NEUTRAL CITATION
C/CRA/303/2015 CAV JUDGMENT DATED: 22/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 303 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ================================================================ HARISHBHAI CHANDRAKANT MADHU Versus RANCHHODBHAI KALUBHAI BHARWAD & 13 other(s) ================================================================ Appearance:
MR.D K.PUJ(3836) for the Applicant(s) No. 1MR SANJAY M AMIN(130) for the Opponent(s) No. 3,4,5,6 MR TATTVAM K PATEL(5455) for the Opponent(s) No. 1,2 NOTICE SERVED for the Opponent(s) No. 10,11,11.1,11.2,12,13,14 NOTICE UNSERVED for the Opponent(s) No. 7,8,9 ================================================================ CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 22/09/2023 CAV JUDGMENT
1.Heard learned advocate Mr. D.K. Puj for the Page 1 of 18 Downloaded on : Fri Sep 22 20:46:45 IST 2023 NEUTRAL CITATION C/CRA/303/2015 CAV JUDGMENT DATED: 22/09/2023 undefined petitioner and learned advocate Mr. Tatvam K. Patel for the respondent nos. 1 and 2.
2.The petitioner is the original defendant no.5 and respondent nos. 1 and 2 are the original plaintiffs in Civil Suit No. 605/2010 whereas other respondents are defendants in the said suit. The parties are therefore, referred to as the plaintiffs and the defendants accordingly.
3.The plaintiffs filed Civil Suit No.605/2010 in the Court of Principal Civil Judge (SD) at Ahmedabad (Rural), Ahmedabad for specific performance of the contract as well as permanent injunction and also for cancellation of registered sale deed and Agreement to Sale in respect of land bearing survey no.76/4/A, Block No. 164 admeasuring about 2023 sq. mtrs situated at village Ambli, Taluka Daskroi, District and Sub- Page 2 of 18 Downloaded on : Fri Sep 22 20:46:45 IST 2023
NEUTRAL CITATION C/CRA/303/2015 CAV JUDGMENT DATED: 22/09/2023 undefined District Ahmedabad forming part of Town Planning Scheme No.215(Ambli), Final Plot no.13 admeasuring about 1417 sq. mtrs (hereinafter referred to as "the suit land").
4.The petitioner defendant no.5 filed application Exh.51 under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (For short "the Code") in the said suit on the ground that the plaintiffs have suppressed material facts with regard to the proceedings under the Bombay Tenancy and Agricultural Lands Act, 1948 (For short "the Tenancy Act") in respect of the suit land and therefore, under section 85 of the Tenancy Act, the suit is barred by law as Civil Court has no jurisdiction to settle decide or deal with any question which is by or under the Tenancy Act required to be settled, decided or dealt with by the Mamlatdar, Collector or the Gujarat Revenue Tribunal or the State Page 3 of 18 Downloaded on : Fri Sep 22 20:46:45 IST 2023 NEUTRAL CITATION C/CRA/303/2015 CAV JUDGMENT DATED: 22/09/2023 undefined Government in appeal or revision in exercise of its power conferred under the Tenancy Act. The petitioner also raised the issue of limitation as the Agreement to Sale executed in the year 1998 is sought to be enforced by the suit for specific performance in the year 2010 by the plaintiffs.
5.Learned Judge by order dated 21.12.2012 dismissed application Exh.51 under Order VII Rule 11 of the Code filed by the petitioner. The petitioner, therefore, being aggrieved has preferred this revision application under section 115 of the Code.
6.It is a trite law that while considering the application under Order VII Rule 11(d) of Code, the Court is required to consider the averments made in the plaint together with the documents produced with the plaint. Page 4 of 18 Downloaded on : Fri Sep 22 20:46:45 IST 2023
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7.The grounds taken by the petitioner with regard to the revenue proceedings pertaining to suit land are not referred to in the plaint by the plaintiffs. The plaintiffs have only stated that original defendant nos. 1 to 4 have executed registered Agreement to Sale dated 09.03.1998 in favour of the plaintiffs and co-owner Gopalbhai Chaturbhai Amin for the sale of suit land for Rs.5,00,000/- as the owners through inheritance and as has been possession of the suit land. It was also averred by the plaintiffs that their co- sharer Gopalbhai Chaturbhai Amin and both the plaintiffs paid Rs.1,50,000/- each in cash to the defendant nos. 1 to 4 towards the consideration. It is also stated in the plaint that on death of Gopalbhai Chaturbhai Amin, her widow Manjulaben Gopalbhai Amin executed the release deed dated 19.09.2008 in favour of the plaintiffs by relinquishing the rights in the suit land. The plaintiffs Page 5 of 18 Downloaded on : Fri Sep 22 20:46:45 IST 2023 NEUTRAL CITATION C/CRA/303/2015 CAV JUDGMENT DATED: 22/09/2023 undefined referred to and relied upon the conditions of Agreement to Sale which included the condition that the sale deed is to be executed with the title clearance certificate together with the permission for non- agricultural purpose as the suit land was new tenure agricultural land. It was therefore, averred in the plaint that upon repeated requests made by the plaintiffs to execute the sale deed, defendant nos. 1 to 4 informed that the suit land is new tenure land and because of that necessary permissions are required.
8.With regard to the cause of action for filing the suit in the year 2010, it was stated in paragraph nos.5 and 6 of the plaint that the plaintiffs came to know about the Board placed by the petitioner in the suit land in the year 2008 and thereafter on search being made by the plaintiffs, it came to the Page 6 of 18 Downloaded on : Fri Sep 22 20:46:45 IST 2023 NEUTRAL CITATION C/CRA/303/2015 CAV JUDGMENT DATED: 22/09/2023 undefined knowledge of the plaintiffs that the sale deed is executed by petitioner-defendant no.5 through his Power of Attorney Holder- defendant no.6 in favour of defendant nos. 7 to 9 on 15.12.2006 and one registered Agreement to Sale is executed by the petitioner-defendant no.5 on 22.12.2008 in favour of the defendant nos. 10 to 13 though he has no right, title or interest in the suit land.
9.The plaintiffs, therefore, prayed for specific performance of Agreement to Sale dated 09.03.1998 with a further prayer to declare the sale deed executed by the petitioner in favour of defendant nos. 7 to 9 as well as Agreement to Sale executed in favour of defendant nos. 10 to 13 should be declared as null and void and direct the defendant nos. 1 to 4 to execute the sale deed in favour of the plaintiffs. Page 7 of 18 Downloaded on : Fri Sep 22 20:46:45 IST 2023
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10. The plaintiffs also placed on record the documents comprising of registered Agreement to Sale dated 09.03.1998 in their favour, copy of Release Deed dated 19.09.2008, receipt of amount paid for search of the revenue record dated 22.12.2009 along with statement obtained from the revenue record, copy of sale deed dated 15.12.2006, copy of Agreement to Sale dated 22.12.2008, copy of cancellation of sale deed dated 17.07.2009, copy of 7/12 extract of the suit land and copy of Plan No.3 of the Town Planning Scheme.
11. Learned advocate Mr. D.K. Puj for the petitioner submitted that the plaintiffs have suppressed by not disclosing the material facts in the plaint. It was submitted that on perusal of the village extract of 7/12 placed on record, name of the petitioner is shown Page 8 of 18 Downloaded on : Fri Sep 22 20:46:45 IST 2023 NEUTRAL CITATION C/CRA/303/2015 CAV JUDGMENT DATED: 22/09/2023 undefined therein. It was also submitted the sale deed dated 22.12.2008 placed on record by the plaintiffs also refers to the fact with regard to the revenue proceedings under the Tenancy Act by which the petitioner became the owner of the land in question as under:
1) The petitioner was tenant of the suit land from 1981-1982 and was cultivating the same.
2) The proceedings under section 70(b) of the Tenancy Act was initiated by the petitioner as Tenancy Case No.3054/1986 along with proceedings under section 32(o) of the Tenancy Act registered as Tenancy Case No.3065/1986 against the owners of the land namely, Shri Kaalaji Kalaji and Machiben, widow of Kaalaji Mohanji as well as Shakaji Amthaji.
3) As a result of such proceedings, the Page 9 of 18 Downloaded on : Fri Sep 22 20:46:45 IST 2023 NEUTRAL CITATION C/CRA/303/2015 CAV JUDGMENT DATED: 22/09/2023 undefined petitioner was held to be the owner/occupier of the suit land and name of the petitioner was mutated in the revenue record village form No. 7/12 extract as a tenant.
4) Mamlatdar and ALT after verifying the revenue record, determined the price of the land and on payment of the said price, the petitioner became the legal owner and occupier of the suit land on 25.05.1987. The petitioner thereafter cultivated the land.
12. Learned advocate Mr. Puj submitted that above facts are stated in the sale deed executed by the Power of Attorney Holder- defendant no.6 in favour of defendant nos. 7 to 9 joined in the suit but these facts are suppressed in the plaint.
13. Learned advocate Mr. Puj submitted that the sale deed executed by the petitioner was cancelled, which is also placed on record. Page 10 of 18 Downloaded on : Fri Sep 22 20:46:45 IST 2023
NEUTRAL CITATION C/CRA/303/2015 CAV JUDGMENT DATED: 22/09/2023 undefined However, facts with regard to the same is also not stated in the plaint. It was submitted that the plaintiffs by executing registered Agreement to Sale in the year 1998, in collusion with defendant nos. 1 to 4 to snatch away the suit land from the plaintiffs, have abused the process of law though defendant nos. 1 to 4 have no right, title or interest in the suit land.
14. It was submitted that without referring to the tenancy proceedings by which the petitioner has become the owner, the suit is filed for specific performance in the year 2010 for execution of the Agreement to Sale dated 09.03.1998 which is beyond the period of limitation as prescribed under Article 54 of the Limitation Act.
15. On the other hand, learned advocate Mr. Tatvam Patel appearing for respondent nos. 1 and 2 original plaintiffs submitted that on Page 11 of 18 Downloaded on : Fri Sep 22 20:46:45 IST 2023 NEUTRAL CITATION C/CRA/303/2015 CAV JUDGMENT DATED: 22/09/2023 undefined bare perusal of the averments made in the plaint as well as the documents produced on record, the plaintiffs have made sufficient averments for maintainability of the suit for specific performance of the Agreement to Sale dated 09.03.1998. It was submitted that the petitioner has failed to point out the provision of law under which the suit is barred inasmuch as there is nothing on record to show that the petitioner is the owner of the suit land at any point of time and by virtue of entries in the revenue record, the petitioner cannot claim to be owner of the suit land. It was submitted that the petitioner has filed an application under Order VII Rule 11 of the Code based upon his defense which is required to be considered by the Court during the course of trial.
16. With regard to the issue of limitation, it was submitted that the trial Court has Page 12 of 18 Downloaded on : Fri Sep 22 20:46:45 IST 2023 NEUTRAL CITATION C/CRA/303/2015 CAV JUDGMENT DATED: 22/09/2023 undefined rightly come to the conclusion that it is a mixed question of facts and law and therefore, the same can be considered during the proceedings of the suit.
17. Learned advocate Mr. Patel referred to and relied upon the conditions for execution of the sale deed in Agreement to Sale sought to be enforced to point out that condition no.3 clearly stipulates that the sale deed would be executed only upon obtaining title clearance certificate and necessary permission from the Government as the suit land is of restricted tenure. It was therefore submitted that the suit was rightly not considered to be barred by law of limitation by the Court below.
18. Learned advocate Mr. Patel would submit that the question of suit being filed for specific performance of Agreement to Sale on the conditions mentioned therein and Page 13 of 18 Downloaded on : Fri Sep 22 20:46:45 IST 2023 NEUTRAL CITATION C/CRA/303/2015 CAV JUDGMENT DATED: 22/09/2023 undefined therefore, the contentions raised on behalf of the petitioner for rejecting the plaint has rightly not been considered by the Court and no interference is required to be made in the impugned order rejecting the application Exh.31 filed under Order VII Rule 11(d) of the Code by the petitioner.
19. Having heard the learned advocates for the respective parties and having considered the averments made in the plaint and the documents annexed therewith by the plaintiffs, it appears that the plaintiffs have filed the suit for specific performance without referring to the correct facts inasmuch as on perusal of the copy of sale deed executed in favour of respondent nos. 7 to 9 by the Power of Attorney Holder of the petitioner, it emerges that defendant nos. 1 to 4 who claim to be legal heirs of Kalaji Mohanji and Kaalaji Kalaji have no right, Page 14 of 18 Downloaded on : Fri Sep 22 20:46:45 IST 2023 NEUTRAL CITATION C/CRA/303/2015 CAV JUDGMENT DATED: 22/09/2023 undefined title or interest over the suit land in view of the tenancy proceedings which have achieved finality in the year 1987-1988 as stated in paragraph nos. 3 to 6 of the registered sale deed placed on record executed by the Power of Attorney Holder of the petitioner. Facts stated therein are not at all mentioned in the plaint and only reference is made to the Agreement to Sale executed in the year 1998.
20. On perusal of the Agreement to Sale also there is no reference as to how defendant nos. 1 to 4 have become the owners of the suit land and as such Agreement to Sale is also silent to the title derived by the owners - defendant nos. 1 to 4 who are the legal heirs of Kalaji Mohanji and Kaalaji Kalaji.
21. The Learned Judge has rejected the application filed by the petitioner under Page 15 of 18 Downloaded on : Fri Sep 22 20:46:45 IST 2023 NEUTRAL CITATION C/CRA/303/2015 CAV JUDGMENT DATED: 22/09/2023 undefined Order VII Rule 11 of the Code on the ground that the petitioner has failed to point out under the provision of which law, suit is barred by law. However, on perusal of the averments made in the plaint together with documents produced on record, it is clear that the suit is barred by law in view of suppression of material facts by the plaintiffs for filing the suit for specific performance in the year 2010 on the basis of Agreement to Sale executed in the year 1998.
22. Trial Court has also failed to appreciate that there is a delay of more than 12 years in preferring the suit for specific performance by relying upon the condition in Agreement to Sale. The trial court has also not considered the averments made in the plaint with regard to cause of action as the plaintiffs have failed to point out any event which has taken place between the period 1998 Page 16 of 18 Downloaded on : Fri Sep 22 20:46:45 IST 2023 NEUTRAL CITATION C/CRA/303/2015 CAV JUDGMENT DATED: 22/09/2023 undefined to 2008.
23. Thus, the plaintiffs have failed to point out what efforts were made by the plaintiffs and defendant nos. 1 to 4 for obtaining permission for sale of the land nor anything is mentioned in the suit about cause of action for readiness and willingness of the plaintiffs for execution of the sale deed. It appears that averments of the plaint is nothing but a clever drafting to file the suit for specific performance.
24. In view of facts emerging from the record, more particularly, only on the ground when the plaintiffs have suppressed the material facts which is emerging from the documents annexed with the plaint in form of sale deed and Agreement to Sale executed by the petitioner in the year 2008 and 2009, the plaint is liable to be rejected under Order VII Rule 11 of the Code.
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25. In view of the foregoing reasons, revision application succeeds and is accordingly allowed. Plaint is ordered to be rejected under Order VII Rule 11 (d) of the Code. Rule is made absolute to the aforesaid extent. No order as to costs.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 18 of 18 Downloaded on : Fri Sep 22 20:46:45 IST 2023