Mukeshbhai Bhagwatprasad Dave vs Parshottambhai Ranchodbhai ...
2021 Latest Caselaw 16596 Guj

       C/SCA/3815/2015                                     ORDER DATED: 22/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 3815 of 2015

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                    MUKESHBHAI BHAGWATPRASAD DAVE
                                 Versus
                 PARSHOTTAMBHAI RANCHODBHAI PRAJAPATI
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Appearance:
MR JAYESH A KOTECHA(5293) for the Petitioner(s) No. 1
MR. VN. SEVAK(3791) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 22/10/2021

                                ORAL ORDER

1. Rule. Learned advocate Mr. V. N. Sevak waives service of notice of rule on behalf of respondent.

2. Present petitioner, who is original defendant before the trial Court in Special Civil Suit No.13 of 2010 and respondent in Special Executive Petition No.144 of 2012, has challenged the order passed below Exh.24 and Exh.31 dated 23.12.2014 saying that they are illegal and arbitrary.

3. Short facts of the present case may be referred as under;

Petitioner and other four persons are the owner of the land bearing Survey No.179 situated at Mauje : Anand (City), Taluka and District, Anand admeasuring 11736 sq.mtrs. It is the case of the respondent that petitioner floated the scheme of plots on the aforesaid land, which was named as "Gokuldham", wherein respondent has booked 4 plots and paid certain amount towards booking. However, petitioner as well as other executors did not execute sale deed in favour of

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the respondent. Therefore, respondent filed Special Civil Suit No.13 of 2010 before the Court of learned Principal Senior Civil Judge, Anand. After issuance of summons, petitioner and other co - owners appeared before the Court and during pendency of the suit, compromise was taken place between the parties and same was placed on record. Decree was passed accordingly on 04.11.2011. According to such decree passed by the Court below, said land was divided into four parts, out of which, portion no.1 petitioner was required to execute registered sale deed of two and half guntha land in favour of the respondent. But according to petitioner, due to discrepancy in land record, the same cannot be worked out. As petitioner could not execute the sale deed in favour of the respondent, Special Execution Petition No.144 of 2012 was filed praying to direct the petitioner to comply with the decree or to appoint Court Commissioner for compliance of the decree. Said execution petition was filed against all the co - owners except original defendant No.5. Other opponents were deleted by the respondent during pendency. On 11.03.2014 one application was filed by the respondent in the execution petition for appointment of Court Commissioner to draw the Panchnama of the disputed land below Exh.20. Another application for appointment of Court Commissioner was submitted by respondent below Exh.24 on 06.05.2020 for execution of sale deed of the land, in accordance with decree. On 22.11.2014, the Court Commissioner, appointed by the Court executed the commission work on the scheduled date and filed his report at Mark 30/2 along with sketch of the specific portion, which was claimed by the respondent. Petitioner filed an application Exh.31 with a request to pass an order to decide the land admeasuring 30805-802 and entry in a revenue record of his

C/SCA/3815/2015 ORDER DATED: 22/10/2021

1/4th share, so that to minimize the contradiction in the revenue record and to execute the sale deed in accordance with decree. The executing Court by an order dated 23.12.2014 was pleased to pass an order, allowing an application filed by respondent below Exh.24 and dismissing the application filed by the petitioner below Exh.31 along with the cost of Rs.2500/-. Hence, this petition.

4. Heard learned advocates for the respective parties. It is submitted by learned advocate for the petitioner that in the decree passed by the Court below in Special Civil Suit No.13 of 2010, there was no specific description of the property of survey No.179. It is further submitted that the petitioner has not denied to execute the sale deed of two and half gunthas and expressed his desire to execute sale deed of western side of the same survey number. Learned Executing Court has ignored the issue raised by the petitioner as the land was in the name of 5 persons and they are not co-operating to execute the sale deed of the land situated on northern side of survey No.179. It is further submitted that petitioner was required to transfer the land and execute the sale deed admeasuring two and half gunthas of land, but ignoring the said aspect, respondent has claimed the particular portion of the land, for the first time and the Court Commissioner was also appointed to draw the Panchnama qua the said portion of the land and therefore also, the impugned order requires to be quashed and set aside.

4.1 In support of his arguments, learned advocate has placed reliance on the judgment in case of Deepa Bhargava vs. Mahesh Bhargava reported in 2009 (2) SCC 294 and in case of

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Chief Executive Officer & Vice Chairman vs. Ramesh Hiralal Shiyal reported in 2018 (3) GLH 252.

4.2 Ultimately, it was requested by the learned advocate for the petitioner to allow this petition and quash and set aside the order passed below Exh.24 and 31 dated 23.12.2014.

5. On the other hand, learned advocate appearing for the respondent has vehemently opposed the submission made by the learned advocate for the petitioner and submitted that petitioner was having mala fide intention and ulterior motive and tried to delay the proceedings as per the consent decree passed by the trial court in Special Civil Suit No.13 of 2010. It is further submitted that Court Commissioner has drawn the Panchnama and has marked the exact land of survey No.179. It is further submitted that at the time of filing this petition, petitioner has suppressed the material fact of dividing the land with co - owners. That undivided village form No.7/12 has been produced along with this petition showing that land in question was not divided in the year 2005 but then respondent has produced the form describing the real situation of the land. Such land was divided between the co - owners and it is reflected in village form No.7/12. It is further submitted that petitioner, after consent order passed in the suit dated 04.10.2011, has executed one registered sale deed in favour of the Kachchh Prajapati Vikas Sahkari Mandli Limited on 02.10.2014 from the share received from the entire plot. It is further submitted that in the said sale deed it is observed by the petitioner that plot at North side is left for the respondent herein. Petitioner cannot deny the avernments made by him. It is further submitted that petitioner is bound by the principle of estoppel. The statement made in registered sale deed dated

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02.10.2014 would be bound by the principle of estoppel and he cannot deny or to do any act. That petitioner had suppressed the material fact of partitioning the land and misguided the Court.

5.1 In support of his arguments learned advocate for the respondent referred to the decision in case of Prestige Lights Ltd. vs. State Bank of India reported in 2007 (8) SCC 449 and Appeal (Civil) 2972 of 1995 between B. L. Sreedhar & Ors. vs. K. M. Minireddy & ors. of the Honourable Supreme Court.

5.2 Ultimately it was requested to dismiss the petition.

6. Having heard learned advocates for the respective parties as well as contentions of the petition, impugned order passed in execution petition, it appears that in Special Civil Suit No.13 of 2010 before the Principal Senior Civil Judge, Anand, compromise was arrived at between the parties and consent decree was passed. There was a clause in consent terms to execute sale deed in favour of the respondent of survey No.179. Plot No.1 which was reserved / spared. Land of two and half vighas was to be given and registered sale deed was to be executed by the petitioner. Plot of the northern side was admeasuring 2347.00 sq. mtr. which was came into share of the present petitioner. Thereafter, no register sale deed was executed by the present petitioner in favour of the respondent. Execution petition was filed by the respondent before the trial Court. In application for appointment of Court Commissioner to execute the registered documents was also filed. If we consider the 7/12 extracts dated 21.11.2005 and dated 16.04.2014 annexed with the reply of the respondent, it appears that the

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petitioner has suppressed the material fact as the portion in the suit land situated at survey No. 179 was required by the petitioner. It also appears that after consent decree was passed by the Civil Court, one registered sale deed was executed by the present petitioner on 02.04.2014 in favour of the Kachh Prajapati Vikas Sahakari Mandli Limited. Petitioner has produced 7/12 abstract before this Court of the year 2005. While respondent has placed latest 7/12 abstract of the year 2014. In the sale deed dated 02.04.2014, the petitioner has observed the entire proceedings of Civil Court, Anand and further observed that plot at Northern side was left for the respondent herein. Court Commissioner has prepared the Panchnama as per the order passed by the Court. Map was also prepared and produced at Mark 30/3. Specific portion of land was also identified by the Court Commissioner, as A/E/F/ G of Survey No.179. The land which was transferred by way of sale deed in favour of the respondent was with the present petitioner as it was in his share. In the sale deed executed by the present petitioner, in favour of Kachh Prajapati Vikas Sahakari Mandli Limited dated 02.04.2014, it is clearly stated that petitioner is the owner of plot No.1 of survey No.179 and he is under obligation to execute the registered sale deed of the land admeasuring two and half gunthas in favour of the respondent. From record, it appears that petitioner is trying to delay the execution proceedings initiated by the respondent with mala fide intention and with a view not to execute the registered sale deed as per the consent decree passed by the Court.

6.1 Honourable Apex Court in Appeal (Civil) No. 2971 of 1995 has observed in para 15 as under;

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"15. Estoppel is a rule of evidence and the general rule is enacted in Section 115 of the Indian Evidence Act, 1872 (in short 'Evidence Act') which lays down that when one person has by his declaration, act or omission caused or permitted another person to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing."

6.2 In Prestige Lights (supra), the Honourable Apex Court has observed in para 33 as under;

"33. It is thus clear that though the appellant- Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter."

6.3 Honourable Apex Court in Deepa Bhargava (supra) relied upon by the petitioner in para 10 and 11 observed as under;

"10. The parties had claimed their interest in the lands in suit from a common ancestor.

They entered into a compromise. A decree was passed thereupon. A decree, as is well known, remains valid unless set aside. Respondents never challenged the validity or otherwise of the said consent decree. It was acted upon. They had disposed of a property pursuant thereto and, thus, took advantage of a part thereof. It was, therefore, impermissible for them to resile therefrom.

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11. There is no doubt or dispute as regards interpretation or application of the said consent terms. It is also not in dispute that respondents-judgment debtors did not act in terms thereof. An executing court, it is well known, cannot go behind the decree. It has no jurisdiction to modify a decree. It must execute the decree as it is. A default clause contained in a compromise decree even otherwise would not be considered to be penal in nature so as to attract the provisions of Section 74 of the Indian Contract Act."

6.4 In Ramesh Hiralal (supra), the Co - Ordinate bench of this Court in para 6 observed as under;

"6. Reverting to the present case, the decree passed by the court contemplated for the decree holder the continuous service and other consequential benefits including the increments. The grant of higher pay-scale was not specifically mentioned, even as, as noted above, this benefit was to be conferred in terms of the Finance Department Resolution dated 16th August, 1994. Apart from that aspect, when the higher pay-scale was not specifically mentioned to be one of the benefit granted under the decree, the executing court was not competent to pass order to grant such benefit. The executing court was enjoined in law to read the decree as it stood and execute the same in the precise terms it provided for. When the higher pay-scale benefit was not mentioned, process of inclusion of the said benefit could not have been permitted by the executing court. It would mean adding a benefit in the decree which was not decreed. It would have effect of modifying or re-writing the decree. The executing court is not conferred with such powers. Therefore, in granting higher pay- scale reading the same to be a benefit in the decree, was a manifest error of jurisdiction committed by the executing court."

6.5 In the instant case, considering the facts of the case, it cannot be said that executing Court has gone beyound the decree. In fact it was consent decree passed by the Civil Court in Special Civil Suit No.13 of 2010. Petitioner was ready to

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execute the registered sale deed in favour of the respondent, as he has also admitted the same position in the registered sale deed executed on 02.04.2014 in favour of Kachh Prajapati Vikas Sahakari Mandli Limited. With the mala fide intention, he has produced 7/12 abstract of the year 2005 misguiding the Court that portion of the suit property was not came to his share. The subsequent documents produced by the respondent at page Nos. 110 and 111 clearly shows the position that portion of the suit property was partitioned between co sharers and necessary entry was also made in the revenue record. With a view not to execute the sale deed, petitioner is handeling in the proceedings before the executing Court which cannot be permitted at all. For the reasons discussed herein above, this Corut is of the view that there is no illegality or error committed by the executing Court in passing an order below Exh.24 and 31 dated 23.12.2014 and therefore, this petition requires dismissal. Accordingly this petition is hereby dismissed.

Rule is discharged.

(B.N. KARIA, J) DRASHTI K. SHUKLA