Gujarat High Court
Bhailalbhai Punjabhai Prajapati Since ... vs Ramanbhai Mahijibhai Patel on 29 October, 2021
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/FA/877/2019 ORDER DATED: 29/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 877 of 2019
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BHAILALBHAI PUNJABHAI PRAJAPATI SINCE DECD THROUGH LH
Versus
RAMANBHAI MAHIJIBHAI PATEL
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Appearance:
MR PARTHIV B SHAH(2678) for the Appellant(s) No. 1,1.1,1.2,1.3
DS AFF.NOT FILED (N)(11) for the Defendant(s) No. 7
MR. TIRTHRAJ PANDYA(6685) for the Defendant(s) No. 1
NOTICE SERVED BY DS(5) for the Defendant(s) No. 2,3,4,5,6,7.1,7.2,7.3,7.4
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 29/10/2021
ORAL ORDER
1. Heard learned advocate Mr. Parthiv B. Shah for the appellants and learned advocate Mr. Tirthraj Pandya for the respondent no.1.
2. By way of this First Appeal under Section 96 of the Code of Civil Procedure, 1908, the present appellants have challenged the judgment and order dated 24.08.2018 below Exh. 116 passed by the 14th Additional Senior Civil Judge, Vadodara in Special Civil Suit No.281 of 2007.
3. On 27.10.2021, this Court has passed the following order:-
1. Heard learned advocate Mr. Parthiv B. Shah for appellant Nos.1, 1.1, 1.2 and 1.3 and learned advocate Mr. Tirthraj Pandya for respondent No.1.
2. Both the learned advocates have jointly submitted that the respondent No.1 has executed registered document in favour of the present appellant and hence, respondent No.1 is not having Page 1 of 6 Downloaded on : Mon Jan 17 05:09:46 IST 2022 C/FA/877/2019 ORDER DATED: 29/10/2021 objection, if the judgment under challenge and decree drawn in favour of the respondent No.1 is modified in respect of the Survey Nos.59, 71 and 77 situated at Village - Manega, Taluka and District: Vadodara.
3. Learned advocate Mr. Shah submits that rest of the respondents are not necessary parties for the purpose of present Page 1 of 2 Downloaded on : Fri Oct 29 14:45:28 IST 2021 C/FA/877/2019 ORDER DATED: 27/10/2021 Appeal and therefore, by way of an affidavit, he would seek deletion of rest of the respondents.
4. Upon joint requests made by both the sides, stand over to 29.10.2021.
4. Pursuant to the aforesaid order, today, learned advocate Mr. Parthiv B. Shah for the appellants has tendered affidavit of one Mr. Pankajbhai Prajapati who is the appellant no.1/3, affidavit is to be stated to have been filed on behalf of the appellants no.1.1 to 1.3.
5. The relevant paragraphs of affidavit states as under:-
"2. I say that by way of the present First Appeal the appellants have challenged the judgment and decree passed by 14th Senior Civil Judge, Vadodara. By the impugned order dated 24.08.2018 the ld. Civil Judge has allowed the suit of the Ori. Plaintiff and believed that except the Survey No.33 and 72 of Vilage Maneja, sitauted at Taluka- District Vadodara, the plaintiff has 1/7th share in rest of the suit property.
3. It is further submitted that my father by 3 different sale deeds have purchased the Survey No.59,71 and 77 of Village Maneja. I say that for the said properties also the plaintiff has filed the suit whereby, the decree was drawn in favour of Ori. Plaintiff. I say that after the filing of the First Appeal appellants and respondent no.1 have entered into compromise and thus by registered document dated 25.08.2021 the Ori. Plaintiff had accepted the sale deed. The copy of the said registered document is already produced by the Ori. Plaintiff -Page 2 of 6 Downloaded on : Mon Jan 17 05:09:46 IST 2022
C/FA/877/2019 ORDER DATED: 29/10/2021 respondent no.1 along with his additional affidavit.
4. I say that the present appellant were aggrieved by the judge and decree only qua the Survey No.59,71 and 77 of Village Maneja. And thus, when the Ori. Plaintiff - Respondent No.1 has admitted the sale deed of the present appellants rest of the respondent i.e. respondent no.2 to 7.4 are not necessary and proper party for adjudication of present First Appeal.
5. I say that according to my knowledge respondent no.2 to 7.4 have not challenged the judgment and decree passed in Special Civil Suit No.218 of 2007. I say that except the properties stated above for rest of the property, for which the suit is decreed, the appellant have no claim over the said properties. I say that as the appellant has entered into the compromise, the present respondent no.2 to 7.4 are not necessary and proper party in the present proceedings, and thus, they are required to be deleted from the present proceedings and appropriate order is required to be passed."
6. In view of the aforesaid fact, by way of affidavit, the present appellants intend to delete the respondents no.2 to 7.4. Permission as prayed for is granted. Respondent no.2 to 7.4 be deleted from the cause-title.
7. Further in view of the fact that the present appeal is not opposed by learned advocate Mr. Tirthraj Pandya for the respondent no.1 and considering the additional affidavit in reply filed on behalf of the respondent no.1, both the learned advocates Mr. Shah for the appellants as well as Mr. Pandya for the respondent draws the attention of this Court to the averments made in the paragraphs no.3 and 4 of the said reply, which reads as under:-
"3. It is submitted that while issuing notice, this hon'ble court vide its order dated 06.03.2019 was pleased to admit the present appeal and also directed to keep impugned decree in abeyance. The present deponent being the original plaintiff has Page 3 of 6 Downloaded on : Mon Jan 17 05:09:46 IST 2022 C/FA/877/2019 ORDER DATED: 29/10/2021 entered into a compromise for survey numbers 59, 71 and 77 as the present appellant are the bonafide purchasers of the said lands. Thus, the present deponent has executed a registered consent deed admitting the execution of the sale deeds of survey numbers 59,71 and 77. It is stated that this Hon'ble Court is pleased to modify the impugned judgment and decree passed by the learned Civil Court dated 24.08.2018. It is agreed between the parties that para 3 of the operative part of the impugned judgment be quashed and set aside and for the rest of the decree, the present deponent has executed the consent deed admitting the execution of sale deeds dated 30.03.2007 survey numbers 59,71 and 77. it is submitted that so far as the rest of the properties are concerned, i.e. survey numbers 73 and 164 along with two residential houses (described in para of the plaint) of village Maneja, the impugned decree passed by the trial court in favour of the deponent remains as it is as, the present appellant does not have any right, title and interest in the property.
4. I say that except the present appellants, none of the other respondents (original defendants) have challenged the judgment and decree dated 24.08.2018 passed in Special Civil Suit No.281 of 2007. Therefore, this Hon'ble Court may be pleased to allow the present appeal to the above extent."
8. In view of the aforesaid averments which are on record by way of affidavits dated 20.09.2021 and 27.10.2021 and request was made by both the learned advocates as well as it is categorically stated in the affidavit filed by the respondent no.1 Ramanbhai Mahjibhai Patel that the Court be pleased to allow the present First Appeal to the extent stated in the affidavit dated 20.09.2021.
9. It is prayed by the learned advocate Mr. Shah to modify the judgment and decree dated 24.08.2018, to the extent that paragraph no.3 of the judgment and decree is required to be modified by restricting the relief granted in paragraph no.3 only to the survey nos. 73 and 164 and two residential Page 4 of 6 Downloaded on : Mon Jan 17 05:09:46 IST 2022 C/FA/877/2019 ORDER DATED: 29/10/2021 properties which is in possession of respondent no.6/1 at Parabadivala Faliya, Mauje. Maneja, Taluka and District:-
Vadodara only and the rest of the property being revenue survey nos. 59,71 and 77 be excluded from paragraph no.3 of the operative portion of the judgment, in view of the affidavits tendered by both the sides as stated hereinabove.
10. In view of the above submissions made by learned advocate Mr. Shah for the appellant, which is not opposed by learned advocate Mr. Tirthraj Pandya. The judgment and decree dated 24.08.2018 passed by the 14 th Additional Senior Civil Judge,Vadodara in Special Suit No.281 of 2007 below Exh.116 stands modified and paragraph no.3 of the operative portion and the relief granted in favour of the present respondent no.1 shall be restricted only to revenue survey nos. 59, 71 and 77 of the Village Maneja, Taluka and District :-
Vadodara and two residential properties situated at Parabadivala Faliya, Village:- Maneja, Taluka and District:-
Vadodara are in favour of respondent no.6/1 as stated in the paragraph no.9 of the plaint suit. Rest of the reliefs granted in the judgment and decree vide order dated 24.08.2021 passed by the 14th Additional Senior Civil Judge, Vadodara shall remain as it is.
11. It is clarified that since this order is passed on the basis of consensus arrived at between the parties and considering the fact that in affidavit dated 27.10.2021, present appellant states that respondent no.2 to 7.4 have not challenged the same judgment and decree, they may be deleted. This order shall not be binding to respondents no.2 to 7.4.
Page 5 of 6 Downloaded on : Mon Jan 17 05:09:46 IST 2022C/FA/877/2019 ORDER DATED: 29/10/2021
12. The First Appeal is allowed to the aforesaid extent. Decree to be drawn accordingly. Direct service is permitted.
(NIRZAR S. DESAI,J) VARSHA DESAI Page 6 of 6 Downloaded on : Mon Jan 17 05:09:46 IST 2022