Gujarat High Court
Bhumisth Kanjibhai Makwana vs Gaurangbhai Dineshbhai Patel on 10 February, 2025
NEUTRAL CITATION
C/FA/78/2025 ORDER DATED: 10/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 78 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 78 of 2025
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BHUMISTH KANJIBHAI MAKWANA
Versus
GAURANGBHAI DINESHBHAI PATEL & ORS.
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Appearance:
MR BHAVESH BABARIYA(6788) for the Appellant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 10/02/2025
ORAL ORDER
1. Heard Mr. Bhavesh Babariya, learned advocate on record for the appellant- original defendant no.4.
2. The present appeal is filed at the instance of the original defendant no.4, being aggrieved and dissatisfied with the judgment and decree dated 22.10.2024 passed by learned Principal Senior Civil Judge, Sanand, Ahmedabad (Rural) in Special Civil Suit No.524 of 2017 (old Special Civil Suit No.772 of 2014) (hereinafter to be referred as "the impugned judgment and order"), whereby the learned Judge has allowed the suit preferred by the present respondent no.1-original plaintiff, seeking specific performance of the agreement to sell dated 09.08.2010 executed by the original defendant no.1 in his favour as Page 1 of 17 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:54:04 IST 2025 NEUTRAL CITATION C/FA/78/2025 ORDER DATED: 10/02/2025 undefined well as seeking cancellation of subsequent registered sale deed no.4640 dated 30.07.2012 executed by the original defendant no.1 in favour of original defendant nos.2 and 3 and also for cancellation of notarized agreement to sell dated 22.12.2011 executed by original defendant no.1 in favour of original defendant no.4-present appellant herein.
3. The facts, which can be gathered from the record, in nutshell, are as under:
3.1 The dispute pertains to land bearing revenue survey no.243 admeasuring 2-82-94 hector Are sq. mtrs. of Khata no.279 situated at village-Chekhla, Taluka-Sanand, District- Ahmedabad (hereinafter referred as "the subject land"). It is the case of the original plaintiff that the defendant no.1 was the owner of the subject land and during the month of July-2010, the defendant no.1 had approached to the plaintiff through land broker one Mr. Dineshbhai Dulera with an offer to sell the subject land. After deliberations, the parties have agreed to sell the property for total amount of consideration of Rs. 31 Lakhs.
The notarized agreement to sell dated 09.08.2010 was entered upon between the parties i.e. plaintiff and defendant no.1, whereby earnest money of sum of Rs.11 Lakhs has been paid by the plaintiff to the Page 2 of 17 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:54:04 IST 2025 NEUTRAL CITATION C/FA/78/2025 ORDER DATED: 10/02/2025 undefined defendant no.1. It was also agreed therein that defendant no.1 shall obtain title clearance certificate from one M/s. H. Desai & Company, Solicitor and also obtained non-agricultural permission and after getting the plan approved for construction of the residential plots within the period of six months, thereafter, the plaintiff shall pay the remaining amount of sale consideration as agreed and as against that the defendant no.1 shall execute the register sale deed in favour of the plaintiff.
3.2 It is further pleaded by the plaintiff that the defendant no.1 had appointed his nephew namely Vijaybhai Gangaram Vaniya to undertake the exercise of title clearance certificate in respect of subject land. The plaintiff was, therefore, waiting for the aforesaid formalities to be completed to proceed with the part payment and to get execute registered sale deed in his favour, however, with utter surprise, he was served with court summons in a suit preferred by the defendant no.1 being Special Civil Suit No. 315 of 2012 against the plaintiff as well as the defendant no.4 i.e. present appellant. On noticing the case of the original owner in the aforesaid suit, the plaintiff became aware about execution of subsequent agreement to sell in favour of the defendant no.4-appellant herein. The plaintiff also came across the fact that subsequently the original owner-defendant Page 3 of 17 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:54:04 IST 2025 NEUTRAL CITATION C/FA/78/2025 ORDER DATED: 10/02/2025 undefined no.1 had entered into a registered sale deed dated 30.07.2012 executed in favour of the defendant nos.2 and 3. By making the aforesaid pleadings, the cause of action had arisen for the plaintiff to initiate appropriate proceedings seeking cancellation of aforesaid documents and substantial relief seeking specific performance of his agreement to sell dated 09.08.2010.
4. Mr. Bhavesh Babariya, learned advocate on record for the appellant- original defendant no.4, at the outset, has invited attention of this Court to the impugned judgment and order and the issues framed by the learned Judge. Learned advocate has fairly pointed out that the summons were duly served upon all the defendants; however, neither of the defendants has chosen to contest the aforesaid suit by filing written statement. In absence of any written statement being filed, the learned Judge had proceeded to close the stage of filing written statement by passing specific order below Exh.13 thereby closing the right of written statement to be filed qua defendant nos.2 to 4. As regards the defendant no.1 is concerned, the summons were duly served and was represented through lawyer, who had sought an adjournment at Exh.10; however, the said defendant chose to remain absent as well as to file written statement. He has, therefore, submitted that the suit had remained uncontested by all the Page 4 of 17 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:54:04 IST 2025 NEUTRAL CITATION C/FA/78/2025 ORDER DATED: 10/02/2025 undefined defendants having voluntarily chosen not to file any written statement against the specific case put forward by the plaintiff. 4.1 By inviting attention of this court to the aforesaid fact, learned advocate has further pointed out that various documentary evidences have been laid by the plaintiff. The plaintiff had also entered into the witness box. The details of the evidence produced before the learned court are reproduced hereunder:
Sr. No. Particulars Exhibit
ORAL EVIDENCE
1. Affidavit of Examination-in-Chief of 20 plaintiff-Mr. Gaurangbhai Dineshbhai Patel DOCUMENTARY EVIDENCE
1. Certified copy of extract of Village Form 25 No.7/12 in respect of Revenue Survey No.243 paiki
2. Original notarized Agreement to Sale 26 dated 09-08-2010 executed by the defendant no.1 in favour of the plaintiff vide Sr. No.8526
3. Certified copy of Spl. Civil Suit No.315/2012 27 (new SPCS No.327/2017) filed before Principal Sr. Civil Court at Sanand along with injunction application and order passed below Exh.1 dated 19-07-2021
4. Certified copy of written statement filed 28 by the defendant no.1 in SPCS Page 5 of 17 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:54:04 IST 2025 NEUTRAL CITATION C/FA/78/2025 ORDER DATED: 10/02/2025 undefined No.315/2012
5. Certified copy of registered sale deed 29 no.4640/2012 dated 30.07.2012 executed by defendant no.1 in favour of defendant no.2 & 3
6. Certified copy of Spl. Civil Suit No.540/2012 30 (new SPCS No.348/2017) filed by the present defendant no.1 against the present defendant no.2 & before Principal Sr. Civil court at Sanand along with injunction application.
7. Certified copy of notarized Agreement to 31 Sale dated 22.12.2011 executed by present defendant no.1 in favour of defendant no.4 4.2 In absence of any cross-examination, the plaintiff had tendered the closing pursis at Exh.32 declaring closure of his evidence. Sufficient opportunity was granted to the defendant to cause their appearance before the court and therefore, by recording the aforesaid facts, the court had proceeded to decide the issues framed at Exh.53, in light of the evidence brought on record. The same reads as under:
:: ISSUES::
"1. Whether the Plaintiff establishes that, the Notarized Earnest Money Deed dated 22/12/2011, executed by the Defendant No. 1 in favor of the Defendant No. 4 with regard to the suit land, as stated at Para-1 of the suit application, is illegal, void and fraudulent and is liable to be set aside?
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2. Whether the Plaintiff establishes that, he is entitled for Specific Performance of the Contract from the Defendant No.1 with regard to the Notarized Earnest Money Deed executed by him on 09/08/2010 for the suit land?
3. Whether the Plaintiff establishes that, he was always willing to comply with the terms and conditions of the Notarized agreement, executed with the Defendant No.1 on 09/08/2010 and the Defendant No.1 has breached the conditions of the Contract?
4. Whether the Plaintiff establishes that the registered Sale Deed No. 4640, executed by the Defendant No.1 in favor of the Defendant No. 2 and 3 on 30/07/2012, for the suit land, being illegal, fake, void and fraudulently executed, it is not binding on the Plaintiff and is liable to be set aside?
5. Whether the Plaintiff appears to be entitled for the relief prayed for in Para-7 of the Plaint ?
6. What order and decree ?
My reply to the above issues are as under;-
1. In affirmative.
2. In affirmative.
3. In affirmative.
4. In affirmative.
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Judge has mainly relied upon the provisions contained in Order VIII Rule 5 of the Code of Civil Procedure, 1908, and has therefore, believed the case of the plaintiff, in light of the oral and documentary evidences being brought on record, which had remained un- controverted.
4.4 By referring to the aforesaid facts, learned advocate has submitted that merely because the pleadings of the plaint as averred by the plaintiff, had remained uncontroverted in absence of the written statement or any evidence being brought on record contrary to the evidence placed for consideration by the plaintiff, the learned Judge ought not to have in toto believed the case of the plaintiff. He has further submitted that the learned Judge has not independently examined and evaluated the evidence brought on record to arrive at such finding. It was further submitted that the trial court ought not to have cancelled the agreement to sell executed in favour of the present appellant merely on assertion of the opponent no.2 regarding fraud as alleged in the plaint of the suit being Special Civil Suit No.312 of 2017 preferred by the defendant no.1, as according to him, the said Page 8 of 17 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:54:04 IST 2025 NEUTRAL CITATION C/FA/78/2025 ORDER DATED: 10/02/2025 undefined suit has ultimately culminated into the order of abatement in absence of heirs and legal representatives of the deceased plaintiff being brought on record. He has, therefore, urged this Court to issue notice upon the respondent and to admit the present appeal. The prayer was also made to call for record and proceedings so as to examine the findings and the reasons assigned by the learned Judge, in light of the evidence forming part of the record.
5. Considering the submissions made by learned advocate for the appellant-original defendant no.4, findings and the reasons as emerged on record from the impugned judgment and order passed by learned Judge, it would be appropriate to consider the status of the present appellant. It is an undisputed fact that the present appellant claims to be the holder of an agreement to sell dated 22.12.2011 executed by the original owner- original defendant no.1 in his favour. It is also an undisputed fact that original owner had preferred one Special Civil Suit No.315 of 2012 (new Special Civil Suit No.327 of 2017), whereby the challenge was made not only to the agreement to sell dated 09.08.2010 executed in favour of the original plaintiff, but also to the subsequent agreement to sell dated 22.12.2011 executed in favour of the present appellant-original defendant no.4 as recorded by the learned Judge.
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6. The specific case was put forward by the plaintiff of the aforesaid suit i.e. the original owners of disputing the execution of aforesaid agreement to sell in favour of the respective parties, which includes the present appellant as well. With such pleadings forming part of the plaint, the question arises that the cause of action had arisen for the present appellant-original plaintiff to immediately approach before the competent forum either praying for cancellation of the earlier agreement to sell dated 09.08.2010 executed in favour of the original plaintiff as well as for relief seeking specific performance of his agreement to sell dated 22.12.2011 as well as to seek further prayer of injunction restraining the original owner from entering into any transaction by creating third-party rights. This Court had inquired from the learned advocate for the appellant-original defendant no.4 as to whether summons were served in the aforesaid proceedings and whether any proceedings have been initiated at the instance of the present appellant-original defendant no.4 against the original owner as well as against the present plaintiff, to which, the learned advocate, under instructions, has submitted that no proceedings have been preferred by the present appellant- original defendant no.4 against either of the parties, till date.
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7. The question, therefore, falls for consideration before this Court as to whether the present appellant- original defendant no.4 can be said to be an 'aggrieved person' to entertain the present appeal at his instance against the impugned judgment and order, which is passed ex parte. The Constitution Bench of the Hon'ble Supreme Court in the case of U.P. Awas Evam Vikas Parishad vs Gyan Devi (Dead) By L.Rs. And Ors reported in 1995 (2) SCC 326 has held that right of appeal is statutory right and the court concerned confer or infer it. Thus, right of appeal is a statutory right conferred by legislation in the form of Section 96 of the C.P.C. against order passed by the court below, however the party to the lis owes obligation to demonstrate that decree has adversely affected the party. It is settled legal position of law that to be entitled to file an appeal, the person must be one aggrieved by the decree. In the case of Baldev Singh vs Surinder Mohan Sharma & Ors reported in 2003 (1) SCC 34, the Hon'ble Supreme Court held that an appeal under Section 96 of the C.P.C. would be maintainable only at the instance of a person aggrieved and dissatisfied with the judgment and decree. It would be appropriate to consider paras 10,11, 12 and 13, which read as under:
"10. There is no dispute that as against a decree, an appeal would be maintainable in terms of Section 96 of the Code of Civil Procedure. Such an appeal, however, would be maintainable only at the Page 11 of 17 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:54:04 IST 2025 NEUTRAL CITATION C/FA/78/2025 ORDER DATED: 10/02/2025 undefined instance of a person aggrieved by and dissatisfied with the judgment and decree. As noticed hereinbefore, the dispute between the parties was in relation to a property. The First Respondent herein, save and except, inter alia, making complaints against the appellant and his wife to their respective employers purported to be relying on or on the basis of the statements made by the appellant herein during cross-examination in the aforementioned suit, had nothing to do with the status of Sarbjit Kaur and the appellant herein as spouses or otherwise.
11. 'Locus' of a person to prefer an appeal in a matter of this nature is vital as the right of privacy of two spouses would be interfered thereby. The court cannot enlarge the scope of 'locus' in a case of this nature where the parties are fighting litigations. Allegations made by the First Respondent in his revision application does not disclose any cause of action for maintaining the said application nor does it state as to how and in what manner he would be prejudiced if the impugned judgment is allowed to stand. In the aforementioned premise bona fide of the First Respondent was also required to be determined by the High Court. Having regard to the facts and circumstances of the case, we are of the opinion that the application filed by the First Respondent before the High Court was not a bona fide one but was filed in furtherance of the pending disputes between the parties.
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12. In the instant case, it is not necessary for us to determine the question as to whether the judgment in question is a judgment in personam or a judgment in rem. Herein, the status of the parties is not in question and such judgments ordinarily cannot be said to be judgments in rem. Even if the said judgment is a judgment in rem, the respondent herein could not have questioned the same as he cannot be said to be aggrieved thereby. In that view of the matter, the question as to whether in the instant case, the Civil Court, Ludhiana, had any jurisdiction to pass the decree in question, takes a back seat.
13. It is now a well-settled principle of law that an ex parte decree is as good as a contesting decree unless it is set aside. An ex parte decree can be set aside by the court passing it or by an appellate court only at the instance of a person aggrieved thereby."
In para 15 the Court, thus, observed:
"The First Respondent in relation to his disputes with the appellant herein has been pursuing his remedies in appropriate proceedings. What would be the effect of the said judgment and decree in a departmental proceeding is required to be determined by the appropriate authorities. Only because a departmental proceeding was initiated against the appellant on the complaint of Respondent No.1, he, only thereby, cannot be said Page 13 of 17 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:54:04 IST 2025 NEUTRAL CITATION C/FA/78/2025 ORDER DATED: 10/02/2025 undefined to have any locus to prefer an appeal as has been contended by Mr. Srivastava. A person aggrieved to file an appeal must be one whose right is affected by reason of the judgment and decree sought to be impugned. It is not the contention of Respondent No.1 that in the event the said judgment and decree is allowed to stand, the same will cause any personal injury to him or shall affect his interest otherwise. Dissolution of marriage of the appellant and his first wife would also have no repercussion on the property in suit. As noticed hereinbefore, the effect of the aforementioned statements made by the appellant in the second suit shall have to be considered by the courts and the departments concerned on their own merits."
7.1 In the opinion of this Court, the present appellant-original defendant no.4 has chosen not to seek any relief for specific performance of his agreement to sell dated 22.12.2011 till date. On the other hand, the original owners have proceeded to execute a registered sale deed dated 30.07.2012 in favour of the original defendant nos.2 and 3, which stands cancelled by virtue of the impugned judgment and order. However, the fact remains that the aforesaid facts clearly suggest that there is denial of performance of the agreement to sell at the instance of the original owners in favour of the present appellant. The cause of action has, therefore, arisen for Page 14 of 17 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:54:04 IST 2025 NEUTRAL CITATION C/FA/78/2025 ORDER DATED: 10/02/2025 undefined the appellant-original defendant no.4 to approach the court of competent forum to seek appropriate relief for specific performance. Having failed so till date, the right of the plaintiff in the subject land ceased to exist. Even, if the present appellant -original defendant no.4 approaches the competent forum as on date, the suit for specific performance or for cancellation of registered sale deed, would be barred by law of limitation.
8. Article 54 of the Limitation Act prescribes a period of three years from the date fixed for performance, or, if no such date is fixed, when the plaintiff has noticed that performance is refused. In the opinion of this Court, the very fact when the summons were duly served in the suit preferred by the original owner way back in the year- 2017, and thereafter, in the present suit of year-2017, disclosing the fact about further transaction in the nature of registered sale deed being executed in favour of the original defendant nos.2 and 3 at the instance of the original owners of the subject land, the present appellant-original defendant no.4 had derived the knowledge about refusal of the original owners to proceed with the performance of agreement to sell. This Court cannot ignore the fact that even in absence of any challenge being made to the registered sale deed at the instance of the present appellant-original defendant no.4, the Page 15 of 17 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:54:04 IST 2025 NEUTRAL CITATION C/FA/78/2025 ORDER DATED: 10/02/2025 undefined right to challenge the sale deed having been lost in a way, the appellant-original plaintiff has acquiesced with his right and interest in the subject land by virtue of agreement to sell dated 22.12.2011.
9. In light of the aforesaid circumstances, this Court is of the view that the present appellant-original defendant no.4 had consciously chosen not to contest the suit though being duly served with the court summons as he was not aggrieved by any of the aforesaid acts of the original owners. The appellant- original defendant no.4 having lost his right or interest in the subject land without seeking any relief for specific performance or cancellation of sale deed at his instance, cannot be said to be an 'aggrieved person' to have locus to prefer the present appeal.
10. So far as the submission made by learned advocate for the appellant with regard to the provisions of Order VIII Rule 5 of the Code of Civil Procedure, 1908, is concerned, it is an undisputed fact that the present appellant-original defendant no.4 though being duly served with the court's summons, has chosen not to contest the pleadings by not filing his written statement. The original defendant no.1 has also not chosen to controvert the evidence brought on record by the original plaintiff. This Court has closely scrutinized the findings and reasons assigned by the learned Judge while dealing with the Page 16 of 17 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:54:04 IST 2025 NEUTRAL CITATION C/FA/78/2025 ORDER DATED: 10/02/2025 undefined issues framed at Exh.53.
11. In the opinion of this Court, after evaluation of the evidence being brought on record and in absence of any contradictions being pointed out by any of the defendants, the learned Judge, after considering the evidence brought on record by the plaintiffs, has rightly allowed the suit, directing specific performance of his agreement to sell dated 09.08.2010 as well as cancelling the agreement to sell dated 22.12.2011 executed in favour of the original defendant no.4. In fact, the learned Judge has tried to strike out a balance by directing the return of earnest money of sum of Rs.11 Lakhs paid by the present defendant no.4 in his favour with 9% interest from 22.12.2011 till its actual amount being realized from defendant no.1. The learned Judge has proceeded to set aside the registered sale deed, in absence of any objection being raised by the respective defendant nos.2 and 3.
12. For the foregoing reasons, the present appeal, in absence of any question of law and facts being raised, is not admitted, and is hereby summarily dismissed along with civil application for stay. No order as to costs.
(NISHA M. THAKORE,J) SUYASH SRIVASTAVA Page 17 of 17 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:54:04 IST 2025