Gujarat High Court
Varshaben Wd/O Rameshchandra ... vs Rasikbhai Kantilal Patel on 7 October, 2021
Bench: J.B.Pardiwala
C/FA/2364/2019 ORDER DATED: 07/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2364 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 2364 of 2019
With
CIVIL APPLICATION (FOR WITHDRAWAL OF MATTER) NO. 2 of 2021
In R/FIRST APPEAL NO. 2364 of 2019
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VARSHABEN WD/O RAMESHCHANDRA AMRATLAL
Versus
RASIKBHAI KANTILAL PATEL
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Appearance:
MR BHAVESH B CHOKSHI(3109) for the Appellant(s) No. 1
for the Defendant(s) No. 10,2,3,4,5,6,7,8,9
SHIVANI RAJPUROHIT(5377) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 07/10/2021
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. This appeal is at the instance of one of the original
defendants of the Special Civil Suit No.377 of 2014 instituted by
Late Rasikbhai Kantilal Patel [Since deceased Now through his legal
heirs] original plaintiff and is directed against the judgment and
decree passed by the Principal Senior Civil Judge, Ahmedabad Rural
at Mirzapur dated 08.04.2019 in the above referred suit, by which,
the suit came to be allowed determining the 1/7 th share of the
original plaintiff in the suit property. The operative part of the
order impugned in the present appeal reads thus:-
C/FA/2364/2019 ORDER DATED: 07/10/2021
:: O R D E R ::
1. Forged sale deed executed by defendant Nos. 1 to 6 Serial No.
5212/2005 dated 26/04/2004 is made with forged signature of
plaintif which is not binding to the plaintif is hereby cancelled as
void ab-initio.
2. On the basis of previous false reconveyance sale deed
subsequent sale deed executed by defendant Nos. 1 to 6 in
favour of defendant Nos. 7 to 10 vide Serial No. 6744/2011
dated 16/06/2011 at the sale price of Rs.3,35,00,000/- is partly
cancelled for 1/7th part having right of plaintif and 6/7th part of
sale deed for defendant Nos. 7 to 10 shall be valid.
3. Plaintif is declared 1/7th co-sharer in the undivided suit land
of Town Planning Scheme No.121 having Final Plot No.11
admeasuring 7406 sq.mtrs. of land and is entitled to partition
and vacant and peaceful possession of 1058 sq.mtrs. of land in
the said final plot.
4. Defendant Nos. 7 to 10 and their descendants, successors,
assignees and transferees in the suit land are hereby restrained to
make any kind of transfer of possession of the suit property or
make any kind of contracts, writings or execute any kind of
document till the plaintif is provided with possession of the share
of the suit land.
5. In case if the property is not divisible at present, plaintif shall
be entitled to compensation of 1/7th share for consideration of
the sale deed amount of Rs.3,35,00,000/- which amounts to
Rs.47,85,714/- with interest thereon from the date of institution
of this suit at the rate of 7% per annum till realization of the
amount.
6. Defendant Nos.7 to 10 shall also be entitled to recover the
decreetal amount of this suit from heirs of defendant Nos. 1 and
2 as well as from defendant Nos. 3 to 6 of the amount paid to
the plaintif.
7. Plaintif shall be entitled to decreetal amount from the bank
guarantee issued by Nutan Nagrik Co-operative Bank Limited,
Jodhpur-Satellite branch produced by defendant Nos.7 to 10 at
Exh.151 which is further extended upto dated 04/05/2019 issued
in favour of defendant No.10 - Dalpatbhai Mansukhbhai Shah for
C/FA/2364/2019 ORDER DATED: 07/10/2021
the amount of Rs.1,25,00,000/- on the date of this judgment
dated 08/04/2019 within period extended by Nutan Nagrik Co-
operative Bank Limited as on today of pronouncement of this
judgment.
8. Nutan Nagrik Co-operative Bank Limited is directed to deposit
decreetal amount on behalf of defendant No. 10 - Dalpatbhai
Mansukhbhai Shah towards bank guarantee into this Court
immediately.
2. The appeal is of the order 2019. Till this date, no orders have
been passed, even of formal notice. Only record and proceedings
from the trial Court was ordered to be called for, that too, way-
back in September, 2019. During the interregnum period, the
parties have been able to arrive at an amicable settlement. The
settlement arrived at between the parties has been reduced into
writing duly signed by the parties and duly notarized. The deed of
settlement accompanied with the Adhar Card, Pan Card etc., have
been placed on record alongwith the Civil Application. The deed of
settlement with the other documents shall be replaced from the
Civil Application and shall from part of the original record of the
First Appeal. The same shall be kept for all times to come with the
record.
3. It appears that the original plaintiff passed away during the
pendency of this appeal. In such circumstances, a draft amendment
has been moved. The same is allowed. The necessary incorporation
shall be carried out at the earliest. The cause-title be amended
accordingly.
4. In view of the aforesaid development, the respondent no.1/1
Mr. Nilesh Rasikbhai Patel is personally present in the Court. He is
C/FA/2364/2019 ORDER DATED: 07/10/2021
being identified by Ms. Shivani Rajpurohit, the learned counsel
appearing for the respondent no.1/1. The respondent no.1/2 Ms.
Nikita Rasikbhai Patel has not been able to remain present as she is
at Banglore.
5. In view of the aforesaid, Mr. Choksi, the learned counsel
appearing for the appellant has instructions from his client, who is
also present in the Court today not to press this appeal any further
and withdraw the same. In such circumstances referred to above,
this appeal is disposed of as not pressed without expressing any
opinion on the merits of the case.
The connected Civil Applications, if any, shall also stand
disposed of.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
A. B. VAGHELA
