Bombay High Court
Kalavati Arun Kapare And Ors vs Jafar Bajid Khan And Ors on 11 March, 2021
Bench: Madhav J. Jamdar
10. WP 10718 of 2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10718 OF 2017
Kalavati Arun Kapare & Ors. ...Petitioners
Versus
Jafar Bajid Khan & Ors. ...Respondents
----------
Mr. Kuldeep Nikam - Advocate for the Petitioners.
Avinash Avhad with Mahesh V. Rawool - Advocate for the
Repspondent No. 1
----------
CORAM : MADHAV J. JAMDAR, J.
DATE : 11th MARCH 2021.
P.C. :
1. By this Writ Petition filed under Article 227 of the Constitution
of India, the Petitioners are challenging order dated 15.04.2017
passed by learned 6th Joint Civil Judge, Senior Division, Pune below
Exh. 24 in Regular Darkhast No. 109 of 2015. By the impugned order
the said application was rejected. The said application was filed by
the Petitioners-Third Parties under Order 21 Rule 97 of Code of Civil
Procedure, 1908 (C.P.C.) inter alia praying that their application for
obstruction to the execution of the decree be allowed, they be
permitted to lead the evidence and it be declared that they have got
legal right concerning the suit Property.
Seema 1/14
10. WP 10718 of 2017.odt
2. It is the contention of Mr. Kuldeep Nikam, learned Counsel
appearing for the Petitioners that the Petitioners i.e. Third Parties are
the legal heirs and representative of one Mr. Sopan Raghu Kapare. He
submitted that although the suit property is joint family property and
although suit property is not partitioned amongst heirs by metes and
bounds, the Respondent No. 2 i.e. original Defendant No.1 created
third party interest by way of agreement to sale dated 30.03.2007
executed in favour of Respondent No.3 i.e. Defendant No.2 and also
executed irrevocable power of attorney. Thereafter, the Respondent
No.3 (Defendant No.2) executed Isar Pavati dated 02.10.2007 in
favour of the Plaintiff i.e. Respondent No. 1, who is the contesting
party in the present Writ Petition. He submitted that subsequently
sale deed was executed on 03.10.2008 by Respondent Nos. 2 and 3
(i.e. Defendant Nos. 1 and 2) in favour of Respondent No. 4
(Defendant No.3).
3. He submitted that the Respondent No. 1 filed Special Civil Suit
No. 1337 of 2008 seeking specific performance of Isar Pavati dated
02.10.2007. He submitted that by the Judgment and Decree dated
06.01.2015 the said suit was decreed. He submitted that the decree
passed in Special Civil Suit No. 1337 of 2008, is sought to be
Seema 2/14
10. WP 10718 of 2017.odt
executed by filing Regular Darkhast No. 109 of 2015. He submitted
that at the most the Respondent No. 1 is entitled to 2.16 R land out
of 26 R land and that is also after the suit land is partitioned by
metes and bounds. Therefore, the Petitioners filed application bearing
Exh. 24 in Regular Darkhast No. 109 of 2015 under Order 21 Rule 97
of C.P.C. and sought reliefs more particularly set out therein.
4. He submitted that the impugned order was passed on the
ground that the defendant No. 1 i.e. Respondent No. 2 is the absolute
owner of the suit property and further that in Special Civil Suit No.
1337 of 2008 finding is given that the Respondent No. 2 is the
absolute owner of the suit property. He submitted that no such
finding is recorded in the said Judgment and Decree passed in
Special Civil Suit No. 1337 of 2008. He further submitted that
assuming that such finding is recorded as the Petitioners are not
parties to the said suit and therefore, the said finding is not binding
on them.
5. Mr. Kuldeep Nikam, the learned Counsel of the Petitioner has
relied on Judgment reported in 2017(1) Mah LJ 639 in the matter
between Sunderlal s/o. Ramcharan Aamghe and others Vs. Nagpur
Seema 3/14
10. WP 10718 of 2017.odt
Improvement Trust and Others wherein it is specifically held that
even if the regularization of the Gunthewari development under
Section 3 of the Maharashtra Gunthewari Development (Regulation,
Upgradation and Control) Act, 2001 was granted, it does not follow
that holder of such land or building becomes the owner of such
property. He submitted that the legal position as emerging from the
said judgment clearly answers contention that in view of issuance of
Gunthewari Certificate in favour of Respondent No. 2, he has become
absolute owner and therefore, Petitioners have no right, title and
interest in the suit property.
6. On the other hand, the learned Counsel for the Respondent
No.1 submitted that the Petitioners have complete knowledge about
the suit transaction as well as filing of Special Civil Suit No. 1337 of
2008 and decree passed in the same. He submitted that the
Petitioners waited till passing of decree and thereafter belatedly filed
the present application. He further submitted that the earlier
application bearing Exh. 13 was also filed by the same applicants and
same was rejected and therefore, the present application is not
maintainable. He further submitted that Gunthewari Certificate was
issued in favour of the Respondent No.2 and therefore the
Seema 4/14
10. WP 10718 of 2017.odt
Respondent No.2 was the absolute owner of the suit property and
thus the Petitioners have no right, title and interest in the suit
property.
7. Perusal of record shows that the Respondent No.1 filed Special
Civil Suit No. 1337 of 2008 against Respondent Nos. 2, 3 and 4
seeking the specific performance of "Isar Pavati" dated 02.10.2007.
The said suit was decreed by Judgment and Decree dated 06.01.2015
by directing that the Respondent Nos. 2 and 3 shall execute sale deed
in respect of suit property viz. 4 R land out of Survey No. 58/4 totally
admeasuring 26 R situate at Mouje Kondhwa Khurd, Tal.-Haveli,
District Pune within a period of three months from the date of order.
On failure of the Respondent Nos. 2 and 3 to execute the sale deed,
the Respondent No.1 was granted liberty to get the same executed
through the Officer of the Court. It was further directed that the
Respondent No. 1 shall either pay remaining consideration of Rs.
10,00,000/- (Rs. Ten Lakhs Only) to the Respondent Nos. 2 and 3, or
deposit the same in the Court within a period of one month from the
date of order. It was further directed that the Respondent Nos. 2 to 4
to deliver the possession of the suit property to the Respondent No. 1
on the date of execution of the sale deed and on the failure of the
Respondent Nos. 2 to 4 to deliver the possession, the Respondent No.
1 was granted liberty to recover possession through Court by
executing the decree. It is further declared that the sale deed dated
03.10.2008 executed by Respondent Nos. 2 and 3 in favour of
Respondent No. 4 is not binding on the Respondent No. 1.
Seema 5/14
10. WP 10718 of 2017.odt
8. The Respondent No. 1 filed Regular Darkhast No. 109 of 2015
for execution of the Judgment and Decree dated 06.01.2015 passed
in Special Civil Suit No. 1337 of 2008. In said Darkhast one Rupesh
Arun Kapre filed an application bearing Exh. 13 under Order 21 Rule
97 of C.P.C. It appears that the said application was filed on behalf of
himself and 23 other co-sharers of the suit property. The said
application was rejected by order dated 12.07.2016 passed by the
learned 6th Joint Civil Judge, Senior Division, Pune inter alia on the
ground that said third party namely Rupesh Kapre has filed
application without consent of other legal heirs whose names are
mentioned in the application. It is further specifically observed in the
said order that none of said 23 persons have either signed the said
application nor filed any independent Affidavit supporting the
application. Thus although the learned Advocate appearing for the
Respondent No. 1 strongly relied on the order passed below Exh. 13
to support his submission that once application at Exh. 13 was
rejected subsequent application at Exh. 24 is not maintainable and
although the learned Executing Court has also relied on the siad
aspect while passing the impugned order, paragraph no. 8 of the
order passed below Exh. 13 clearly shows that the said application
can at the most be treated as filed by Rupesh Kapre in his individual
capacity and therefore, the rejection of that application will have no
bearing on the present application bearing Exh. 24 filed by the
Petitioners.
9. The present Petitioners i.e. Third Parties filed application
bearing Exh. 24 in Regular Darkhast No. 109 of 2015 under Order 21
Seema 6/14
10. WP 10718 of 2017.odt
Rule 97 of C.P.C. It is specifically mentioned in the said application
that the suit property was originally belonging to Sopan Raghu
Kapre. He was having three sons and two daughters namely, Dagadu,
Vithoba, Tukaram, Kerabai and Heerabai. It is stated that Heerabai
died issueless, Dagadu, Vithoba, Tukaram and Kerabai are having
children. It is stated that said Sopan Raghu Kapre expired on
10.06.1966, all these heirs and legal representatives have undivided
share in the suit property and that there is no partition by metes and
bounds of the suit property. It is stated that even if the suit land is
partitioned, the Respondent No.2 will not get share of 4 gunta land
which is subject matter of Isar Pavati dated 02.10.2007.
10. The decree holder i.e. Respondent No. 1 has filed reply dated
10.02.2017 to said Exh. 24 application. The Respondent No. 1 has
contended that the Petitioners have no locus to file said application,
some of the applicants alongwith others have filed earlier application
bearing Exh. 13 and as the same was rejected the application at Exh.
24 is not legally maintainable. It is contended that as Gunthewari
certificate is issued in favour of Respondent No. 2, the Respondent
No. 2 is the absolute owner of the suit property.
11. The Hon'ble Supreme Court in the Judgment reported in
(2005) 6 S.C.C. 733 in the matter between Kasturi Vs. Iyyamperumal
and others has considered very important aspect about necessary and
proper party particularly in the context of the suit for specific
performance. Paragraphs 2, 3, 15, 16, 19 of the said Kasturi
Seema 7/14
10. WP 10718 of 2017.odt
Judgment are relevant for this case:-
"2. The only question that needs to be decided in this case is whether
in a suit for specific performance of contract for sale of a property
instituted by a purchaser against the vendor, a stranger or a third
party to the contract, claiming to have an independent title and
possession over the contracted property, is entitled to be added as a
party/defendant in the said suit."
"3.Before we take up this question for decision in detail, the material
facts leading to the filing of this case may be narrated at a short
compass. The appellant herein has filed the suit against the
respondent Nos.2 and 3 for specific performance of a contract
entered into between the second respondent acting as a Power of
Attorney of the third respondent on one hand and the appellant on
the other for sale of the contracted property. In this suit for specific
performance of the contract for sale, the respondent Nos.1 and 4 to
11, who were admittedly not parties to the contract and setting up a
claim of independent title and possession over the contracted
property, filed an application to get themselves added in the suit as
defendants. The trial court allowed the application on the ground
that as the respondent Nos.1 and 4 to 11 were claiming title and
possession of the contracted property, they must be held to have a
direct interest in the subject-matter of the suit, and therefore, entitled
to be added as parties defendants in the suit as their presence would
be necessary to decide the controversies raised in the present suit.
The High Court in revision confirmed the said order and accordingly
against the aforesaid order of the High Court this Special Leave
Seema 8/14
10. WP 10718 of 2017.odt
Petition was filed at the instance of the appellant which on grant of
special leave was taken up for hearing in presence of the parties."
"15. ..... In the case of Vijay Pratap & Ors. Vs. Sambhu Saran Sinha &
Ors. reported in 1996(10) SCC, 53, this Court had taken the same
view which is being taken by us in this judgment as discussed above.
This Court in that decision clearly held that to decide the right, title
and interest in the suit property of the stranger to the contract is
beyond the scope of the suit for specific performance of the contract
and the same cannot be turned into a regular title suit. Therefore, in
our view, a third party or a stranger to the contract cannot be added
so as to convert a suit of one character into a suit of different
character. As discussed above, in the event any decree is passed
against the respondent Nos.2 and 3 and in favour of the appellant for
specific performance of the contract for sale in respect of the
contracted property, the decree that would be passed in the said suit,
obviously, cannot bind the respondent Nos.1 and 4 to 11. It may also
be observed that in the event, the appellant obtains a decree for
specific performance of the contracted property against the
respondent Nos.2 and 3, then, the Court shall direct execution of
deed of sale in favour of the appellant in the event respondent Nos.2
and 3 refusing to execute the deed of sale and to obtain possession of
the contracted property he has to put the decree in execution. As
noted hereinearlier, since the respondent Nos.1 and 4 to 11 were not
parties in the suit for specific performance of a contract for sale of
the contracted property, a decree passed in such a suit shall not bind
them and in that case, the respondent Nos.1 and 4 to 11 would be at
Seema 9/14
10. WP 10718 of 2017.odt
liberty either to obstruct execution in order to protect their
possession by taking recourse to the relevant provisions of the CPC, if
they are available to them, or to file an independent suit for
declaration of title and possession against the appellant or
respondent No.3. On the other hand, if the decree is passed in favour
of the appellant and sale deed is executed, the stranger to the
contract being the respondent Nos.1 and 4 to 11 have to be sued for
taking possession if they are in possession of the decretal property."
"16.......In our view, therefore, the court cannot allow adjudication
of collateral matters so as to convert a suit for specific performance
of contract for sale into a complicated suit for title between the
plaintiff/appellant on one hand and Respondent Nos. 2 & 3 and
Respondent Nos. 1 and 4 to 11 on the other. This addition, if
allowed, would lead to a complicated litigation by which the trial and
decision of serious questions which are totally outside the scope of
the suit would have to be gone into. As the decree of a suit for
specific performance of the contract for sale, if passed, cannot, at all,
affect the right, title and interest of the respondent Nos.1 and 4 to 11
in respect of the contracted property and in view of the detailed
discussion made hereinearlier, the respondent Nos.1 and 4 to 11
would not, at all, be necessary to be added in the instant suit for
specific performance of the contract for sale."
"19......It is well settled that in a suit for specific performance of a
contract for sale the lis between the appellant and the respondent
Seema 10/14
10. WP 10718 of 2017.odt
Nos.2 and 3 shall only be gone into and it is also not open to the
Court to decide whether the respondent Nos.1 and 4 to 11 have
acquired any title and possession of the contracted property as that
would not be germane for decision in the suit for specific
performance of the contract for sale, that is to say in a suit for
specific performance of the contract for sale the controversy to be
decided raised by the appellant against respondent Nos.2 and 3 can
only be adjudicated upon, and in such a lis the Court cannot decide
the question of title and possession of the respondent Nos.1 and 4 to
11 relating to the contracted property."
12. It is well settled legal position as held by the Hon'ble Supreme
Court in the said Kasturi Judgment that in a suit for specific
performance of a contract for sale, the issue to be decided is the
enforceability of the contract entered into between the parties and
whether the Plaintiffs are ready and willing to perform their part of
the contract and whether they are entitled for the decree for specific
performance of contract. It is also well established that the issues
regarding the right, title and interest in the suit property of the
strangers to the contract are beyond the scope of the suit for specific
performance of the contract and therefore such suit for specific
performance cannot be converted into a regular title suit. Therefore,
the present Petitioners who are claiming that they have got undivided
share in the suit property were neither necessary or proper parties to
the suit, otherwise that would amount to converting the suit which is
for specific performance into suit for title. In the judgment of Kasturi,
it is clearly held that strangers to the contract cannot be impleaded as
Seema 11/14
10. WP 10718 of 2017.odt
party in suit for specific performance. It is further held that if the
decree is passed in favour of the Plaintiffs then the strangers to the
contract have to be sued seeking possession, if such strangers are in
possession of the property. It is also held that such strangers can
object to the execution of the decree.
13. In the light of above legal position if the facts of the present
case are examined then it is clear that said Special Civil Suit N. 1337
of 2008 was filed by the Respondent No. 1 against the Respondent
Nos. 2 to 4 for specific performance of the "Isar Pavati" dated
02.10.2007. The said "Isar Pavati" dated 02.10.2007 was executed by
the Respondent No. 3 in favour of the Respondent No. 1. Thus it is
absolutely clear that the Petitioners are not parties to the said Visar
Pavati and therefore are neither the necessary party nor the proper
party to the said suit. Therefore, the rejection of the said Exh. 24
application on the ground that the Petitioners were aware about the
said transaction and said suit proceedings is without any legal and
valid reasons. It is very clear that even if the Petitioners would have
applied in the said suit for impleading them as the parties then also
the said application could not have been treated as legally
maintainable. Thus the learned Executing Court overlooked the
above legal position while rejecting the application at Exh. 24 on the
ground that the Petitioners were aware about the said transaction
and also about the said suit.
14. The learned Executing Court in the impugned order proceeded
on the basis that while passing judgment and decree dated
Seema 12/14
10. WP 10718 of 2017.odt
06.01.2015 in Special Civil Suit No. 1337 of 2008 the learned Trial
Court has recorded finding that the Respondent No. 2 is the absolute
owner of the suit property and the same is not ancestral property. On
perusal of the said judgment particularly paragraph 16 shows that in
fact the learned Trial Court has observed that the Respondent No. 1 is
co-owner of the suit property and that finding is recorded on the
basis of 7/12 extract of S. No. 58/4 (Exh.64) and mutation entry
(Exh. 65). In any case any finding recorded in the Special Civil Suit
No. 1337 of 2008 cannot bind the applicants. Therefore, it is clear
that the finding regarding ownership, if any recorded in Special Civil
Suit No. 1337 of 2008 is not binding on the present Petitioners.
15. The learned Trial Court while recording finding that the
Respondent No. 2 is the absolute owner of the 4 R land out of said
survey No. 58/4 has relied on the Zonal Regulation Certificate issued
in favour of the Respondent No.2. The learned Counsel of the
Petitioner rightly relied on the Judgment in the matter of Sunderlal
(Supra) wherein it is specifically held that even if the regularization
of the Gunthewari development under Section 3 of the Maharashtra
Gunthewari Development (Regulation, Upgradation and Control) Act,
2001 was granted, it does not follow that holder of such land or
building becomes the owner of such property. Thus it is very clear
that issuance of Gunthewari Certificate/Zonal Certificate does not
confer any title. In any case all these findings recorded in the said
Judgment and Decree dated 06.01.2015 are not binding on the
present Petitioners.
Seema 13/14
10. WP 10718 of 2017.odt
16. The reasons recorded by the learned Trial Court regarding
collusion between the Respondent No.2(Defendant No.1) and the
present Petitioners and that the present Petitioners kept quite till
passing of decree and filing of execution are of no relevance as the
Petitioners could not have been impleaded as party to the said suit. It
is very clear that they are neither necessary nor proper party to the
said suit which has been filed for the Specific Performance.
17. Thus it is clear that the learned Executing Court has not
considered several factual and legal issues and rejected the
application without giving cogent and legal reasons.
18. In the light of above discussion, following order is passed:-
ORDER
a) The impugned order dated 15.04.2017 passed by
the Learned 6th Joint Civil Judge Senior Division,
Pune below Exh. 24 in Regular Darkhast No. 109 of
2015 is quashed and set aside.
b) The learned Executing Court to decide the
application bearing Exh. 24 filed in Regular
Darkhast No. 109 of 2015 after giving opportunity
to all the parties.
c) The Writ Petition is disposed of in above terms.
[MADHAV J. JAMDAR, J.]
Seema 14/14
