VASANTLAL MOTICHAND SHAH DECEASED Vs. JASHWANTIBEN SHASHIKANT SHAH

JUDGEMENT

(1.) PRESENT Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellant original plaintiff (now heirs and legal representative of the plaintiff) challenging the judgement and decree passed by the learned Civil Judge (Junior Division) in Regular Civil Suit No.124 of 1993, dtd.7/8/2002 by which the learned trial court dismissed the said suit instituted by the appellant original plaintiff as well as the impugned Judgement and Order passed by the learned appellate court - learned Principal District Judge, Valsad in Regular Civil Appeal No.373 of 2002 dtd.21/9/2005, by which the learned appellate court has dismissed the said appeal confirming the judgement and decree passed by the learned trial court dismissing the suit.

(2.) THAT the original plaintiff instituted Regular Civil Suit No.124 of 1993 in the court of learned Civil Judge (Junior Division), Umargam for a declaration that the sale deed dtd.2/6/1980 as well as the rectification deed dtd.20/8/1983, with respect to the land in question, is not binding to the plaintiff and also for a declaration that in the suit property the plaintiff has 1/2 share and also prayed for partition of the suit property between the plaintiff and the defendant No.1. In the said suit, the plaintiff also prayed for permanent injunction. That it was the case on behalf of the plaintiff that the father of the plaintiff was the owner of the suit property. That the suit property was given by his father to one Parmanand Mathurdas firm before many years in settlement of debt. Thereafter the said property given to said Parmanand Mathurdas firm and the entire family was residing as tenant. That the defendant No.1 is the widow of his younger brother. That the plaintiff shifted to Valsad due to business. That his elder brother, his younger brother and mother were residing in the suit property. That elder brother, who was unmarried, expired on 26/6/1984. According to the plaintiff, the suit property was formerly property of his father, and therefore, he and his brother Shashikant and defendant No.1 decided to purchase the suit property from the defendant No.2. That for purchasing the suit property draft was prepared by the petition writer Mr.Madhusudan Bhikhaji. That the plaintiff paid Rs.3000/- towards his share to the defendant No.2. That in the Draft sale deed, his name was not inserted as purchaser of the suit property and therefore, when it was pointed out and in presence of the defendant No.1 and in presence of her husband, his name was inserted in the sale deed, as a purchaser of the suit property and defendant No.2 also made their initial at the place where his name was inserted. That thereafter the said document was presented before the Sub-Registrar for the purpose of registration. It was further the case on behalf of the plaintiff that thereafter the name of the plaintiff was mutated in the revenue record, but thereafter the defendant No.1 changed his intention and filed RTS proceedings before the Mamlatdar and ALT and said proceedings continued for along period and reached upto Gujarat High Court and the plaintiff lost the said proceedings before this High Court and it was observed and held by this High Court that it will be open for the plaintiff to initiate proceedings before the Civil Court for establishing his rights in the suit property. According to the plaintiff, subsequently defendant Nos.1 and 2 in collusion with each other and to defeat the right of the plaintiff, defendant No.2 had executed one rectification deed dtd.20/8/1983 in favour of the defendant No.1 and behind the back of the plaintiff, deleted his name from the sale deed. Therefore, the plaintiff instituted the Regular Civil Suit No.124 of 1993 for declaration that the rectification deed dtd.20/8/1983 is not binding to him as the same was executed by the defendant No.2 in favour of the defendant No.1, behind the back of the plaintiff. Therefore, on the basis of the earlier deed / sale deed, the plaintiff also prayed relief for 1/2 share in the suit property.

(3.) PRESENT Second Appeal is opposed by Mr.Dhaval Vyas, learned advocate appearing on behalf of the original defendant No.1. It is submitted that in the facts and circumstances of the case both the courts below have rightly dismissed the said suit on the ground of limitation. It is submitted that considering the fact that rectification deed was executed by the defendant No.2 on 20/8/1983 and the suit came to be filed in the year 1990 for declaration that the rectification deed dtd.20/8/1983, is not binding to the plaintiff, the same is rightly dismissed on the ground that the same is barred by law of limitation. It is submitted that in the facts and circumstances of the case the plaintiff would not be entitled to benefit of section 14 of the Limitation Act. It is submitted that in the facts and circumstances of the case, the plaintiff would not be entitled to the benefit of section 14 of the Limitation Act.