Gujarat High Court Case Information System
Print
FA/1976/1984 5/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1976 of 1984
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
MANIBEN
W/O ANANDILAL HARILAL & 2 - Appellant(s)
Versus
SAHEBRAO
SHANKARRAO DABHADE. & 20 - Respondent(s)
=========================================================
Appearance
:
MR
KV SHELAT for
Appellant(s) : 1 - 3.
MR VC DESAI for Defendant(s) : 1 - 2, 2.2.1,
2.2.2, 4.2.1,4.2.2 - 5,5.2.2 - 6, 6.2.2,6.2.3 - 7, 7.2.2, 7.2.3,7.2.4
- 12, 12.2.2, 12.2.3, 12.2.4,12.2.5 - 18, 18.2.2, 18.2.3,
18.2.4,18.2.5 - 21.
None for Defendant(s) : 3,
15,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 22/07/2010
ORAL
JUDGMENT
Learned
advocate Mr.Shelat submitted that the appellant no.1 Maniben W/o
Anandilal Harilal has expired and appellants no.2 and 3 are her legal
heirs and prays to delete the name of appellant no.1. Amendment to be
carried forthwith.
The
appellants herein are the original defendants and the defendants
herein are the original plaintiffs in Civil Suit No.200 of 1982. (For
the sake of convenience and brevity they shall be referred to as the
original plaintiffs and original defendants .)
This
appeal is directed against the judgment and decree passed on
20.7.1983 in Civil Suit No.200 of 1982 by the learned City Civil
Judge, Court No.6, Ahmedabad whereby the suit of the plaintiff was
partly allowed and the defendants were ordered to pay Rs.8869/- only
in lieu of the deficit land of 159.65 sq.yards i.e.133.46 sq.mtrs.
with future interest calculated at the rate of 7?% over the
principal amount of Rs.7240/- from 1.2.1982 till its payment or
realization. It was also further ordered that the plaintiffs shall
retain possession to the extent of 58.88 sq.yards i.e. 49.07 sq.mtrs.
of land out of the deficit land of 218.53 sq.yards i.e. 182.53
sq.mtrs. as owners which is a part of sub-plot no.7/2/2 of Maninagar
Town Planning Scheme No.4 situated in Rajpur-Hirapur, Taluka City,
District and Sub-district Ahmedabad whose possession was to be
retained by the defendants as owners which was by way of
proportionate land of common plot and roads and which came to the
share of Prabhudas Acharya.
The
case of the plaintiffs in brief was that the defendants no.2 and 3
are the sons of defendant no.1 and one Anandilal Harilal. Said
Anandilal and his mother Bai Jiba entered into an agreement to sale
of part of their land of sub-plot no.7/2/2 of Maninagar T.P.Scheme
No.4 situated in Rajpur-Hirpur, Taluka city District and sub-district
Ahmedabad to one Mohanlal Vajibhai Patel on 26.5.1961 and he
organized a society by name Vasundhara colony and constructed
tenements and in pursuance of the said agreement, they or their
predecessors-in-title purchased the same and they were put in
possession of those tenements as owners thereof. As certain terms and
conditions of the said agreement were breached, Anandilal and his
mother instituted Civil Suit No.434 of 1964 for cancellation of the
said agreement and for possession of that part of the sub-plot of
land after removal of superstructures standing thereon. The Court
passed decree dated 22.12.1976 in that suit directing the
predecessors-in-title to deliver possession of the said part of the
sub-plot of land after removing the superstructures within six months
of the passing of the decree with a further direction to pay mesne
profit to the tune of Rs.25,346/- with interest and also future mesne
profits till the date of possession. Against the said judgment and
decree, First Appeal No.5 of 1977 was preferred before this Court and
during the pendency of the appeal, the parties arrived at amicable
settlement and by that settlement, Anandilal and his mother sold them
part of the sub-plot no.2 of final plot no.7/2 which was in their
possession by stating that the same admeasured 5080-52 sq.yards and
those vendors retained 218-53 sq.yards of land for common plot and
roads of that sub-plot over and above sub-plot no.1 admeasuring 456
sq.yards out of total area of final plot no.7/2 admeasuring 5755-05
sq.yards and they or their predecessors-in-title paid Rs.2,29,897/-
in all in lumpsum for sale of the part of the sub-plot no.2
admeasuring 5080-52 sq.yards and consent decree in terms of this
settlement was passed by this Court on 23.1.1979. The vendors got the
aforesaid amount and by way of the aforesaid consent decree, they or
their predecessors-in-title became the owners of the said piece of
land.
It
is further the case of the plaintiffs that thereafter the said piece
of land was got measured through the office of District Land Records,
Ahmedabad on 19.12.1979 and it was at that time detected that the
same admeasured only 4861.99 sq.yards instead of 5080.52 sq.yards and
thus there was a deficit of 218.53 sq.yards. Therefore, the present
suit was instituted to recover the possession of the deficit land
admeasuring 218-53 sq.yards in the alternative its price of
Rs.43,706/- along with the costs of the suit from the defendants.
The
defendants filed written statement and submitted that the plaintiffs
or their predecessors-in-title were already in possession of the part
of the sub-plot no.7/2/2 since the years 1961-62-63 and as per the
terms of the settlement, they were allowed to retain possession
thereof as owners for the lumpsum of Rs.2,29,897/- and so there was
no question of delivering possession of any additional land to them
on account of any deficit found therein. They also contended that the
plaintiffs’ suit is barred by res-judicata or estoppel. They
ultimately prayed that the suit be dismissed with costs.
After
hearing the arguments of learned advocates at length and after
considering the documentary as well as oral evidence led by the
parties, the learned trial Judge passed the order as stated
hereinabove against which the original defendants filed the present
appeal.
Heard
the learned advocates for the parties and perused the record and
judgment of the learned trial Court.
Learned
advocate Mr.Shelat for the appellants-original defendants submitted
that the suit was not maintainable in the eye of law and the same was
barred under Section 11 and Section 47 of the Civil Procedure Code as
previously the suit was filed between the same parties which was
decided by the trial Court against which the appeal was filed and
during the pendency of the appeal, the matter was amicably settled
between the parties and therefore the decree of the trial Court was
set aside and trial Court was directed to draw the decree in terms of
the written compromise placed on record and therefore the trial Court
committed error in entertaining the suit. It was also argued by
learned advocate Mr.Shelat that there is no question of handing over
any portion of the land to the defendants as the land admeasuring
5080.52 sq.yards was actually in the possession of the defendants. He
also argued that the findings of the learned Judge are against the
documentary evidence and merely based on surmises and conjectures and
it is wrongly held that the defendants are bound to deliver the
possession of 58.88 sq.yards of land to the plaintiffs. That the
trial Court has materially erred in going behind the decree and order
of this Court in connection with the subject matter of the suit and
prayed that this appeal may be allowed and the decree of the learned
trial Court may be set aside.
As
against this, learned advocate Mr.Desai for the respondents-original
plaintiffs submitted that the judgment and decree of the learned
trial Court is legal and proper and need not be interfered with. It
is argued by him that on basis of the compromise arrived at between
the parties, title of the property was passed to the parties but as
the plaintiffs received less land than they were entitled to get, the
only remedy with them was to file the suit to get the possession of
the deficit land or to get the market price of that land. Therefore,
the suit was not barred under Section 11 and Section 47 of the Civil
Procedure Code. He therefore prayed to dismiss the appeal and confirm
the judgment and decree passed by the trial Court.
It
is an admitted position that at the time of measurement by the office
of District Land Records, it was found that the part of sub-plot
no.7/2/2 which was sold and in possession of the plaintiffs and their
predecessors-in-title admeasured only 4114.66 sq.mtrs. instead of
4248-12 sq.mtrs. and there was deficit of 218.53 sq.yards of land.
This fact is proved through the evidence of P.W.1 Mahendrakumar
Navinchandra who was working as Surveyor in the office of the
District Lands Records. When the title is obtained by the plaintiffs
as per the terms of compromise and through sale deed and when there
is deficit land as per the compromise, then there is no remedy for
the plaintiffs except to file a suit and it is rightly held by the
trial Court that the principles of res-judicata or estoppel are not
attracted in the present case and the suit is tenable.
When
the suit is tenable and it is proved through documentary evidence as
well as oral evidence that the defendants delivered possession of
218.53 sq.yards of land less of sub-plot no.7/2/2 of Maninagar Town
Planning Scheme no.4, the learned trial Court has rightly held that
the defendants are bound to deliver possession of the deficit land
but that is not possible to the extent of 58.88 sq.yards and so the
plaintiffs are entitled to recover Rs.8869/- only in respect of the
deficit land of 159.65 sq.yards in lieu of the price of the said land
and not Rs.43,706/- as claimed by them. Learned advocate for the
appellants failed to show any illegality or perverseness in the
judgment and order of the learned trial Court and this Court has no
reason to interfere with the said judgment and decree.
In
view of the above, this appeal is dismissed.
(
M.D.Shah, J )
srilatha
Top