PATEL NATWARLAL RUPJI Vs. KONDH GROUP KHETI VISHAYAK

JUDGEMENT

(1.) This special leave petition is directed against the judgment and order dated June 18, 1988 of the Division Bench of the Gujarat High Court rendered in First Appeal No. 11 of 1976.

(2.) A sum of Rs. 1,31,596.07 was due from one Agindas Tarachand as Secretary of the first respondent-Society and an award for recovery thereof was made against him. An extent of 58 acres 13 gunthas of land bearing Survey No. 467 situated in Kondh village of the debtor in Surendranagar in Gujarat State was attached on February 1, 1969 to recover the said dues. A public notice (Exh. 123)was published in Gujarat Samachar in March 1969. The petitioner filed Special Civil Suit No. 69/71 in the Court of the Senior Civil Judge at Surendranagar of a declaration that the suit land was not liable to attachment and sale by public auction to execute the award made in favour of the first respondent-Society and also for permanent injunction restraining the second respondent (Sal Officer)from selling the land and also for perpetual injunction restraining them from interfering with the petitioner's possession and enjoyment of the land. According to the petitioner, Bai Leelawati, wife of Nagindas as General Power of Attorney had executed an agreement of June 29, 1969 to sell the said land in his favour for a consideration of Rs. 35,000/-. On the even day, he paid a sum of Rs. 15,000/- as part consideration and a further sum of Rs. 15,000/- was paid on the following day, i.e., June 30, 1969. The balance amount was agreed to be paid on or before June 29, 1971. Pursuant thereto he was put in possession and ever since he was in enjoyment thereof in his own right as owner. The proclamation of sale dated June 22, 1971 of the land by the second respondent (Sale Officer) was illegal. Consequently, he filed the suit for a declaration and injunction on November 19,1971. According to the petitioner, he having been inducted in possession and remained in enjoyment of the land in his own right under the agreement, the land is not liable to attachment and he could not be proceeded with to realise the amount due under the award. The respondents resisted the case set up by the petitioner. It was averred in the written statement that the agreement dated June 29,1969 (Exh. 55)is not a true and genuine agreement. It was brought into existence to defeat the claim of the first respondent. No consideration has been paid under the agreement. It is only a collusive agreement brought by Leelawati with the assistance of the petitioner.

(3.) The trial Court after framing appropriate issues conducting trial of the suit and on consideration of evidence found that the agreement was genuine, true and valid and that the petitioner was inducted into possession under the said agreement. The respondents obtained a decree against Nagindas on May 19, 1970. The proclamation of sale was issued on January 22, 1971. The agreement of sale had by the petitioner is dated June 29,1969. Therefore, the petitioner, having been in possession of the land under the agreement, is entitled to retain possession of the land and he could not be proceeded with against the said property. Accordingly, the suit was decreed on July 31,1975. On appeal the Division Bench by the aforesaid judgment and order dated June 11, 1988 allowed the appeal and dismissed the suit.