ISMAIL GAFURBHAI VOHRA Vs. KIRIT BHAGVATPRASAD

JUDGEMENT

(1.) This appeal under section 100 of the Code of Civil Procedure is filed by one of the Decree Holders original plaintiff No.2 who along with one Shri Bijalbhai Devjibhai Prajapati filed Special Civil Suit No. 15 of 1982 for specific performance of contract against one Ravjibhai Mathurbhai Solanki (deceased) and Galuji Mathurbhai Solanki on the basis of agreement to sell dated 24th March, 1980 for the lands from Final Plot No. 432/2, 432/4 and 432. Total area of all the final plots came to 4873.78.12 square meters, out of which the original owners kept 708.17.60 square meters of land for themselves (505.84.05square meters from Final Plot No. 432/2, and 202.30.62 square meters from FP No. 432) and for remaining land ad-measuring 4135.60.45 square meters, agreement to sell was executed. The suit was originally filed against the above said two original land owners, who were defendant No.1 and 2 respectively, and four other defendants. However, pending the suit, since the plaintiffs came to know that the original owners had sold the suit lands to the other persons, they were joined in the suit as defendants No.7 to 19. Subsequently, defendants No.4 and 5 were deleted from the suit proceedings. Said suit was allowed by the Trial Court vide judgment and decree dated 27.3.1984 and the defendants were directed to execute sale deed in favour of the plaintiffs in respect of the suit lands. It was also provided in the judgment that if the defendants failed to execute the sale deed, the sale deed shall be executed in favour of the plaintiffs through Court Commissioner and the plaintiffs shall also be put into possession of the suit land by the Court Commissioner. Against the judgment and decree passed by the trial Court, defendant No.1 and 2 had filed First Appeal No. 889 of 1984 and other defendants had filed first appeal No. 1118 of 1984 before this Court.

(2.) It appears that pending the appeals, the plaintiffs filed Execution Petition No. 103 of 1988 (New Execution Petition No.19/89) on 12.8.88 against the defendants for execution of sale deeds in their favour and for possession of the suit lands. There is no dispute about fact that pending the first appeals before this court,defendant No.1 deceased Ravji M. Solanki filed affidavit dated 23.9.1991 in the First Appeal No. 889 of 1984 stating that since the stay was vacated in respect of Final Plot No. 432 and 432/2, he was willing to execute document of sale in respect of the said two plots as per the decree of the trial court. He stated that he did not intend to prosecute the appeal and desired to comply with the judgment and decree in respect of the said two plots. He also stated that he and defendant No.2 decided to complete the sale transaction in respect of the said two plots for which he was having possession. The sale deeds were then executed by the owners in favour of the appellant for different plots from the two final plots. Thereafter, in the above execution petition, the present appellant-original plaintiff No.2 filed one purshis dated 26.11.1991 stating that since the settlement between the parties had taken place,the execution petition was not to be prosecuted and was to be disposed of. The executing court, therefore passed following order on 26.11.1991;

(3.) It further appears that the plaintiff No.1 Bijal Devji Prajapati had also moved one Civil Application in the said First Appeal No. 889 of 1984 on 13.9.1993 for deletion of his name from the first appeal and for declaring that he has no more interest in the subject matter of the appeal as he has waived/released his claim over the suit land. In his application, he has stated that he had withdrawn his share from the said plots of land in view of the settlement arrived between him and appellant and he has no objection if the appellant dispose of the lands in dispute or obtain possession of the lands from the original vendors or other parties to the first appeals.