2003 Supreme(Guj) 1

Gujarat High Court
Judgename :AKSHAY H.MEHTA, K.R.VYAS
RAVJIBHAI MATHURBHAI SOLANKI DECD.THROUGH HIS HEIRS and L.RS - Appellant
Versus
BIJALBHAI DEVJIBHAI PRAJAPATI - Respondent
First Appeal 889 of 1984
Decided On : 01/01/2003

Headnote:

Bombay Agricultural Lands and Tenancy Act - Code of Civil Procedure -Rule 15 -Appeals are filed by the original defendants. First Appeal No. 889 of 1984 has been filed by original defendants nos. 1, 7, 8, 9, 10, 11, 12, 13, 14 and 15; whereas First Appeal No. 1118 of 1984 has been filed by original defendants nos. 16, 17, 18 and 19. These appeals have been filed by them for challenging the judgment and decree passed by the learned 3rd Joint Civil Judge in Special Civil Suit No. 15 of 1982 allowing the suit of the original plaintiffs and passing the decree of specific performance directing original defendants nos. 1, 2, 3 and 6 to 19 to execute sale deeds in favour of original plaintiffs upon their paying the balance amount of Rs. 3,37,800/=. 1. 1. Civil Revision Application (for short cra) has been filed by original plaintiff no. 2 against the order passed by the learned Civil Judge in Special Execution Petition No. 28 of 2000 seeking execution against the original defendants of this case in respect of the aforesaid judgment and decree. order impugned in the Civil Revision Application is. 1. 2. SINCE the appeals and the CRA arise from the same proceedings, they were heard together and they are now being disposed of by this common judgment. 1. 3. FOR the sake of convenience, the parties are referred to in this judgment by their original position in the suit. FROM the record of the case and in particular plaint, case of the plaintiffs appears to be that the original defendants nos. 1 and 2, were brothers. They were the tenants of lands bearing survey nos. 2415/3 admeasuring A-0 Guntha-26 and survey no. 2415/2 admeasuring A-0 Guntha-25. Further defendant no. 2 was also tenant of land bearing survey no. 2416/1 admeasuring A-0 Guntha-22. These lands were new tenure and situated on the outskirts of Anand town. It is the say of the plaintiffs that by virtue of the provisions of the Bombay Agricultural Lands and Tenancy Act (for short tenancy Act) the said defendants had become the owners of the said lands after paying the amount determined by the tenancy Court to the original owner of land and their names were accordingly entered into the revenue records. It is the further say of the plaintiffs that with the introduction of town planning scheme, these lands were covered under it and in place of these lands, the defendants were given the lands of old tenure, which were situated away from the aforesaid agricultural lands and which were numbered as Final Plot Nos. 432/2, 432 and 432/4. Defendants nos. 1 and 2 were put in actual possession of the final plots. Since the lands allotted to them under the scheme were slightly lesser than the lands held by them earlier - This brings us to the order challenged in the aforesaid Civil Revision Application. The record shows that original plaintiff no. 1 has relinquished his rights arising under the decree in favour of plaintiff no. 2 and he has moved out of the picture. Thus, plaintiff no. 2 alone is now interested in executing the decree. The learned Executing Court i. e. the Court of learned Civil Judge at has turned down the application filed by plaintiff no. 2 as Special Execution Petition No. 28 of 2000. The order of the learned Judge shows one of the grounds on which it is rejected is that when co-decree holder is not joined as party in execution, the decree cannot be executed. However, this reasoning of the learned Judge is erroneous because when the joint decree holder, namely plaintiff no. 1 had relinquished his rights in the decree in favour of plaintiff no. 2 and there was ample evidence on record to show that now plaintiff no. 2 alone was interested in the decree. It is also on record that plaintiff no. 2 had filed appropriate affidavit before the trial Court intimating the relinquishment of right of plaintiff no. 1 in favour of plaintiff no. 2. Moreover, on the strength of the affidavit filed before this Court by plaintiff no. 1, he was deleted from all the proceedings pending before this Court. Thus, plaintiff no. 2 alone had right and interest in the decree and in accordance with Order 21 Rule 15 of Code of Civil Procedure, he was entitled to file application for execution of the decree and execution proceedings at his instance were maintainable –Ordered Accordingly.