Civil Revision Application No. 302 of 2013. Case: Hemendra Ishwarbhai Patel and Ors. Vs Gokulbhai Shanabhai and Ors.. Gujarat High Court

Case Number:Civil Revision Application No. 302 of 2013
Party Name:Hemendra Ishwarbhai Patel and Ors. Vs Gokulbhai Shanabhai and Ors.
Counsel:For Appellant: Mihir Thakore, Sr. Advocate and Premal R. Joshi, Advocate and For Respondents: Mehul S. Shah, Sr. Advocate and Pratik Y. Jasani, Advocate
Judges:B.M. Trivedi, J.
Issue:Code of Civil Procedure, 1908 (CPC) - Order VII Rules 11, 11(a), 11(d); Section 115
Judgement Date:March 17, 2017
Court:Gujarat High Court
 
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Judgment:

B.M. Trivedi, J.

  1. Rule. Mr. Pratik Jasani, learned Advocate for the opponents waives service of notice of Rule.

  2. With the consent of the learned Advocates for the parties, the matter is heard finally.

  3. The present Civil Revision Application, filed under Section 115 of CPC by the applicants (original defendant Nos. 13 and 14), is directed against the order dated 4.9.2013 passed by the Senior Civil Judge, Ahmedabad (Rural) (hereinafter referred to as "the trial Court") below Exh. 57 in Special Civil Suit No. 474 of 2009, whereby the trial Court has rejected the said application filed by the applicants, seeking rejection of the plaint under Order VII Rule 11 of CPC.

  4. A few germane facts as stated in the plaint by the respondent Nos. 1, 2, and 3 (original plaintiffs) are that the respondent No. 4 Dineshbhai Ambalal (defendant No. 1) was the owner of the lands bearing Survey No. 228/1/2/3/4/5 admeasuring 2 Hectares 85 Are 31 Sq. mtrs., and Survey No. 224/1/2/3 admeasuring 2 Hectares 23 Are 59 Sq. mtrs. The respondent No. 4 (defendant No. 1) had executed an agreement to sell the said lands in favour of the deceased Gokulbhai Shanabhai (predecessor of the respondent Nos. 1/1 to 1/2), deceased Dineshbhai Shanabhai (predecessor of respondent No. 2/1) and Hashumatiben Shanabhai - the respondent No. 3 (original plaintiffs) on 13.6.1995. The said agreement was also got registered in the office of the Sub-Registrar, Sanand. According to the said plaintiffs, the time was not the essence of the contract and certain conditions as contained in the agreement had to be fulfilled by both the parties, failing which both the parties were entitled to enforce the agreement by seeking specific performance of the said agreement. It has been further stated in the plaint that the deceased Gokulbhai and Dineshbhai, who happened to be the bothers of the plaintiff No. 3 Hashumatiben, were managing the affairs of the lands, and therefore, she was not aware about the dealings of the suit lands. The said Gokulbhai expired on 6.5.2004 and Dineshbhai expired on 5.8.2007. The respondent No. 3 (plaintiff No. 3) thereafter came to know about the various sale deeds having been executed by the original owner Dineshbhai in collusion with the other defendants, and on verifying the record, she had found that the respondent No. 4 (defendant No. 1) in collusion with the defendant Nos. 2 and 3, through their power-of-attorney holder Rajnibhai Jayantibhai Patel (respondent No. 13 - original defendant No. 10) had executed two registered sale deeds bearing registration Nos. 476 and 477 on 15.4.1998 in favour of the respondent Nos. 7 to 12 (original defendant Nos. 4 to 9) i.e. Kantibhai Joitaram and others. It is also stated that the plaintiff No. 3, and her brothers Gokulbhai and Dineshbhai had neither waived their rights under the agreement in question, nor had consented for the execution of any sale deed, however, the sale deeds dated 15.4.1998 and thereafter the confirmation deed dated 23.6.2003 were executed by the defendant No. 1 in favour of the defendant Nos. 4 to 9. It is further stated that the said deeds being illegal and void ab initio were required to be cancelled. The plaintiffs have further stated in the plaint that the defendant No. 1 Dineshbhai, in order to defeat the rights of the plaintiffs under the agreement in question, had executed another sale deed on 17.5.2004 in favour of the respondent Nos. 14 and 15 (defendant Nos. 11 and 12), which was registered in the office of Sub-Registrar at Sr. No. 892, however, the same was cleared by the Sub-Registrar on 7.2.2007 as per the new Sr. No. 702. Subsequently pursuant to the order passed in the Civil Suit being No. 216/1999 by the Court at Ahmedabad (Rural), the defendant Nos. 4 to 9 and the defendant Nos. 11 and 12 had executed two separate deeds of reconveyance on 17.8.2007 in favour of the defendant No. 1 Dineshbhai, which were also got registered at Sr. No. 4276 and 4278. Accordingly the defendant No. 1 had again become the owner of the lands in question by virtue of the said deeds of reconveyance. Thereafter the defendant Nos. 1, in collusion with the defendant Nos. 2 to 7 also executed a sale deed on the same day i.e. on 17.8.2007 in favour of the defendant No. 13, (applicant No. 1 in the present revision application). The defendant No. 13, in turn, executed a sale deed on 24.3.2008 in favour of the defendant No. 14, (applicant No. 2 in the present revision application), which was registered at Sr. No. 2203. According to the plaintiffs all these sale deeds were executed by the defendants in collusion with each other, in order to defeat the rights of the plaintiffs under the agreement in question and they having been executed without obtaining the signatures or the consent of the plaintiffs, were not binding to the plaintiffs. It is also stated that none of the defendants was bona fide purchaser for value without notice and none of the sale deeds created any right, title or interest in the suit lands, as the agreement executed by the defendant No. 1 in favour of the plaintiffs on 13.6.1995 was subsisting. It is further stated that at present the name of defendant No. 14 has been entered in the revenue record, and there is a possibility of the said defendant changing the nature of the land. The plaintiffs, therefore, have filed the suit seeking specific performance of the said agreement dated 13.6.1995 and seeking cancellation of the sale deeds executed by the defendant No. 1 in favour of the other defendants. The respondent Nos. 1 to 3 (the plaintiffs) have produced the copies of the agreement and all the sale deeds and reconveyance deeds along with the plaint as per...

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