Gujarat High Court
Maniben D/O Bababhai Patel vs Ramanbhai Chhagandas Patel on 31 July, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/FA/338/2015 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION NO. 3 of 2015
IN F/FIRST APPEAL NO. 338 of 2015
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MANIBEN D/O BABABHAI PATEL SINCE DECE. THRO.' L/H. Versus RAMANBHAI CHHAGANDAS PATEL ========================================================== Appearance:
MS TRUSHA K PATEL for the PETITIONER(s) No. MR DIPAK R DAVE for the RESPONDENT(s) No. RULE SERVED for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 31/07/2018 IA ORDER
1. This is an application at the instance of the applicant, who proposes to file a First Appeal with leave of this Court. The applicant seeks to challenge the consent decree dated 02/10/2013 passed by the Additional Civil Judge, Ahmedabad Rural, in the Special Civil Suit No.507 of 2013.
2. The case of the applicant is one of fraud and cheating. In the application, the following has been averred.
3. It is submitted that the opponents herein have entered into compromise to the detriment of the interest of present applicant and hence, the same is challenged by way of First Appeal.
4. It is submitted that the land bearing Block No.1330 admeasuring 4957 sq.mtr. paiki 1/4th situated on Northern side so also other 20 lands were originally owned and possessed by father of applicant herein i.e. Bababhai Patel. On 23.08.1980 said Bababhai expired and, hence applicant herein so also other heirs of Bababhai inherited the said property jointly. The applicant herein has got 1/5th Page 1 of 4 Downloaded on : Sat Feb 27 10:01:49 IST 2021 C/FA/338/2015 IA ORDER share in the property as the applicant had one brother and three sisters who had jointly inherited the property of said Bababhai.
Pursuant to heirship, on 30.11.1993 mutation entry No.3087 was posted whereby name of applicant herein and names of other heirs of Bababhai were mutated as heirs of Bababhai. Rameshbhai who is real brother of applicant herein met the applicant when she was in the hospital and asked her to sign some papers so that the lands proceedings could be under taken to get the lands which were running under the head of new tenure, converted into old tenure. As she had full faith on her brother, given her signatures on many papers. She was informed that the application for conversion of the lands into old tenure was filed in the year 2005 itself and on 21.03.2006, even order was passed for conversion of the lands into old tenure. Even thereafter other documents were fraudulently concocted; the details of which have been given in the memorandum of the First Appeal. In the year 2011, applicant herein came to know of the fact that her brother had cheated her and by practicing fraud, the documents were created so as to indicate that she had relinquished her rights from the lands in favour of her brother. Realizing the said facts, in the year 2011, Special Civil Suit No.818/11 was filed seeking partition so also cancellation of registered sale deed qua S. Nos.1330 and 53 which were sold out in the meanwhile by her brother and his family members. The said suit is pending for consideration before the learned Civil Judge. However, though the said suit is pending, with a view to frustrate rights of applicant herein, respondents herein had inter se executed an agreement to sell dated 26.08.2013 which is allegedly executed by said Bhailalbhai and Ashokbhai in favor of Ramanbhai Patel qua the land in dispute. A show is created as if said Bhailalbhai and Ashokbhai had pocketed entire sale consideration and had handed over possession of 1/4 of land on Northern side. Immediately thereafter within a period of one week on 03.09.2013, Special Civil Suit No.507/13 for specific performance of agreement dated 26.08.2013 was filed. The learned Addl. Civil Judge issued notice to the defendants which was made returnable on 24.09.2013. Within no time just in a period of one month, parties placed compromise pursis on record whereby defendants admitted claim of the plaintiff and consented decree in favour of the plaintiff and accordingly on 02.10.2013, consent decree is drawn as per compromise pursis. Thus, the respondents here in practiced fraud upon the applicant herein, she and her son have also filed criminal complaint before Police Inspector, Sola High Court Police Station. The details of fraud are given in the memorandum of First Appeal.
5. Thus, the collusive decree obtained by the respondents directly adversely affects rights of the appellant herein. By the impugned collusive decree, the respondents have tried to jeopardize the rights of the appellant and hence, the applicant here in seeks leave to file the Page 2 of 4 Downloaded on : Sat Feb 27 10:01:49 IST 2021 C/FA/338/2015 IA ORDER First Appeal.
3. Thus, it appears from the materials on record that Late Maniben, D/o. Bababhai Patel preferred a Special Civil Suit No.818 of 2011 in the Court of the Principal Senior Civil Judge, Ahmedabad Rural, Ahmedabad, against her own brother viz.Rameshbhai Bababhai Patel and his legal heirs including the purchaser - one of the parcels of the land.
4. To put it briefly, the dispute is between the brother and sister. The sister late Maniben Bababhai Patel put forward her claim in the ancestral property. The brother is alleged to have played fraud with her sister while the sister was on deathbed. The brother is alleged to have procured thumb impression on the blank papers. The brother is alleged to have misused those blank papers containing thumb impression of the sister by preparing a relinquishmentdeed. The sister having come to know about such bogus relinquishmentdeed, preferred a special civil suit referred to above. The brother with a view to defeat the right and interest of his sister fraudulently transferred the parcel of land in favour of third party. The brother first entered into the agreement of sale and within one week thereafter a suit for specific performance of agreement of sale was filed and consent decree was obtained. It is this consent decree, which the applicant herein seeks to challenge by filing a First Appeal. Maniben Bababhai Patel passed away during the pendency of this application. Her legal heirs are now on record.
5. I take notice of the fact that this application is of the year 2015. It has been adjourned bynow for almost more than 20 times. Mr. Dipak Dave, the learned counsel was earlier appearing on behalf of the opponents. Mr. Dave submitted that he has retired from the matter. He Page 3 of 4 Downloaded on : Sat Feb 27 10:01:49 IST 2021 C/FA/338/2015 IA ORDER also handed over all the papers to the opponents. Mr. Dave has been replaced by Mr. Nishith Thakkar, the learned counsel.
6. Having regard to the facts of this case narrated above and also having regard to the fact that the application is pending past three years, I have thought fit not to adjourn further this matter.
7. In the result, this application is allowed. Leave to file First Appeal against the consent decree dated 02/10/2013 passed by the Additional Civil Judge, Ahmedabad Rural in the Special Civil Suit No.507 of 2013 is granted. The Civil Application is disposed of. Rule is made absolute to the aforesaid extent.
(J.B.PARDIWALA, J) aruna Page 4 of 4 Downloaded on : Sat Feb 27 10:01:49 IST 2021