MERAJBHAI VAJABHAI DESAI Vs. POPATBHAI MOHANBHAI PADSALA

JUDGEMENT

(1.) This appeal, under Sec. 96 of the Code of Civil Procedure has been filed by the appellants who were the original plaintiffs. They are aggrieved by order below application Ex. 22. The application filed under Order VII Rule 11 (a) and (d) of Code of Civil Procedure by the defendant no. 9 was allowed by the order dtd. 11/7/2022 passed in special Civil Suit No. 479 of 2018. The appeal arises out of the said order.

(2.) The dispute pertains to land at village Leelapur, Ta. Daskroi, Block No. 54 admeasuring H.Are.sq.mts 2/33/71. It was the case of the plaintiffs that the defendant nos. 1 to 5 had by an agreement to sell executed on 29/1/2000 agreed to sell the land in question to the father of the appellant since deceased. According to the plaintiffs, their father died on 23/11/2007. Having undergone shock and pain as a result of his death, they were not in a position to enforce the agreement to sell. On finding the document i.e. the agreement to sell in question dtd. 29/1/2000, it came to their notice that the defendant nos. 1 to 5 had agreed to sell the lands in question for a consideration of Rs.6,98,950.00 and the plaintiff's father had paid Rs.69,895.00 as part consideration which the defendants no. 1 to 5 had received. According to the plaintiffs, despite this agreement to sell, the defendants no. 1 to 5 did not execute the title clearance and execute the sale deed. 2. ***

(3.) Mr. Shalin Mehta, learned Senior Advocate appearing with Mr. Vimal Purohit, learned advocate for the appellants would submit that the appellants have filed application for leading additional evidence. In the application so filed, they have annexed a cancellation deed dtd. 3/3/2000. According to the appellants, the cancellation deed cancelling the agreement to sell was a unilateral cancellation which was executed within five weeks from the date of the agreement to sell. It was the case of the appellants that since it was a unilateral cancellation, the cancellation document of the agreement to sell was obtained by fraud. This document was concealed since it was unilaterally signed and since the signature of the appellants were not appended to this document, they were not aware of the cancellation.