JYOTI VASWANI Vs. RESHMA VASWANI

JUDGEMENT

(1.) BOTH the appeal and revision, which are inter-connected and arising out of the dispute between the same parties over the same disputed plot, were heard together, and are now being disposed of by this common judgment. The appeal is directed against the order dated 3.3.2004 passed by the learned Assistant District Judge, Shillong in T.S. No. 4(H) of 2001 rejecting the plaint under Order 7, Rule 11 of the Code of Civil Procedure as being barred by the doctrine of estoppel, while the revision is directed against the order dated 31.3.2009 passed by the Board of Revenue refusing to admit her appeal against the order dated 1.10.2008 of the Additional Deputy Commisioner, Shillong rejecting her prayer for issuing separate patta to her in respect of the same disputed plot i.e. Plot No. 43 marked as Plot A in the map attached to the family settlement dated 23.6.1984.

(2.) TO simplify the case, I will first decide RFA No. 6(SH) of 2009 and thereafter dispose of, as far as possible, the connected CR(P) No. 8(SH) of 2009 on the basis of my decision thereon. In the appeal, the case of the appellant, as pleaded in the plaint, is that she the cousin of Ashok Bhagwandas s/o late Bhagwandas, and after her marriage with Pishu Vaswani, the latter also became acquainted with the said Ashok Bhagwandas, his brothers and sisters. Out of love and affection for the appellant, the said Ashok Bhagwandas, for himself and on behalf of his brothers and sisters, duly conveyed, by way of gift, a plot of land measuring approximately 2,450.25 square feet situate by the side of G..S. Road, Police Bazar, Shillong vide the Gift Deed dated 29.9.1988 which was registered on 29.3.1989 at Mumbai. Having accepted the gift, the donor delivered possession of the said plot in favour of the appellant. At the time of execution of the Gift Deed, the donors were not aware of any case filed by the respondent No. 1 (defendant 1) against any of them pending before any Court. After registration of the Gift Deed, the name of the appellant stood mutated in the revenue records vide the letter dated 3.1.1991 of the Deputy Commissioner, Shillong. However, it turned out that a gift deed was also executed by one Parbatibai, w/o late Odarmal Thadani, the principal of the respondent No. 2 (Shri Harish Vaswani, now deceased) in favour of respondent 1 in respect of the plot of land measuring about 2450 sq. feet lying by the side of a stream and at the back side of the plot of land delineated, demarcated and shown as Plot No. 'D' in the map forming a part of the memorandum of family arrangement entered into between Shri Kishan Chand Thadani, Smt. Rukimini Bai, Shri Ashok Bhagwandas (Thadani) on the one hand and Smt. Parbatibai on the other on 23.6.1984, which was witnessed by Shri Atmaram Murdhanani, Proprietor of Mohini Store and Shri Kishan Chand Vaswani, Proprietor of Broadway, Shillong, who is the father-in-law of the respondent No. 1.

(3.) THE appellant thereupon instituted Title Suit No. 10(H) of 1991 for declaring that she was the owner of the disputed plot as shown in the map attached to the Memorandum of family arrangement dated 23.6.1984 and for declaring that the compromise decree dated 15.5.1989 passed by the learned Assistant District Judge, Shillong in Title Suit No. 6(H) of 1988 was null and void. THE appellant also filed Misc. Case No. 32(H) of 1991 for interim injunction to restrain the respondent 1 from further construction on the disputed land. Due to the delaying tactics adopted by the respondent 1, the injunction application was frustrated with the result that she managed to complete the building constructed by her and rented out the rooms thereon to different tenants. Ultimately, the respondent 1 and her husband proposed a compromise on certain terms and conditions, which were accepted by her. She accordingly filed an application on 22.3.2000 before the learned Assistant District Judge, Shillong for withdrawal of the suit in the above terms and conditions. She had insisted on inserting those terms and conditions on the assurance made by the respondents No. 1 and 2 that they would abide by the agreed terms even without incorporating the same in the agreement. THE trial Court by the order dated 22.3.2000 accordingly disposed of the suit as withdrawn. She also withdrew the objection filed by her in Partition Case No. 1 of 2000 pending before the Revenue Court of the Deputy Commissioner, Shillong against the prayer of respondent 1 for issuing separate patta in her name. After she had fulfilled the promise made by her in the said oral agreement, she also expected the respondents to keep their side of the bargain, but the latter refused to honour their words. As the appellant was compelled to withdraw the suit by means of such fraud practiced by the respondents, she was constrained to institute the instant suit for declaration with consequential reliefs.