SARASVAIDYA SAVITABEN NARSINHBHAI Vs. HARILAL KANJI PATEL

JUDGEMENT

(1.) As these two civil revision applications have arisen from the counter suits filed by the parties against each other, the learned trial Court decided the applications ex.5 in both the suits by common order and the appeals filed by the parties against the order of the learned trial court below ex.5 have also been decided by the first appellate court under a common order, I consider it to be appropriate to take up these civil revision applications together and decide these by a common order.

(2.) As per the case of Harilal Kanji Patel, on 20th June 1997, an agreement to sell of the suit land has been executed by Jivrajbhai Parsottambhai in his favour. The sale consideration was agreed to be Rs.45,000/=. On 2nd May 1998, as per the case of Savitaben Narshibhai, a sale deed of the suit land has been executed by Jivrajbhai Parshottambhai Patel in her favour and the sale consideration thereof was of Rs.50,000/=. These two transactions gave rise to two counter suits, i.e. one by Harilal Kanji Patel being Regular Civil Suit No.109 of 1998 for specific performance of agreement to sell dated 20th June 1997 and another by Savitaben Narshibhai being Regular Civil Suit No.113 of 1998 for declaration and permanent injunction to restrain the original owner as well as the purchaser by agreement to sell not to disturb her possession till conclusion of her suit filed against the purchaser under agreement to sell. She also prayed for declaration of agreement to sell in favour of Harilal to be illegal and inoperative. Harilal, in his suit prayed for injunction against the defendants, i.e. the owner and subsequent purchaser from disturbing his possession till conclusion of suit and for direction to the original owner to execute sale deed. Both the parties in their suits filed applications ex.5 for grant of temporary injunction and the learned trial court, after hearing the parties and considering the evidence produced by them recorded a finding of fact that the purchaser by agreement to sell is in physical and actual possession of the suit land since the date of execution of the Sauda Khat and according to Sauda Khat the remaining amount of consideration has to be paid by 20th June 1998 and thereafter the original owner has to execute the sale deed in his favour. So the learned trial court dismissed the application ex.5 filed by Savitaben Narshibhai in the Civil Suit No.113/98 and application ex.5 filed by Harilal in Civil Suit No.109/98 has been granted.

(3.) Smt.Savitaben Narshibhai challenged both the orders of the learned trial Court, i.e. rejection of her application ex.5 and grant of application ex.5 of Harilal K. Patel in two suits by filing two separate appeals. The learned first appellate court under its order dated 30th September 1998 has dismissed both the appeals. Hence these two civil revision applications before this Court.