JEEVIBEN Vs. SAFAL GOYAL REALTY LLP

JUDGEMENT

(1.) By way of present appeal under Sec. 96 of the Civil Procedure Code, 1908 (for short "C.P.C), the appellant-original plaintiff has challenged the judgment and decree dtd. 23/12/2019 passed by the learned Additional Senior Civil Judge, Sanand in Special Civil Suit No.13 of 2018 (Old Special Civil Suit No.473 of 2016) by virtue of which the suit came to be rejected in exercise of jurisdiction under Order 7 Rule 11(d) of the C.P.C.

(2.) The appellant-original plaintiff has brought the suit being Special Civil Suit No.473 of 2016 as indicated above for the purpose of seeking declaration and permanent injunction as also for quashing and setting aside the documents which are stated in the plaint. The case of the appellant-plaintiff was that an entry in respect of the suit land bearing Old Survey No.197/2, Block No.240 came to be mutated in the revenue record on 11/4/1977 vide Entry No.715 whereby his name has been mutated at Serial No.225 for the period between 1977-78 and 1978-79. However, by declaring the appellant as dead person, the deceased son of the appellant, namely, Hussen, at the relevant point of time, declared before the Gram Panchayat that plaintiff is missing since more than five years and by declaring the plaintiff as dead person, the entry was mutated being Entry No.774 on 13/6/1979 by deleting the name of the appellant and thereby incorporated the names of legal heirs. Later on, a sale document came to be executed in favour of defendant No.3, i.e., Govind Bricks Manufacturing Company on 26/12/1983 and the same got registered before the Office of the Sub-Registrar, Sanand vide Entry No.1818 and simultaneously the said transaction has been mutated in the revenue record on 23/1/1984 in village Form No.6. According to the plaintiff, thereafter, a partition took place and the said Block No.240 came in the share of Kamuben Ganeshbhai Prajapati, Kachrabhai Ishwarlal Prajaparti, Mahendrabhai Danabhai Prajapati and Sureshbhai Danabhai Prajapati and an entry in this regard being Entry No.1249 has also been mutated in the village Form No.6 on 20/9/1985. Subsequently, one of the co-owners, namely, Kamuben Ganeshbhai relinquished her right in favour of other three co- owners and an entry thereof has been mutated in the revenue record vide Entry No.1372 on 25/5/1986. Thereafter, on 23/7/1986, the registered transaction came to be executed which got mutated in the revenue record vide Entry No.1376 on 16/8/1986. Out of the three co-owners, one Ranchhodbhai Shivrambhai Prajapati expired on 20/1/2001, as a result of which, the legal heirs of deceased Ranchhodbhai Shivrambhai Prajapati were brought on record by virtue of Entry No.2382 dtd. 19/3/2001 in village Form No.6. It has been stated in the plaint that out of six legal heirs of deceased Ranchhodbhai as stated in the plaint, the legal heirs at Serial Nos.3 to 6. namely, Hemaben Ranchhodbhai, Jayaben Ranchhodbhai, Varshaben Ranchhodbhai and Poojaben Ranchhodbhai have relinquished their rights in favour of the legal heirs at Serial Nos.1 and 2 as indicated at internal page No.6 of the plaint, and to that effect, an entry was mutated on 19/3/2001 being Entry No.2387. It has been further stated in the plaint that the co-owners then executed a registered sale transaction in favour of defendant No.4 on 23/7/2003 bearing Registration No.1167 and the effect of the said transaction was given in the revenue record in village Form No.6 vide Entry No.2462 on 25/7/2023. It is further the assertion of the plaintiff that, thereafter, with respect to this Block No.240, the then Mamlatdar passed an order on 8/10/2003 amalgamating Block No.240 and Block No.215 and an entry in this regard has been mutated in the village Form No.6 on 13/11/2003 vide Entry No.2488. Later on Block No.215, in which, Block No.237 was merged, the District Development Officer, Ahmedabad passed an order on 1/11/2004 granting non-agricultural permission and the effect of the same was also given in the revenue record on 4/12/2004. It is further the assertion of the appellant that the defendant No.4 who purchased the property through registered sale transaction as indicated above, has sold the said property to the defendant No.1 and the said registered transaction has taken place on 6/6/2014 bearing Registration No.3762 and the effect of the same was also incorporated in the revenue record on 9/6/2014, and pursuant to this transaction, the defendant No.1 became the owner and occupier of the land in question. It is with this background by making assertion about the misrepresentation which has been projected in respect of the appellant, a suit is brought before the court for relinquishment which are set out in paragraph-20 stated to have been filed on 29/9/2016.

(3.) Upon receipt of the summons, it appears that the defendant No.3 filed an application below Exh.24 under Order 7 Rule 11(d) and questioned the tenability of the suit itself at the threshold and this application has been heard by the learned Additional Senior Civil Judge, Sanand and the said application was allowed by virtue of an order dtd. 23/12/2019, and it is this order passed by the learned Senior Civil Judge is made the subject matter of present appeal under Sec. 96 before us.