TILESHWAR DEVNARAYAN RAI Vs. ANIL VINAYAK PIMPUTKAR & OTHERS
HIGH COURT OF GUJARAT
Tileshwar Devnarayan Rai
Anil Vinayak Pimputkar
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(1.) ADMIT . Learned advocate Mr. Dilip L. Kanojiya waives service of notice of admission on behalf of respondents.
1.1 Heard learned advocate Mr. J. T. Trivedi for the appellant and learned senior counsel Mr. S. R. Sanjanwala with learned advocate Mr. Dilip L. Kanojia for all the respondents.
(2.) PURSUANT to order dated 29.11.2013, parties have produced compilation of relevant papers and made submissions for final disposal of the appeal.
(3.) THE appellant is original plaintiff; whereas respondents are original defendants before the Civil Court at Valsad, camp @ Vapi in Special Civil
Suit No. 17 of 2011. In such suit, plaintiff has prayed for specific
performance to agreement to sell dated 10.01.1981 and possession receipt
dated 25.12.1982 with alternative relief of declaration that because of
suit property is in possession of the plaintiff since the year 1981 -
1982 it amounts to an adverse possession for more than 30 years with a permanent injunction as restraining the defendants as aforesaid. Whereas,
plaintiff has prayed for interim relief to restrain the defendants from
disturbing his possession and from evicting the plaintiff from the suit
property without following due procedure of law and not to transfer the
suit property to any 3 rd party or to create any charge or encumbrance.
The details of suit property is not at dispute at present, which is well
described in the suit.
By impugned judgment and order dated 02.09.2013 the trial Court has dismissed the application for interim relief. Plaintiff has, therefore,
challenged such order by way of appeal. It is the case of the plaintiff
that father of the defendant namely Vinayak Pondoraj Pimputkar had
executed one agreement to sell with possession on 10.01.1981 in favour of
the plaintiff as well as one Dahya Bhagwan Rohit. On perusal of such
agreement to sell, it transpires that the father of the defendants being
original owner of the suit property has in fact sold out, by absolute
sale, the suit properties in favour of its purchasers being plaintiff and
Dahya Bhagwan Rohit accepting the total sale price being Rs.14,999/ - from
both of them (purchasers). It is further categorically stated that out of
total amount, Rs.7500/ - was paid by Dahya Bhagwan Rohit and Rs.7499/ - had
been paid by the present plaintiff and therefore he acknowledged the
receipt of such amount confirming that now nothing remained to be paid by
purchasers and thereby nothing to be received by the seller (father of
the defendants). It is further stated that sale -deed is to be executed by
converting the land for non -agricultural purpose within a year at the
convenience of the seller and that expenditure of sale -deed is to be
equally borne by the purchasers. The details of properties are thereafter
specifically disclosed on such documents whereby seven survey numbers are
disclosed with its area and further details.
4.1 In addition to such agreement to sell the predecessor in title of the defendants - seller namely Vinayak Pondoraj Pimputkar has also executed one another agreement - cum - possession receipt in favour of the plaintiff on 25.12.1982, probably because of the fact that there was no discloser regarding possession in the previous agreement dated 10.01.1981. Therefore, by such second agreement dated 25.12.1982 i.e. almost after two years again original seller has endorsed such agreement and possession receipt confirming that on 10.01.1981 he has executed an agreement for the suit properties and accepted the amount of Rs.14,999/ -. It is categorically disclosed in such documents that since sale proceed is already received and that nothing is left to be received, the possession of the suit property is being handed over to the Dahya Bhagwan Rohit and the plaintiff and made it clear that now purchasers are free to hold such land as absolute owner and to deal with it as such. It is also categorically stated that henceforth now nobody has any right or title whatsoever over the suit property and that even legal heirs of the seller does not have any right. It is further stated that, at the time of mutation of ownership the seller has to agree for all such transactions and after getting N.A. Permission, seller has to execute the sale -deed either in the name of purchasers or in any other name as confirmed by the purchasers. Both above documents are signed in presence of witnesses and it is more than 30 years old documents and therefore in absence of any specific evidence in rebuttal, such documents cannot be ignored.
4.2 Therefore, it is submitted by the appellant - plaintiff that when there is prima facie evidence regarding ownership and possession of the suit property by the plaintiff, there is no reason for the trial Court to refuse to protect the right of the plaintiff if not for everything, then at least for possession considering settled legal position that possession cannot be snatched away without following due procedure of law. However, arguments of the plaintiff are in fact in response or in reply to submissions by the defendants. Therefore, it will be considered with the statements of the defendants.
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