KANUBHAI SANKALCHAND PATEL HEIR OF DECD SANKALCHAND MANILAL MUKHI Vs. NAYANKUNJ CO OPERATIVE HOUSING SOCIETY LIMITED

JUDGEMENT

(1.) The plaintiff filed the present suit against the defendants for obtaining decree for specific performance of the contract for sale Exh. 116 dated 27th May 1963. Under that agreement of sale the land admeasuring 3500 sq. yds. out of S. No. 235 of Rajpur Hirpur in the City of Ahmedabad was agreed to be sold by defendant No. 8 to the plaintiff. The total area of S. No. 235 was 3 acres 25 gunthas or 18045 sq. yds. In the alternative the plaintiff prayed for a decree for damages in the sum of Rs. 57085. The land in question originally belonged to one Sankalchand Manilal Mukhi who died on 14th July 1963. He had executed an agreement of sale in respect of 6000 sq. yds. of land out of this survey number in favour of defendant No. 8 on 16th August 1962. Defendant No. 8 in his turn executed in favour of the plaintiff the said agreement in respect of 3500 sq. yds. of land. After the expiry of the owner of the land some of his heirs refused to execute the direct sale deed in favour of the plaintiff in respect of 35 sq. yds. of land. Defendants No. 1 one of the two widows of the original owner was willing to execute the sale deed. Similarly defendants Nos. 4 and 6 daughters of the original owner were also willing to execute the sale deed. The rest of the heirs of the original owner were unwilling to do so. The real contesting parties therefore in the trail Court were defendants. Two principal 7 The suit was defended by the contesting defendants. Firstly they did not defences were raised by the contesting defendants. Firstly they and not admit the agreement of sale or banakhat Exh. 185 executed by the original owner in favour of defendant No. 8. Secondly they contended that the suit property was a joint family property and that the original owner as the manager of the Joint Hindu Family could not execute the agreement of sale or banakhat in favour of defendant No. 8 because there was no legal necessity for him to do so. They therefore contended that Exh. 185 of saleexecuted by the original owner in favour of defendant No. 8 was not binding upon them. The learned trial Judge on evidence held that the original owner Sankalchand was the exclusive owner of the suit property. He also held that execution of banakhat Exh. 185 was proved by the plaintiff. He therefore passed in favour of the plaintiff decree for specific performance of agreement of sale in respect of 3132 sq. yds. of land. He passed decree in respect of the smaller area of land because out of the total area of S. No. 235 an area of 3999 sq. yds. was compulsorily acquired by Government sometime in 1967. Notification for compulsory acquisition was in the first instance issued under sec. 4 of the Land Acquisition Act on 28th January 1963 in respect of 2800 sq. yds. Subsequently it was cancelled. On 27th August 1964 second notification under sec. 4 in respect of an area of 4161 sq. yds. was issued. The reafter on 19th December 1963 notification under sec. 6 of the Land Acquisition Act was issued in respect of an area of 3999 sq. yds. On account of compulsory acquisition of a part of the land since the learned trial Judge could pass decree only in respect of 3132 sq. yds. of land he did so. It is that decree which is challenged by defendant No. 3 in this appeal.

(2.) Mr. B. R. Shahs learned Advocate who appears on behalf of the Appellant has raised before us as many as seven contentions. Majority of these contentions have been raised for the first time in this appeal. The following are the contentions which he has raised:

(3.) We may state that the first second fourth and fifth contention which Mr. B. R. Shah has raised before us have been raised for the first time in this appeal. Sixth contention was earlier raised in this appeal. It was permitted to be raised and an issue was framed on the question of the applicability of the said Act to the suit land and was sent down to the trial Court for trial. Evidence was recorded by the learned trial Judge. He has certified the finding that the said Act applies to the land in question.