood in the post 1956 era. Of course, according to the
pre-codified Mitakshara law, son would inhere a right in the
property by birth (due to creation of coparcenary). However,
after 1956, merely because a property is ancestral, would give
birth to no right title or interest of any person in the said prop-
erty. That is to say, merely because a property is ancestral, the
son, grandson or great grandson (or daughters, respectively)
would acquire no right over the same.
33. Only if a property (naturally, being ancestral) has the char-
acter of a coparcenary property, is such right created by opera-
tion of law. That right as created before 1956, is also preserved
by way of Section 6 and continues as such post enactment of the
HSA 1956.
*
47. Therefore, a conjoint reading of the provisions of law along
with the judgments laid down by the Hon'ble Court would show
without a shred of doubt that before commencement of the 1956
Act if a property had been impressed with the character of a co-
parcenary property it remained the same and it would devolve
as per Section 6 of the Act. However, if the property was not a
coparcenary property before commencement of the 1956 Act
and succession opened after 1956 Act of a self-acquired prop-
erty, it would be transferred only as an individual property and
no coparcenary would be created thereafter of such property."
(emphasis supplied)
[20] So far as the case at hand is concerned, upon a bare reading of
the plaint, it is very much clear that the plaintiff is asserting his right
to the properties of his grandfather which were inherited by the de-
fendants including his father upon the death of the grandfather on
21/05/1981 and in such a factual scenario, the properties which were
inherited by his father, defendant No.3, along with his brothers, de-
fendant Nos.1 and 2, became their self-acquired properties. In such
circumstances, the family arrangement and/or consent partition deed
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executed between the defendants and their mother, which appears to
have been recorded in Regular Civil Suit No. 505 of 1996 and culmin-
ated into a consent decree, the plaintiff cannot have a right to claim
anything in the said properties which, according to the plaintiff, were
inherited by the defendants from their father who happens to be the
grandfather of the plaintiff.
[21] Thus, when the plaintiff has no right to claim any share in such
properties inherited by the defendants including his father from their
father (plaintiff's grandfather), no right to sue accrued in favour of
the plaintiff to claim any relief for partition of such suit properties.
Consequently, the plaint does not disclose any cause of action, inas-
much as no suit can be maintained by the plaintiff to claim relief as
prayed in para 13(C), meaning thereby that the plaintiff cannot seek
partition of the suit properties.
[23] At this stage, it would be apposite to observe that as per settled
law, there cannot be any presumption that a property belongs to an
HUF or coparceners without there being any material pleading. In
the absence of any material particulars and foundational facts stated
by the plaintiff in the plaint in regard to how the suit properties can
be considered as coparcenary or HUF, as the case may be, a mere
submission in this regard would not save the plaint which lacks ma-
terial pleadings.
23.1 At this juncture, it would be apposite to refer to relevant para-
graphs of the judgment in the case of Nachiketa (supra) wherein such
an aspect has been lucidly considered, which read thus :
"15. It is well settled that section 8 of the Act provides for the
general rules of succession for a Hindu male who has died in-
testate. Whereas, section 6 of the said Act is an exception to the
same in case of a coparcenary property. Therefore, unless and
until there is a clear pleading, proof and consequential finding
of fact that the property in question is a coparcenary property,
the question of application of Section 6 does not arise. In such
an event, the general clause, i.e., Section 8 of the Act will come
into play and govern the succession.
*
57. Therefore, it is clear that unless and until there is a nucleus
which has been used for purchase of the property, every prop-
erty cannot be termed to be a property of the HUF merely be-
cause the same exists. Therefore, in absence of such presump-
tion, it is necessary that exact pleadings with material particu-
lars must be averred in the Plaint (or respective pleading) for a
property to be construed as a joint family or ancestral property.
58. This can be examined from one more angle. Order VI Rule 4
of the Civil Procedure Code, 1908 ("CPC") provides that all
material particulars are required to be given in a Plaint. In fact,
Courts have also held that averment of the nature of property
cannot be averred as a mere mantra.
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59. In Surendra Kumar v. Dhani Ram, 2016 227 DLT 217 , the
Delhi High Court has held as follows:
"I would like to further note that it is not enough to aver a man-
tra, so to say, in the plaint simply that a joint Hindu family or
HUF exists. Detailed facts as required by Order 6 Rule 4, CPC
as to when and how the HUF properties have become HUF
properties must be clearly and categorically averred. Such
averments have to be made by factual references qua each prop-
erty claimed to be an HUF property as to how the same is an
HUF property, and, in law generally bringing in any and every
property as HUF property is incorrect as there is known tend-
ency of litigants to include unnecessarily many properties as
HUF properties, and which is done for less than honest motives.
Whereas prior to passing of the Hindu Succession Act, 1956
there was a presumption as to the existence of an HUF and its
properties, but after passing of the Hindu Succession Act, 1956
in view of the ratios of the judgments of the Supreme Court in
the cases of Chander Sen (supra) and Yudhister (supra), there is
no such presumption that inheritance of ancestral property cre-
ates an HUF, and therefore, in such a post 1956 scenario a
mere ipse dixit statement in the plaint that an HUF and its prop-
erties exist is not a sufficient compliance of the legal require-
ment of creation or existence of HUF properties inasmuch as it
is necessary for existence of an HUF and its properties that it
must be specifically, stated that as to whether the HUF came
into existence before 1956 or after 1956 and if so how and in
what manner giving all requisite factual details. It is only in
such circumstances where specific facts are mentioned to
clearly plead a cause of action of existence of an HUF and its
properties, can a suit then be filed and maintained by a person
claiming to be a coparcener for partition of the HUF proper-
ties."
60. This principle is all the more important to be followed in
view of the fact that post 1956, in absence of an existing copar-
cenary or property thereof, succession will be governed by Sec-
tion 8 of the Act. Therefore, a party is obligated to give detailed
material particulars and averments regarding the nature, exist-
ence, manner and mode of inheritance, etc. In absence of these
material pleadings and particulars, there cannot be a presump-
tion in vacuum. In the present case, assuming there is an aver-
ment that the property belonged to joint family, the same cannot
be made in abstract and bereft of material particulars. There-
fore, the statement cannot be a mere ipse dixit."
(Emphasis supplied)”
9. So far as another suit land is concerned, i.e., block
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No.214 is concerned, indisputably, it was owned by the
defendant No.1 only and in absence of any material
particulars stated in the plaint that how it becomes
ancestral property, the execution of registered sale deed
by defendant No.1 in favour of defendant No.3 in the year
2004, the plaintiffs cannot dispute such execution of sale
deed. It is settled position of law that no presumption can
be made about nature of immovable property, i.e., an
ancestral property.
10. As far as the submissions advanced by Mr. Pandya,
learned advocate is concerned, there is no cavil that while
examining the matter at the stage of Order VII Rule 11 of
CPC, the Trial Court must not go beyond the plaint and
documents annexed therewith and undoubtedly, it cannot
look into the defense of the defendants. At the same time,
there has to be a meaningful reading of the plaint while
examining the aspect as to whether any right to sue
available to the plaintiffs and the plaint discloses the
cause of action or not. According to me, none of the
decisions cited by Mr. Pandya, learned advocate for the
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appellants, would come to the rescue of the plaintiffs and
according to me, for the reasons supra, they would not be
applicable to the case at hand. Rather, it can be safely
held that a bare reading of the plaint is lead to only one
conclusion that the plaint does not disclose cause of
action.
11. Thus, in view of above, there was no right to sue
accrued in favour of the plaintiffs to question the
execution of registered sale deed by defendant No.1
(plaintiffs’ father) in favour of defendant No.3. The Courts
below have correctly examined such aspect and arrived at
a conclusion that plaintiffs have no right to sue and as
such the plaint does not disclose cause of action.
Accordingly, it has rejected the plaint under Order VII
Rule 11 of CPC. In my view, once the plaint can be
rejected under Order VII Rule 11 (a) of CPC, it pale into
insignificance to examine as to whether the suit is time
barred or not.
12. So far as the aspect of the costs awarded by the
Appellate Court is concerned, I have gone through the
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reasons assigned by the Appellate Court in this regard.
First of all, the costs awarded is not a compensatory cost
under Section 35A of CPC, inasmuch as nowhere the
Appellate Court has specifically observed that any
compensatory cost is awarded to the defendant No.1.
Rather, the Appellate Court did observe in para-22 & 23
of its impugned judgment that there was no substance in
the claim of the plaintiffs who brought unwarranted
litigation before the Civil Court which remained
continued for about 19 years and surprisingly, the
defendant No.1 – vendor after execution of registered
sale deed in favour of the defendant No.3 but in the suit
proceeding through his written statement supported the
case of the plaintiffs, whereby he hand in glove with the
plaintiffs. It was observed that due to steep rise in the
property prices, it is now growing tendency in the society
to question registered sale deed after few years in civil
court, whereby unscrupulous litigant would try to get an
undue economic advantage of pending civil litigation.
Thus, considering overall conduct of the plaintiffs as well
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as the defendant No.1, the costs of Rs.25,000/- awarded
to be paid by the plaintiffs to defendant No.3.
Simultaneously, the similar costs ordered to be paid by
the defendant No.1 & 2 respectively to the defendant
No.3. Further directed them to deposit the amount in the
concerned District’s Legal Services Authority (DLSA).
According to me, the approach of the Appellate Court by
no means can be said to be dehors law; rather, I am in
complete agreement with such view.
12.1. At this stage, I would like to refer to pertinent
observation made by this Court on such issue in the case
of Fateben D/O Mangajibhai Bhajiji Vs. Avcharbhai
Ramabhai Patel in Second Appeal No. 446 of 2026 ,
wherein it held thus:
“18. Before parting with this appeal, I would like to observe that due
to a steep rise in the price of land and the passage of time, it became
precious for whatever reason, it has been observed by this Court that
such kinds of suit being filed by unscrupulous litigant just to encash
undue benefits even though he/she sold the land by way of a
registered sale deed long ago. Although this Court has no control
over the types of litigation that may be instituted before either the
Civil Court or this Court, which is already burdened. However, to
curb these types of litigation and send a strong message, I deem it
appropriate to impose exemplary costs upon the present appellant
while dismissing this second appeal.
19. In fact, this Court has, at the end of the hearing, called upon the
Mr. Saxena, learned Advocate for the appellant, to address on the
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issue of costs, to which he would only submit that reasonable costs
may be awarded as the plaintiff is an illiterate lady.
20. Having considered the aforesaid aspects and taking into account
that the appellant may be an illiterate lady, who, for any reason,
dragged the defendant not only before the Trial Court but also before
the Appellate Court and has further tried to drag him before this
Court, which has invested its time in such frivolous litigation, I am
inclined to impose costs of Rs. 25,000/- rather than exemplary costs.
21. The appellant shall have to deposit the costs of Rs. 25,000/- with
the District Legal Services Authority, Gandhinagar, within a period of
eight weeks from today. The costs shall be utilised by the District
Legal Services Authority, Gandhinagar, in cases of needy litigants
who really require legal assistance but, due to financial constraints,
do not get able assistance.”
(Emphasis supplied)
13. Having considered the aforesaid facts and
circumstances and position of law stand as on date, this
Court is also of the considered view that in such type of
litigation, the Court below should not only exercise its
power under Order VII Rule 11 of CPC to curb frivolous
suits that clogs the Civil Court, but the Court should also
impose exemplary costs upon the plaintiffs who consumed
the Court's time and dragged the opponent into
unwarranted litigation. This type of litigation ultimately
obstructs genuine litigants who have been waiting for
years to secure justice. It is now high time that the Court
should start imposing the exemplary costs upon the
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unscrupulous litigant who tried to take undue advantage
of litigation at the costs of others, otherwise the Court
will never overcome from such type of frivolous litigation.
14. At this juncture, it would be appropriate to refer to
and rely upon the following decisions of Hon'ble Apex
Court, wherein the scope and ambit of the power of
interference of this Court while exercising its power
under Section 100 of CPC has been lucidly discussed.
14.1. In the case of Russi Fisheries (P) Ltd. vs.
Bhavna Seth - 2026 SCC OnLine SC 555 , it has been
categorically held by the Hon’ble Apex Court that this
Court should not interfere with findings of fact recorded
by the Courts below unless they are so perverse or
grossly erroneous, and/or contrary to a settled principle
of law. The relevant observations of the said decision read
thus:
“31. It is settled in law that the findings of fact howsoever
erroneous, cannot be reopened and disturbed in second
appeal which is required to be adjudicated only upon the
substantial question of law, if any, arising therein. Thus,
the argument that the High Court in second appeal ought
to have examined the evidence to ensure the correctness
of the findings of the First Appellate Court has no legs to
stand and fails.
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32. Long back in 1981, three judges of this Court in the
case of Bholaram vs. Ameerchand – (1981) 2 SCC 414
had ruled that even if findings of facts by courts below are
wrong or grossly inexcusable that by itself would not
entitle the High Court to interfere under Section 100 CPC
in the absence of clear error of law. A similar view was
reiterated in Madhavan Nair v. Bhaskar Pillai (Dead)
by Lrs. - (2005) 10 SCC 553 , wherein it has been laid
down that even if the First Appellate Court commits an
error in recording a finding of fact, that itself will not be a
ground for the High Court to upset the same.
33. In Kashibai w/o Lachiram v. Parwatibai w/o
Lachiram – (1995) 6 SCC 213 , a similar proposition of
law was laid down by this Court and it was held that the
High Court cannot reappreciate the evidence and
interfere with the findings of facts unless a substantial
question of law or a question of law duly formulated is to
be decided. The second appeal does not lie on the ground
of erroneous findings of facts based on appreciation of the
relevant evidence.
35. Again, in Kulwant Kaur v. Gurdial Singh Mann
(Dead) by Lrs – AIR 2001 SC 1273 , it was emphasized
that the fact remains that in a second appeal, a finding of
fact, even if erroneous, will not be disturbed unless it is
found that it stands vitiated for want of perversity. No
such case for interference has been made out in the
present case."
(Emphasis supplied)
14.2 . It is also profitable to refer to the decision of the
Hon’ble Apex Court in the case of Jaichand (Dead)
through Lrs and Others v. Sahnulal and Another -
2024 SCC OnLine SC 3864 , whereby, the Hon’ble Apex
Court held thus:-
“25. In Kshitisn Chandra Purkait v. Santhosh
Kumar Purkait reported in (1997) 5 S.C.C. 438) ,
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this Court held that in the Second Appeal, the High
Court should be satisfied that the case involves a
substantial question of law and not mere question of
law.
27. This Court in Kondira Dagadu Kadam v.
Savitribai Sopan Gujar reported in AIR 1999 S.C.
2213 held:-
“The High Court cannot substitute its opinion for
the opinion of the first Appellate Court unless it is
found that the conclusions drawn by the lower
Appellate Court were erroneous being contrary to
the mandatory provisions of law applicable or its
settled position on the basis of pronouncements
made by the Apex Court, or was based upon
inadmissible evidence or arrived at without
evidence.”
28. It is thus clear that under Section 100, C.P.C., the
High Court cannot interfere with the findings of fact
arrived at by the first Appellate Court which is the
final Court of facts except in such cases where such
findings were erroneous being contrary to the
mandatory provisions of law, or its settled position on
the basis of the pronouncement made by the Apex
Court or based upon inadmissible evidence or
without evidence.”
(Emphasis supplied)
14.3. Thus, in light of the aforesaid position of law, this
Court can only entertain the second appeal if any
apparent perversity and/or any gross irregularity comes
up from the finding of fact recorded by Courts below.
15. Thus, considering the aforesaid facts and
circumstances, I do not find that the findings of fact
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recorded by the Courts below are either perverse or
grossly erroneous; rather, I am in complete agreement
with the ultimate conclusion recorded by the Courts
below. It is hereby held that the plaint does not disclose
cause of action, inasmuch as the plaintiffs have no right
to sue. Having observed thus, I am of the considered view
that no case is made out by the appellants-plaintiffs to
interfere with the impugned judgment and decree passed
by the Courts below, as there is no substantial question of
law arises in this Second Appeal.
16. In view of, before going discussions and reasons, the
Second Appeal failed. Accordingly, it is dismissed in
limine, albeit without costs. Consequently, the impugned
judgment and decree passed by the Courts below are
hereby confirmed. Civil Application would not survive and
hence, it is disposed of. The decree shall be drawn
accordingly.
(MAULIK J.SHELAT,J)
SHAHANAZ
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