Vinodbhai Chaturbhai Patel & vs Madhuben Ambalal Chotabhai Patel & 5 on 30 November, 2016

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Gujarat High Court

Vinodbhai Chaturbhai Patel & vs Madhuben Ambalal Chotabhai Patel & 5 on 30 November, 2016

Bench: S.H.Vora

                  C/SCA/19939/2016                                              ORDER



                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     SPECIAL CIVIL APPLICATION NO. 19939 of 2016
         ===========================================================
                  VINODBHAI CHATURBHAI PATEL & 1....Petitioner(s)
                                     Versus
             MADHUBEN AMBALAL CHOTABHAI PATEL & 5....Respondent(s)
         ================================================================
         Appearance:
         MR VIMAL A PUROHIT, ADVOCATE for the Petitioner(s) No. 1 - 2
         ================================================================
          CORAM: HONOURABLE MR.JUSTICE S.H.VORA
                            Date : 30/11/2016
                                     ORAL ORDER

1. Prima-facie, it appears that the petitioners - third party purchased the suit property being Survey Nos.31, 50, 70 and 72 situated at Village Radhvaanj, Taluka Matar, District Kheda by way of a Registered Sale Deed dated 30.04.2010 from the respondents No.3, 5 and 6 herein. The said respondents No.3, 5 and 6 challenged the Sale Deed executed and registered in favour of the petitioners by way of Special Civil Suit No.62/2010. Thereafter, the respondents No.1 and 2 filed Civil Suit No.1/2013 for partition of various properties belonging to the deceased - Chotabhai Zaverbhai Patel, including the lands of the Sale Deed dated 30.04.2010. It appears that the respondents No.3, 5 and 6 settled the matter with respondents No.1 and 2 in Regular Civil Suit No.1/2013 and invited the Consent Decree whereby the land which was sold to the petitioners came to be assigned to respondents No.1, 3 and 4. Such Consent Decree came to be invited by the respondents No.3, 5 and 6 by suppressing the factum of sale of the suit Page 1 of 3 HC-NIC Page 1 of 3 Created On Tue Jan 24 01:08:21 IST 2017 C/SCA/19939/2016 ORDER property to the present petitioners. The learned trial Judge recorded such a compromise on 21.12.2014. Thereafter, the respondents No.3, 5 and 6 have withdrawn Special Civil Suit No.62/2010 on 21.02.2015 wherein they had challenged the Sale Deed dated 30.04.2010 executed and registered in favour of the present petitioners.

2. Feeling aggrieved by the Consent Decree dated 21.12.2014 passed in Regular Civil Suit No.1/2013, the present petitioners filed an Appeal and alongwith it filed an Application for condonation of delay and Leave to Appeal. The learned Appellate Judge refused to grant Leave to Appeal on the ground that there is no provision to file an Appeal.

3. Considering the decision of the Hon'ble Apex Court in the case of Banwari Lal v. Chando Devi reported in 1993 AIR (SC) 1139 and the decision of the Division Bench of this Court in the case of Juvansinh Nathusinh Chauhan v. Ramsingji Mansukhji Chauhan and Others in Civil Application (Leave to Appeal) No.12501/2014 in First Appeal (Stamp Number) No.3499/2014 dated 27.02.2015, the present petition deserves consideration.

4. Issue NOTICE returnable to the respondents making it returnable on 19th JANUARY, 2017. Meanwhile, the Consent Order dated 21.12.2014 passed in Regular Civil Suit No.1/2013 is hereby stayed.

Sd/-

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