1. The present Second Appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellant herein – original plaintiff to quash and set aside the impugned common judgement and order dated 14/05/2010 passed by learned Principal District Judge, Kheda at Nadiad in Regular Civil Appeal No.38 of 2006 as well as Regular Civil Appeal No.30 of 2007, by which, learned Appellate Court has allowed the aforesaid appeals by quashing and setting aside the judgement and decree dated 31/03/1995 passed by learned 3rd Joint Civil Judge (S.D.), Nadiad in Regular Civil Suit No.34 of 1986.
2. Facts leading to the present Second Appeal, in nutshell, are as under:
Original plaintiff instituted Regular Civil Suit No.34 of 1986 in the court of learned 3rd Joint Civil Judge (S.D.), Nadiad initially against original defendant Nos.1 and 3 for specific performance of the Agreement to sell dated 26/10/1979 executed by original defendant Nos.1 and 2 with respect to the suit land in question. It appears that by interim order, original defendant Nos.1 and 2 were permitted to sell the disputed land in question and, therefore, defendant Nos.1 and 2 executed sale deed in favour of respondent No.4 herein – original defendant No.4 on 18/07/1992. It appears that pursuant to the order passed by this Court in Appeal from Order, respondent No.4 herein was implemented as defendant No.4. That by judgement and decree dated 31/03/1995, the learned 3rd Joint Civil Judge (S.D.), Nadiad decreed the suit and directed the original defendant Nos.1 and 2 to execute the sale deed after accepting the balance amount of plaintiff's share. It appears that being aggrieved by and dissatisfied with the judgement and decree passed by learned Trial Court, original defendant Nos.1 and 2 (original owners) as well as original defendant No.4 (subsequent purchaser) preferred Regular Civil Appeal Nos.38 of 2006 and 30 of 2007 before learned Principal District Judge, Kheda at Nadiad and by impugned common judgement and order dated 14/05/2010 learned Appellate Court has allowed the said appeals and has quashed and set aside the judgement and decree passed by the Trial Court in Regular Civil Suit No.34 of 1986.
Being aggrieved by and dissatisfied with the judgement and order passed by learned Principal District Judge, Kheda at Nadiad in Regular Civil Appeal Nos.38 of 2006 and 30 of 2007, the appellant herein – original plaintiff has preferred the present Second Appeal.
3. Today when the present Second Appeal is taken up for final hearing, Mr.Chirag Patel, learned advocate appearing on behalf of the appellant and Mr.Dhaval C. Dave, learned Senior Advocate appearing with Mr.Jigar Patel, learned advocate appearing on behalf of respondent No.4 herein – original defendant No.4 and Mrs.V.D.Nanavati, learned advocate appearing on behalf of the original defendant Nos.1 and 2 – original owners, have jointly submitted that the parties have settled the dispute amicably and have entered into consent terms signed by appellant herein and respondent Nos.1, 2 and 4, under which, respondent No.4 herein - original defendant No.4 has agreed to pay a sum of Rs.35,11,000/- to the appellant, which is to be paid in two installments i.e. one of Rs.1,11,000/- and another is of Rs.34,00,000/- and on such payment, the appellant has agreed to waive all his rights in the land in question. It is stated that under the consent terms, the aforesaid amount of Rs.35,11,000/- is required to be paid in two installments; one of Rs.1,11,000/- by cheque bearing No.522639 dated 14/03/2012 and remaining amount of Rs.34,00,000/- by cheque bearing No.522640 dated 30/04/2012. It is reported that the aforesaid two cheques are handed over to Mr.Chirag Patel, learned advocate appearing on behalf of the appellant herein and Mr.Chirag Patel, learned advocate appearing on behalf of the appellant has confirmed the same.
It is further submitted that it is further provided in consent terms that respondent No.4 herein – original defendant No.4 undertakes that in case if for any reason the aforesaid cheques are bounced, he will make the payment of cheques amount by Demand Draft plus Rs.5 Lacs within a period of 15 days to the appellant. It is further undertaken by the respondent No.4 – original defendant that till full payment of the aforesaid amount of Rs.35,11,000/- and till realization of the aforesaid both the cheques as stated hereinabove, he shall not transfer, alienate, in any manner, the property in question to anyone.
4. Mr.Dhaval Dave, learned Senior Advocate appearing on behalf of respondent No.4 herein – original defendant No.4 has stated at the bar that over and above the aforesaid consent terms, respondent No.4 shall file an Undertaking before this Court within a period of two weeks from today, undertaking to act as per the consent terms dated 19/03/2012 and shall make full payment to the appellant herein as per consent terms and further undertaking that he knows the consequences of breach of Undertaking and in case if there is a breach of Undertaking, independent proceedings for breach of Undertaking can be initiated over and above criminal proceedings u/s.138 of the N.I.Act.
5. Mr.Chirag Patel, learned advocate appearing on behalf of the appellant herein – original plaintiff and Mr.D.C.Dave, learned advocate appearing on behalf of respondent No.4 herein – original defendant No.4 have further stated that the respective parties have also agreed that any amount deposited by appellant herein and/or respondent No.4 herein – original defendant No.4 pursuant to the interim order passed by learned Trial Court/Appellate Court lying before the learned Trial Court/ Appellate Court shall be permitted to be withdrawn by their respective clients. Therefore, it is requested to pass appropriate order with respect to the said amount also. In view of the above consent terms, learned advocates appearing on behalf of the respective parties have requested to dispose of the present Second Appeal as well as Civil Application accordingly.
6. In view of the above consent terms dated 19/03/2012 signed by appellant herein – original plaintiff; respondent Nos.3 & 4 herein and also signed by their respective advocates, which is directed to be taken on record, the present Second Appeal is disposed of in view of the consent terms dated 19/03/2012 and it is ordered that on payment of total a sum of Rs.35,11,000/- as mentioned in the consent terms, the appellant herein – original plaintiff shall not have any right, title and interest in the suit land in question and he shall not claim any right, title and interest in future. Parties are directed to act as per the consent terms dated 19/03/2012 as well as Undertaking to be filed by respondent No.4 herein, within a period of two weeks from today.
7. In view of above broad consensus between learned advocates appearing on behalf of the respective parties, it is further ordered that any amount deposited by respondent No.4 herein – original defendant No.4 and/or even by the appellant herein – original plaintiff pursuant to the order passed by the Courts below, the concerned parties are hereby permitted to withdraw the same. With this, the present Second Appeal is disposed of.
8. In view of the disposal of the main Second Appeal No.185 of 2010, no order in Civil Application No.9571 of 2010 and the same is also accordingly disposed of.
[M.R.SHAH,J] *dipti