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Gujarat High Court

Kanjibhai Shitlabhai vs Shivdhara Developers on 16 July, 2018

Author: Akil Kureshi

Bench: Akil Kureshi, B.N. Karia

         C/FA/2460/2018                                    ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 2460 of 2018
                                  With
                     CIVIL APPLICATION NO. 1 of 2017

================================================================
                           KANJIBHAI SHITLABHAI
                                  Versus
                          SHIVDHARA DEVELOPERS
================================================================
Appearance:
MR ASHUTOSH M DESAI for the PETITIONER(s) No. 1
MR ADIL R MIRZA(2488) for the RESPONDENT(s) No. 1,3
================================================================

 CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
        and
        HONOURABLE MR.JUSTICE B.N. KARIA

                              Date : 16/07/2018

                           ORAL ORDER

(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)

1. Appellant is the original plaintiff. He has challenged judgment and decree dated 15.9.2016 passed by learned 2nd Additional Senior Civil Judge, Valsad, in Special Civil Suit No.111 of 2012. We are conscious that being a First Appeal, all questions of law and facts arising out of the judgment of the trial Court would be open to challenge before us. Admission of the First Appeal under such circumstances is, therefore, ordinarily granted liberally by the Court. However, having perused the materials on record and necessary evidence, we find that this is a case in which admission of the First Appeal would be futile.

2. Briefly stated the facts are that the appellant-plaintiff had instituted the suit for challenging the transactions in Page 1 of 5 C/FA/2460/2018 ORDER connection with the land bearing Survey No.106/3 of Village- Abrama, District-Valsad. Prayer was to declare that such transactions were null and void. Further prayer was that the defendants be permanently injuncted from dispossessing the plaintiff from the suit land or to change the nature of the suit land in any manner and also injunct the defendants from transferring the suit land to any third party. These prayers were founded on the plaintiff's averments that his predecessor-in-title had purchased the suit land from one Gandabhai Lallubhai and Parshottam Pidiya and Shitla Harkha for a consideration of Rs.1,751/- in the year 1966. Entry to this effect was also made in the revenue record on 27.2.1968. Names of the original owners were also deleted in the revenue records and the names of the predecessor-in-title came to be entered at the relevant time, which continued till the year 1977-78. The original land owners had thereafter also sold the land, which transaction was declared invalid under Section 73AA of the Bombay Land Revenue Code. The defendants had thereafter illegally and by playing mischief removed the names of the predecessor in title of the plaintiff from the land. Defendants no.1 and 2 relying on the revenue records also obtained permission for sale of the land under Section 73 AA of the Bombay Land Revenue Code and sold the same to defendant nos.3 and 4, which sale transaction according to the plaintiff was ab initio void.

3. The defendants appeared and opposed the suit. The trial Court framed following issues:-

"(1) Whether plaintiffs proves that he has owner and possessor of the suit land?

(2) Whether plaintiffs proves that both disputed Reg.Sale Deed are ab initio void because of Reg. Sale Deed of 1966 was inexecuted by letter? If yes Whom Authority ?

(3) Whether plaintiffs proves that his for-father name illegally removed from the revenue record by the defendants?

(4) Whether defendants proves plaintiff have no right in suit land?

(5) Whether defendants proves they have follow all legal procedure in transaction of the suit land? (6) Whether plaintiff is entitled for relief seeking in Plaint?

(7) What order and decree?"

4. The trial Court decided these issues as under:-

     (1)      In negative.
     (2)      In negative.
     (3)      In negative.
     (4)      In affirmative.
     (5)      In affirmative.
     (6)      In negative.
     (7)      As per final order.

5. The plaintiff produced his own affidavit as a deposition, which was along the line of the suit. He was cross-examined by the defendants. In the cross-examination, he admitted that the original owner of the land was Ratilal @ Gandabhai Lallubhai Desai, who sold the land under a registered sale deed dated 1.4.1964 to Parshottam Pidiya and Shitla Harkha. He was, however, not aware that thereafter the said land was Page 3 of 5 C/FA/2460/2018 ORDER purchased by Lallubhai Talaviya on 14.6.1966 from Parshottam Pidiya and Shitla Harkha. He denied that Lallubhai had thus become the owner of the land and after his death, the land was entered in names of the heirs. He was not aware that suit land was converted to non-agricultural use under the order of the Collector dated 29.11.2007 and, thereafter, after obtaining the permission under Section 73AA of the Bombay Land Revenue Code, it was sold by defendant no.2 under registered Sale Deed dated 6.8.2010.

6. One Kalyan Laxmanbhai Prajapati, partner of Shivdhara Developers, defendant no.1 was examined at Exh.76. He produced necessary documents in addition to stating that the land was purchased by Parshottam Pidiya and Shitla Harkha from Gandabhai Lallubhai Desai under a registered Sale Deed dated 1.4.1964. They sold the land to Lallubhai Talaviya on 14.6.1966 under registered Sale Deed. After his death, his heirs became the owner. The land was converted to non- agricultural use on 29.11.2007 by the Collector's order. Defendant nos.3 and 4 had obtained permission under Section 73AA of the Bombay Land Revenue Code for sale of the land on 8.2.2010. On the basis of such permission, the land was sold by defendant nos.3 and 4 to defendant no.2 and later on by defendant no.2 to defendant no.1. He was cross-examined by the plaintiff. Nothing substantial come out of his cross- examination.

7. On the basis of such evidence on record, the trial Court refused to believe the possession of the plaintiff on the suit land or that the sale transactions concerning the suit land were ab initio void as alleged.

8. From the evidence on record, it can be seen that the land was subjected to multiple sales, all through registered sale deeds, right from the year 1964. At no stage, the plaintiff has objected to any of these sale transactions. Subsequent transaction of use of the land and also permission of the Collector under Section 73AA of the Bombay Land Revenue Code, these are documented facts, which have been brought on record by the defendants. The plaintiff has not been able to establish any right, title or interest over the suit land. Thus, version of having purchased the suit land has not been supported by any documentary evidence. At no stage, he could establish his right over the land. Possession was also not believed. In our opinion, therefore, the trial Court committed no error in dismissing his appeal which was totally devoid of merits. Admission of such appeal would merely prolong the litigation. First Appeal is, therefore, dismissed along with Civil Application for stay.

(AKIL KURESHI, J) (B.N. KARIA, J) R.S. MALEK Page 5 of 5