AMBALAL BABABHAI VALAND Vs. NIRANJAN AMBALAL JETALPURIA

JUDGEMENT

(1.) APPELLANT - original defendant No.1 has challenged the judgment and decree dated 25.7.1989 passed by learned Extra Assistant Judge, Ahmedabad (Rural), Mirzapur, whereby the appeal filed by respondent No.1- original plaintiff came to be allowed and the judgment and decree passed by the learned Trial Judge dismissing the suit of respondent No.1 was quashed and set aside and respondent No.1 was held entitled to one third share in the sale proceeds of the land in question and also held entitled to the profit from the land for three years prior to filing of the suit. Preliminary decree was ordered to be drawn accordingly with a direction to appoint Court Commissioner to take accounts from the appellant.

(2.) CASE of respondent No.1 in his plaint was that the appellant was his brother-in-law, that respondent No.2­ original defendant No.2 in the suit was having close relationship with the appellant, that the land bearing Survey No.830 admeasuring 2 acres and 1 guntha was to be purchased and respondent No.1 was asked to invest one third amount in the said land, that accordingly putting full faith on them, respondent No.1 gave money in equal share and the property was then purchased in the name of the appellant, that the appellant thereafter did not give any amount nor any share in the property but misrepresented that land would fetch good price and there would be good profit, that therefore, again, respondent No.1 placed faith in them and still the appellant kept the respondent in dark and entered into transaction with one person by caste Prajapati and received Rs.3700/- as an earnest money, but did not pay any amount to respondent No.1, nor did the appellant gave any share in the property, that since the appellant and other defendants were trying to defeat the right of respondent No.1, one Civil Suit No.749 of 1981 was filed for injunction restraining the appellant from selling away the said land. In the said suit, the appellant declared that the land was sold however sale price was not correctly disclosed though the value of the land was around Rs.2 lakhs. Therefore, the said suit was withdrawn and present suit was filed for declaration that respondent No.1 was entitled to one third share in sale proceeds received, and also for the profit for the period during which the appellant continued with possession and enjoyed the land.

(3.) ON such pleadings, though 10 issues were framed, but the main issues were to the effect that :-