Gujarat High Court
Kshama Infrabuild Pvt. Ltd. Through Its ... vs Govindbhai Laxmanbhai Makwana on 30 June, 2025
NEUTRAL CITATION
C/CRA/452/2024 JUDGMENT DATED: 30/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 452 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
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KSHAMA INFRABUILD PVT. LTD. THROUGH ITS DIRECTOR KSHAMA
RAJESHBHAI SHAH & ANR.
Versus
GOVINDBHAI LAXMANBHAI MAKWANA
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Appearance:
MR APURVA R KAPADIA(5012) for the Applicant(s) No. 1,2
MR SP MAJMUDAR(3456) for the Opponent(s) No. 1
MR V Z BHARDA(12667) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 30/06/2025
ORAL JUDGMENT
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NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined TABLE OF CONTENTS SYNOPSIS OF THE DISPUTE................................................................................................. 3 CASE PLEADED IN THE PLAINT..........................................................................................3 CASE OF THE PETITIONER - DEFENDANT.......................................................................6 CASE OF THE RESPONDENT - PLAINTIFF........................................................................8 REPLY BY THE PETITIONER.............................................................................................. 11 ANALYSIS AND FINDINGS................................................................................................. 14 UNDISPUTED FACTS.............................................................................................................. 14 UNPAID SELLER CANNOT CHALLENGE THE SALE DEED ON GROUND OF NON-PAYMENT OF SALE CONSIDERATION...........................................................................................................16 Dahiben v. Arvindbhai Kalyanji Bhanushali, (2020) 7 SCC 366....................................17 Key Pee Buildtech Pvt. Ltd. vs. Shahjahan Begum MANU/RH/0432/2015...................19 Bhimabhai Mansibhai Karia v. General Manager, RSPL Ltd., 2021 (0) AIJEL HC 245699..............................................................................................................................20 Harish Purshottam Chandwani v. Janak Chandiram Sukhwani, Second Appeal 6 of 2025 ..........................................................................................................................................21 RECITALS IN THE PLAINT...................................................................................................... 23 RE: CONTENTION OF OTHER RELIEFS AND PART REJECTION...............................................30 RE: LIMITATION.................................................................................................................... 33 Article 59 of the Limitation Act.......................................................................................34 NON-MAINTAINABILITY OF ANCILLARY RELIEFS WHEN MAIN RELIEF IS BARRED................36 CONCLUSION........................................................................................................................37 Page 2 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined SYNOPSIS OF THE DISPUTE
1. Rule returnable forthwith. Learned advocate Mr.S.P.Majmudar waives service of notice of rule on behalf of respondent.
2. With the consent of learned advocates appearing for the respective parties the matters is taken up for hearing.
3. The present Revision has been filed challenging the order dated 02.05.2024 passed below exhibit 9 by Second Additional Senior Civil Judge (Dholka) in Special Civil Suit No. 4 of 2022, whereby the application filed by the original Defendants under the provisions of Order VII Rule 11 (d) of the Code of Civil Procedure (1908) has been rejected. For the sake of convenience, the parties are referred to by their status in the suit.
4. The Plaintiff, claiming to be an unpaid seller, has prayed for cancellation of the sale deed of the Defendant No. 1 and subsequent sale deed and further consequential reliefs. Whereas, the Defendant filed an Application under Order VII Rule 11, which has been rejected. Hence, the present Revision.
CASE PLEADED IN THE PLAINT
5. The brief facts arising in the present Civil Revision Application Page 3 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined are as follows:
6. The Plaintiff filed Special Civil Suit No. 4 of 2022 on the ground that Defendant No.1 wanted to purchase the suit property and thereafter, after negotiations, it was agreed that the Defendant No. 1 shall purchase the suit property for a sale consideration of Rs. 29.80 lakhs (Rupees Twenty Nine Lacs Eighty Thousand) and pursuant to the said negotiation, the Plaintiff executed a sale deed in favour of Defendant No.1 on 31.08.2016, which was registered before the Sub-Registrar's Office at Sr. No. 2756.
7. It has also been stated in the Plaint that while executing the sale deed, the Defendant No.1 had agreed to pay the sale consideration as and when the name of Defendant No.1 is entered in the revenue record.
8. It has been pleaded in the Plaint that thereafter Plaintiff tried to approach Defendant No.1 for the sale consideration, but the Defendant No. 1 informed the Plaintiff that as Defendant No. 1 was in certain financial difficulty, the Defendant No.1 shall not get his name entered in the revenue record and shall not transfer assign the suit property to anybody else, unless and until the amount of sale consideration is paid to the Plaintiff.
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9. It is the case of the Plaintiff that the Plaintiff relied on the promises given by Defendant and it is also the case of the Plaintiff that at the time of execution of sale deed and thereafter, the Plaintiff has not received any amount of sale consideration and neither any cheque has been issued by the Defendant no.1 with respect to the sale deed executed on 31.08.2016.
10. Suddenly on 25.12.2021, three or four unknown persons came to the suit property and informed the Plaintiff that their names are muted in the revenue record and that they have purchased the suit property. It is the case of the Plaintiff that at that time, the Plaintiff informed the said persons that as the name of the Plaintiff was there in the revenue record and since the Plaintiff has not received any sale consideration with respect to the sale deed executed on 31.08.2016, no other person has any right, title or interest over the suit property.
11. Moreover, the possession of the suit property is also with the Plaintiff and it is the case of the Plaintiff in the Plaint that the unknown persons came to the property and threatened the Plaintiffs to handover the peaceful possession of the property within seven days failing which, the Plaintiff will have to face dire consequences. Page 5 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025
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12. The Plaintiffs have then stated that they inspected the revenue records and found that the Defendant No.1 has executed a sale deed in favour of Defendant No. 2 on 01.07.2017, which is registered at serial no. 2208 and the said fact was never in knowledge of the Plaintiffs. It is the case of the Plaintiffs that the Plaintiff is in possession of the property and the revenue tax is also paid by the Plaintiff.
13. Since the sale consideration has not been paid by the Defendant No.1, the Plaintiff has filed a the present suit to declare the sale deed executed by the Plaintiff in favour of Defendant No. 1, which is registered on 31.08.2016 to be false, illegal, without consideration and by committing fraud and to declare the same as cancelled and also to declare that any sale deed that have been executed by virtue of the said sale deed dated 31.08.2016 to be declared cancelled and to declare the Plaintiffs to be the rightful owner of the suit property and for injunction restraining the Defendants from transferring, assigning, selling the suit property and disturbing the Plaintiff's peaceful possession of the suit property.
CASE OF THE PETITIONER - DEFENDANT
14. The case of the Defendant is as follows.
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15. Firstly, that the Plaintiff executed registered sale deed for the suit property in favour of the Applicant-Defendant No.1 on 31.08.2016. The Defendant No.1 further transferred the suit property by executing registered sale deed in favour of Defendant No. 2 on 01.07.2017. The Special Civil Suit is filed on 28.01.2022 challenging the registered sale deed after period of 5 years and 4 months and therefore, the same is clearly barred by law of limitation under Article 59 of the Limitation Act.
16. The Plaint narrates that the sale deed is executed by Plaintiff in favour of Defendant no 1 without receiving of any sale consideration. To put it in other words Plaintiff claims himself to be an unpaid seller for which suit is preferred seeking cancellation of the registered sale deed.
17. It is submitted that even if the Plaintiff remained unpaid seller, the suit praying for cancellation of sale deed after delay of 5 years and 4 months is clearly barred by law of limitation.
18. Reliance is placed on the following judgements:
i. Dahiben v. Arvindbhai Kalyanji Bhanushali, (2020) 7 SCC 366 [Para Nos. 5,6,7,15] Page 7 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined ii. Harish Purshottam Chandwani v. Janak Chandiram Sukhwani, Second Appeal 6 of 2025 [Gujarat High Court] [Para Nos.
23,24,25,26,28,31,32,34]
19. It is further submitted that the contention taken by the Plaintiff that there is also a prayer of possession and hence, the suit must go to trial is completely meritless. The relief of possession in the suit praying for cancellation of Registered Sale Deed is always a consequential relief. Moreover, in the Registered Sale Deed itself, the Plaintiff has admitted that the possession has been handed over to the Defendant No. 1. The assertion of the Plaintiff in the Plaint that he is in possession is contrary to the registered document executed by him cannot not be accepted.
CASE OF THE RESPONDENT - PLAINTIFF
20. Against the aforesaid contentions, the original Plaintiff has argued that the Plaintiff has not received a penny out of the entire sale consideration therefore, this itself would become mix question of law and fact and hence, the plaint cannot be rejected.
21. It is also sought to be contended by the Plaintiff that in the present suit, an independent relief for protection of possession is prayed and for that suit is required to be tried as it being an Page 8 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined independent relief and once one out of the multiple reliefs falls within the limitation, partial rejection of Plaint is impermissible.
22. The Plaintiff has also raised a contention that since his name is appearing in the revenue record, he can be said to be in possession of the suit property. It is also contented that since the Defendant No.1 has not applied for mutation of his name in the revenue record pursuant to the registered sale deed, the Plaintiff must be presumed to have been in possession. It is the Plaintiff's case that the sale consideration was to be paid as and when the name of Defendant no.1 is muted in the revenue record and therefore the same cannot be decided under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908, as the same requires a trial.
23. Last contention raised by the Plaintiff that since he was sought to be evicted from the suit property on 25.12.2021 by unknown persons his suit is within the limitation since his cause to file the present suit arose only at that juncture. Therefore, the Ld. Advocate for the Respondent - Plaintiff has argued that in an Application under Order VII Rule 11, only the documents with the Plaint have to be seen and therefore upon a perusal of the documents, the suit is not barred by any law and hence must go to trial. It is the submission of Page 9 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined the Ld. Advocate for the Plaintiff that there cannot be a mini trial at the stage of Order VII Rule 11, and therefore, whenever mixed question of fact and lower rises, the said provision of law will have no Application and the suit as a whole must go to trial
24. The Plaintiffs on the other hand has relied on the following judgments:
(i) Kewal Krishan v. Rajesh Kumar, 2021 (0) AIJEL - SC 68030.
(ii) Yerraguntala Ramireddi vs RatchepalliAtchamma & Anr., (1953) 2 SCC 21.
(iii) Janak Dulari Devi & Anr. Vs KapildeoRai & Anr. Civil Appeal No. 4422 of 2002.
(iv) Managing Director (MIG) Hindustan Reronautics Ltd & Anr vs Ajit Prasad Tarway. (1972) 3 SCcc 195.
(v) Kiritsinh Dharamvirsinh vs Kalubhai Shardtlbhai . 2006 (0) AIJEL - HC 217054.
(vi) Shaukathussain Mohammed Patel Vs. Khatunben Mohmmedbhai Polara. (2019) 10 SCC 226
(vii) Alpesh & Ors. vs Krishan Kumar & Ors. 2014 SCC OnLine P&H 387.Page 10 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025
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(viii) Bardoli Shreerang Exhibitors Private Limited Vs. Maheshbhai Babubhai Hirpara. 2021 (0) ATJEL -- HC 243278.
(ix) Central Bank of India and Anr. v. Smt. Prabha Jain and ors., Civil Appeal No. 1876 of 2016
(x) Capt. (Retd.) Inderbir Singh Uppal v. Manu Nayyar, 2023 (0) Supreme (Del) 1686
(xi) PV Gururaj Reddy v. P. Neeradha Reddy and Ors. (2015) 8 SCC 331
(xii) Parmar Narmada ben v. Amratlal Motibhai Prajapati, 2016 (0) AIJEL - HC 236074
(xiii) Daliben Valjibhai and Ors. v. Prajapati Kodarbhai and Anr., SLP 23625 of 2024
(xiv) Kaliaperumal v. Rajagopal and Anr., (2009) 4 SCC 193
(xv) Keshav Sood v. Kirti Pradeep Sood, 2023 (0) AIJEL SC 72791 (xvi) Navnitlal Maneklal Shah v. Induben Thakorelal Shah, SCA 15293 of 2017"
REPLY BY THE PETITIONER
25. In rejoinder, the Ld. Advocate for the Defendant submits that the contentions raised by the Plaintiff are baseless. As regards the Page 11 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined argument that since name of the Defendant is not mutated, the Plaintiff must be presumed to be in possession, the Ld. Advocate for the Petitioner - Defendant has relied on Section 135C proviso of the Bombay Land Revenue Code, which reads as under:
'provided further that any person acquiring the right by virtue of a registered document shall be exempted from the obligation to report to the designated officer'.
26. Therefore, when the Defendant was a Registered Sale Deed holder, there was no obligation of the Defendant to report to the designated officer for mutation of the revenue entries in his favour. Merely name of the Plaintiff being reflected in the revenue records will not create any right title or interest in favour of the Plaintiff.
27. It has also been argued that once the principal relief of challenge to the sale deed is barred by law of limitation the consequential relief seeking protection of possession automatically becomes time barred and therefore, the suit in its entirety is required to be rejected. Reliance is placed in case of Padhiyar Prahladji v. Maniben, 2022 (4) SCALE 352; more particularly Paragraph Nos. 8.1, 8.2, 8.3, 9, 11 and 11.1 Page 12 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined
28. As regards the cause of action having arisen only in the year 2021, the advocate for the Defendant submits that the narration of the incident of in the Plaint is clever drafting to bring the suit within limitation. The illusory and fictitious cause of action requires to be nipped in bud. The right to sue first accrued in favour of the Plaintiff was within three years from execution of registered sale deed dated 31.08.2016. The right to sue and the starting period of limitation for right to sue has already been discussed by this Hon'ble Court in Whiteswan build Con LLP v. Thakor Pravinji, 2022 (4) GLH 390 more particularly Para No. 13 wherein after considering several decision of Hon'ble Supreme Court, this Hon'ble Court has held that if the suit is based upon multiple cause of action the period of limitation would began to run from the date when the rights to sue first accrues.
29. It has also been argued that the Hon'ble Supreme Court in case of Dilboo Vs Dhanraji, (2000) 7 SCC 702 has laid down the ratio that whenever a document is registered, the date of registration becomes the date of deemed knowledge to the whole world. In the present case when Plaintiff himself is the signatory to the registered sale deed of the year 2016 and then challenging the registered sale Page 13 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined deed by the way of present suit in the year of 2022, the suit clearly filed beyond the period of limitation is barred by law of limitation and therefore the Plaint is required to be rejected by allowing the present Revision Application.
ANALYSIS AND FINDINGS Undisputed Facts
30. Having heard the Ld. Advocates for the respective parties, the following facts emerge:
i. Plaintiff does not deny the execution of the Registered Sale Deed dated 31.08.2016.
ii. In fact, the only case of the Plaintiff in the plaint is that the Plaintiff is an unpaid seller and has not received the sale consideration.
iii. The Defendant No. 1 (original purchaser) has further thereafter sold the suit property to the Defendant No. 2.
31. A bare reading of the Registered Sale Deed dated 31.08.2016 demonstrates the following aspects (as recorded in the registered sale deed):
i. Plaintiff admits that he has executed the registered sale deed in favour of Defendant Page 14 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined ii. The Plaintiff has voluntarily executed a sale deed in favour of the Defendant No.1 by accepting the entire sale consideration iii. The most important aspect that the Plaintiff has handed over the possession to the Defendant No.1.
32. Therefore, the Plaintiff clearly admits execution of the Registered Sale Deed and the fact of the possession having handed over to the Defendant No.1 upon execution of the sale deed. In fact, the deed also acknowledges receipt of the sale consideration.
33. In other words, the suit has been filed by the Plaintiff putting up a case that the Plaintiff is an unpaid seller for the Registered Sale Deed which has been executed in the year 2016. It is nowhere the case of the Plaintiff that no sale deed has been registered at all. It is also pertinent to note at this juncture that the Plaintiff has not even alleged any fraud while executing the present sale deed, except for stating that the money which was promised by the Defendant has not been paid to the Plaintiff.
34. Therefore, in the present case, it cannot be said that there is any mixed question of law and facts. Hon'ble Supreme Court in case of Dahiben (Supra) has in fact held [in view of Section 54 of the Transfer of Property Act, 1882] that even if entire sale consideration Page 15 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined had not been paid to the seller, it cannot be a ground same could not be a ground for cancellation of a sale deed. The Plaintiff may have other remedies in law for recovery of balance consideration but could not be granted the relief of cancellation of the registered Sale deed and therefore, the suit filed by the Plaintiff is vexatious, meritless, and does not disclose a right to sue much or less a mix question of law and facts as sought to be canvased before the Hon'ble court.
Unpaid seller cannot challenge the sale deed on ground of non- payment of sale consideration
35. From the undisputed position on record as noted above, it is clear that the Plaintiff has filed the present suit with the sole case that the Plaintiff has not been paid the sale consideration for execution of the present sale deed. Therefore, except for the right of an unpaid seller, there is no other right which has been claimed by the Plaintiff in the present suit. Any relief sought for possession is only consequential and naturally flowing from the primary relief of cancellation of the sale deed.
36. Therefore, the present case will have to be examined only from the view whether or not the Plaintiff had any right to challenge the Page 16 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined sale deed executed and registered in the year 2016 after a period of almost 5 years on the ground that the sale consideration for this sale was not received by the Plaintiff.
Dahiben v. Arvindbhai Kalyanji Bhanushali, (2020) 7 SCC 366
37. Hon'ble Supreme Court in the case of Dahiben v. Arvindbhai Kalyanji Bhanushali, (2020) 7 SCC 366 after having gone through the provisions of section 54 of the transfer of property act has unequivocally laid down that an unpaid seller at best, can sue for the remainder consideration. However, this cannot entitle the said unpaid seller to seek cancellation of a Registered Sale Deed, which has been executed by the said seller itself. This is more in view of the fact that the definition of sale under section 54 includes a sale which is "paid, promised, partly paid, or partly promised."
38. Therefore, when the law does not permit challenge of a sale deed on the ground that a seller has not been paid sale consideration, there can be no cause of action for challenging the sale deed on the said ground. In other words, assuming everything that is said in the Plaint to be true, even then, the Plaintiff cannot have a right in the law to sue the Defendant seeking cancellation of the sale deed. Hence, the Plaintiff cannot be said to have any cause of action for Page 17 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined filing the present suit.
39. The Plaintiff may have other remedies in law for recovery of the balance consideration. However, it cannot sue the Defendant for cancellation of the sale deed, which has been admittedly executed by the Plaintiff itself. Relevant portion of Dahiben (supra) is reproduced hereinunder:
"29.9 In view of the law laid down by this Court, even if the averments of the plaintiffs are taken to be true, that the entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the sale deed. The plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered sale deed. We find that the suit filed by the plaintiffs is vexatious, meritless, and does not disclose a right to sue. The plaint is liable to be rejected under Order 7 Rule 11(a)."
(emphasis supplied).
40. This finding is further fortified from the recitals of the Registered Sale Deed, which has been entered into between the parties. A bare perusal of the said sale deed would show that the Plaintiff has in fact acknowledged in the sale deed that the sale Page 18 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined consideration has been received. Having said so, the Plaintiff cannot now resile in the Plaint to say or otherwise, without any documentary proof thereof.
41. This view of the sole right of an unpaid seller has been laid down by several courts of this country, including this Court. Key Pee Buildtech Pvt. Ltd. vs. Shahjahan Begum MANU/RH/0432/2015
42. In Key Pee Buildtech Pvt. Ltd. vs. Shahjahan Begum MANU/RH/0432/2015, the Rajasthan High Court held as follows:
"14. Looked from another angle, this Court is of the further view that the plaint also does not disclose cause of action and is liable to be rejected on this count also. It is settled law that where a document is sued upon and its terms are not set out in the plaint but referred to in the plaint, the said document gets incorporated by reference in the plaint (Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust:
MANU/SC/0515/2012 : 2012(8) SCC 706). The sale deed executed by the plaintiff does not incorporate any recital that title shall not vest in the buyer until and unless sale price is paid. In view of Section 54 of the Transfer of Property Act, coupled with the fact of Page 19 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined absence of any such recital, as mentioned hereinabove, the title passed on to the buyer on the execution and registration of the sale deed. In such fact and situation, the plaintiff has no legal right to get the sale deed annulled, even if it is presumed that the contracted sale price was not paid to her. The suit, as instituted is not for recovery of any unpaid sale price but for annulment of a registered sale deed on the averment that the agreed sale price was not paid. Even if the plaint averments are taken on its face value and presumed to be true and correct, the plaintiff is not vested with any legal right to claim cancellation of the sale deed. The term "cause of action" not only incorporates infringement of legal right but the legal right itself. Thus, the plaintiff being devoid of any legal right to claim annulment of sale deed and on the basis of such plaint averments, it can safely be held that the plaint does not disclose any cause of action." (emphasis supplied). Bhimabhai Mansibhai Karia v. General Manager, RSPL Ltd., 2021 (0) AIJEL HC 245699
43. Hon'ble Division Bench of this Court in Bhimabhai Mansibhai Karia v. General Manager, RSPL Ltd., 2021 (0) AIJEL HC 245699 has held as follows:
"The suit in substance is for recovery of the so-called Page 20 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined unpaid sale consideration. Let us proceed on the footing for the time being that the plaintiffs have to recover some unpaid sale consideration. The Supreme Court, in the case of Dahiben (supra), has categorically held that non- payment of a part of the sale consideration does not make the registered sale- deed 'void' nor does it constitute a valid ground for its cancellation. The Supreme Court held thus:
...
In view of the law laid down by this Court, even if the averments of the plaintiffs are taken to be true, that the entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the Sale Deed. The plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered Sale Deed."
Harish Purshottam Chandwani v. Janak Chandiram Sukhwani, Second Appeal 6 of 2025
44. Even this Court in Harish Purshottam Chandwani v. Janak Chandiram Sukhwani, Second Appeal 6 of 2025, has held as follows:
"The law is well settled that the plaintiff cannot claim that even if the entire sale consideration has not in fact been paid, the same could not be a ground for Page 21 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined cancellation of the sale deed. The law is also very clear that the definition of sale indicates that there must be a transfer of ownership from one person to another, which includes transfer of all rights and interest in the property which was possessed by the transferer to the transferee and that the transferer cannot retain any part of interest or right in the property and the definition of sale as per provisions of Section 54 of the Transfer of Property Act, 1882 indicates that the transfer of the ownership has to be made for a price paid or premised or part paid and part promised, therefore the price thus constitutes an essential ingredient of transaction of sale and therefore the actual payment of the whole of the price at the time of execution of sale deed is not a sine qua non for completion of sale. In the present case, the sale consideration as mentioned in the sale deed has been stated to have been received by the Plaintiff and in the sale deed itself the plaintiff has given acknowledgment of the receipt of the said amount but even otherwise, even if the whole of the price is not paid but the sale deed is executed, the sale would be complete and the title would pass on the defendant under the transaction, and even if the version of the plaintiff is to believed, the non-payment of a part of the sale price would not affect the validity of the sale as the title in the property having already been passed Page 22 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined and even if the balance sale consideration is not paid, the said sale deed could not be invalidated on this ground. In order to constitute a sale the plaintiff must intent to transfer the ownership of the property on the agreement to pay the price either in the present time or in future and from the recital of the sale deed, it is very clear that the plaintiff has transferred all his right title interest in the suite property by executing Registered Sale Deed."
45. Therefore, the law is well settled that the Plaintiff cannot challenge a sale deed on the ground that it has not been paid sale consideration for which transaction a Registered Sale Deed has already been entered into. In the present case also, the Plaintiff has not averred in the sale deed that transfer of title upon the Defendant would be contingent upon payment of the sale consideration. In such a case, even if the entire consideration is not paid, the Plaintiff cannot challenge the sale deed on this count. Recitals in the Plaint
46. On the contrary, in the present deed, the Plaintiff has unequivocally acknowledged as follows:
"10) I, the seller, have received from you, the purchaser, the full sale consideration amount of Rs.29,80,000/- (Rupees twenty nine lakhs eighty thousand) as per the details given below and have signed this sale deed as acknowledgement for the same.Page 23 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025
NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined Details of the amount received by the seller Amount Detail (1) 9,00,000/- Has been received through cheque No.16904 of Dena Bank, Navrangpura Branch.
(2) 4,50,000/- Has been received through cheque No.16905 of Dena Bank, Navrangpura Branch.
(3) 4,50,000/- Has been received through cheque No.16906 of Dena Bank, Navrangpura Branch.
(4) 4,50,000/- Has been received through cheque No.16907 of Dena Bank, Navrangpura Branch.
(5) 4,50,000/- Has been received through cheque No.16908 of Dena Bank, Navrangpura Branch.
(6) 2,80,000/- Has been received through cheque No.16909 of Dena Bank, Navrangpura Branch.
29,80,000/- Total Rupees Rupees twenty nine lakhs eighty thousand.
"
47. Therefore, the amount and the factum of receipt of the amount is unequivocal and clear, unlike any of the judgments cited by the present Petitioner as discussed hereinbelow.
48. Hence, there was no cause of action in the present case for the Plaintiff to sue the Defendant seeking cancellation of the sale deed, which has been executed by the Plaintiff itself on the ground of non- payment of sale consideration.
49. As regards the judgment cited by the Plaintiffs, the same are not applicable to the facts of the present case in the following manner.
50. In Kewal Krishan v. Rajesh Kumar, 2021 (0) AIJEL - SC 68030, the Hon'ble Court specifically states that a sale shall be void Page 24 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined when the sale consideration is neither paid nor promised nor partly paid and partly promised. Therefore, clearly, the said case will not apply to the present case at hand where the sale deed itself evidences a payment or at in the least, puts the consideration as promised.
51. Even in Yerraguntala Ramireddi v. Ratchepalli Atchamma and Anr., (1953) 2 SCC 21 the Hon'ble Court had held that the sale deed was without any consideration and there were no recitals to indicate otherwise. More so, in the said case, the sale deed was not acted upon and hence also, the said judgment was passed.
52. Further in Janak Dulari Devi and Anr. v. Kapildeo Rai and Anr., (2011) 6 SCC 555 the Hon'ble Court was dealing with a situation where the intention of the parties as seen from the sale deed was completely different from the case on hand. However, the Court held that this is not an invariable rule, as the true test of passing of property is the intention of parties. Though registration is prima facie proof of an intention to transfer the property, it is not proof of operative transfer if payment of consideration (price) is a condition precedent for passing of the property. However, in the present case, the sale consideration is already acknowledged to have been received. Moreover, in that case, there was a clear admission from Page 25 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined the purchaser that sale consideration was in fact, not paid.
53. In Managing Director (MIG) Hindustan Aeronautics Ltd. and Anr. v. Ajit Prasad Tarway, (1972) 3 SCC 195, the Hon'ble Court while laying down the extent of permissible interference under Section 115 of the CPC has laid down that only jurisdictional errors are permitted to be cured. However, since the Ld. Trial Court does not reject the Application, the jurisdiction of which ought to be exercised had not been so exercised and hence, the present case is a valid exercise of jurisdiction under Section 115 of the CPC.
54. In Kiritsinh Dharamvirsinh v. Kalubhai Shardubhai, 2006 (0) AIJEL - HC 217054 this Court has laid down the limited scope of exercise of power under Section 115 of the CPC. However, as stated above in the present case, this Court deems it fit to exercise its jurisdiction as the Ld. Trial Court has committed jurisdictional error.
55. In Shaukathussain Mohammed Patel v. Khatunben Mohammedbhai Polara, (2009) 10 SCC 226 the Court was concerned with a case where a fraud had been pleaded in execution of the Sale deed and where the sale deed was said to have been executed without knowledge of the Plaintiff in collusion with other persons. However, there is no such fraud or allegations of forgery in Page 26 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined the present case and in fact, the Registered Sale Deed had been admitted.
56. In Alpesh and Ors. v. Krishan Kumar and Ors., there is a plea of fraud. However, such plea is for execution of the agreement. In the present case, the only allegation is that there is non-payment after the execution of the agreement and hence, the said case cannot have any Application to the present case.
57. In Bardoli Shreerang Exhibitors Pvt. Ltd. v. Maheshbhai Babubhai Hirapara, 2021 (0) AIJEL - HC 243278, a Division Bench of this Court in context of a partnership dispute in facts of the case had held that limitation was a mixed question of law and fact. However, in the present case, the Plaint clearly does not disclose a cause of action since there cannot be a suit seeking cancellation of sale deed on non-payment of sale consideration. Moreover, in the said judgment itself, Hon'ble Division Bench held that in case that Plaint must be rejected when the suit appears to be barred by law from a statement made in the Plaint upon its whole reading. Hence, in the present case, the suit discloses no cause of action.
58. The Judgment in the case of Central Bank of India and Anr. v.
Smt. Prabha Jain and ors., Civil Appeal No. 1876 of 2016 pertained Page 27 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined to a suit where the Order VII Rule 11 Application was given in the context that the suit is barred under SARFAESI Act. However, the Court specifically held that certain prayers were not covered by operation of the said Act and hence, there was no bar in law against the Plaint per se. Hence, the suit naturally were restored. The said case therefore, factually, can have no application in the present one.
59. In Capt. (Retd.) Inderbir Singh Uppal v. Manu Nayyar, 2023 (0) Supreme (Del) 1686, the Delhi High Court having held that the Plaintiff pleaded - fraud in execution of the deed and further pleaded that the Plaintiff was not aware of the contents of the deed. There is no such pleading in the present case that the Plaintiff was not aware of the recitals. Therefore, the said case will have no persuasive value in the present case.
60. In PV Gururaj Reddy v. P. Neeradha Reddy and Ors . (2015) 8 SCC 331, the Hon'ble Apex Court has held that power under Order 7 Rule 11 is a drastic one and cannot be exercised lightly. That is an undisputed position of law which binds this Court. However, in the facts of the present case, when no cause of action has been disclosed, it becomes imperative for the Court to reject the Plaint in accordance with mandate of the provision.
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NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined
61. In Parmar Narmada ben v. Amratlal Motibhai Prajapati, 2016 (0) AIJEL - HC 236074, this Court held that there was no Application of order 7 rule 11 (a) even when the sale deed states that the sale consideration has been paid. However, in the respectful opinion of this Court, the position of law has now been crystallised in Dahiben (supra) and hence, the said case will not have a bearing on the present case.
62. In Daliben Valjibhai and Ors. v. Prajapati Kodarbhai and Anr., SLP 23625 of 2024, the Hon'ble Court held that when from the Plaint the suit does not seem to be barred by law (limitation in that case) it cannot be rejected under Order VII Rule 11. However, in the present case, there is no dispute that the Plaintiff itself has executed the sale deed. Moreover, there is also non-disclosure of cause of action. Therefore, the said case will not apply to the present facts.
63. In Kaliaperumal v. Rajagopal and Anr., (2009) 4 SCC 193 the facts were such where the payment was to be taken as a condition precedent for passing of the title and the same was not recorded as received in the sale deed. However, in the present case, the sale consideration is received in the sale deed as it has been recorded in the recitals. Therefore, the said case will have no Application in the Page 29 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined present case.
64. In Keshav Sood v. Kirti Pradeep Sood, 2023 (0) AIJEL SC 72791 the Hon'ble Court has laid down that the defence of the Defendants or the documents produced by them cannot be looked into at the stage of Order 7 Rule 11. However, in the present case even from a holistic and bare reading of the Plaint, it does not disclose a cause of action and is barred by law. Re: Contention of other Reliefs and Part Rejection
65. The Plaintiff however, has tried to come out of the rigours of section 54 of the Transfer of Property Act, by stating that since there are other reliefs regarding protection possession of the suit property. However, when the main relief of declaration and cancellation of the sale deed itself is not maintainable, it cannot be said that the Plaintiff had any cause of action for seeking other reliefs namely, injunction.
66. It is pertinent to note that when the main relief of cancellation is not available to the Plaintiff on account of non-disclosure and non- existence of cause of action, for the same, the consequential relief of injunction cannot be said to be available to the Plaintiff on similar count. Therefore, when the relief of injunction is not an independent relief, there is no question of rejection of the Plaint, since the main Page 30 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined relief itself is not maintainable in the present case.
67. Therefore, when the main relief in a suit is not maintainable, the consequential relief for injunction also must fail. Hon'ble Apex Court in the case of Padhiyar Prahladji Chenaji (Deceased) through L.Rs. vs. Maniben Jagmalbhai (Deceased) through L.Rs. and Ors. MANU/SC/0272/2022 held as follows:
11. From the impugned judgment and order passed by the High Court, it appears that the High Court has not properly appreciated the distinction between a substantive relief and a consequential relief. The High Court has observed that in the instant case the relief of permanent injunction can be said to be a substantive relief, which is clearly an erroneous view.
It is to be noted that the main reliefs sought by the Plaintiff in the suit were cancellation of the sale deed and declaration and the prayer of permanent injunction restraining Defendant No. 1 from disturbing her possession can be said to be a consequential relief. Therefore, the title to the property was the basis of the relief of possession. If that be so, in the present case, the relief for permanent injunction can be said to be a consequential relief and not a substantive relief as observed and held by the High Court. Therefore, once the Plaintiff has failed to get any substantive relief of cancellation of the sale Page 31 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined deed and failed to get any declaratory relief, and as observed hereinabove, relief of injunction can be said to be a consequential relief. Therefore, the prayer for permanent injunction must fail. In the instant case as the Plaintiff cannot be said to be in lawful possession of the suit land, i.e., the possession of the Plaintiff is "not legal or authorised by the law", the Plaintiff shall not be entitled to any permanent injunction. 11.1 An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law.
68. Therefore, it is clear that the Plaintiff has sought relief of injunction as a mere consequential relief, which cannot sustain once the main relief of cancellation of sale deed has been held to be not maintainable. Therefore, there is no question of the suit being sent Page 32 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined for trial when there was no cause of action to seek the main relief of cancellation of the sale deed.
Re: Limitation
69. It is pertinent to be noted that the Registered Sale Deed was entered into in the year 2016. It is not even the Plaintiff case that the Plaintiff was not aware of registration of the sale deed. In fact, such a case could not have been pleaded because the Plaintiff has admitted execution of the Registered Sale Deed and has not denied the same. Therefore, if the Plaintiff desired to challenge the Registered Sale Deed, it could have done so within three years from the said execution as provided under Article 59 of the Limitation Act, 1963.
70. On a reading of the Plaint, it is clear that according to the Plaintiff, the cause of action, if at all, arose upon non-payment of sale consideration by the Defendant No. 1. However, the Plaintiff has tried to overcome, by astute and clever drafting of the Plaint, that limitation period. Filing of the present suit after a period of more than four years would show that the Plaintiff in fact had no complain for all these years the present suit is a mere afterthought.
71. Upon a full reading of the Plaint, it is clear that the cause of Page 33 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined action for the present suit, even according to the Plaintiff, arose when the sale consideration remained unpaid. This event occurred in the year 2016. Therefore, it cannot be said that the present suit is within limitation by any stretch of imagination. Article 59 of the Limitation Act
72. Article 59 of the Limitation Act reads as under:
To cancel or set aside an Three Years. When the facts entitling the instrument or decree or for plaintiff to have the the rescission of a contract. instrument or decree cancelled or set aside or the contract rescinded first become known to him.
73. Therefore, even according to the Plaintiff, the facts which entitled the Plaintiff to have the present Registered Sale Deed cancelled was the unpaid sale consideration. The Plaintiff was aware that the sale consideration remains unpaid right since the year 2016. Therefore, even if the Plaint is taken on a demurrer, the cause of action for seeking cancellation of the Registered Sale Deed arose in the year 2016. Hence, the present suit filed in the year 2021 is grossly barred by limitation.
74. Hon'ble Apex Court in Dahiben (Supra) was dealing with a Page 34 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined similar situation. While holding that the Plaint was barred by limitation, the Hon'ble Court held as under:
"29.12 On a reading of the plaint, it is clear that the cause of action arose on the non-payment of the bulk of the sale consideration, which event occurred in the year 2009. The plea taken by the plaintiffs is to create an illusory cause of action, so as to overcome the period of limitation. The plea raised is rejected as being meritless and devoid of any truth.
29.13 The conduct of the plaintiffs in not taking recourse to legal action for over a period of 5 and V2 years from the execution of the sale deed in 2009, for payment of the balance sale consideration, also reflects that the institution of the present suit is an afterthought. The plaintiffs apparently filed the suit after the property was further sold by Respondent 1 to Respondents 2 and 3, to cast a doubt on the title of Respondent 1 to the suit property.
...
29.18 The delay of over 5 and 1/2 years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. The suit was instituted on 15-12-2014, even though the alleged cause of action arose in 2009, when the last cheque was Page 35 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined delivered to the plaintiffs. The plaintiffs have failed to discharge the onus of proof that the suit was filed within the period of limitation. The plaint is therefore, liable to be rejected under Order 7 Rule 11(d) CPC."
75. Therefore, it is clear that, even in the present suit, the Plaintiff has approached the trial Court after a gross delay and hence the present Plaint is barred by the law of limitation as applicable. Hence, the presence Plaint is also liable to be rejected under Order VII Rule 11(d).
Non-maintainability of ancillary reliefs when main relief is barred
76. Since the main relief of cancellation of the Registered Sale Deed is barred by limitation, the consequential relief is also are barred. Hon'ble. Supreme Court has recently while rejecting a Plaint under Order VII Rule 11, in the judgment of Nikhila Divyang Mehta v. Hitesh P. Sanghvi and ors., 2025 SCC Online SC 779 held as follows:
"29. ... It is apparent that the primary relief claimed therein is to declare the Will and the Codicil to be null and void and also all subsequent proceedings thereto. In addition to it, the plaintiff has claimed permanent injunction. The other reliefs are dependent upon the first relief and cannot be granted until and Page 36 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined unless the plaintiff succeeds in the first relief. Therefore, once the Plaint or the suit in respect of the main relief stands barred by time, the other ancillary relief claimed therein also falls down."
77. Therefore, when the main relief seeking cancellation of the Sale deed is itself not available to the Plaintiff, there is no question of its ancillary reliefs surviving since the same are merely consequential. There is no question of granting the ancillary relief in absence of the main relief.
CONCLUSION
78. Consequently, the present Plaint deserves to be rejected under Order VII Rule 11(a) for not disclosing a cause of action and under Order VII Rule 11(d) as being barred by limitation. Accordingly, the Plaint is hereby rejected.
79. In result, present Civil revision Application accordingly stands allowed. Rule is made absolute.
(SANJEEV J.THAKER,J) FURTHER ORDER After pronouncement of judgment, learned advocate for the Page 37 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025 NEUTRAL CITATION C/CRA/452/2024 JUDGMENT DATED: 30/06/2025 undefined original plaintiff has prayed for stay of the present order, in view of the fact that the respondent intents to challenge the said order.
In view of the aforesaid, the present order is stayed for a period of three weeks.
(SANJEEV J.THAKER,J) URIL RANA Page 38 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 23:29:46 IST 2025