IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 49 of 1990 For Approval and Signature:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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========================================= AMBALAL BABABHAI VALAND Versus NIRANJAN AMBALAL JETALPURIA & 1 =========================================A ppearance :
MR VIKRAM THAKORE for MR MC BHATT for the Appellant MR RM VIN for Respondent No.1 ========================================= CORAM : HONOURABLE MR.JUSTICE C.L. SONI Date : 26/09/2012 CAV JUDGMENT
1. Appellant- original defendant No.1 has challenged the judgment and decree dated 25.7.1989 passed by learned Extra Assistant Judge, Ahmedabad (Rural), Mirzapur, whereby the appeal filed by respondent No.1- original plaintiff came to be allowed and the judgment and decree passed by the learned Trial Judge dismissing the suit of respondent No.1 was quashed and set aside and respondent No.1 was held entitled to one third share in the sale proceeds of the land in question and also held entitled to the profit from the land for three years prior to filing of the suit. Preliminary decree was ordered to be drawn accordingly with a direction to appoint Court Commissioner to take accounts from the appellant.
2. Case of respondent No.1 in his plaint was that the appellant was his brother-in-law, that respondent No.2– original defendant No.2 in the suit was having close relationship with the appellant, that the land bearing Survey No.830 admeasuring 2 acres and 1 guntha was to be purchased and respondent No.1 was asked to invest one third amount in the said land, that accordingly putting full faith on them, respondent No.1 gave money in equal share and the property was then purchased in the name of the appellant, that the appellant thereafter did not give any amount nor any share in the property but misrepresented that land would fetch good price and there would be good profit, that therefore, again, respondent No.1 placed faith in them and still the appellant kept the respondent in dark and entered into transaction with one person by caste Prajapati and received Rs.3700/- as an earnest money, but did not pay any amount to respondent No.1, nor did the appellant gave any share in the property, that since the appellant and other defendants were trying to defeat the right of respondent No.1, one Civil Suit No.749 of 1981 was filed for injunction restraining the appellant from selling away the said land. In the said suit, the appellant declared that the land was sold however sale price was not correctly disclosed though the value of the land was around Rs.2 lakhs. Therefore, the said suit was withdrawn and present suit was filed for declaration that respondent No.1 was entitled to one third share in sale proceeds received, and also for the profit for the period during which the appellant continued with possession and enjoyed the land.
3. The suit was resisted by the appellant and it was stated that the first suit was withdrawn and by virtue of Order 23 Rule 1(4) of the Code of Civil Procedure, the present suit was not maintainable, that respondent No.1 was not agriculturist and by virtue of Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, respondent No.1 was not entitled to claim any share in the land, that there was no evidence of any partnership between the appellant and respondent No.1 as alleged by respondent No.1 and even if there was any such partnership, no suit for dissolution of the partnership was filed, that the transaction in respect of the land was different and independent transaction and respondent No.1 had no share in such sale transaction, that respondent No.1 had never paid any amount to the appellant and the appellant had purchased the land independently, possession thereof is of his own, that the land was sold for an amount of Rs.36,511/-, which was reflected in the sale deed and it was not correct that the value of the land was Rs. 2 lakhs as alleged by respondent No.1.
4. On such pleadings, though 10 issues were framed, but the main issues were to the effect that :-
(1) Whether the plaintiff proves that he is having share in the suit land ?
(2) Whether the plaintiff is entitled to his one third share from the sale amount with interest at the rate of 12% per annum ?
(3) Whether the plaintiff is entitled to profit and interim income from the suit land ?
(4) Whether the suit is maintainable in view of the Order 23 of the Code of Civil Procedure ?
(5) Whether the defendant is liable to account to the plaintiff ?
(6) Whether the plaintiff is not agriculturist and if yes, whether the plaintiff can claim ownership ?
5. Learned Trial Judge has held that the plaintiff is not entitled to any share in the suit property and thus the suit of respondent No.1 was dismissed with costs.
6. Respondent No.1 then filed Regular Civil Appeal No.71 of 1988 in the Court of learned Extra Assistant Judge, Ahmedabad (Rural) at Mirzapur. Learned Appellate Judge has framed the following issues :-
(1) Whether the plaintiff proves that he has 1/3 share in the land ?
(2) Whether the plaintiff prove the suit claim ?
(3) Whether the learned trial Judge has erred in dismissing the plaintiff's suit ?
(4) What order ?
Answers to the above issues are as under:-
(1) In the affirmative
(2) In the affirmative
(3) In the affirmative
(4) As per final order below.
7. Learned Appellate Judge has come to the conclusion that respondent No.1 has proved that he had contributed one third money for the purpose of purchase of the land and also has come to the conclusion that the present suit was not barred as in the earlier suit for injunction, for the first time, it was disclosed that the land was sold away and therefore, respondent No.1 was obliged to withdraw the suit and file fresh suit. Learned Appellate Judge also came to the conclusion that unimpeachable document, i.e. postcards on record addressed by the appellant to respondent No.1 would go to show that the appellant had paid his share for the purpose of purchase of the land and purchase was to be made in joint venture and therefore, the transaction which was effected in respect of the land with money of respondent No.1, for such transaction, respondent No.1 could be said to have his share of one third. Accordingly, the learned Appellate Judge allowed the appeal as stated above. It is this judgment and decree passed by the learned first Appellate Judge which is under challenge in this appeal.
8. When the the appeal was admitted, following substantial questions of law were framed :-
(1) Whether the lower Appellate Court has erred in passing the decree in favour of the respondent No.1 who is non- agriculturist ?
(2) Whether the lower Appellate Judge has erred in conferring power on Court Commissioner to adjudicate the dispute which function is not magisterial function ?
9. I have heard learned advocates for the parties.
9.1. Learned advocate Mr. Vikram Thakore for Mr. M.C. Bhatt appearing for the appellant has submitted that on proper appreciation of the evidence, the learned Trial Judge dismissed the suit and there was no other view possible on the basis of the evidence which was available on record. He submitted that the learned Appellate Judge has committed error in placing reliance on the postcards alleged to have been written by the appellant to respondent No.1 to come to the conclusion that respondent No.1 had in fact sent necessary amount for the purpose of purchase of the land jointly. He submitted that respondent No.1 had miserably failed to prove to have sent any amount as stated by him and it was not open for respondent No.1 to rely on the postcards written by the appellant but instead it was for the respondent No.1 to independently prove the fact of sending the amount to the appellant and having not done so, the learned Appellate Judge ought not to have placed reliance on the postcards without there being any other evidence believing that respondent No.1 in fact had sent such amount to the appellant.
9.2. Learned advocate Mr. Thakore also submitted that the suit of respondent No.1 was not maintainable by virtue of Order 23 of the Code of Civil Procedure because the first suit was withdrawn without seeking liberty to file second suit. He submitted that respondent No.1 was otherwise also not entitled to lay his claim for one third share in the land and in ultimate sale proceeds of the land because the respondent No.1 could not have claimed any share in the agricultural land as he was non-agriculturist and was not entitled to enter into any such sale transaction in respect of the agricultural land by virtue of the provisions of Section 63 of the Tenancy Act.
9.3. Learned advocate Mr. Thakore further submitted that the learned Appellate Court also erred in conferring the powers on the Court Commissioner to adjudicate the dispute of accounts of profit which is not ministerial task. He submitted that such being the task of adjudicating the dispute and not simple ministerial function, this part of the decree passed by the learned Appellate Judge could not stand scrutiny of law. He thus urged that on both the substantial questions of law, the appeal is required to be allowed.
10. In reply to the submission made by learned advocate for the appellant, learned advocate Mr. R.M. Vin for respondent No.1 submitted that the Appellate Court has recorded the finding of fact to the effect that respondent No.1 had sent the amount to purchase the land and the appellant having purchased the land, the respondent No.1 was entitled to have one third share in the said land. He further submitted that the learned Appellate Judge has also found that the appellant had unauthorizedly enjoyed the land purchased with the money of respondent No.1 and therefore, he was liable to pay share in the income/ profit for the land kept by him for the period till it was sold. He submitted that there was nothing wrong in filing the second suit as the first suit was simply for permanent injunction and in such suit, for the first time, disclosure was made by the appellant that he had already sold the land and for this reason, respondent No.1 was justified to file suit for declaration and consequential benefits. Therefore, such suit was certainly maintainable. He submitted that the provisions of Section 63 of the Tenancy Act would not come in the way of respondent No.1 to claim his right to have share in the land as the right claimed by respondent No.1 in the suit was on the basis of his contribution by sending money to the appellant for purchasing the land and the appellant having utilized such amount and purchased the land and ultimately sold, respondent No.1 was entitled to claim his share in the land and ultimate sale proceeds.
10.1. Learned advocate Mr. Vin further submitted that all questions which are raised by the appellant are questions of facts and not substantial questions of law. He submitted that the learned Appellate Court has recorded the finding of fact on the basis of appreciation of evidence and no substantial question of law arises for consideration of this Court. He, therefore, submitted that such being the position, this Court may not interfere with the ultimate conclusion arrived at by the learned Appellate Judge.
11. I have heard the learned advocates for the parties and I have perused the judgment and decree passed by both the Courts below as also the record and proceedings of the case.
12. I find that the learned Appellate Judge has recorded finding about sending the amount by respondent No.1 and receipt thereof by the appellant on the basis of documentary evidence in the nature of postcards at Exhs. 47,48 and 49. Learned Appellate Judge also further relied on the letter at Exh.50 informing respondent No.1 by the appellant that the transaction with one person of the caste of Prajapati was not going to be finalized. Learned Judge has also considered the documents at Exhs.61 and 62 to arrive at conclusion that this land was sold to one Sartanbhai. In support of that, oral evidence was also considered at Exh.77. Learned Judge thus recorded that the respondent No.1 has proved that he had sent money to the appellant for purchasing the land and also found that the suit land was then sold by the appellant. On the basis of such findings of fact, the learned Appellate Judge found that respondent No.1 had his share in the land purchased by the appellant and ultimate sale proceeds derived from such sale transaction of the land. This being the finding of fact arrived at by the learned Appellate Judge on the basis of the evidence, next question would be whether the appellant was entitled to the relief granted on the basis of his right found by the learned Appellate Judge. The first substantial question of law is as to whether the learned Appellate Judge could have passed the decree in favour of respondent No.1 who was non-agriculturist. In my view, the decree which was passed by the learned Judge was not of making the respondent No.1 entitled to hold any agricultural land as owner or declaring his right, title or interest in the agricultural land though he was not agriculturist. Issue before the Courts below was whether if as per the understanding, the money of respondent No.1 was utilized for the purpose of purchasing the land, whether respondent No.1 was entitled to get back the value of one third share in the ultimate sale proceeds of the land as understood between the parties. It is found as a matter of fact by the learned Appellate Judge that the appellant misrepresented the respondent No.1 and pocketed the money after selling the land which was purchased by utilizing the money of respondent No.1. Such being the finding of fact arrived at by the learned Appellate Judge, the learned Appellate Judge was justified in passing the decree for securing and restoring back the amount utilized by the appellant which could be done only by declaring one third share in the sale proceeds of the land. There was no question of examining the validity or otherwise of any transaction in respect of the agricultural land while deciding such right of respondent No.1. In view of this, I do not find that the learned Appellate Judge has committed any error in passing the ultimate decree making respondent No.1 entitled to one third share in the sale proceeds of the land. Since there was no agricultural land in existence which would be affected by the decree, it cannot be said that the learned Judge could not have passed declaratory decree in favour of respondent No.1.
13. Similarly, since the appellant utilized the land and enjoyed fruits thereof, I also do not find any illegality or error in the judgment and decree passed by the learned Appellate Judge in making the respondent No.1 entitled to share in the profit from the said land for three years prior to filing of the suit.
14. Since the amount of profit was to be accounted for and then benefit from the same was to be given to respondent No.1 as per the decree, it could not be said that the learned Appellate Judge has committed any error in passing further decree for appointment of Commissioner for taking accounts. The Court Commissioner, therefore, was not required to go into any kind of dispute between the parties but to simply take accounts from the appellant to give the exact share of profit to respondent No.1. In view of this, even for the second substantial question of law, I do not find that the learned Appellate Judge has committed any error.
15. Under the above stated facts and circumstances, this appeal is required to be dismissed. Accordingly, the same is dismissed.
16. Record and proceedings be sent back to the concerned Trial Court.
omkar Sd/-
(C.L. SONI, J.)