1. The present First Appeal has been filed by the appellants challenging the judgment and order passed by the Learned Judge, City Civil Court, Ahmedabad, Court No.15 in Civil Suit No.4908/1986 dated 01.03.1993 on the grounds stated in the memo of Appeal.
2. The appellant no.1 viz., Shri Vasudev Jamnadas Seernani has appeared as partyinperson and made submissions on behalf of the appellants. He has stated that Suit has been filed regarding the so called rectification of the document behind the back of the appellants. He submitted that the Court below has failed to appreciate that there was a registered sale deed dated 11.07.1977 executed in favour of the appellants and, therefore, all right, title or interest qua the property is vested in the appellants. It was submitted that even the revenue record shows that land admeasuring 215.86 Sq.Mtrs and bearing Municipal Census No.96/15/C/1 of Building on subplot No.15/C/Part at Maninagar Town Planning Scheme No.4, RajputHirpur situated at Punit Park Society in Maninagar area of Municipality of Ahmedabad (hereinafter referred to as the suit property) belonging to the appellants and mutation entry took place after following procedure and, therefore, the impugned judgment is erroneous. He submitted that the rectification is permitted in 1981 in respect of the document, which has been executed in the year 1977 (11.07.1977) in respect of the suit property. He referred to the record, particularly, document at Exh.29, which is an agreement dated 28.03.1977 and submitted that in this agreement, while describing the suit property, it is mentioned as building constructed on subplot No.15C admeasuring 418 Sq.Yard of Final Plot No.96 of Municipal Town Planning Scheme No.4, Rajpur Hirpur, Taluka : City, Ahmedabad. He has also referred to the document, Exh.28, which is a permission letter by the Collector to support his submission that it mentions portion of the land sold is 215.86. Shri Vasudev Seernani has submitted that thereafter though it is claimed that there was a right and rectification deed was executed on 12.10.1981, it is not a genuine document as the present appellants were present. He has disputed the thumb impression and has contended that the appellants are putting signatures and in fact, he has signed other documents and, therefore, it could not have been believed or accepted. Shri Vasudev Seernani has referred to the document at Exh.28 to support his submission and submitted and claimed that the judgment does not refer to built up area as also open space. He has also referred to Exh.53, which is a deposition of Vasantlal Narsinhdas and submitted that it has been admitted by the said Vasantlal Narsinhdas that when the transaction took place regarding the purchase, measurement was not made nor any notice for title clearance was issued. He, therefore, submitted that he could not have known and yet whenever it came to his notice, he has filed Suit. He has also referred to the sale deed between one Jitendra Shivpujan Gupta and Khusiram Nathuram Motwani and submitted that the sale deed of the defendants executed in the year 1992 refers to the civil disputes pending in the Court filed by the present appellants as it is referring to Civil Suit No.77/1984, Civil Suit No.4908/1986 and also Civil Suit No.8486/1989, which is filed against the respondent no.5, who is a subsequent purchaser. He has, therefore, submitted that if the original document, by which, the transaction regarding sale took place in the year 1977 does not refer to area and there is mistake in description of the area and subsequent transactions are not valid, the present appeal may be allowed and the impugned judgment may be quashed and set aside.
3. Learned counsel, Mr.G.S Patel appearing for the respondent no.5, who is last purchaser, has submitted that there is no dispute with regard to right, title or interest and the transactions, which have been taken place in respect of the suit property. Learned counsel, Mr.Patel submitted that only dispute is with regard to the description, which was sought to be corrected and in fact, there is amendment or correction made as per the rectification dated 12.10.1981. Learned counsel, Mr.Patel submitted that though the contention is raised that it is not genuine, same has not been believed and the contention that normally the appellant put his signature and not thumb impression is a matter to be examined on the basis of the evidence by the trial court and no such contentions have been raised with regard to such dispute. Further, learned counsel, Mr.Patel submitted that though he claims the area based on the document at Exh.28 executed in the year 1977, it is required to be mentioned that as stated in detailed, in a subsequent transaction as well as transaction which has taken place between the original owner, Thakkar Natvarlal Purshottamdas and seller, Universal Corporation and Sarabhai Pvt. Ltd., the said document refers to the describing of
He, therefore, submitted that same area was mentioned in the year 1977 as well as subsequently when the said Thakkar Natvarlal Purshottamdas sold it to the present appellants and in the said agreement at Exh.29, by mistake it is referred to as 418 Sq.Yard of Final Plot No.96, subplot No.15C admeasuring 418 Sq.Yard of final Plot No.96. However, he submitted that there are two buildings, which have been given two different census numbers. Learned counsel, Mr.Patel has also referred to the document at Exh.28, which has been referred to by the partyinperson, and submitted that the permission of the Collector refers to the same Sub Plot 15/C (Part) and the area of portion is sold 215.86. However, he submitted that note below that clearly mentions that site plan was also placed on record and the said site plan would have made the position clear. However, he submitted that considering the subsequent transactions, which have taken place including the observation made in the impugned judgment, the present Appeal may not be entertained.
4. Learned counsel, Mr.Patel has pointedly referred to judgment delivered in Civil Suit No.4908/1986 and issues framed at Exh.24 and submitted that the plaintiffsappellants herein failed to prove that he had agreed to purchase the suit property admeasuring 215.86 Sq.Mtrs. and not of 215.86 Sq.Yards. He submitted that therefore the real dispute is whether it is square yard or square meter, on the basis of which, the difference is sought to be made. He has also referred to the discussion in this regard made in the impugned order and referring to the evidence at Exh.28 and also several documents at Exh.47 submitted that the say of the plaintiffs has not been accepted. He has also referred to the findings given by the Court below on this aspect referring to the complete area of the plot and two parts, in which, it is divided and if one part on the eastern part is situated at 202.14 Sq.Yard, remaining suit property would be of an area of 215.86 Sq.Yard and not 215.86 Sq.Mtr. otherwise, it would be a bigger area. There is also various documents in the form of deposition of the valuer at Exh.58, the deposition of the original vendor, Shri Vasantbhai Narsinhbhai at Exh.53 and the report of the Commissioner in the form of panchnama at Exh.64. Therefore, learned counsel, Mr.Patel submitted that the impugned judgment and order is just and proper and the partyinperson has tried to take advantage of some mistake, which has crept in. He has also submitted that the decree which has been referred to is also having same mistake as 215.96 Sq.Mtr. instead of 215.86 Sq.Yard and, therefore, he submitted that the present appeal may not be entertained.
5. In view of these rival submissions, it is required to be considered whether the present Appeal can be entertained or not.
6. As it transpires from the transaction, rival submissions and the record that the dispute is of narrow compass with regard to the exact measurement or the description of the suit property, which is a suit property. If the documents, which have been produced on record are considered, it becomes clear that the original document/sale deed was executed between Thakkar Natwarlal Purshottam Lohana and Universal Corporation Pvt. Ltd. and Sarabhai Pvt. Ltd., wherein the description of the suit property has been clearly mentioned as 215.86 Sq.Mtrs. and then there is some correction. This document is of predecessor in title of the appellant and, thereafter, even in 1992, the transaction took place between Khusiram Nathuram Motwani and Jitendra Shivpujan Gupta with regard to other part of the same plot, which is admeasuring about 202.15 Sq.Yard and the reference is made specifically to square yard and the entire plot is referred to in this document as 418 which included both part. Therefore, reference is made to the suit property admeasuring 215.86 Sq.Yard and there is a details regarding the transactions, which have taken place since 1977 between Mr.Natvar and the appellants. The agreement or banakhat, Exh.29 does not clearly refer to this portion between Thakkar Parshottam Bhanumali Lohana and the present appellants and reference is also made of this suit property as 418 square (yard) yard and not as meters. Therefore, again the entire plot is of 418 square yards, out of which, there are two subplots and there is a reference to the common passage going to the rear portion, for which, again there is a dispute in the form of Civil Suit pending in the Civil Court as stated by Vasantlal Narsinhdas at Exh.53. Much reliance placed by the appellants referring to the document at Exh.28 and other documents produced along with to emphasize that it is 215.86 square meters and not square yards has to be considered in background of the entire evidence including even footnote at the bottom of the same document at Exh.28, which is the permission under Section 27 of the Transfer of the Property and under the Urban Land Ceiling Act. The said note clearly states that the site plan is annexed in reference to the area as square meters but it appears to be apparent mistake. If the submissions were to be accepted based on this document, it will not match with the original lay out plan and as it is contended in the written statement, Exh.15, it is specifically stated that the property was 215.86 square yard and not 215.86 square meters and it was a mistake, for which, rectification document was made. Whether this document for the rectification was genuine or not is a question of fact and whether it is signed or it bears the thumb impression of the appellant plaintiff though he has able to signed is a matter of appreciation of evidence. Census has been made by the learned counsel appearing at the relevant time with regard to the order. The Court having perused the papers has passed appropriate order when it was found that if 250 square meters as sought to be canvassed is taken, it would not be appropriate description when the entire plot bearing No.15/C was admeasuring 415 square yard and, therefore, the apparent mistake, which is crept in and continued, cannot be perpetuated. The Court below has therefore while discussing on this aspect referring to the various circumstances has discussed in Para No.19 that when it was realized about the mistake, the rectification deed dated 12.10.1981 was executed at Exh.59 and, therefore, it cannot be said that the document at Exh.59 was executed behind the back.
7. In other words, the contention raised by the present appellantsoriginal plaintiffs has not been believed though apparently in some of the documents, reference is made to 215 square meters. On over all appreciation of evidence, it appears to be mistake as discussed by the Court below. There is detailed discussion on this aspect referring to other suits also with regard to the details of in grace and out grace. Therefore, it cannot be said that the impugned judgment is erroneous.
8. In the circumstances, the present Appeal filed by the appellants cannot be entertained as this Court is in broad agreement with the conclusions arrived at by the Court below as discussed above. Therefore, in light of the above discussions, the impugned judgment does not call for any interference and the present First Appeal deserves to be dismissed and stands dismissed accordingly.
(RAJESH H.SHUKLA, J.)
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