COMMISIONER OF INCOME TAX Vs. LAVJIBHAI MANDANBHAI PATEL

JUDGEMENT

(1.) The Commissioner of Income Tax, Rajkot - defendant No.3 has filed this appeal against the judgment and decree dated 14-10-1996 of Second Joint Civil Judge (SD), Rajkot in Special Civil Suit No. 35 of 1992 filed by Lavjibhai Mandanbhai Patel. The facts in detail have been narrated in First Appeal No.93 of 1997.

(2.) The brief facts essential for disposal of this appeal are that the plaintiff claimed to be the owner of the land of survey No. 479 measuring 4 acres and 7 gunthas. There was some confusion in the mind of the defendant No.1 who is respondent No.2 in this appeal. The Rajkot Municipal Corporation claimed to be in possession of the entire land. According to the Corporation, the land vested in the State Government and was recorded in the name of the State Government and the Municipal Corporation was managing the land for and on behalf of the State Government. A portion of the land of survey No.479, area 4 acre and 7 gunthas was sold by defendant No.1 to the present appellant - defendant No.3 and the defendant No.3 purchased 7,655.50 sq.mtrs land from defendant No.1 shown by black colour in the map, as bonafide purchase for value without notice of any defect in title or dispute regarding the title of the land between the plaintiff and the defendant No.1. Being bonafide purchase for value without notice to any defect in the title of the seller the defendant No.1, the defendant No.3 raised multistoried constructions. The plaintiff sought demolition of the construction raised by the appellant defendant No.3.

(3.) The defendant No.3 resisted the suit mainly on two grounds. The first was that the suit is barred by Section 80 of Code of Civil Procedure ( for short `CPC' ) inasmuch as, compliance of Section 80 of CPC was not done by the plaintiff. The second was that the appellant being bonafide purchase for value without notice of the defect in title was entitled to raise constructions and such constructions in law and equity can not be demolished.