2002 Supreme(Guj) 634

Gujarat High Court
Judgename :RAVI R.TRIPATHI
GOHIL AMARSING GOVINDBHAI - Appellant
Versus
SHAH MANSUKHLAL CHHAGANLAL - Respondent
SECOND APPEAL 491 of 1978
Decided On : 08/29/2002

Headnote:

Gujarat Amendment Act, 1982 -Registration Act, 1908 -Section 17 -Transfer of Property Act, 1882 -Section 53a - Appeal is filed being aggrieved and dissatisfied by the judgement and decree passed in Civil Appeal No. 40 of 1977 by the learned 2nd Extra Assistant Judge, Baroda, whereby the appeal was dismissed and the judgement and decree passed in Regular Civil Suit No. 222 of 1973 by the learned Civil Judge, was confirmed., respondent herein, filed Regular Civil Suit No. 222 of 1973 to get the possession of the suit house from the defendant, appellant herein. It is the case of the plaintiff that he had good relations with the defendant and his family members from the time of deceased father of the defendant. As the plaintiff was in need of money, he demanded from the defendant. The defendant told the plaintiff to execute `an agreement to sale of his house situated. document was executed wherein it is mentioned that the house of the plaintiff, having tin sheets along with "vada" is agreed to be sold for a sum of Rs. 1,200=00; and, that Rs. 900=00 is paid as "bana" amount and when the remaining amount is paid, the plaintiff will execute a sale deed. It is also mentioned that if the plaintiff repays the amount before execution of the sale deed, this document will not be used by the defendant; the possession of the house was given to the defendant in lieu of interest of Rs. 900=00; and, as no "pakka" sale deed was executed, the defendant was served with a notice to act as per agreement dated 29/12/1962. The said notice was replied by the defendant refusing to hand over the possession of the suit-house to the plaintiff, hence, he filed the suit. controversy involved in the matter is centering around the relief sought for in the plaint. The plaint is produced at Exh. 1, wherein prayer clause, paragraph 7, reads as under :" (I) By virtue of the agreement to sale, , on payment of Rs. 900=00, the plaintiff be awarded the possession of the suit property from the defendant. (II) The mesne profits till the plaintiffs get the possession of the suit property be also awarded. " (III)COSTS of the suit; (IV) Any other relief which will be in the interest of justice may also be awarded. "the suit was contested by the defendant by filing written statement at Exh. 10, wherein it was contended that the suit filed by the plaintiff is false and is not maintainable in its present form. The defendant denied that the plaintiff had borrowed a sum of Rs. 900=00 from him. It was the contention of the defendant that the plaintiff had handed over possession of the suit-house after executing the agreement to sale and the possession of the suit-house along with "vada" was given to him as an owner and that he is using the suit-house as owner since then. It was also contended by the defendant that after execution of the agreement to sale, the defendant had paid a sum of Rs. 300=00 in two installments, as the plaintiff was in need of money. But, even after taking the full amount, the plaintiff avoided to execute the sale deed under the pretext of his sickness and as the value of the suit house has increased, the suit is filed by the plaintiff -Held THE learned Advocate for the respondents, at this juncture, submitted that the finding recorded by both the Courts that the defendant is not the owner of the suit property should come to his rescue and the judgement and decree passed by the Courts below be upheld. This submission of Mr. Shah cannot be accepted. It is a settled position that the plaintiff has to succeed in a suit on his own strength. He cannot succeed on the weakness of the defendant. It was the plaintiff who came to the Court pleading that the defendant is in possession of the suit house by virtue of a document, and relying on the averments of that document, the plaintiff prayed for the decree for possession of the suit house. the result, the Second Appeal is allowed. The judgement and decree dated 3 1/03/1978 passed in Civil Appeal No. 40 of 1977 by the learned 2nd Extra Assistant Judge, Baroda, and the judgement and decree dated 1 8/12/1976 passed in Regular Civil Suit No. 222 of 1973 by the learned Civil Judge, are hereby quashed and set aside. Consequently, the Regular Civil Suit No. 222 of 1973 filed in the Court of learned Civil Judge, also stands dismissed. No order as to costs. Appeal id Dismissed.