IMPORTANT POINT
Written Statement – Assertion made in plaint is not a proof and burden lay upon plaintiff to prove facts and averments made in its plaint even if there is no written statement filed by defendants to the contrary averments or any evidence or rebuttal.

JUDGMENT (ORAL)

The present Second Appeal under Section 100 of the Civil Procedure Code has been filed by the original plaintiff against the judgment and decree passed by the 4th Additional District Judge, Kachchh@Bhuj in Regular Civil Appeal No. 135 of 2005.

2. For the brevity and convenience, the parties are referred to in this Judgment as per the status assigned to them before the learned trial Court.

3. The present Second Appeal came to be admitted on 8.8.2016 for the following substantial questions of law:—

“(1) Whether the judgment and decree passed by the lower Court can be sustained under law, when the mandatory provisions of Order 41, Rule 31 of the Code of Civil Procedure are not complied with by the lower Court?

(2) Whether without there being any counter claim by the respondent No.1, the lower Court had the jurisdiction to pass a decree against the present appellant in the suit of the appellant himself?

(3) Whether the relief granted by the lower Court in favour of the respondent No.1 was clearly time barred in the facts of the case?

(4) Whether the lower Court had jurisdiction to go behind the consent decree, Exh.83, which has become final and binding between the parties right from the year 1989?

(5) Whether the consent decree can travel beyond the subject matter of the suit or the prayers made therein?

(6) Whether without there being any written statement on record by the defendants, any evidence led by the respondent No.1 - defendant No.2 could have been considered by the Court?

(7) Whether the oral evidence of the Power of Attorney holder of the respondent No.1 at Exh.112 can be considered, particularly, when the alleged copy of Power of Attorney is never exhibited on record?

(8) Whether, in view of the admission by the respondent No.1 at Exh.16 and Exh.112 as regards passing of the consent decree, the decree of the trial Court could have been reversed ?

(9) Whether the decree of the lower Court is vitiated by overlooking the clinching documentary evidences produced on record, showing the physical possession of the land in question with the present appellant?”

4. It appears from the record that the plaintiff has filed the Special Civil Suit No. 41 of 2003 against the defendants for declaration and injunction. The plaintiff is son of defendant No.1 (since deceased) whereas defendant No.2 is the purchaser of the land in question and defendant No.3 is Talati-cum-Mantri of the village Mirzapar. The contention of the plaintiff before the trial Court is that there was dispute between father and son regarding properties and earlier one Civil Suit No. 233/89 was filed wherein consent decree was passed on 23.6.1989 and as per that decree, agricultural land bearing Survey No. 113, Acre-14 and Gunthas-4 of village Mirzapar was given to the plaintiff by his father for consideration of Rs.20,000/-. According to the plaintiff, the decree was already executed and on that basis the said land is of the ownership of the plaintiff and he is doing agricultural work over that. He has also contended that defendant No.1 i.e. his father is bound to obey the consent decree. He has also stated that on the basis of the decree, the plaintiff got revenue entry No. 3316 in his name against which his father has filed Appeal No. 52/1999 before the Deputy Collector and Deputy Collector has cancelled the said Entry, against which, he had preferred Revision before the Collector, Bhuj, being Revision Appeal No. 108(5) 26/2002and the matter was remanded. It is also contended by the plaintiff that there was Takrari Case No. 11 of 2003 conducted before Mamlatdar Court wherein the objections as well as the Entry itself came to be rejected by the Mamlatdar. He has stated that he has filed Appeal against that Order of the Mamlatdar which is still pending.

4.1 It is contended that though defendant No.1 i.e. his father knowing that he is not the owner of the land in question, defendant No.1 has sold the land in question by registered Sale-deed da