Case Note & Summary
The matter arose from a suit filed by daughters of deceased Kachraji Aataji claiming partition of ancestral properties, specifically land bearing survey Nos. 682 and 683 in village Tintoda, Gandhinagar. The plaintiffs asserted that the suit lands were purchased using proceeds from sale of ancestral lands and thus they had undivided shares. The trial court dismissed the suit. On appeal, the Principal District Judge, Gandhinagar partly allowed the appeal, setting aside the trial court decree regarding survey No. 682 and declaring the plaintiffs and defendant No.1 had equal share, while confirming the dismissal for survey No. 683. Aggrieved, the original defendants preferred a second appeal under Section 100 of the Code of Civil Procedure, 1908 raising substantial questions of law, primarily revolving around limitation. They contended that the suit was time-barred as the revenue entry was mutated in 1983 in favour of defendant No.1 and the plaintiffs were aware of their ouster since then; thus, the suit filed in 2011 was hopelessly barred under Articles 58 and 110 of the Limitation Act, 1963. The appellants also argued that they could challenge the trial court's finding on limitation under Order 41 Rule 22 CPC without filing a cross-objection, relying on the Supreme Court decision in Prabhakat Gones Prabhu Navelkar v. Saradchandra Suria Prabhu Navelkar.
Issue of Consideration
Whether the suit for partition was barred by limitation under Articles 58 and 110 of the Limitation Act, 1963, and whether the first appellate court erred in decreeing the suit without addressing the limitation issue and misapplying principles of partition and co-ownership.
Law Points
- limitation period under Articles 58 and 110 of Limitation Act
- 1963
- knowledge of ouster from revenue entry
- applicability of Order 41 Rule 22 CPC for successful party to challenge adverse findings without cross-objection
- burden of proof in partition suits
- relinquishment of right
Case Details
2026 LawText (GUJ) (03) 568
R/SECOND APPEAL NO. 89 of 2025 with CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
Mr. Dhaval D Vyas, Senior Advocate with Ms. Poonam M Maheta for the Appellants; Mr. Parv C Mehta for Respondent No. 8; Mr. Mehul S Shah, Senior Advocate with Mr. Pinank J Raiyani for Respondent Nos. 1,2,4,5,6
Samuben D/o Kachraji Aataji and W/o Manaji Visaji & Ors.
Lilaben D/o Kachraji Aataji and W/o Rohitji Koyaji & Ors.
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Nature of Litigation
Remedy Sought
Plaintiffs sought partition of land survey Nos. 682 and 683, declaration of undivided 2/3rd share, and permanent injunction.
Filing Reason
Claim that suit lands were purchased from sale proceeds of ancestral properties and hence joint family property; defendant No.1 allegedly got revenue entry mutated in her favour fraudulently.
Previous Decisions
Trial Court dismissed the suit on 17.1.2018; First Appellate Court partly allowed appeal on 20.12.2024, set aside trial decree for land survey No. 682 and declared plaintiffs and defendant No.1 have equal share, confirmed trial decree for survey No. 683.
Issues
Whether the suit was barred by limitation under Articles 58 and 110 of the Limitation Act, 1963.
Whether the first appellate court could reverse the trial court's decree without fresh evidence.
Whether the first appellate court misapplied principles of partition and co-ownership.
Whether the defendants could challenge the trial court's finding on limitation under Order 41 Rule 22 CPC without filing cross-objection.
Whether the suit was maintainable and barred by law of limitation.
Whether the appellate court erred in shifting the onus of proof upon the defendants.
Whether the suit lands were ancestral property.
Whether the appellate court erred in not appreciating the effect of relinquishment of right by the plaintiff.
Submissions/Arguments
Appellants argued that the suit was hopelessly time-barred because the revenue entry was mutated in 1983 and plaintiff had knowledge of ouster since then; limitation under Article 110 (12 years) and Article 58 (3 years) had expired.
Defendant No.1 obtained a loan by mortgaging the suit land in presence of plaintiffs, demonstrating exclusive ownership, and plaintiffs did not object, indicating acceptance of ouster.
The first appellate court failed to consider the issue of limitation correctly, and the defendants were entitled to raise it under Order 41 Rule 22 CPC without cross-objection, as per Prabhakat Gones Prabhu Navelkar v. Saradchandra Suria Prabhu Navelkar.
The plaintiffs had relinquished their rights, and the suit was barred.
Judgment Excerpts
the learned appellate Court has committed serious error in reversing the well reasoned judgment and decree passed by the learned trial Court
the successful litigant can assail findings of any particular issue... in appeal proceedings filed by unsuccessful litigant
the suit of the plaintiffs claiming partition and separate possession was hopelessly time barred as hit by provisions of Limitation Act, 1963
Procedural History
Plaintiffs filed Special Civil Suit No.333 of 2011 in the court of Addl. Senior Civil Judge, Gandhinagar for partition. The trial court dismissed the suit on 17.1.2018. Plaintiffs filed Regular Civil Appeal No.22 of 2018 before the Principal District Judge, Gandhinagar, which was partly allowed on 20.12.2024, setting aside the trial decree for land survey No.682 and confirming for survey No.683. The original defendants filed Second Appeal No.89 of 2025 before the High Court of Gujarat under Section 100 CPC, which came up for admission hearing.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100, Section 96, Order 41 Rule 22
- Limitation Act, 1963: Article 58, Article 110
