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2022 DIGILAW 776 (GUJ)

P. K. Patel v. Labhshanker Pursottambhai Trivedi

2022-06-15

A.P.THAKER

body2022
JUDGMENT : A.P. Thaker, J. 1. Being aggrieved and dissatisfied with the judgment and decree passed on 13.01.1995 in Regular Civil Appeal No. 6 of 1990 by the Court of 3rd Extra Assistant Judge, Kheda at Nadiad, confirming the judgment and decree dated 30.11.1989 passed by the learned Civil Judge (Junior Division) Nadiad in Regular Civil Suit No. 217 of 1979 whereby the sale deed executed in favour of the deceased defendant Ravjibhai Unabhai Patel dated 25.02.1976 came to be set aside, the heirs of the original defendant no. 1 has preferred this Second Appeal under Section 100 read with Order 41 Rule 1 of Code of Civil Procedure. 2. The appeal came to be admitted way back on 18.04.1995. 3. The main contention raised by the appellant is that the deceased defendant no. 1 was bona-fide purchaser of the property and he was in occupation of property in question as a tenant and therefore defendant no. 2 as an administrator of the Panch-plaintiff has executed registered sale deed in his favour. It is also contended that consideration was paid to defendant no. 2. It is also contended that both the Courts below have committed error of facts and law in holding that the sale deed executed between defendant no. 1 and defendant no. 2 is collusive one and without consideration and illegal. According to defendant no. 1, he is third party and therefore, he has nothing to do with the facts that who is authorized person to execute sale deed on behalf of the Panch-plaintiff. It is also contended that the Panch-plaintiff was not a registered Trust and has not having any written rules and regulations and in absence thereof, each one of the administrator of the Panch can execute the sale deed in favour of defendant no. 1, that factor itself cannot be said to be illegal. It is also contended that both the Courts below have committed serious error of facts in setting aside the registered sale deed executed in favour of the deceased defendant no. 1. 4. The appellants are the heirs of defendant no. 1 and the respondents herein are original plaintiffs before the Trial Court. The original defendant no. 2 has not been joined in this appeal who is appellant no. 7 before the First Appellate Court. 1. 4. The appellants are the heirs of defendant no. 1 and the respondents herein are original plaintiffs before the Trial Court. The original defendant no. 2 has not been joined in this appeal who is appellant no. 7 before the First Appellate Court. For the brevity and convenience the parties are referred to in this judgment as per the character assigned to them before the learned Trial Court. 5. It emerges from the records that the plaintiffs who are the administrators of the property which belongs to “Audichya Sahastra Brahman Panch” have filed a suit in a representative capacity contending that the property Gram Panchayat No. 536/1 of village Chaklasi which is an open land belongs to Panch-plaintiff. It is further alleged that the northern portion of the said land had been sold by the administrators of the Panch to the defendant no. 1 on 13.10.1952 and the remaining southern portion was in possession of the Panch. It is further contended that Gor Himmatbhai Krushnaram, Pandya Muljibhai Jethabhai, Jani Manibhai Motibhai, Joshi Mulshankar Bhikhabhai and Gor Chimanbhai Bhikhabhai were the original administrators of the Panch. It is contended that the defendant no. 2 was not the administrator of the Panch but any how, his name has been entered in the record as an administrator of the Panch, but, he has never administered the properties belonging to the Panch. 5.1. That amongst the original administrators only one Joshi Mulshankar Bhikhabhai was alive who was residing at Ahmedabad. At the time of filing of the suit, the new administrators of the Panch are appointed and the plaintiffs are amongst them who have got powers to file a suit. It is alleged that defendant no. 2 with collusion of defendant no. 1 and to cause damage to the Panch had transferred the suit land namely the southern portion of the property no. 536/1 by sale deed dated 25.02.1976. According to the plaintiff, the other administrator Joshi Mulshankar Bhikhabhai was kept in dark and the defendant no. 2 has transferred this property as if he is the owner of the land. It is contended that the defendant no. 2 has no authority to transfer the property of the Panch and therefore, the whole transaction is illegal. It is further alleged that the defendant no. 2 has transferred this property as if he is the owner of the land. It is contended that the defendant no. 2 has no authority to transfer the property of the Panch and therefore, the whole transaction is illegal. It is further alleged that the defendant no. 1 has sought the permission from the Panch to raise the construction of the suit land against which the plaintiffs have filed an objection in the Panchayat on 21.03.1979. However, as defendant no. 1 is in good terms with the Sarpanch, the permission is granted by the Panchayat and defendant was preparing to raise the construction on the suit land and therefore the plaintiffs have filed the suit seeking the relief to declare that the sale deed executed by the defendant no. 2 in favour of the defendant no. 1 is illegal and without authority and void and they have also sought for relief to restrain defendant no. 1 from raising the construction on the suit land. 6. It appears that the defendant no. 1 has resisted the suit by filing written statement at exhibit 15 wherein, he has admitted that the land bearing Gram Panchayat Property no. 536/1 belongs to the Panch-plaintiff, however, has denied all other contentions regarding illegality of the said transaction. He has admitted that the northern portion was sold by the Panch to him by sale deed dated 13.10.1952. He has stated that the southern portion of the land was transferred to him by sale deed dated 25.02.1976 by the defendant no. 2. He has denied that the defendant no. 2 was not the administrator of the Panch and had no authority to transfer the property and that the sale deed dated 25.02.1976 is without authority and illegal. He has also denied that the Panch-plaintiff is in possession of the southern part of the land. According to defendant no. 1, the whole land was originally belonged to one Omkarsinhji Ranjitsinhji from whom the present Panch-plaintiff has purchased it by registered sale deed on 10.09.1951. According to him, when the property was purchased by the Panch-plaintiff, he was the tenant and along with his tenancy right, the Panch has purchased the entire land. According to defendant no. 1, after purchasing the northern portion of land by sale deed dated 13.10.1952, the defendant no. 1 was in possession of the suit portion of the land as a tenant. According to defendant no. 1, after purchasing the northern portion of land by sale deed dated 13.10.1952, the defendant no. 1 was in possession of the suit portion of the land as a tenant. It is also alleged that the defendant no. 2 was the administrator of the Panch-plaintiff and he had transferred the suit land by sale deed as an administrator of the Panch-plaintiff. The defendant no. 1 has shown his ignorance regarding the existence of one other administrator namely Joshi Mulshankar Bhikhabhai residing at Ahmedabad. It is also alleged by him that he is the bona-fide purchaser with the value without notice and therefore he should be protected. He has submitted that he has also obtained the permission from the Panch to raise the construction and therefore the suit be dismissed with cost. 7. It appears from the record that the defendant no. 2, who is not joined as a party in the Second Appeal, has filed his written statement at exhibit 30, wherein he has supported the version of defendant no. 1. He has admitted that there is no constitution of the Panch-plaintiff. He has submitted that he and one Mulshankar Bhikhabhai were the administrator of the property of the Panch and as Mulshankar Bhikhabhai is residing permanently at Ahmedabad, he was the only person who was administering the property of the Panch-plaintiff and in such capacity he has transferred the suit land in favour of defendant no. 1 by executing a sale deed on 25.02.1976. He has also contended that even prior to the sale deed, the defendant no. 1 was in possession of the suit land as tenant. Accordingly, he has also prayed to dismiss the suit with cost. 8. On the basis of pleadings of the parties, the Trial Court has framed the following issues at exhibit 40: “1. Whether plaintiffs prove that panchas as mentioned in plaint Para-3 are the owner administrator and possessor as alleged? 2. Whether plaintiffs prove that the defendant No. 2 had made illegal sale deed with the defendant No. 1 on dated 25-2-1976 and suit property? 3. Whether plaintiffs prove that the defendant No. 2 has no any right to sell the suit property? 4. Whether defendant No. 1 proves that he is the bona-fide purchaser? 5. Whether the sale deed dated 25-2-1976 is null and void? 6. Whether plaintiffs are entitled any reliefs? 7. 3. Whether plaintiffs prove that the defendant No. 2 has no any right to sell the suit property? 4. Whether defendant No. 1 proves that he is the bona-fide purchaser? 5. Whether the sale deed dated 25-2-1976 is null and void? 6. Whether plaintiffs are entitled any reliefs? 7. What order and decree?” 9. It appears from the record that after considering the oral and documentary evidence produced in the matter and hearing both the sides, the learned Trial Court has decided the issue no. 1 in partly affirmative, issue no. 2, 5 and 6 in affirmative and issue no. 3 and 4 in negative and has ultimately decreed the suit in favour of the Panch-plaintiff. 10. Being aggrieved and dissatisfied with the judgment and decree passed by the Trial Court, the heirs of defendant no. 1 along with the defendant no. 2 have preferred the Regular Civil Appeal No. 6 of 1990 in the District Court, Kheda at Nadiad. The same came to be heard by the learned 3rd Extra Assistant Judge, Kheda at Nadiad, who, has raised the following points for his determination in Para-6 of the judgment: “(1) Whether the appellants prove that the trial Court has committed error in holding that appellant no. 7 Keshavbhai Gangaram Gor has no authority to sell the suit property? (2) Whether the appellants prove that the trial Court has committed error in holding that the appellant no. 7 in collusion with the deceased Kachhiya Ravajibhai Punjabhai has executed the sale deed and deceased was not the bona-fide purchaser of the suit land? (3) What order?” 11. After hearing learned advocates for the respective parties and considering the evidence on record, the learned 3rd Extra Assistant Judge, Kheda at Nadiad has decided point no. 1 and 2 in negative and has ultimately dismissed the appeal filed by the defendants. 12. It appears that at the time of admission of the present Second Appeal, no substantial question of law was framed. Therefore, now, Second Appeal has been heard on the following question of law: “In the facts and circumstances of the case, whether the Courts below have committed error of law in holding that the execution of the sale deed exhibit 187 is illegal in the absence of registered trust or any written rules and regulations governing the trust?” 13. Heard learned advocate Mr. Gandhi for the appellant-defendant no. Heard learned advocate Mr. Gandhi for the appellant-defendant no. 1 and learned advocate Mr. Popat for the original plaintiff. Perused the Records and Proceedings of the Trial Court and the impugned judgments and decrees of the Courts below. 14. My finding on the aforesaid legal question, for the reasons given below, is as under: In the negative Reasons: 15. Learned advocate Mr. Gandhi for the defendant no. 1 has vehemently submitted the same facts which are averred in the written statement of the defendants. He has submitted that the deceased defendant no. 1 was the tenant in the suit property and at the time of purchase of the entire land by the Panch-plaintiff from Omkarsinhji Ranjitsinhji, it was purchased with the tenant. He has also submitted that the northern portion of the suit land was sold to the defendant no. 1 by the Panch-plaintiff in the past by executing registered sale deed. He has submitted that the southern portion of the land was also in possession of the defendant no. 1 as tenant and therefore the same was sold to him by defendant no. 2 as an administrator of the Panch by registered sale deed and defendant no. 1 has been paid consideration of Rs. 300 to him. It is submitted that the defendant no. 1 was a bona-fide purchaser with consideration and without notice. He has submitted that since there was no registered trust deed or written rules and regulations for administration of the Panch-plaintiff, if one administrator has executed sale deed of the property of the Panch in favour of third party, who has no knowledge as to who are authorized to execute such sale deed, such third party cannot be made to suffer only on the basis that other administrator has not signed the sale deed. He has submitted that as admitted by the defendant no. 2, he was the sole administrator of the property of the Panch and his name was also reflected in the records. The sale deed executed by him, in favour of the defendant no. 1 cannot be said to be invalid or illegal. He has submitted that the conclusion reached by both the Courts below in terming the sale deed at exhibit 187 as illegal is not legally correct. The sale deed executed by him, in favour of the defendant no. 1 cannot be said to be invalid or illegal. He has submitted that the conclusion reached by both the Courts below in terming the sale deed at exhibit 187 as illegal is not legally correct. He has also submitted that the comparison of earlier sale deed executed for the northern portion of the land in favour of defendant no. 1, with the sale deed in respect of southern portion of the land by the Courts below is not proper. He has submitted that the entire approach made by both the Courts below in appreciating the evidence on record is erroneous and therefore they have committed error of law in declaring the sale deed exhibit 187 as illegal. He has submitted that considering the material placed on records, the appeal may be allowed and the judgments and decrees passed by both the Courts below be set aside and the suit of the plaintiff be dismissed with cost. 16. Per contra, learned advocate for the plaintiff has supported the impugned judgments of both the Courts below. He has submitted that there is concurrent finding of the facts holding that the entire sale transaction is entered with the collusion of defendant nos. 1 and 2. He has submitted that since there is a concurrent finding of facts relating to the illegality of the sale deed, this Court should not interfere in such finding of facts. He has submitted that there is really no substantial question of law involved in this appeal. He has submitted that of course, since the appeal has been admitted in the past, the appeal may be dismissed even on the facts and evidence on record. He has prayed to dismiss the appeal with cost. 17. Having considered the submissions made on behalf of both the sides, coupled with the impugned judgments and decrees of the Courts below along with the Records and Proceedings and the paper book, it emerges that there is no dispute regarding the facts that the plaintiff is the owner of the entire property bearing no. 536/1 of the Village Chaklasi. It is also admitted facts that earlier northern portion of the property was sold to the defendant no. 1 by registered sale deed and he was tenant in the said portion of land. 536/1 of the Village Chaklasi. It is also admitted facts that earlier northern portion of the property was sold to the defendant no. 1 by registered sale deed and he was tenant in the said portion of land. It is also admitted facts that the Panch-plaintiff is not registered one and there is no any written rules and regulations in existence. It also appears that even in absence of such written rules and regulations, earlier the sale transaction has been entered into by the administrators of the Panch-plaintiff in favour of the defendant no. 1 and at that point of time, no legal question has been raised by the defendant no. 1 regarding absence of registration of the trust or of rules and regulations. Thus, defendant no. 1 has got the fruits of having northern portion of the land as owner by virtue of earlier sale deed executed by administrator of the Panch-plaintiff. 18. It also appears that the subsequent sale deed in relation to southern portion of the suit land in the year 1976, exhibit 187 has been executed by the defendant no. 2, posing him as an administrator of the Panch and as an owner of the land. Thus, defendant no. 2 has sold the said portion of the land in a capacity of owner of the land. This recital in exhibit 187 itself suggests that defendant no. 2 has exceeded his authority, even if, it is believed that he was administrator of the Panch-plaintiff. It also appears that as per the pleadings of the defendant side, the defendant no. 2 had admitted that he was administrator of the property of the plaintiff. He has not raised any contention that he was owner of the property. Thus, by posing himself as an owner of the suit property, he has transferred the suit land in favour of the deceased-defendant no. 1. It is admitted facts that at that relevant point of time, other administrator namely Mulshankar Bhikhabhai Joshi was alive and he was residing at Ahmedabad. It appears that there is no evidence on record to suggest that the second administrator Mulshankar Bhikhabhai Joshi has authorized defendant no. 2 to act on his behalf to dispose of the properly of the Panch. 19. It also reveals from the observations of the Courts below that the entire property was purchased by the Panch in Rs. It appears that there is no evidence on record to suggest that the second administrator Mulshankar Bhikhabhai Joshi has authorized defendant no. 2 to act on his behalf to dispose of the properly of the Panch. 19. It also reveals from the observations of the Courts below that the entire property was purchased by the Panch in Rs. 700/- and out of it northern portion was sold to defendant no. 1 for consideration of Rs. 400/- way back in the year 1952, whereas so far as the southern portion of the land is concerned, the valuation is fixed at Rs. 300/- only that to in the year 1976. The span of 24 years would have shown the increase in the price of the land. It could not have been decreased. Therefore, the observations of the Courts below regarding consideration is also proper one. 20. Further, it also appears from the record that the defendant no. 1 had purchased the part of the land in the year 1952 as per exhibit 148 wherein it was executed by all the existing 5 administrators of the Panch-plaintiff. Thus, it was in the knowledge of the defendant no. 1 that the property of the Panch has to be sold by all the administrators and all have to sign the document. Now, so far as the impugned alleged sale deed at exhibit 187 is concerned, it is admittedly not signed by both the administrators who were administering the property in the year 1976. Thus, considering the facts that the defendant no. 1 has knowledge that all administrator of the Panch has to execute the deed, he had not taken care to see to it that the sale deed at exhibit 187 is signed by all the administrators who were administering the properties of the Panch at the time of execution of sale deed at exhibit 187. 21. It appears that both the Courts below have considered all the aforesaid aspects, while, decreeing the suit of the plaintiff. The appreciation of the oral and documentary evidence by both the Courts below are in consonance with the well settled principles of law. The conclusion reached by both the Courts below are sustainable in the eyes of law. The defence raised by the defendant no. The appreciation of the oral and documentary evidence by both the Courts below are in consonance with the well settled principles of law. The conclusion reached by both the Courts below are sustainable in the eyes of law. The defence raised by the defendant no. 1 in the present appeal regarding non-registration of the trust and non-existence of rules and regulations of the trust has no bearing for declaring the sale deed as illegal one. The entire evidence on record, clearly suggests that the impugned sale deed at exhibit 187 is illegal and not binding to the Panch-plaintiffs. 22. Under the above facts and circumstances of the case, therefore, I have decided the question raised in the appeal in negative. 23. In view of the above, I pass the following final order, in the interest of justice. ORDER: The present Second Appeal stands dismissed. The judgment and decree dated 30.01.1995 passed by the 3rd Extra Assistant Judge, Kheda at Nadiad in Regular Civil Appeal No. 6 of 1990 and judgment and decree dated 30.11.1989 passed by the learned Joint Civil Judge (Junior Division) in RCS No. 217 of 1979 are hereby confirmed. Considering the facts and circumstances of the case, the parties are directed to bear the respective cost of this appeal. Decree to be drawn accordingly in this appeal. Along with the copy of this judgment and decree, Records and Proceedings be sent back to the learned Trial Court.