CHANDUBHAI MAGANBHAI KALATHIYA Vs. JASWANTIBEN CHAMPAKBHAI PATEL

JUDGEMENT

(1.) Captioned application is preferred by the applicant seeking leave to appeal against the consent decree dtd. 3/8/2019 passed in Special Civil Suit no.215 of 2019 (hereinafter referred to as "the suit"). Grievance of the applicant in the captioned proceedings is that the impugned decree is collusive and fraudulent and is procured without joining the applicant as a party. The parties herein are referred to as per their status in the suit (except the applicant).

(2.) The claim of the applicant is that the original defendant had executed sale deed for lands bearing (i) survey no.19/1 block no.8A admeasuring 18312 sq. mtrs.; (ii) survey no.25/2 block no.19 admeasuring 19527 sq. mtrs. at village Sabarbam, taluka Choriyasi, district Surat (hereinafter referred to as "the lands in question") in favour of the applicant; owing to the deficit stamp duty, it was not registered. Upon the applicant paying the requisite stamp duty the sale deed was registered on 27/11/2013. It is case of the applicant that backdated agreement to sell (31/1/2005) was executed between the original plaintiff and the defendant. The suit was preferred by the original plaintiff seeking specific performance of the agreement to sell without joining the applicant, despite the sale deed dtd. 28/2/2005 executed in his favour. Showing undue haste and within a short span of 37 days, the suit was decreed, followed by execution of the sale deed in favour of the original plaintiff, further followed by its registration on 24/2/2022. 2. Necessary steps were taken for posting entry no.831 in the name of the plaintiff, which was objected to by the applicant and the proceedings before the revenue authorities, got culminated into Takrari Case no.87 of 2022. Similarly, mutation entry no.846 was posted in favour of the applicant. On 27/1/2023, objection was raised and hence, the case was registered as Takrari Case no.36 of 2023. In the said proceedings in the year 2022, for the first time, the defendant has disclosed about the decree passed in Special Civil Suit no.215 of 2019. Entry in favour of the applicant was certified against which, an appeal was preferred which was allowed and the entry was made subject to the final outcome of the Special Civil Suit no.450 of 2011.

(3.) At the outset, the learned advocates appearing for the plaintiff and the defendant of the suit, have raised preliminary objections and made following submissions.