IMPORTANT POINT
Appeal – Appellate Court cannot reevaluate entire evidence and arrive at conclusion contrary to conclusion arrived at by trial Court unless said order is found to be invalid, illegal, arbitrary, perverse or contrary to settled principles of law.

JUDGMENT (ORAL)

This appeal has been filed at the instance of the appellant herein original plaintiff against the order passed by the learned 2nd Additional Senior Civil Judge, Kalol, whereby the learned Judge was pleased to dismiss the application Exh.5 filed by the appellant herein original plaintiff.

2. The facts leading to the filing of this appeal may be summarized as follows:—

2.1 It is the case of the plaintiff that the property in question is the lands being Survey Nos. 347 to 356, 359, 360, 361, 363, 364, 366, 367, 372, 374 to 379, 381/B, 2017, 2018, 2021 to 2024, 2026, 2028, 2030 in total admeasuring 3,85,351.28 square meter paiki 3,34,448 square meter i.e. 4,00,000 square yard situated at mauje village – Santej, Taluka & District – Kalol (hereinafter referred to as “lands in question” for short).

2.2 It is also the case of the plaintiff that the respondent no.2 society, being the original owner of the subject lands, has executed one agreement to sell dated 29.04.2021 in favour of the respondent nos.1 and 3 and the said agreement to sell clearly mentions that the respondent nos.1 and 3 includes their heirs, successors, assignees etc. as mentioned in the said agreement to sell. That as per the said agreement to sell, the total area agreed to be sold was 4,00,000 square yards for total consideration fixed at Rs.2,32,04,00,000/- and out of which, the said respondent no.1 and 3 have made payments of Rs.1,00,000/- vide cheque no.000122 dated 28.04.2021, Rs, 11,00,00,000/- vide cheque no.000123 dated 28.04.2021 and Rs.10,00,000/- in cash to the respondent / defendant no.2 society. That the said agreement to sell is signed by all the parties and is duly notarised.

2.3 It is also the case of the plaintiff that the said notarized deed dated 29.04.2021 entails the characteristic of agreement to sale which was executed qua the subject lands by the respondent – defendant no.2 in the favour of the respondent nos.1 and 3 and as per the said agreement it was the responsibility of the respondent / defendant no.2 to get the title clear of the lands in question and to execute the sale deed in the favour of the respondent / defendant nos. 1 and 3. That as per the terms of the said agreement to sell dated 29.04.2021, neither of the parties (proposed purchasers) were barred from transferring and/or assigning their right over the subject lands on the basis of the said agreement to sell in favour of a third party.

2.4 It is also the case of the plaintiff that thereafter, on the basis of the said agreement to sell and as the rights of the respondent nos. 1 and 3 derived under the agreement to sell, the said respondent no.1 executed a deed of assignment dated 17.05.2021 in the favour of the present appellant qua 50% share / interest in the lands in question. That the deed of assignment dated 17.05.2021 was executed by the respondent/defendant no.1 in favour of present appellant – plaintiff, who was one of the parties to the agreement to sell dated 29.04.2021 and by this deed the respondent no.1 agreed to assign his rights acquired pursuant to and on the basis of the agreement to sell dated 29.04.2021. That as per the said agreement to sell dated 29.04.2021, the respondent no.1 was having 50% share in the subject lands and said share was agreed to be assigned in the favour of the present appellant - plaintiff. That by way of the said assignment deed, the respondent no.1 agreed to sell the suit land in favour of the appellant, which was purchased through the agreement to sell dated 29.04.2021 and in view of the said assignment deed, the respondent no.1 assigned his ownership rights in the favour of the present appellant. That the said agreement was executed in time and valid on the date of execution of said assignment deed in the favour of the appellant and thereby, the respondent no.1 agreed to assign rights in the suit land to the extent of his share of 50% i.e. 200000 square yards out of total area admeasuring 400000 square yards for a consid