DHRIRUBHAI BHAVANBHAI Vs. ATULBHAI BABUBHAI RAIYANI

JUDGEMENT

(1.) CHALLENGE in this Appeal from Order is the order dated 23.07.2012 passed by the learned 17th Additional Senior Civil Judge, Rajkot below Exh.5 in Special Civil Suit No.79 of 2012 whereby, the injunction application preferred by the plaintiff was dismissed in a suit filed for declaration and cancellation of Registered Sale Deed dated 21.12.2011 in respect of the land bearing Survey Nos.10/1 and 10/2 admeasuring 2 acres and 7 gunthas situated at village: Navagam (for short, the suit land) executed by the defendant Nos.6 and 7 in favour of the defendant Nos.1 to 5.

(2.) PARTIES to the present Appeal from Order would be referred to as per their status in the plaint.

(3.) BRIEFLY stated, it is the case of the plaintiff that deceased -defendant No.11 was his real brother. On demise of the father of the plaintiff, the suit land came to be mutated in the names of plaintiff, defendant No.11 and their sisters as joint property in the record of rights. The plaintiff filed Special Civil Suit No.69 of 1984 against the defendant No.11 and sought relief to the effect that the defendant No.11 be restrained from converting the suit land into non -agricultural land and for partition. The said suit was compromised on 27.07.1987 and as per compromise, both the sisters of plaintiff relinquished their share in favour of both the brothers i.e. plaintiff and defendant No.11. On 23.02.1983, the deceased defendant No.11 entered into one agreement for sale of suit land and handed over possession of the suit land to one Mr.Gajendrasinh Vadher. Said Mr.Gajendrasinh Vadher filed Civil Suit No.1079 of 1987 against the deceased defendant No.11 and others wherein, the Civil Court passed a decree dated 05.01.1999 holding that said Mr.Gajendrasinh Vadher is in lawful possession of the suit land and restrained the defendants therein from interfering with the possession. The Civil Court further clarified that the decree shall not affect rights of the tenant or lessee in the suit land. Pending such litigation, the plaintiff and defendant No.11 in collusion, invited a consent decree from the Civil Court in Special Civil Suit No.69 of 1984 each having half share in the suit land and further, their sisters have relinquished their rights over the suit land. At this stage, it is required to be noted that the said decree was not registered as required under Section 17(b) of the Registration Act.