Bharat Hasmukh Oza vs Heirs And Legal Representatives ...
2023 Latest Caselaw 310 Guj

    C/FA/2864/2018                                      JUDGMENT DATED: 11/01/2023




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO.2864 of 2018


FOR APPROVAL AND SIGNATURE :


HONOURABLE MR. JUSTICE A. J. DESAI                                          Sd/-

and

HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN                                      Sd/-

=========================================
  1. Whether Reporters of Local Papers may be NO
       allowed to see the judgment ?

  2. To be referred to the Reporter or not ?                             NO

  3. Whether their Lordships wish to see the fair                        NO
       copy of the judgment ?

  4. Whether         this   case   involves       a   substantial        NO
       question of law as to the interpretation of the
       constitution of India, 1950 or any order made
       thereunder ?

=========================================
                       BHARAT HASMUKH OZA
                              Versus
      HEIRS AND LEGAL REPRESENTATIVES OF LATE SHRI GANDABHAI
                         KHODABHAI DESAI
=========================================
Appearance :
MR.D K.PUJ for the Appellant.
for the Defendant Nos.1
HARSH V GAJJAR for the Defendant Nos.1.1,1.2,1.3,1.4,1.5,2
MR BS KHATANA for the Defendant Nos.1.1,1.2,1.3,1.4,1.5,2
=========================================

 CORAM:HONOURABLE MR. JUSTICE A. J. DESAI
       and


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      C/FA/2864/2018                                JUDGMENT DATED: 11/01/2023




             HONOURABLE MR. JUSTICE RAJENDRA M.
             SAREEN

                       Date : 11/01/2023
                       ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A. J. DESAI)

1. Admit. Learned advocate Mr. Harsh V. Gajjar appearing for the respondents waives service of admission. With the consent of learned advocates appearing for the respective parties, the appeal is taken up for final hearing today itself.

2. By way of the present appeal preferred under Section 96 of the Code of Civil Procedure, 1908, the appellant - original plaintiff has challenged the judgment and decree dated 18.6.2018 passed by learned Principal Senior Civil Judge, Kheda in Special Civil Suit No.79 of 2017 (Old Case No.226 of 2013).

3. The case put forward by the appellant - original plaintiff before the learned Trial Court is that the appellant filed suit and prayed for a decree in the nature of specific performance at the instance of the defendants by executing notarized Agreement to sell between the parties for the land bearing Block/Survey No.169/1, 169/2 and 169/3 of mouje Narpur, Tal. Kathlal, Dist. Kheda. The plaintiff also prayed for permanent injunction restraining the defendants from permanently transferring the suit land.

4. The defendants appeared in the suit and filed written statement. Thereafter, the plaintiff was examined. However, learned advocate for the defendants did not remain present and there was no cross-examination of the plaintiff. The defendants did

C/FA/2864/2018 JUDGMENT DATED: 11/01/2023

not examine any witness on their behalf. The learned Trial Court framed issues at Exh.32. After considering the evidence available on record, the learned Trial Court by the impugned judgment and decree dismissed the suit.

5. Hence the present appeal.

6. Mr. D. K. Puj, learned advocate appearing for the appellant would submit that the learned Trial Court has committed a grave error in dismissing the suit on the ground that the plaintiff was not an agriculturist and the agreement entered into between the parties was not a legal one and, therefore, decree in favour of the plaintiff cannot be passed since the plaintiff was not an agriculturist. He would further submit that neither it was the case of the defendant nor the plaintiff about the same and the plaintiff was also not cross examined by the defendants about this aspect and the learned Trial Court had no occasion to go beyond the pleadings in the suit.

7. By taking us through the issues, he would submit that there is no specific issue framed about the suit barred by law under the provisions of Bombay Tenancy and Agricultural Lands Act about transferring an agricultural land. He would further submit that in fact, the plaintiff has an ample evidence to establish that he is an agriculturist though he might be a practicing lawyer and if opportunity would have been given to him, he would have established that he is an agriculturist and would be entitled for decree as prayed for. He, therefore, would submit that the impugned judgment and decree of the learned Trial Court may be quashed and set aside and the suit may be remanded to the learned

C/FA/2864/2018 JUDGMENT DATED: 11/01/2023

Trial Court for fresh consideration.

8. On the other hand, Mr. Harsh V. Gajjar, learned advocate appearing for the defendants has supported the impugned judgment and decree of the learned Trial Court. He would submit that issue No.8 framed by the learned Trial Court about maintainability of the suit which covers all the issues including suit barred by any particular law and hence, the appeal may be dismissed.

9. We have heard learned advocates appearing for the respective parties. We have gone through the plaint Exh.1, written statement of the defendants Exh.24, issues Exh.32 and the impugned judgment. From careful reading of the written statement, it appears that it is not the case of the defendants that the suit cannot be decreed in view of the provisions of the Gujarat Tenancy and Agricultural Lands Act on the ground that the plaintiff is not an agriculturist.

10. It is also pertinent to note that plaintiff was not cross- examined by the defendants and the defendants themselves have not entered the witness box before the learned Trial Court. If issue No.8 is perused, the same is of general nature and no specific issue has been raised about the maintainability of the suit in view of the provisions of the Tenancy Act. In view of the aforesaid, we are of the considered opinion that the learned Trial Court has travelled beyond the scope of pleadings and in absence of any other material, the learned Trial Court has committed an error in dismissing the suit on the ground that the plaintiff is not an agriculturist.

C/FA/2864/2018 JUDGMENT DATED: 11/01/2023

11. Hence, the persent appeal stands allowed. The impugned judgment and decree dated 18.6.2018 passed by learned Principal Senior Civil Judge, Kheda in Special Civil Suit No.79 of 2017 (Old Case No.226 of 2013) is hereby quashed and set aside. The Special Civil Suit No.79 of 2017 is remanded to the learned Trial Court for fresh consideration. The learned Trial Court shall decide the suit in accordance with law without being influenced by the earlier decree as well as this order. Parties to the proceedings are permitted to raise all contentions and to adduce evidence, either oral or documentary, before the learned Trial Court.

Sd/-

(A. J. DESAI, J)

Sd/-

(RAJENDRA M. SAREEN,J)

SAVARIYA