RAMESH CHAND ARDAWATIVA Vs. ANIL PANJWANI

JUDGEMENT

(1.) IN a suit for declaration, possession and mandatory injunction instituted in respect of property in question by the plaintiff respondent on February 9, 1987, the defendant appellant did not choose to file written statement, even after the trial court kept the suit pending for a period of five and half years for this purpose only. The defendant appellant also failed to cross-examine the witnesses adduced by the plaintiff respondent and did not examine any witness on his behalf. Learned trial court on January 8, 2001 decreed the suit. Civil regular first appeal preferred by the defendant appellant was dismissed by the learned appellate has now filed the instant second appeal impugning the aforequoted findings of the courts below.

(2.) DR. Prakash Chand Jain, learned counsel appearing for the appellant, canvassed that the suit instituted by the respondent on the basis of the agreement dated December 1, 1985 stated to be made in his favour by one Shriniwas Vaidhya was not maintainable without seeking the relief of specific performance. The agreement was not admissible in evidence and on the basis of said document decree for declaration could not be passed. It was further contended that despite the directions issued by the High Court in the order dated January 16, 1996 the trial court failed to summon the President and the Secretary of the Society. Effect of section 51 of the Transfer of Property Act was not taken into consideration by the courts below. The civil court had no jurisdiction to entertain the suit in view of section 75 and 127 of the Rajasthan Cooperative Societies Act. It was also urged that the appellant filed counter claim but it was not taken into consideration. In respect of findings of the appellate court below it was contended that it had fallen into serious error of law in rejecting the application of the appellant made under Order 41 Rule 27 CPC. Both the courts below also committed error of law in not framing the issues and points for determination. Reliance was placed on Radha Kishan vs. Shridhar (1), Sarada vs. M. K. Rajendran (2), Sunil Kumar vs. Kishan (3), Jawajee Nagnathan vs. Revenue Divisional Officer (4), J. D. A. vs. Kailashwati Devi (5) and Radhamoni vs. T. Jaganathan