HITENDRAKUMAR KESHAVLAL PATEL Vs. BALDEVBHAI CHATURBHAI PATEL

JUDGEMENT

(1.) The appellant has filed present appeal against the judgment and decree dated 5th October 2018 passed in Regular Civil Appeal No. 37 of 2017 by the learned Principal District Judge, Mehsana confirming the order dated 26th March 2007 passed below ex. 48 in Special Civil Suit No. 320/1999 by the learned 7th Additional Senior Civil Judge, Mehsana.

(2.) The suit was filed by the respondent no.2 for specific performance of agreement to sell and for permanent injunction. The respondent no.2 appeared through learned advocate, however, did not file any written statement nor participated in the suit, and therefore, it was proceeded ex-parte and a decree was passed vide judgment and order dated 30th August 2002 directing the original defendant to execute registered sale deed in terms of the agreement to sell dated 19th June 1997. It is the case of the present appellant that he is the real owner of the land in question, as he has purchased the said land vide registered sale deed dated 11.07.1998 from the present respondent no.2 and his name appears in the revenue record as well as in the extract of village form No. 7/12. That, the respondent no.2 has no right to execute any sale deed in favour of the original plaintiff and the sale deed has no value in the eyes of law. That, on the basis of the sale deed executed by the Court Commissioner on 04.03.2003 in favour of the respondent no.2, notice under Section 135D of the Gujarat Land Revenue Code was issued by the Kasba Talati and for the first time, the appellant came to know about the fraud being played by the respondents, and therefore, he moved an application under Order XXI Rules 90,97 and 101 of the Code of Civil Procedure, 1908 before the learned trial Court and also moved an application vide Ex. 50 for injunction. The injunction application submitted by the present appellant was granted and status-quo was ordered to be maintained by the trial Court under Order XX Rules 96, 97. Learned advocate appearing for the appellant further submitted that Order XXI Rule 101 speaks that such application under Rules 97 and Rule 99 when is preferred by the parties, all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application and relevant to the adjudication of the application, shall be determined by the Court dealing with such application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

(3.) Learned advocate for the appellant further submitted that no issues were framed by the learned trial Court to decide the questions raised by the present appellant. In support of his arguments, he has placed his reliance on the judgment passed in case of John Mithalal Desai v. Dineshbhai K. Vora, reported in 1997(2) GLH 506, wherein it is held that question relating to right, title or interest in the property are to be determined under Rule 101 by the Executing Court notwithstanding anything to the contrary contained in any other law qua jurisdiction and order to be passed under Rule 98. He further placed reliance in case of Shah Keshavji Pashuji Vira (Decd.) v. Shah Mavji Pasu- decd., reported in 2014(0) GLHEL-HC 231554, wherein it is held that first Appellate Court was required to formulate specifc points in relation to the disputed aspects of the matter. Learned advocate for the appellants submitted that no issues were framed by the Appellate Court and without deciding the title of the suit property, and as the appellant was the owner by registered sale deed, decree was passed straightway, the issues raised requires to be consideration by framing following question of law.