HIRALAL JAMNADAS SONI Vs. KUSUMBEN DHOLARIA

JUDGEMENT

(1.) The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant-original defendant no.1-appellant to quash and set aside the impugned judgment and order passed by the learned Additional District Judge, 8th Fast Track Court, Rajkot in Regular Civil Appeal No.53 of 2005, by which the learned Appellate Court has dismissed the said appeal preferred by the appellant herein-original defendant no.1 and has confirmed the judgment and decree dated 30.8.1982 passed by the learned Civil Judge (S.D.), Rajkot in Special Civil Suit No.3 of 1978.

(2.) The respondents herein -original plaintiff Nanduben Ratilal Dholakia instituted the Special Civil Suit No.3 of 1978 in the Court of learned Civil Judge (S.D.), Rajkot against defendants no. 1 to 9 inclusive of appellant-original defendant no.1 for recovery of the possession of the suit plot and mense profit contending inter alia that she is the owner of the plot No.8 of survey No.334 paiki, admeasuring 384 sq.yds.,situated on Gondal Road, at Rajkot. It was further case on behalf of the plaintiff that she is permanently residing at Mumbai and defendants no. 1 to 9 have trespassed on the suit plot and have made illegal construction. It was further case on behalf of the plaintiff that three months prior to the filing of the suit her son visited at Rajkot and had come to know that defendants no. 1 to 9 have illegally entered into suit plot and made unauthorized construction thereon. Thereafter, the plaintiff issued notice dated 24.11.1979 through her advocate and called upon defendants to remove unauthorized construction and to hand over the vacant and peaceful possession of the suit plots. As per the plaintiff, defendant No.1 had refused the registered notice, while defendants no.2 to 9 had replied through their advocate and stated that they are tenants of defendant no.1. As defendants did not hand over the vacant possession of the suit land to the plaintiff, hence the plaintiff has filed the present suit for the recovery of vacant possession of the suit plot and for mesne profit.

(3.) Having served with the summons upon the defendants, defendant no.1 resisted the aforesaid suit by filing the written statement at Exh.13. It was the case on behalf of the defendant no.1 that original plaintiff had authorized her brother Keshavji Lavji Patel for administration of suit plot and the said Keshavji Lavji Patel had contacted broker Nagindas Lakhani for selling of the said plot. That the defendant No.1 contacted Keshavji Lavji Patel through broker Nagindas Lakhani and thereafter said Keshavji Lavji Patel on behalf of the plaintiff entered into a contract on dated 27.1.1976 with the defendant No.1 through broker Nagindas Lakhani and sold the suit plot at the rate of Rs.68.50 per sq.yrds and Rs.2000/- was also paid to Keshavji Lavji Patel as a consideration of the contract. It was the case on behalf of defendant No.1 that said Keshavji Lavji Patel had to obtain permission for sale from Collector and 90 days time limit was fixed for obtaining necessary permission but the said Keshavji Lavji Patel had not obtained permission within three months so he has executed another writing dated 24.4.1976 that he will inform the defendants when he got the permission and he will execute the said deed within a week from obtaining of said permission. It was also further contended on behalf of defendant no.1 that during said period Keshavji Lavji Patel permitted defendant no.1 to make construction on the suit plot. That thereafter, on dated 6.5.1976 the said Keshavji Lavji Patel was paid Rs.1000/- towards consideration on behalf of plaintiff and at that time Keshavji Lavji Patel also handed over the original documents of the plot and also executed a writing. That thereafter, defendant spent huge amount and made construction and rented the defendants no. 2 to 9. It was specifically contended on behalf of defendant no.1 that the plaintiff was given one power of attorney in favour of Keshavji Lavji Patel to execute sale and said Keshavji Lavji Patel has also shown said power of attorney to broker Nagindas Lakhani. It was further contended that as the price of the vacant land has been increased, the said Keshavji Lavji Patel refused to execute the sale deed. It was submitted on behalf of defendant no.1 that he is still ready and willing to perform his part of the contract and that he is in possession of the suit land under agreement and therefore, plaintiff is not entitled to get back the suit land. It was submitted that the suit is not maintainable under the provisions of Section 53(a) of the Transfer of Property Act. That on behalf of defendants no.2 to 9, common written statement were filed at Exh.16, submitting that defendant no.1 is owner of the suit plot and made construction thereon and that they are the tenants of defendant No.1. That considering the pleadings of the parties, the learned trial Court framed the issues at Exh.17. On behalf of the plaintiff one Devshibhai Nagjibhai Power of attorney of plaintiff Nanduben Ratilal Dholaria came to be examined at Exh.32 and her son Vinodbhai Ratilal Patel came to be examined at Exh.66. On behalf of the plaintiff documentary evidences were also produced. On behalf of defendant no.1, he himself came to be examined at Exh.75 and Bavalal Keshavbhai also came to examined at Exh.77. The documentary evidences were also produced by the defendants. That on appreciation of evidence on record oral as well as documentary, the learned trial Court decreed the suit and directed the defendants to hand over the peaceful and vacant possession of the suit plot to the plaintiff by holding that defendant No.1 has failed to prove that he had entered into the agreement with duly authorized persons of the plaintiff and alleged power of attorney in favour of Keshavji Lavjibhai Patel is not forthcoming and not on record and that even the said Keshavji Lavjibhai Patel was also not examined. That being aggrieved and dissatisfied with judgment and decree passed by the learned trial Court, appellant herein-original defendant no.1 preferred First Appeal No. 171 of 1998 before this Court, however in view of the amendment the appeal was transferred to the District Court, Rajkot which was numbered as Regular Civil Appeal No.53 of 2005, which came to be finally heard by the learned Additional District Judge and Presiding Officer Fast Track, Rajkot who by his judgment and order dismissed the said appeal confirming the judgment and decree passed by the learned trial Court. Being aggrieved and dissatisfied with the judgment and decree/ order passed by the learned Appellate in Regular Civil Appeal No.53 of 2005 dismissing the same and confirming the judgment and decree passed by the learned trial Court, the present appellant herein-original defendant no.1 has preferred present Second Appeal under Section 100 of the Code of Civil Procedure.