Gujarat High Court
Sureshbhai Ramanlal Thakkar vs Rajendrabhai Mithalal Thakkar on 5 January, 2023
Bench: Sangeeta K. Vishen
C/AO/183/2022 ORDER DATED: 05/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 183 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/APPEAL FROM ORDER NO. 183 of 2022
==========================================================
SURESHBHAI RAMANLAL THAKKAR
Versus
RAJENDRABHAI MITHALAL THAKKAR
==========================================================
Appearance:
MR APURVA VAKIL FOR MR DM SHAH(5989) for the Appellant(s) No. 1
SUDHANSHU A JHA(8345) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 05/01/2023
ORAL ORDER
1. With the consent of the learned advocates for the respective
parties, the Appeal from Order is taken for final disposal.
2. Mr.Apurva Vakil, learned advocate for Mr.D.M. Shah, learned
advocate for the appellant submitted that the Will was executed by
Mithalal Thakkar, the adoptive father of respondent - plaintiff -
Rajendrabhai Thakkar. Mithalal Thakkar had a registered Will by
which, various lands and immovable properties, including the land
bearing final plot no.138(15), town planning scheme no.24,
admeasuring 740 sq.mtrs., situated at survey no.559-A-1 of mouje:
Rajpur-Hirpur, Taluka: Maninagar, District: Ahmedabad (hereinafter
referred to as "the suit land"), were bequeathed to the respondent -
plaintiff and Champaben equally. It is submitted that after the death
of Mithalal, a Will dated 22.12.1989 was executed whereby, the suit
land and the Green Bungalow have been bequeathed to the
appellant - defendant and that is how, the appellant has become the
owner of 370 sq.mtrs. It is submitted that on 19.10.2021, apropos
C/AO/183/2022 ORDER DATED: 05/01/2023
the joint application made by the appellant and the respondent, that
the development permission came to be granted; however, the
factum of grant of development permission has not been disclosed
in the suit. It is submitted that the suit came to be filed in the month
of August, 2022 to which, the appellant has filed a written
statement, placing on record all the facts, including the factum of
Will dated 22.12.1989 of Champaben so also, the factum of
development permission granted by the Ahmedabad Municipal
Corporation.
2.1. It is submitted that during the pendency of the suit, an
application under Order VII Rule XI of the Code of Civil Procedure,
1908 was filed, seeking rejection of the plaint and after hearing, the
application came to be allowed and the suit came to be rejected
vide order dated 29.09.2022. It is submitted that in the
interregnum, the impugned order dated 15.09.2022 was passed,
directing the appellant not to carry out any further construction. It is
submitted that against the rejection of the plaint, the respondent
had preferred First Appeal No.4132 of 2022, which came to be
allowed vide order dated 17.10.2022 passed by this Court, quashing
and setting aside the judgment and decree dated 29.09.2022 and
ordered restoration of Civil Suit No.1084 of 2022 to its original file.
2.2. It is next submitted that an agreement dated 24.05.2018 was
entered into between the appellant on one hand and the respondent
on the other. As per the understanding, it was agreed between them
that they will have equal share over all the properties of Mithalal
Thakkar. Though, the said agreement was with respect to evicting
the tenants but, at the same time, as per one of the conditions, it
was agreed that the property would be joint property and after
C/AO/183/2022 ORDER DATED: 05/01/2023
disposing the same, whatever consideration is received, it will be
distributed equally in favour of both the parties.
2.3. It is submitted that somewhere in the month of January, 2021,
an understanding was arrived at between the appellant on one hand
and the respondent on the other, as a result whereof, the
respondent no.1 has acknowledged the receipt of Rs.80,000/-, and
agreed that they have no objection against the permission granted
by the corporation. It has also been agreed that if the construction is
carried out as per the development permission, they have no
objection and they will not take any objection in future. It is
discernible from the agreement that the amount has been received
by the respondent and for which, they have agreed that they will
not raise any objection.
2.4. It is submitted that everything was argued before the learned
Judge; however, the learned Judge, without considering the
submissions so also, the documents, has straightaway, in paragraph
6, referring to the expressions "prima facie case", "balance of
convenience" and "irreparable loss", has allowed the notice of
motion filed by the plaintiff. It is submitted that the order does not
suggest any reasons, much less, any discussion with respect to the
documents produced and the submissions made.
2.5. Mr.Vakil, learned advocate has filed an undertaking of the
appellant, inter alia, declaring that the appellant shall be permitted
to carry out the construction as per the development permission
and in the event, the suit were to be allowed, the appellant shall
abide by the order and shall not claim any equity.
3. On the other hand, Mr.Sudhanshu Jha, learned advocate for
C/AO/183/2022 ORDER DATED: 05/01/2023
the respondent has fairly conceded that the order does not carry
any discussion. It is submitted that so far as the agreement/power-
of-attorney is concerned, a public notice dated 28.02.2022 was
issued, seeking cancellation of the same and therefore, the said
agreement/power-of-attorney does not exist. It is submitted that so
far as acknowledgment of Rs.80,000/- is concerned, neither the
respondent nor his wife, has received any amount. Also, the
signatures are not of the respondent or his wife. The same is
strongly objected.
4. Heard the learned advocates appearing for the respective
parties.
5. Center to the controversy is the suit land. It is the case of the
appellant that as per the Will of Mithalal dated 05.01.1988, the suit
land was to be equally divided i.e. 370 sq.mtrs. in favour of the
respondent and rest of 370 sq.mtrs. in favour of Champaben i.e. the
mother of the appellant. It is the case of the appellant that
thereafter, in the year 1989, a Will came to be executed by
Champaben and she had bequeathed her 50% share in favour of the
appellant. Record further reveals that in the year 2021, a
development permission was applied for, which was granted by the
corporation, upon the joint application being made by the appellant
and the respondent. The appellant has placed heavy reliance on the
agreement wherein, it has been agreed between the parties that the
appellant shall take steps for vacating the premises from the
tenants and once the tenants are evicted, both the appellant and
the respondent will jointly and with the consent of each other,
dispose of the property at the market rate and whatever
consideration is received, after deducting the expenses incurred for
C/AO/183/2022 ORDER DATED: 05/01/2023
the purpose of vacating the premises, shall be distributed amongst
two brothers equally i.e. 50% each. Another document on which,
heavy reliance is placed, is the receipt signed by the respondent
and his wife, which narrates the receipt of the amount of
Rs.80,000/- and the understanding that the respondent shall not
take any objection to the development permission or to the
construction, which will be carried out by the appellant. However, all
the documents, which have been relied upon, reliance is placed;
discussion whereof, is missing in the order. Therefore, the order is
unreasoned order and cannot be sustained and therefore, deserves
to be quashed and set aside.
6. Mr.Vakil, learned advocate submitted that it is likely that the
respondent i.e. the original plaintiff may produce documents and
that the appellant - defendant may also be given an opportunity to
controvert such document, if any. Mr.Jha, learned advocate assures
this Court that immediately on the first day of hearing, that the
respondent - plaintiff shall produce all the documents on which,
reliance is placed.
7. Accordingly, the order dated 15.09.2022 passed by the
learned Chamber Judge, Court No.21, City Civil Court, Ahmedabad in
Civil Suit No.1084 of 2022 is hereby quashed and set aside. The
matter is remitted to the learned Judge to take a decision afresh,
after hearing both the parties. Let such exercise be completed
within a period of 15 days from the date when the suit is notified
but, not later than 25.01.2023. The learned Judge shall decide the
application independently and on its own merits and in accordance
with law.
C/AO/183/2022 ORDER DATED: 05/01/2023
Order in Civil Application
In view of disposal of the Appeal from Order, no further order
is required to be passed in the present application and the same is
also disposed of.
Direct service is permitted.
(SANGEETA K. VISHEN,J)
Hitesh
