BHUPENDRABHAI HASMUKHBAI DALWADI Vs. SAIVTRIBEN GANUMAL KRISHNANI

JUDGEMENT

(1.) THE present Appeal from Order has been filed by the appellants- original plaintiffs being aggrieved with the impugned order passed below Exh. 5 in Special Civil Suit No. 175/2006 by the learned Chief Judicial Magistrate and Addl. Sr. Civil Judge, Vadodara, dated 16.5.2012, on the grounds stated in the Appeal from Order. With the consent of the learned advocates appearing for the respective parties, the arguments have been heard at length and treated as finally heard.

(2.) HEARD learned Sr. Counsel Shri Dhaval Dave appearing with learned advocate Shri Parthiv Shah for the appellants. He has referred to the paper-book produced and submitted that the court below has failed to consider the relevant aspects for deciding the issue involved in the matter. Learned Sr. Counsel Shri Dave pointedly referred to the sale deed dated 5.1.1965 produced on record at p. 247 of the paper-book and submitted that it is not a registered sale deed and therefore would not be admissible in evidence and it could not have been considered or relied upon by the court below. He further submitted that at the most it could be said to be an agreement to sell. He submitted that even after execution of the sale in 1965, the possession has been given in favour of Hasmukhbhai Dalvadi, respondent No. 6, and there are documentary evidence that the possession has remained even thereafter with respondent No. 6, Hasmukhbhai Dalvadi, who is the father of the appellants-plaintiffs. Learned Sr. Counsel Shri Dave for that purpose referred to the order/communication of the Taluka Panchayat Office, Vadodara, that N.A. permission was granted in favour of respondent No. 6, Hasmukhbhai Dalvadi. Similarly, he referred to the temporary permission given for brick manufacturing which is also produced on record. He also referred to the order dated

(3.) LEARNED Sr. Counsel Shri Dave has referred to and relied upon the judgment of the Hon'ble Apex Court in the case of S. Kaladevi v. V.R. Somasundaram and ors., reported in (2010) 5 SCC 401, and emphasised the observations made in paras 7, 12, 16 and 18. Learned Sr. Counsel Shri Dave strenuously submitted that the unregistered sale deed was not considered as an evidence of sale and the court below ought to have considered that the suit itself was not maintainable in that case. He has also pointedly referred to the observations made in para 12 with regard to the unregistered document and the effect thereof as per the provisions of sec. 49 of the Registration Act.