Bombay High Court
Sachin S/O Ramkrushna Durugkar vs Dilip S/O Namdeorao Tupkar And ... on 25 March, 2021
Bench: S. M. Modak
AO 19.2020 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER NO.19 OF 2020
Appellants : 1] Sunita wd/o Rajesh Tambe,
(Original Defendant Nos. Aged about 46 years., Occ. Household,
1 to 9 except Sr. No.8) R/o Plot No.106, Juna Bagadganj,
Besides Suman Marble Shop, Nagpur.
2] Ajay s/o Natthuji Kawre,
Aged about 40 years, Occ. Business,
R/o Gujri Chowk, Juni Mangalwari, Nagpur.
3] Archana wd/o Anand Rode,
Aged about 41 years, Occ. Household,
R/o Plot No.85, Ganga Vihar Colony,
Middle Ring Road, In front of Uday Lawn,
Wathoda, Nagpur.
4] Kavita w/o Sachin Kirpane,
Aged about 38 years, Occ. Household,
R/o Kendriya Vidyalaya, Nawabpura,
Aglawe Chawl, Behind Natraj Cinema,
Mahal, Nagpur.
5] Ekadashibai wd/o Natthuji Kawre,
Aged about 55 years, Occ. Household,
R/o Plot No.26, Ganga Vihar Colony,
Wathoda Middle Ring Road, Nagpur.
6] Gendlal s/o Natthuji Kawre,
Aged about 26 years, Occ. Household,
R/o Plot No.26, Ganga Vihar Colony,
Wathoda Middle Ring Road, Nagpur.
7] Pawan s/o Natthuji Kawre,
Aged about 24 years, Occ. Business,
R/o Plot No.26, Ganga Vihar Colony,
Wathoda Middle Ring Road, Nagpur.
8] Shakuntalabai wd/o Krushnarao Kumbhalkar,
Aged about 82 years, Occ. Household,
R/o 305, Mahatma Gandhi Nagar,
Ward No.131, Hudkeshwar Road, Nagpur
(presently dead as died on 25/02/2020).
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AO 19.2020 2
9] Vimal wd/o Tarachand Waghulkar,
Aged about 76 years, Occ. Household,
R/o Telipura, Pevtha,
Near Temple of Mirchiwali, Itwari, Nagpur.
-- Versus -
Respondents : 1] Dilip s/o Namdeorao Tupkar,
(Original Plaintiff No.1) Aged about 53 years,
Occ. Business & Agriculturist,
R/o E-100, MHADA Colony, Hiwri Nagar,
Nagpur.
(Original Defendant No.14) 2] Sachin s/o Ramkrushna Durugkar,
Aged about 51 years, Occ. Business,
R/o Plot No.17, Pitravaibhav Apartment,
Flat No.201, Besides Das Jwellers,
North Ambazari Road, Shivaji Nagar,
Nagpur - 10.
(Original Defendant 3] Smt. Tarabai wd/o Sevakramji Padole,
Nos.11 to 13) Aged about 66 years, Occ. Household,
R/o Shiv Nagar, Near Gnyaneshwar Mandir,
Tumsar, Tah. Tumsar, Distt. Bhandara.
4] Sau. Pushpa w/o Devidasji Sakure,
Aged about 49 years, Occ. Household,
R/o Shivaji Nagar, Lane of Sunil Gachke,
Tumsar, Tah. Tumsar, Distt. Bhandara.
5] Sau. Archana w/o Lalit Sakharwade,
Aged about 45 years, Occ. Household,
R/o Dattatraya Ward, Tumsar,
Tah. Tumsar, Distt. Bhandara.
(Original Defendant No.2) 6] Anita w/o Vinod Kumbhalkar,
Aged about 44 years, Occ. Household,
R/o 305, Mahatma Gandhi Nagar,
Ward No.131, Hudkeshwar Road, Nagpur.
7] Shri Vinod s/o Krushnarao Kumbhalkar,
Aged 55 years, Occ. Private.
8] Shri Pramod s/o Krushnarao Kumbhalkar,
Aged 51 years, Occ. Service.
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AO 19.2020 3
Both r/o 305-306, Mahatma Gandhi Nagar,
Mahalgi Nagar, Nagpur - 440009.
WITH
APPEAL AGAINST ORDER NO.22 OF 2020
Appellants : 1] Sachin s/o Ramkrushna Durugkar,
(Original Defendant No.14) Aged about 51 Years, Occ. Business,
R/o Plot No.17, Pitravaibhav Apartments,
Flat No.201, Besides Das Jewellers,
North Ambazari Road, Nagpur - 10.
-- Versus -
Respondent : 1] Dilip s/o Namdeorao Tupkar,
(Original Plaintiff) Aged about 53 Years,
Occ. Business & Agriculturist.
(Original Defendant No.1) 2] Sunita wd/o Rajesh Tambe,
Aged about 46 Years, Occ. Household,
R/o Plot No.106, Juna Bagadganj,
Besides Suman Marble Shop, Nagpur.
(Original Defendant No.2) 3] Anita w/o Vinod Kumbhalkar,
Aged about 44 Years, Occ. Household,
R/o 305, Mahatma Gandhi Nagar,
Ward No.131, Hudkeshwar Road, Nagpur.
(Original Defendant No.3) 4] Ajay s/o Natthuji Kaware,
Aged about 40 years, Occ. Business,
R/o Gujri Chowk, Juni Mangalwari, Nagpur.
(Original Defendant No.4) 5] Archana wd/o Anand Rode,
Aged about 41 years, Occ. Household,
R/o Plot No.85, Ganga Vihar Colony,
Middle Ring Road, In front of Uday Lawn,
Wathoda, Nagpur.
(Original Defendant No.5) 6] Kavita w/o Sachin Kirpane,
Aged about 38 years, Occ. Household,
R/o Kendriya Vidyalaya, Nawabpura,
Aglawe Chawl, Behind Natraj Cinema,
Mahal, Nagpur.
(Original Defendant No.6) 7] Ekadashibai wd/o Natthuji Kawre,
Aged about 55 years, Occ. Household,
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AO 19.2020 4
R/o Plot No.26, Ganga Vihar Colony,
Wathoda Middle Ring Road, Nagpur.
(Original Defendant No.7) 8] Gendlal s/o Natthuji Kawre,
Aged about 26 years, Occ. Household,
R/o Plot No.26, Ganga Vihar Colony,
Wathoda Middle Ring Road, Nagpur.
(Original Defendant No.8) 9] Pawan s/o Natthuji Kawre,
Aged about 24 years, Occ. Business,
R/o Plot No.26, Ganga Vihar Colony,
Wathoda Middle Ring Road, Nagpur.
(Original Defendant No.9) 10] Shakuntalabai wd/o Krushnarao Kumbhalkar,
Aged about 82 years, Occ. Household,
R/o 305, Mahatma Gandhi Nagar,
Ward No.131, Hudkeshwar Road, Nagpur.
Amendments Through Legal Heirs.
have been
carried out as
per Court's 10(1) Shri Vinod s/o Krushnarao Kumbhalkar,
Order dated Aged 55 years, Occupation - Private.
19/10/2020.
10(2) Shri Pramod s/o Krushnarao Kumbhalkar ,
Aged 51 years, Occupation - Service.
Both are r/o 305-306, Mahatma Gandhi Nagar,
Mahalgi Nagar,Nagpur - 440009.
(Original Defendant No.10) 11] Vimal wd/o Tarachand Waghulkar,
Aged about 76 years, Occ. Household,
R/o Telipura, Pevtha,
Near Temple of Mirchiwali, Itwari, Nagpur.
(Original Defendant No.11) 12] Smt. Tarabai wd/o Sevakramji Padole,
Aged about 66 Years, Occ. Household,
R/o Shiv Nagar, Near Gnyaneshwar Mandir,
Tumsar, Tah. Tumsar, Distt. Bhandara.
(Original Defendant No.12) 13] Sau. Pushpa w/o Devidasji Sakure,
Aged about 49 Years, Occ. Household,
R/o Shavaji Nagar, Lane of Sunil Gachke,
Tumsar, Tah. Tumsar, Distt. Bhandara.
(Original Defendant No.13) 14] Sau. Archana w/o Lalit Sakharwade,
Aged about 45 Years, Occ. Household,
R/o Dattatraya Ward, Tumsar,
Tah. Tumsar, Distt. Bhandara.
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AO 19.2020 5
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri D.T. Shinde, Advocate for the Appellants in AO No.19/2020 and for
Respondent Nos.3, 5 to 10 & 12 in AO No.22/2020
Shri A.C. Dharmadhikari, Advocate for the Appellant in AO No.22/2020
Shri M.R. Joharapurkar, Advocate for Respondent No.1 in AO No.19/2020
Shri S.A. Dutonde, Advocate for Respondent Nos.3 to 6 in AO No.19/2020
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM : S.M. MODAK, J.
RESERVED ON : 27th NOVEMBER, 2020.
PRONOUNCED ON : 25th MARCH, 2021.
J U D G M E N T :-
The dispute has triggered due to giving of a direction by
the Government to the Collector vide letter date 11-01-2018. Land
admeasuring 8480 Sq.mtrs. of land from Survey No.43, 44/2 from
village Wathoda, Nagpur. The said land was released as per the
provisions of Section 20 of the Urban Land Ceiling Act. The
defendant No.14 as a Power of Attorney holder was the recipient of
the said letter. That has made the present plaintiff panic and he got
disturbed due to reference of name of defendant No.14 in the said
letter. According to plaintiff, it is he who made all the
correspondence and follow up for release of surplus land and the
defendant No.14 unauthorizedly wanted to take benefit from the
Government officials.
02] The plaintiff rests his claim on the unregistered
agreement dated 04-05-2013 with defendant Nos. 1 to 13. They are
the legal representatives of common ancestor Chindhuji Kaware.
The details are not given because there is no dispute amongst the
legal representatives (except the L.Rs. of defendant No.9-
Shakuntalabai Kumbhalkar). As per this agreement, there was a
arrangement in between the plaintiff on one hand and the original
owners on the other hand about distribution of land which will be
released as per Talegaon Dabhade Scheme. The distribution was
2/3 and 1/3 to the plaintiff and original owners respectively. The
plaintiff did follow up with the government authorities. But he could
not succeed in getting land released.
03] In the meantime, the original owners entered into
Memorandum of Understanding dated 02-11-2016 (and dated
01-11-2018) and a Power of Attorney dated 02-11-2016 in favour of
defendant No.14. He also did the follow up for release of land and
ultimately was successful in getting a letter dated 11-01-2018.
04] Plaintiff being disturbed by the name of defendant No.14
called upon the original owners by notice dated 12-10-2018. It was
neither replied nor complied. It prompted the plaintiff to file a
specific performance suit of the agreement dated 04-05-2013. Out
of 8480 sq.mtrs of land plaintiff claimed right over 4601.1918
sq.mtrs of land. The original owners and new purchasers were
defendant Nos. 1 to 13 and defendant No.14 respectively. There
was an interim injunction application filed.
05] All the defendants appeared before the trial Court.
Defendant Nos. 1 to 13 have denied the averments in the plaint
and also denied execution of the unregistered agreement dated
04-05-2013. In addition to that, they have challenged the
agreement on the basis of consent terms dated 20-04-2013
executed in earlier instituted Special Civil Suit No.996/2007.
Defendant No.14 also resisted the suit and denied the averments.
He took various defences including limitation, non-specification of
the property, absence of consideration and incompetence of the
plaintiff to enter into the agreement in question in view of the
consent terms.
06] The trial Court was pleased to grant the injunction and
restrained all the defendants from creating third party interest in
any manner as per the order dated 21-12-2019. This order is
challenged before us by two sets of defendants. Appeal Against
Order No. 19/2020 is filed by defendant Nos. 1 to 9 (except
defendant No.8) whereas Appeal Against Order No. 22/2020 is filed
by defendant No.14.
07] Learned Advocate Shri Shinde and learned Advocate Shri
Dharmadhikari argued on behalf of respective appellants (AO Nos.
19/20 and 22/20 respectively). Learned Advocate Shri Shinde also
relied upon certain documents in the form of private Handwriting
Expert's opinion on the point of signatures of original owner on the
agreement in question. We will decide the same in this appeal
itself. Whereas, learned Advocate Shri Joharapurkar argued for the
original plaintiff and learned Advocate Shri Dutonde argued for legal
representatives of deceased Defendant No.8. The following points
arise for my determination.
Points Findings
1. Whether prima facie case exists Not totally
in favour of the plaintiff for granting in favour of
injunction against both the set of defendants? .. plaintiff.
2. Whether the plaintiff will suffer irreparable loss, Not totally
if the injunction is not granted? .. in favour of
plaintiff.
3. Balance of convenience tilts in whose favour? .. Not totally
in favour of
plaintiff.
4. Whether the trial Court was wrong in
granting injunction in favour of the plaintiff? .. Not totally.
5. Whether the appellants in A.O. No.19/2020
can be permitted to adduce additional evidence
in the form of handwriting expert's opinion? .. No.
6. Whether order requires interference? .. No, but certain
conditions are
imposed.
7. What order? .. As per final order.
SCOPE OF APPEAL
08] Prior to dealing with these issues, it will be necessary to
consider what is the scope of an appeal under Order 43 Rule 1 of
the Code of Civil Procedure (CPC). The Division Bench of this Court
(Principal Seat) in the case of Chetak Co-operative Housing Society
Limited, Mumbai vs. Sandhu Builders, Mumbai, reported in 2019(4)
ALL.M.R.326, has dealt with this issue. Considering the facts of that
case, the Division Bench expressed its opinion on the powers of the
appellate court vis-a-vis power of the writ court. The Division Bench
felt it improper to go into the contentious issue in view of the
limitations (paragraph 15).
09] So also, this Court in the case of Abidbhai Ibrahimbhai &
another vs. Mohammed Ejaz Mohd. Bashir & another, reported in
2019(3) ALL.M.R. 299, also dealt with the similar issue. This Court
considered the scope of such an appeal and basically it is against
the exercise of discretion. So, this Court refused to interfere in the
exercise of discretion while rejecting temporary injunction
application. All these observations need to be considered.
GENERAL OBSERVATIONS
10] It will be relevant to consider the observations of the trial
Court in the order impugned before this Court. When we have
perused the order we find that we agree to some of the findings of
the trial Court whereas we disagree to some other findings. "When
consideration is not mentioned in the agreement and hence it is
unenforceable" is the observation of the trial Court. On this
observation the trial Court could have refused to grant injunction.
Whereas the observations "the agreement in question being
subsequent to consent terms will prevail" is the observation given
without considering the terms of the consent terms. "The land is
not released only due to the efforts of defendant No.14" is another
observation. So also observation "about possession" does not
appeal to our conscious. We will deal with all the observations
hereinafter.
NON-ENFORCEABILITY OF THE AGREEMENT
11] The trial Court considered it appropriate to decide the
objections about enforceability of the agreement due to non-
specification of the property in the agreement (paragraph 14) during
trial stage. The trial Court felt the said question to be the complex
question of law, which is inappropriate to decide at an interim stage.
Because according to trial Court, if the property is not specified in
the agreement in question then difficulty may arise for execution of
the order. In spite of this, trial Court has granted injunction.
12] Both the learned Advocates for the appellants
emphasized on the lacunae in the agreement in question. So far as
the factual aspect is concerned, they may be right to certain extent
that is to say, there is no description of the property in the
agreement, just like when the property is described by survey
number or by house number and its measurement. Learned
Advocate Shri Joharapurkar invited my attention to the averments
made in the agreement. On its perusal, what we can find is :
"Original owners have authorized the plaintiff to get
release the land as per Talegaon Dabhade Scheme in full.
After release, the original owners will be given 1/3rd share
and plaintiff was given 2/3rd share".
13] What we find is, such apportionment of share was
permissible only after retention order by the Government will be
passed. The apportionment has been described in clear terms. The
apportionment will be effective only when the retention order will be
passed. It may happen or it may not happen. However, the
happening is not important. So, even if the property was not in
existence at the time of execution of the agreement, one can find
clear-cut indication. All other requirements including exact
identification of property and its boundaries can be looked into, when
the suit will be put to trial and at the time of final disposal. So, what
I feel is that the trial Court then ought to have dismissed the
injunction application. I neither subscribe that view nor put a seal of
approval or "not giving opinion".
ABSENCE OF CONSIDERATION
14] Our attention is brought by learned Advocate Shri Shinde
to one factual mistake committed by the trial Court. At one stage,
the trial Court has given wrong factual finding as "it appears on
perusal of agreement of plaintiff that defendants received
consideration of Rs.40,00,000/- (rupees forty lakh only)" (para 16).
Even plaintiff agrees that it is wrong factual finding. In fact, there is
no consideration. According to learned Advocate Shri Joharapurkar,
the consideration was not a money consideration but it was a
consideration in kind. In other sense "when the plaintiff has agreed
to do everything for release of land" it amounts to consideration in
kind. It is submitted that consideration is mentioned is of registered
agreement dated 04-05-2013 (which is not subject matter of
agreement).
15] I am also not inclined to accept the objection of the
appellants regarding agreement in question without consideration. It
is taken in view of the provisions of Section 25 of the Indian Contract
Act. This issue was considered by the Hon'ble Supreme Court in case
of Narayanrao Jagobaji Gowande Public Trust vs. State of
Maharashtra & others, reported 2016 (4) SCC 443. The order of
Nagpur Bench was upheld. Even if a clause to transfer the
development land in favour of the Government was held as a valid
consideration. In this case also, the signatories to the agreement in
question have agreed for apportionment of shares to be released and
the plaintiff has agreed to incur all expenditure. In certain
contingency, the agreement without consideration is treated as a
void under Section 25 of the Indian Contract Act. The consideration is
not defined.
16] So, the arrangement made as per the agreement in
question can have within the meaning of consideration. Even the
Hon'ble Supreme Court in the case of Nirmala Anand vs. Advent
Corporation Private Limited, reported in 2002 (5) SCC 481, was
pleased to approve declaratory suit for specific performance subject
to fulfillment of the conditions. The conditions in Section 25 of Indian
Contract Act are not fulfilled. The consideration mentioned in the
agreement can be said to be a valid consideration.
CONSENT TERMS
17] There was an argument that the contents of the
agreement in question dated 04-05-2013 on one hand and the
averments of the consent terms on the other hand are contrary to
each other. The observations of the trial Court are as follows :
"Even considering that the terms in agreement are
contrary to compromise, the agreement thereby being
subsequent in time seem to prevail (paragraph 16)."
18] The consent terms in the compromise suit was executed
on 20/04/2013. If we read clause No.18 of the same, we can find the
following arrangements.
(i) The signatories, ie. M/s. Ganga Developers, the original
owners and the present plaintiff, have agreed about execution of
a sale-deed by the owners in favour of M/s. Ganga Developers in
respect of land admeasuring 7800 sq.mtrs. (reserved for MSEB
and parking, on paper 9025 sq.mtrs, but actually found 7800
sq.mtrs.). The sale-deed was also executed on 04/05/2013.
(ii) The signatories have agreed to apportion the land to be
released admeasuring 0.12 HR by the ULC Authorities. The
present plaintiff would get 85% and 15% was agreed to be
allotted to Archana Rode, Ajay Kaware and Kavita Kirpane. This
was the land other than the land allotted to BRO.
(iii) Land to be retained from the land allotted to BRO and
released by the Government as per the order of the High Court,
the present plaintiff has agreed to cancel his claim over such
land [Clause 18(c)].
19] The trial Court has interpreted the facts. The consent
terms was executed on 20/04/2013, whereas the agreement in
question was executed on 04-05-2013. Both the set of appellants
emphasized that in view of this clause the present plaintiff will have
no claim over any of the land released by the Government as per the
letter dated 11/01/2018 (8480 sq.mtrs.). So, their contention is two
fold. One is denial of the execution along with the forgery and one is
entitlement to land released as per the said letter.
20] So, we need to see, whether the trial Court has exercised
the discretion (in observing that the agreement dated 04/05/2013 will
prevail over the clause in a consent terms being subsequent in time)
properly. There are parameters for ascertaining, whether the
discretion has been used properly. The exercise of discretion can be
challenged firstly on the ground of non-consideration of materials and
secondly on the ground of wrong interpretation of the materials. It is
also true that the opinion expressed by the trial Court cannot be set
aside merely because second view is possible. We have to see,
whether the observations are perverse or not.
21] One can very well say that the agreement in question is
certainly subsequent in time, that is to say after execution of the
consent terms, but the issue about, which will prevail, needs to be
looked into. The trial Court has not given any findings on an objection
on the basis of clause 18 (c) in the consent terms. Instead, the trial
Court had chosen to give go-bye and had given preference to the
agreement dated 04-05-2013. What the trial Court has said "even
considering that the terms in the agreement are contrary to
compromise, the agreement thereby being subsequent in time seem
to prevail." (Para 16). They are inconsistent. Except this, there are
no reasons why trial Court has preferred to agreement in question.
Because if consent terms are in existence, then they are binding on
signatories. Party may come out of the terms by giving some
explanation. Plaintiff has not given any explanation why Clause 18(c)
is not binding and under what circumstances, he executed
agreement in question (which is disputed). The trial Court has not
answered to these issues.
CHANGE IN STAND
22] It may be true that the original owners by way of common
written statement have denied the execution and has alleged forgery.
There is an objection on behalf of contesting original owners that the
appellants in A.O. No.19/2020 has deviated from averments in the
written statement. My attention is brought to the averments in the
memo of appeal and averments in the written statement. So also,
there is an emphasis on defective pleadings in the written statement.
On this background, I have read the written statement and particularly
paragraph 34. They have denied execution and they have also alleged
forgery by the plaintiff or through his representative. Whereas, in the
memo of appeal and during oral arguments also, the appellant has
tried to explain use of three stamp papers. According to them, the
stamp papers were used in following manner by the original plaintiff :
(a) One was used for registered agreement, dated 04/05/2013;
(b) one was used for executing power of attorney and
(c) the third was used for execution of the agreement in
question (containing forged signatures).
23] My attention is brought to the fact that the suit notice dated
12/10/2018 was not replied by any of the defendants. This fact is not
disputed. So, one fact is clear that the defence about "denying
execution and alleging forgery" was taken for the first time through
written statement. No document is pointed out to me that such
defence was taken earlier to the written statement. Learned Advocate
Shri Joharapurkar is right in his submission that the defendants have
not protested earlier to filing of written statement. Learned Advocate
Shri Shinde submitted that his clients got knowledge about execution of
the agreement, in question, only when they received suit summons.
But the fact remains and it is that the suit notice was already issued. It
is also true that (though defence of denial and forgery was taken in the
written statement) in what manner stamp paper was misused and
shown for agreement in question, was not pleaded in the written
statement. So, at a prima facie stage, there is every reason to believe
that defence of forgery is after thought.
CORRESPONDENCE
24] On the point of persuasion/follow up for getting the land
released either by the plaintiff or by defendant No.14, the trial Court
gave the following findings.
"The plaintiff has filed on record the correspondence and
applications made by him. Defendant No.14 has also produced
on record documents to show efforts made by him. (paragraph
17).
The trial Court gave its findings as "it do not appear that the lands are
released due to exclusive efforts of defendant No.14".
25] It is pertinent to note that the original owners on several
occasions were successful in getting the land released from the
Government under the provisions of the Urban Land (Ceiling and
Regulation) Act. They are the parts of pleadings. It is difficult to
enumerate them. As we know that there are correspondence made by
the plaintiff as well as by defendant No.14 on behalf of the original
owners. It is for releasing more and more land from the Government
under the provisions of the Urban Land (Ceiling and Regulation) Act. It
is important to note that the Additional Secretary to the Government
has directed the Collector as per the letter dated 11/01/2018 to take
appropriate action so far as the land admeasuring 8480 sq.mtrs. is
concerned. It is true that copy of the said letter is addressed to
defendant No.14 on behalf of the owners. It is also true that the plaintiff
has protested the address of said letter to defendant No.14, through his
protest letter dated 16/01/2018.
26] It will be material to consider the correspondence made
earlier to that. Vide letter dated 17/03/2015, the Additional Collector
has proposed to Urban Land Department for giving 'no objection' for
8480.50 sq.mtrs. of land. In paragraph 9, there is a reference of taking
back the possession by the Tahsildar from BRO over the area of the land
admeasuring 24053.50 sq.mtrs. Whereas, there are correspondence
made by the plaintiff on behalf of the original owners thereby
demanding back the land reserved to BRO. One of such letter appears
the date of 15/01/2014. Whereas, in some of the letters written by the
original owners addressed to the Additional Collector, the address of
defendant No.14 is also mentioned. There is a reference of returning
back the land admeasuring 24053.50 sq.mtrs., allotted to BRO. The
letter bears the date as 05/05/2012. There is a reference that out of
13454 sq.mtrs. of land, 7800 was returned back and there is a demand
for 5654 sq.mtrs. of land.
27] From the above correspondence, one can very well say that
the plaintiff has also followed up the issue with the Government about
returning back the land allotted to BRO. The trial Court had chosen not
to go into these correspondence and restricted himself by observing
that "lands are not released due to exclusive efforts of defendant
No.14". However, no one can deny this fact (even if, it is presumed
that execution is admitted without prejudice). By doing that the issue is
not over. So, there may be correspondence made by the plaintiff on one
hand and defendant No.14 on the other hand, it can be used only as a
corroborative piece of evidence. Ultimately, the foundation, on which
their case rests, is more important and needs to be seen.
28] It is true that the observation about making correspondence,
as referred above, is on the basis of documents filed by both the
plaintiff and defendant No.14. The question of enforceability of the
agreement in favour of defendant No.14 is not a question. The question
is, whether the plaintiff can be protected at an interim stage on the
basis of the execution of the agreement in question (which is disputed
by the contesting owners). It need to be looked into, Whether the
defence of non-execution of the agreement in question by the
contesting owners is strong enough to deny the interim relief? and
Whether discretion was exercised wrongly in favour of the plaintiff? It
will be material to consider the findings of the trial Court on this aspect.
The trial Court has referred to the defence about denial of execution by
defendant Nos. 1 to 13 (para 12), any positive findings on this issue is
not brought to my notice.
FINDINGS ABOUT POSSESSION
29] In paragraph 20 of the judgment, the trial Court has
observed that, "defendant No.14 on strength of subsequent
memorandum of understanding claims to be in possession. In view of
that, the plaintiff needs to be protected". Though, there is no clear cut
observation about possession of defendant No.14, indirectly, the trial
Court has considered defendant No.14 to be in possession. Some of the
correspondence was also pointed out to me on behalf of the appellant in
A.O. No.19/20. But, what I find is that it is difficult to give any opinion at
this stage as to who is in possession of the suit land. The reason is, the
suit land admeasuring about 4601.1918 sq.mtrs. and it is part of 8480
sq. mtrs. of land released by the Government. Neither the plaintiff nor
defendant No.1 to 13 and also defendant No.14 have pointed out
convincing documents and type of activities they have initiated and
continued on the suit land. The observation about possession seems to
have been given by the trial Court in order to justify his decision, as to
how the interest of plaintiff needs to be protected.
ADDITIONAL EVIDENCE
30] I am not inclined to consider the additional evidence sought
to be produced by the appellants in A.O. No.19/2020 by way of the
opinion of the private handwriting expert Shri Athale. It is for several
reasons. Firstly, proper procedure for adducing additional evidence, as
contemplated under Order 41 Rule 27 of CPC, is not followed. These
provisions can also be looked into when there is an appeal under Order
43 of CPC. The appellants could have pursued with the expert and
could have obtained such opinion earlier. But they have not taken
adequate precaution. So also, such opinion could have been obtained
by those appellants when Exh.5 application was pending before the trial
Court. So, I am restricting myself to the material, which was available
before the trial Court.
GRIEVANCE OF DEFENDANT NO.8
31] Even though, the legal representatives of defendant No.8
during this appeal proceedings have disowned signature of their
predecessor in title on the written statement, this Court cannot give its
findings on that grievance. This issue has to be left open for the trial
Court.
SUMMARY OF TRIAL COURT'S FINDINGS
32] Predominantly, the trial Court has given importance to the
agreement, in question, being prior to execution of agreement with
defendant no.14, suppression of the said agreement from defendant
No.14. The agreement in question being executed subsequent to
consent terms it will override the terms of the consent terms. The trial
Court has given one factual finding that "it appears that earlier
agreement with the plaintiff is suppressed from defendant No.14
(paragraph 18). As said earlier the suit does not involve specific
performance of the agreement with defendant No.14 but specific
performance of the agreement with the plaintiff. The issue of
suppression from defendant No.14 will arise only when defendant No.14
will ask for specific performance. For the above discussion, I agree to
some of the findings of the trial Court, whereas I differ on some of the
observations. But, what I find is that the trial Court has overlooked the
main aspect. The crux of the matter is the scope of the consent terms
and, particularly, Clauses 18 (a), (b) & (c). In the present appeals, we
are not concerned with the execution of the sale-deed in between M/s.
Ganga Developers as a purchaser and defendant Nos.1 to 13 as original
owners. The controversy is centered around sub-clauses (b) & (c) of
Clause (18). It will be material to consider it again. It is as follows :
(a) There was a distribution of 85% to the plaintiff and 15% to
Archand Rode, Ajay Kaware and Kavita Kirpane. This was in
respect of remaining land i.e. 0.12 HR. In addition to that, the
land allotted to BRO is excluded.
(b) Sub-clause (c) specifically deals with the land allotted to BRO or
land released by the Government in view of the order passed by
the High Court. The present plaintiff has agreed to
cancel/relinquish the claim over this land.
We need to address the issue by considering all these aspects. Clause
(c) specifically refers to the land allotted to BRO. There is a specific
reference that the plaintiff has cancelled his claim over the land
described in Clause (c). Even if, we presume the said clause, at this
stage, there is a correspondence, which suggests that the plaintiff has
followed up the matter with the Government. It is important to note
that irrespective of Clause 18(c), there is also Clause 18(b). Regarding
to this clause, there is an agreement about apportionment as 85% and
15%. Probably, connected suit filed before the Senior Division Court
may relate to this land.
33] Considering all these controversies, it is a vexed question,
that is to say the land released admeasuring 7840 sq. mtrs. relates to
the arrangement noted down in Clause 18(b) or in Clause 18(c). So, this
Court is of the opinion that neither of the parties have come with the
case that either one of them is to be believed totally, because once the
land is released, further steps regarding development of that land will
follow. It will include submission of the plan for development, sanction
of the plan, erecting construction and creating third party interest. So,
what this Court feels is that, in order to avoid further complications, it
will be in the fitness of the things to injunct both the sets of defendants
from creating third party interest in respect of the suit land. Defendant
No.14 needs to be injuncted, because in the released letter, copy is
addressed to him. So also, there is an agreement in his favour, which is
not disputed by the contesting owners (though disputed by the plaintiff
and legal representatives of defendant No.8). The trial Court is right
that "agreement in question and Power of Attorney" is not cancelled by
the original owners.
34] Non-explanation by the plaintiff about execution of the
agreement in question in spite of Clause 18(c) of the Consent Terms is
considered as a factor against the plaintiff. Whether signatures are
genuine or not can be decided during trial only. But, this Court also
feels that the plaintiff also needs to be put to conditions, because if the
plaintiff will lose in the suit, unnecessarily it amounts to haulting the
development activities. So, this Court feels that the plaintiff needs to
be given direction to furnish, though not bank guarantee, but an
undertaking that he will reimburse the loss to the contesting owners
and defendant No.14. It is difficult to quantify the loss. It will also be
difficult to predict that the plaintiff will lose or he may succeed also. It
is true that the land is situated in Nagpur Tahsil. The area of the suit
land is 4601.1918 Sq. mtrs sq.mtrs. It will be subject to development
as per the FSI available. This Court is aware that valuation of the flat in
the city is not less than Rs.50,00,000/- (for two BHK). Everything
cannot be predicted at this stage. So, this Court feels that the plaintiff
needs to be directed to give an undertaking to reimburse the loss if the
suit is dismissed. To ensure this the plaintiff can be directed to give an
undertaking to the tune of Rs. 3 Crores. Court do not want to opine
that the suit will be dismissed definitely or that defendants will suffer
loss only. Defendants may suffer and may succeed or may not succeed
in proving the loss/damage due to confirmation of injunction. So the
figure of Rs.3 Crore is tentative figure. It may or may not increase
Rs.3 Crore. Even there may be a contingency that defendants may
forgo to give evidence or may not succeed after giving evidence. So
this Court has kept all options open. This condition is imposed so as to
protect the interest of defendants.
35] So, prima facie, balance of convenience and irreparable loss
are not totally cent percent in favour of the plaintiff. But, this Court has
protected the plaintiff for the reason of avoiding further complications.
The order of the trial Court needs to be modified to certain extent.
36] At this stage, I am not impressed by the objection of learned
Advocate Shri Dharmadhikari about belated filing of the suit. The
agreement in question may be of the year 2013, but suit is filed on the
basis of release of the land as per letter dated 11/01/2018. The
observations in the case of Sopanrao & another vs. Syed Mehmood &
others, reported in 2019 (7) SCC 76, are in respect of a suit for
declaration. These observations are after full-fledged trial. It is on the
point of grant of not full, but lesser relief. It falls within the domain of
the Court. Hence, the following order is passed :-
ORDER
(i) Both the appeals are partly allowed.
(ii) The order dated 21/12/2019 passed in Special Civil Suit
No.843/2018 is modified as follows :
(a) Defendant Nos.1 to 14 are hereby restrained from selling
or creating any third party interest and from changing
the nature of the suit property subject to furnishing an
undertaking by the plaintiff to reimburse loss, damage or
compensation ensued to the appellants in A.O. Nos.19 &
22 of 2020, if the suit will be dismissed on any count.
(b) To ensure that plaintiff will reimburse loss/damage/
compensation, he is directed to give an undertaking to
the tune of Rs. 3 Crores.
(c) While disposing of the suit trial Court may decide the
loss/compensation/damage to the appellants, if any, if
the suit is dismissed.
(d) Appellants are at liberty to amend written statement if
any and also at liberty to adduce evidence.
(e) The plaintiff is given one month time to furnish the
undertaking.
(S.M. MODAK, J.)
*sandesh
