1.00. As common question of law and facts arise in this group of appeals and are between the same parties, they are disposed of by this common judgement and order.
2.00. Second Appeal No.88 of 2011 has been preferred by the appellants - original defendant Nos.3 to 9, challenging the impugned judgement and decree passed by the learned trial court - learned Joint Civil Judge (J.D.), Veraval in Regular Civil Suit No. 321 of 1996 dtd.29/12/2004, by which the learned trial court has decreed the suit preferred by the respondent No.1 - original plaintiff for specific performance of the Agreement-to-sell and directing original defendant No.1 to execute the sale deed on the basis of the registered Agreement-to-sell dtd.25/6/1990 with respect to the suit land, on deposit of the balance sale consideration, failing which to get the sale deed executed by appointing Court Commissioner, as well as the impugned Judgement and Order passed by the learned Additional District Judge, Veraval in Regular Civil Appeal No.5 of 2005 dtd.31/1/2011, by which the learned appellate court has dismissed the said appeal preferred by the appellants herein - original defendant Nos.3 to 9 by confirming the judgement and decree passed by the learned trial court decreeing the suit.
2.01. Second Appeal No.89 of 2011 has been preferred by the appellants - original defendant Nos.3 to 9, challenging the impugned judgement and decree passed by the learned trial court - learned Joint Civil Judge (J.D.), Veraval in Regular Civil Suit No.322 of 1996 dtd.29/12/2004, by which the learned trial court has decreed the suit preferred by the respondent Nos.1 to 4 - original plaintiffs for specific performance of the Agreement-to-sell and directing original defendant No.1 to execute the sale deed on the basis of the registered Agreement-to-sell dtd.25/6/1990 with respect to the suit land on deposit of balance sale consideration, failing which to get the sale deed executed by appointing Court Commissioner as well as the impugned Judgement and Order passed by the learned Additional District Judge, Veraval in Regular Civil Appeal No.6 of 2005 dtd.31/1/2011, by which the learned appellate court has dismissed the said appeal preferred by the appellants herein - original defendant Nos.3 to 9 confirming the judgement and decree passed by the learned trial court decreeing the suit.
2.02. Second Appeal No.90 of 2011 has been preferred by the appellants - original defendant Nos.3 to 9, challenging the impugned judgement and decree passed by the learned trial court - learned Joint Civil Judge (J.D.), Veraval in Regular Civil Suit No.323 of 1996 dtd.29/12/2004, by which the learned trial court has decreed the suit preferred by the respondent No.1 original plaintiff for specific performance of the Agreement-to-sell and directing original defendant No.1 to execute the sale deed on the basis of the registered Agreement-to-sell dtd.25/6/1990 with respect to the suit land on deposit of balance sale consideration, failing which to get the sale deed executed by appointing Court Commissioner as well as the impugned Judgement and Order passed by the learned Additional District Judge, Veraval in Regular Civil Appeal No.7 of 2005 dtd.31/1/2011, by which the learned appellate court has dismissed the said appeal preferred by the appellants herein - original defendant Nos.3 to 9 confirming the judgement and decree passed by the learned trial court decreeing the suit.
3.00. That the original plaintiffs - instituted Regular Civil Suit Nos.321, 322 and 323 of 1996 against the appellants - original defendant Nos.3 to 9 and other defendants in the court of learned Civil Judge (J.D.), Veraval for specific performance of the registered Agreement-to-sell executed by the original defendant No.1 - Smt.Hasumatiben Liladhar Shah dtd.25/6/1990 with respect to the suit land in question. It was the case on behalf of the original plaintiffs that though the original defendant No.1 executed registered Agreement-to-sell in favour of the or plaintiffs with respect to the disputed suit land in question on 26/5/1990 and part sale consideration was paid to the original defendant No.1 and though the plaintiffs were ready and willing to pay the balance sale consideration, original defendant No.1 - original land owner did not execute sale deed in favour of the plaintiffs.
3.01. The aforesaid suits were resisted by the defendants mainly on the ground that the respective suits are barred by law of limitation as the suits have been instituted after prescribed period of limitation i.e. after approximately 5 to 6 years. The aforesaid suits were resisted on th ground of limitation by submitting that sale deeds were to be executed within a period of six months from the date of execution of the Agreement-to-sell and therefore, considering the starting point of limitation from completion of six months, the suits were required to be filed within a period of three years thereafter and suits have been instituted after two and half years even after completion of three years and therefore, it was submitted that the suits are barred by law of limitation.
3.02.
On the other-hand, it was the case on behalf of the respective plaintiffs that the original defendant Nos.2 to 9 in collusion with original defendant No.1 filed a collusive Regular Civil Suit Nos.351, 352 and 353 of 1991 in the Civil Court, Junagadh, on 14/5/1991 and obtained injunction against the original defendant No.1 - Hasumatiben restraining her from transferring and/or alienating the suit properties in question in any manner whatsoever and the said injunction came to be vacated when the learned Civil Court, Junagadh dismissed the aforesaid Civil Suit on the ground that the Civil Court at Junagadh has no jurisdiction and thereafter no suits were filed and the interim injunction came to be vacated on 7/7/1994 and thereafter within a period of three years, suits in question have been filed and therefore, it was the case on behalf of the plaintiffs that suits are within the period of limitation. The learned trial court by the judgement and decree passed in Regular Civil Suit Nos.321, 322 and 323 of 1996 dtd.
29/12/2004 for specific performance of the agreement to sell in favour of the original plaintiffs with respect to respective suit properties in question and directing the original defendant No.1 to execute sale deeds in favour of the original plaintiffs with respect to suit properties in question on deposit of the balance sale consideration by the plaintiffs, failing which to get sale deed executed by the Court Commissioner by approaching the Court. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned Joint Civil Judge (J.D.), Veraval in Regular Civil Suit Nos.321, 322 and 323 of 1996 dtd.29/12/2004, original defendant Nos.3 to 9 have preferred Regular Civil Appeal Nos. 5, 6 and 7 of 2005 in the court of learned Additional District Jude, Veraval and the learned appellate court by the impugned Judgement and Orders dismissed the said appeals and confirmed the judgement and decree passed by the learned trial court in Regular Civil Suit Nos.321, 322 and 323 of 1996 dtd.29/12/2004. Being aggrieved by and dissatisfied with the judgement and decree passed by both the courts below, appellants herein - original defendant Nos.3 to 9 have preferred these Second Appeals under section 100 of the Code of Civil Procedure.
4.00. Mr.Suresh M. Shah, learned advocate appearing on behalf of the appellants - original defendant Nos.3 to 9 has vehemently submitted that the learned appellate court has materially erred in dismissing the appeals without framing the points for determination as required under Order 41 Rule 31 of the Code of Civil Procedure. It is further submitted by Mr.Shah, learned advocate appearing on behalf of the appellants - original defendant Nos.3 to 9 that even otherwise on merits also the learned trial court has materially erred in holding that the suits are not barred by law of limitation. It is submitted that considering the fact that the respective Agreement-to-sell were executed on 25/6/1990 and as per the conditions mentioned in the said Agreement-to-sell, original plaintiffs were required to get sale deed executed within six months, the plaintiffs were required to file the suits within a period of three years on completion of six months from the date of execution of the Agreement-to-sell and in the present case, respective suits have been instituted in the year 1996 i.e. after the prescribed period of three years on completion of six months from the date of execution of the Agreement-to-sell, both the courts below ought to have held that the suits were barred by law of limitation.
4.01. Mr.S.M.
Shah, learned advocate appearing on behalf of the appellants has vehemently submitted that both the courts below have misinterpreted and/or have not properly appreciated injunction which was granted in Regular Civil Suit Nos. 351, 352 and 353 of 1991. It is submitted that as such by the interim injunction in the aforesaid Civil Suits, the defendants were restrained from disturbing their possession and not with respect to transfer and/or alienate and/or restraining the original plaintiffs from claiming rights on the basis of the respective Agreement-to-sell and therefore, when there was no such injunction, the plaintiffs could have instituted the suits even during the pendency of the aforesaid suits and therefore, both the courts below ought to have held that the suits instituted by the respective plaintiffs are barred by law of limitation. No other submissions have been made by Mr.Shah, learned advocate appearing on behalf of the appellants.
By making above submissions it is requested to admit / allow these Second Appeals.
5.00. All these appeals are opposed by Mr.R.C. Kakkad, learned advocate appearing on behalf of the original plaintiffs. It is submitted that as such there are concurrent finding of facts given by both the courts below on appreciation of evidence, more particularly injunction granted by the Civil Court at Junagadh in Regular Civil Suit Nos.351 to 353 of 1991 which are not required to be interfered with by this Court in exercise of powers under section 100 of the Code of Civil Procedure.
5.01. Mr.R.C.
Kakkad, learned advocate appearing on behalf of the plaintiffs has submitted that as such there were collusive suits filed by the appellants herein and original defendant Nos.3 to 9 in collusion with the original defendant No.1 (executant of the Agreement-to-sell) in the court of learned Civil Judge (J.D.), Junagadh being Regular Civil Suit Nos.351 to 353 of 1991 and the said suits were for declaration that the respective Agreement-to-sell executed by the original defendant No.1 are illegal and not binding to them and for permanent injunction restraining the original defendant No.1 - Hasumatiben from executing sale deeds in favour of the plaintiffs and they obtained injunction restraining the original defendant No.1 Hasumatiben from transferring and/or alienating the suit properties in question pursuant to the Agreement-to-sell and therefore, the said injunction came to be vacated on 7/7/1994 when the learned Civil Court, Junagadh returned the aforesaid plaints to the appellant - original original plaintiff of Regular Civil Suit Nos.351 to 353 of 1991 on 7/7/1994 and immediately within 3 years from that date suit have been filed and therefore, both the courts below have rightly held that for the period between 1/5/1991 to 7/7/1994, the original defendant No.1 - Hasumatiben was restrained by way of interim injunction from transferring and/or alienating the suit properties in question on the basis of Agreement-to-sell and therefore, both the courts below have rightly held that the respective suits are within the period of limitation and/or the suits are not barred by law of limitation. Therefore, it is requested to dismiss the present Second Appeals.
6.00. Heard the learned advocates appearing on behalf of the respective parties at length and considered the Judgement and Order passed by both the courts below as well as even the relevant documentary evidences from the record and proceedings of the case and even considered the plaints of Regular Civil Suit Nos. 351 to 353 of 1991 filed by the appellants - original defendant Nos.3 to 9 in the court of learned Civil Judge (S.D.), Junagadh as well as the interim injunction sought in the said suits.
6.01.
It is the case on behalf of the learned advocate appearing on behalf of the appellants that as the learned appellate court has not framed the points for determination as required under Order 41 Rule 31 of the Code of Civil Procedure, the impugned Judgement and Order passed by the learned appellate court is required to be quashed and set aside, is concerned, from the impugned Judgement and Order passed by the learned appellate court it appears that as such the learned appellate court has considered the relevant issues in detail, may be without framing the points for determination. Otherwise all the issues are considered by the learned appellate court in detail. Under the circumstances, the impugned Judgement and Order passed by the learned appellate court is not required to be quashed and set aside solely on the aforesaid ground.
6.02. It is required to be noted that in the present Second Appeals before this court the only issue for consideration is with respect to limitation as to whether the suits filed by the respective plaintiffs for specific performance of the registered Agreement-to-sell dtd.25/6/1990 were within the period of limitation or not. The learned advocate appearing on behalf of the respective parties addressed this Court on the aforesaid issue of limitation and considering the fact that even the original Civil Suits are of the year 1996, this Court has considered the only contention which is raised with respect to the limitation on merits.
6.03. As stated above, the learned advocate appearing on behalf of the appellants - original defendant Nos.3 to 9 has submitted that both the courts below have materially erred in holding that the suits were within the period of limitation and were not barred by law of limitation. In support of the above, it is the case on behalf of the appellants that the respective Agreement-to-sell for which the specific performance was sought were dtd.25/6/1990 and as per the Agreement-to-sell, sale deeds were required to be executed within a period of six months and therefore, the plaintiffs were required to institute suits within a period of three years on completion of six months from the date of execution of the registered agreement-to-sell. Therefore, it is the case on behalf of the appellants - original defendants that as the respective suits are filed in the year 1996, all the suits were barred by law of limitation. On the other-hand, it was the case on behalf of the original plaintiffs that the period mentioned in the registered agreement-to-sell was extended upto 31/3/1991 and thereafter, the original defendant No.1 who executed agreement-to-sell, was requested to execute the sale deed, however, in the meantime, appellants herein in collusion with the original defendant No.1 instituted Regular Civil Suit Nos.351 to 353 of 1991 in the court of learned Civil Judge (SD), Junagadh against the State of Gujarat and original defendant No.1 and the plaintiff in May 1991 and obtained injunction against the defendants of aforesaid suits - original plaintiffs herein and original defendant No.1 herein - Hasumatiben Liladhar Shah - executant of the Agreement-to-sell in question and State of Gujarat, restraining them from transferring and/or alienating the suit properties in question on the basis of the registered Agreement-to-sell dtd.25/6/1990 and the said injunction came to be vacated on 7/7/1991 and thereafter within a period of three years, the suits have been instituted and therefore, the suits were within the period of limitation. Both the courts below, considering the injunction granted by the learned Civil Judge (S.D.) below Ex.5 in Regular Civil Suit Nos.351 to 352 of 1991, held that from the date of the filing of the Regular Civil Suit Nos.351 to 353 of 1991 and the applications Ex.5 and the injunction granted by the learned Civil Court, the original plaintiffs herein as well as original defendant No.1 were restrained from transferring and/or alienating the suit lands, and said injunction came to be vacated on 7/7/1994 and the suits are filed within a period of three years from 7/7/1994 and therefore, the suits are within the period of limitation. This court has also considered the applications Ex.5 in Regular Civil Suit Nos.351 to 353 of 1991 filed by the appellants herein in the court of learned Civil Judge (S.D.), Junagadh and it appears that the original plaintiffs prayed for injunction against the original defendant - Hasumatiben - executant of the Agreement-to-sell as well as original plaintiffs herein, restraining them from transferring and/or alienating the suit land in question on the basis of the Agreement-to-sell in question for which reliefs for specific performance have been sought in the present suits. It is to be noted that the said injunction came to be vacated by the learned Civil Judge (S.D.), Junagadh by order dtd.7/7/1994 when the learned Civil Judge (S.D.), returned the aforesaid plaints of Regular Civil Suit Nos.351 to 353 of 1991 to the appellants herein - original plaintiffs of those suits to present the same before the court having jurisdiction at Verval, by holding that court at Junagadh has no territorial jurisdiction. It is required to be noted that even thereafter the appellants herein - original plaintiffs of Regular Civil Suit Nos.351 to 353 of 1991 never presented suits before the Court at Veraval having territorial jurisdiction. Be that it may. The injunction granted in the Regular Civil Suit Nos.351 to 353 of 1991 in favour of the appellants herein, came to be vacated on 7/7/1994 and thereafter within a period of three years from 7/7/1994, the date on which the injunction came to be vacated, by which the plaintiffs - original defendant No.1 (executant of the registered agreement-to-sell) were restrained from transferring and/or alienating the suit land in question on the basis of the registered agreement-to-sell, the plaintiffs have instituted present suits. Considering the aforesaid facts and circumstances of the case, excluding the period during which the injunction was in operation, when both the courts below have concurrently held that the respective suits are within the period of limitation and they are not barred by law of limitation, it cannot be said that the learned trial court has committed any error and/or illegality in holding so and the learned appellate court has committed an error in confirming the judgement and decree passed by the learned trial court. Considering the aforesaid facts and circumstances of the case, this Court is of the opinion that the respective suits, excluding the period during which the injunction was in operation, are within the period of limitation. As stated above, except the issue of limitation, the learned advocates appearing on behalf of the respective parties, more particularly learned advocate appearing on behalf of the appellants has not made any other submission, and the said issue of limitation has been dealt with by this Court.
6.00. In view of the above and for the reasons stated above, all the Second Appeals fail and the same deserve to be dismissed and are accordingly dismissed. Notice is discharged in each of the Second Appeals. Notice is discharged.
In view of dismissal of the main Second Appeals, no order in the respective Civil Application Nos.4921, 4922 and 4923 of 2011 and consequently the same are also dismissed.
In the facts and circumstances of the case, there shall be no order as to costs.
[M.R.
SHAH, J.] rafik Top