SOMABHAI KANJIBHAI PATEL Vs. ABBASBHAI JAFARBHAI DAGINAWALA

JUDGEMENT

(1.) The judgment and the decree passed by the learned Joint Civil Judge (S.D.) at Surat on 3/11/1977 in Special Civil Suit No. 207 of 1975 are under challenge in this Civil Appeal at the instance of the original plaintiff under Sec. 96 of the Code of Civil Procedure, 1908 ('the Act' for brief). It needs no telling that the appellant's suit has come to be dismissed thereunder.

(2.) The facts giving rise to this appeal are not many and not much in dispute. One Dawoodbhai Jafarbhai Daginawala (the deceased for the sake of convenience) was a Partner in the Partnership Firm in the name and style of Johar Estate Corporation (the Partnership Firm for convenience) along with respondents Nos. 1, 2 and 4 herein. The Partnership Firm was dealing in lands. The appellant claims to have agreed to purchase plots Nos. 8 to 14 from Survey Nos. 276/1 and 277/1 situated in Udhna from the Partnership Firm on the consideration amount of Rs. 8,000. He is stated to have paid the entire consideration on 31/03/1970 under the receipt at Exh. 49 on the record of the trial Court. It appears that the deceased breathed his last some time in 1973. It appears that plots Nos. 9 and 12 were sold by the deceased during his life time some time in or around July 1972 and May 1973 respectively. Plots Nos. 8, 13 and 14 were sold by his heirs and legal representatives some time in or around December 1973 obviously after his death. It was the case of the appellant before the lower Court that he entered into a fresh agreement with the existing partners of the Partnership Firm for sale of plots Nos. 33 to 39 in lieu of plots Nos. 8 to 14 agreed to be sold earlier. According to the appellant, the respondents herein later on backed out from the agreement to sell plots Nos. 33 to 39. Some notice correspondence appears to have been exchanged between the parties. The appellant was thereafter required to file one suit in the Court of the Civil Judge (S. D.) at Surat for specific performance of the contract alleged to have been entered into between the appellant on one hand and the partners of the Partnership Firm on the other for sale of plots Nos. 8 to 14 as originally agreed or in the alternative plots Nos. 33 to 39 as subsequently agreed or in the alternative for compensation and for refund of the Earnest Money together with interest thereon. It came to be registered as Special Civil Suit No. 207 of 1975. Respondents Nos, 1,2 and 4 filed their separate written statement at Exh. 19 on the record of the trial Court and resisted the suit on various grounds. Respondents Nos. 3 and 5 to 7 filed their separate written statement at Exh. 20 on the record of the trial Court and resisted the suit on various grounds practically the same as urged by the other defendants in their written statement at Exh. 19 on the record of the trial Court. The suit appears to have been assigned to the learned Joint Civil Judge (S. D.) at Surat for trial and disposal. On the pleadings of the parties, the necessary issues were framed at Exh. 21 on the record of the trial Court. After recording evidence and hearing the parties, by his judgment and decree passed on 3/11/1977 in Special Civil Suit No. 207 of 1975, the learned Joint Civil Judge (S. D.) at Surat dismissed the suit. The aggrieved plaintiff' thereupon invoked the appellate jurisdiction of this Court under Sec. 96 of the Code for questioning the correctness thereof.

(3.) The learned trial Judge infer alia came to the conclusion that the appellant entered into a contract for sale of plots Nos. 8 to 14 with the deceased in his individual capacity and not as a partner of the Partnership Firm. The learned trial Judge also came to the conclusion that there was no new contract for sale of plots Nos. 33 to 39 with the Partnership Firm after the death of the deceased. The learned trial Judge however came to the conclusion that the suit was bit by the Law of Limitation both with respect to the relief of specific performance as well as the relief of refund of the Earnest Money.