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SCA/9/6909 2/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 969 of 2009
=========================================================
KOLI
RAMUBEN WD/O KARSHANBHAI & 2 - Petitioner(s)
Versus
TALPADA
KOLI KHIMABHAI DAYABHAI BARAIYA - Respondent(s)
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Appearance
:
MR
MRUGEN K PUROHIT for
Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6 - 3.
None
for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE C.K.BUCH
Date
: 05/02/2009
ORAL
ORDER
Invoking
the writ jurisdiction of this Court, the petitioner has preferred
this petition under Article 226 of the Constitution of India,
challenging the judgment and order dated 29/09/2008 passed by the
learned Senior Civil Judge, Jasdan passed below Exh.1 in Regular
Civil Execution Petition No.1 of 2005.
2. It
is submitted by learned Advocate for the petitioners-judgment
debtors/defendants that the parties are litigating since years and
there is a clear confusion as to the description of the property. At
one place the land is described as Vid Land and the survey number of
the land sold to the respondent-decree holder is of survey No.198 of
Village Valod, Tal. Jasdan. In another suit, the land is referred to
as land bearing Survey No.199. In the execution proceedings, it has
been found that the land described in the document Exh.106 is part of
Survey No.201 and the same is considered accordingly. There is no
dispute that the present petitioner at relevant point of time was
owner and occupier of land of all the three survey Nos.198, 199 and
201.
3. It
is the say of Mr.Purohit, learned Advocate for the petitioner that
petitioner was ready and is still ready to part with land bearing
Survey No.198 described as ‘Vid Land’ in the document at Exh.106 and
the land which is described stating the boundaries is not a Vid Land.
It is the say that the Executing Court was not legally entitled to
ascertain the exact number of the land for which the decree is passed
and it was not within the domain of the Executing Court to ascertain
the identity of the land and this exercise can be said to be an
exercise for the purpose of to go beyond the decree.
4. I
have considered the submission and the fact that in the judgment on
the strength of which the decree is drawn says that the land bearing
Survey No.198 admeasuring Acre 11-31 Guntha known as ‘Vid Land’ was
sold to the plaintiff as described in the plaint. According to
Mr.Purohit, if we go by Survey Number and description of the land as
Vid Land then the boundaries shown of the land in the document does
not tally and if we go by boundaries of the land described and
mentioned in the document then the same does not match with the other
description i.e. Survey Number and type of the land. Whether this by
itself would make a decree unexecutable was a crucial question before
the executing Court. The Executing Court after referring the
decision in case of Bhavna
Vaja Vs. Solanki Hanuji Khodaji Mansang, reported in 1972 2 SC 1371,
more particularly, in paragraph No.9 of the judgment it is said that
where there is material technical contradiction in the description of
the land sold to the plaintiff-decree holder, some exercise can be
done by Executing Court, such is the ratio.
5. While
dealing with the present petition, this Court is supposed to look to
the certain undisputed facts which are as under:
The
land was sold to the plaintiff in the years 1979 and same was sold
by a registered document against consideration.
The
defendant was held entitled to have the land back which was sold
by paying Rs.5,000/- to the plaintiff-decree holder.
The
learned trial Court has held in the its judgment that the
defendant has failed to prove that Rs.5,000/- was ever returned to
him and therefore he was not under the privilege to have land back
sold under the registered sale-deed.
The
plaintiff is entitled to have enjoyment of land purchase and he
was never denied this right of years.
5.1 The
crucial question before the Court by the present petition is that
whether the Executing Court has committed any error in ascertaining
the fact that exactly which parcel of land was sold to the
decree-holder.
5.2 It
is averred in the plaint that the decree holder has spent a huge
amount in the land such as, wall was erected and pipeline was laid
down. The parties were litigating since the year 1989 and the Court
therefore, observed that with a view to avoid complexity and the
contradiction emerging from the record qua the identity of the land,
if it is possible to resolve then that exercise should be and can be
done otherwise the litigation would remain fruitless even after
several years. Undisputedly, the sale-deed has been executed by the
judgment debtor (defendant) and he is the person who has described
the land by stating, in detail, the boundaries of the land sold and
the Government Officer, an independent person, was asked to visit the
area after the executing Court can effectively executing the decree
of the land falling within the boundaries described. Whether the act
of executing Court ignoring the Survey Numbers mentioned in the
decree or the description of the land as Vid Land is a failure of
exercising jurisdiction or not needs consideration when the Court is
asked to interfere with the finding recorded by the Executing Court
in extraordinary jurisdiction vested with the Court.
5.3 If
the say of Mr.Purohit is accepted then the resultant effect would be
that a person who sold a land after taking consideration by a
registered sale-deed shall not be required to part an inch of land to
the petitioner. Defendant had never accepted in past during
litigation including the suit decided, that he is ready to handover
the possession of the land admeasuring Acre 11-31 Guntha of survey
No.198. It appears that no evidence was available before the
Executing court that Survey No.198 is admeasuring Acre 11-31 Guntha
or more having similar description. The said land is more than that
and a big parcel of land. Undisputedly, the land of Survey No.199 is
less than 11 Acre. In this fact situation, if the Executing Court
has recorded that the finding described in the document Exh.106 is
part of survey No.201 would not make the order passed beyond
jurisdiction and such an order cannot be said to be an order passed
by the Executing Court going beyond the decree. The Executing Court
has simply said that the land described wise boundary in document
Exh.106 in the registered sale-deed requires to be handed over to the
plaintiff by the judgment debtor-defendant.
6.
It deserves to be noted that what was the situation of Survey No.201
on relevant date in the year 1989 or in past is not emerging from the
record and therefore it would not be appropriate for this Court to
jump to a conclusion that it was never a Vid Land. Ultimately, a
litigation at least should come to an end with all by reasonable good
and appropriate finding. The learned Executing Court has recorded
that finding and no interference is required to be made. The Court
hastens to adhere while dismissing this petition that the petitioner
has never challenged the decree on merit raising the dispute that
could have been decided evaluating the facts in detail in reference
to the finding recorded by way of judgment on the strength of which
the decree is drawn.
7. In
view of the above, the petition fails and is dismissed in limine.
(C.K.BUCH,
J.)
sompura
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