Bombay High Court
Ajay Bipinchandra Jhaveri And Ors vs Mr. Salim Saddrudin Khoja Through ... on 12 September, 2023
Bench: Amit Borkar
2023:BHC-AS:26706
19-cra869-2012.doc
VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.869 OF 2012
Ajay Bipinchandra Jhaveri & Ors. ... Applicants
V/s.
Salim Saddrudin Khoja,
Through His PoA Holder
Sheetal Kishanchand Tejwani & Ors. ... Respondents
WITH
INTERIM APPLICATION NO.356 OF 2021
IN
CIVIL REVISION APPLICATION NO.869 OF 2012
Ajay Bipinchandra Jhaveri & Ors. ... Applicants
V/s.
Salim Saddrudin Khoja,
Through His PoA Holder
Sheetal Kishanchand Tejwani & Ors. ... Respondents
WITH
CIVIL APPLICATION NO.137 OF 2014
IN
CIVIL REVISION APPLICATION NO.869 OF 2012
Salim Saddrudin Khoja,
Through His PoA Holder
Sheetal Kishanchand Tejwani & Ors. ... Applicants
V/s.
Ajay Bipinchandra Jhaveri & Ors. ... Respondents
Mr. V. P. Sawant, Senior Advocate with Mr. Prabhakar
Jadhav for the applicants.
Mr. T. D. Deshmukh with Mr. Anshuman Deshmukh
with Mr. H. D. Chavan i/by Mr. Sagar Kursija for
respondent No.1.
1
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19-cra869-2012.doc
CORAM : AMIT BORKAR, J.
DATED : SEPTEMBER 12, 2023
P.C.:
1. Challenge in this revision application is to the order dated
23rd July 2012, passed by the Trial Court rejecting the applications
filed by defendant Nos.23, 26 and 36 under Order 7 Rule 11 of the
Civil Procedure Code, 1908.
2. The respondent No.1 is original plaintiff who filed Special
Civil Suit No.2223 of 2010 seeking a relief that sale deed dated 2 nd
March 2010 executed by defendant Nos.23 to 35 in favour of
defendant No.36 be declared as not binding on the plaintiff and
for cancellation of such sale deed. A consequential injunction
against defendant No.36 not to create third party rights and not to
construct over the suit property is also prayed for. The plaint is
based on following material facts:
(i) Agreement to sell dated 21st May 2004 is executed by
defendant Nos.2 to 12;
(ii) Filing of earlier suit for specific performance of
agreement to sell dated 21st May 2004 wherein the Trial
Court rejected the application under Order 7 Rule 11 of the
Civil Procedure Code, 1908, filed by defendant No.6;
(iii) Certificate issued under section 32(M) of the Bombay
Tenancy and Agricultural Lands Act, 1948 (hereafter, "the
Act, 1948", for short) on 22 nd March 2001, is obtained by
collusion;
19-cra869-2012.doc
(iv) The provisions of the Act, 1948, are not applicable to
the suit property as the property is within the municipal
limits;
(v) Execution of sale deed by defendant Nos.23 to 35 in
favour of defendant No.36 despite knowledge of pendency of
Special Civil Suit No.1235 of 2007;
(vi) Proceedings challenging certificate under section
32(M) of the Act, 1948, issued in favour of legal
representatives of the original tenant pending before tenancy
authorities.
3. In such a suit the applicants filed an application under Order
7 Rule 11(a) of the Civil Procedure Code, 1908, on the ground that
the plaint discloses no cause of action. The Trial Court rejected the
application holding that the defendants are also disputing legality
and validity of the agreement to sell and grant of relief is
depending on decision in Special Civil Suit No.1235 of 2007. The
plaintiff being purchaser pendente lite right to seek such
declaration cannot be denied.
4. Learned senior advocate for the applicants invited my
attention to the averments in the plaint and the documents
annexed along with the plaint. According to him, on 22 nd March
2001, i.e. the date when the certificate under section 32(M) of the
Act, 1948, was issued in favour of the tenant, rights of the land-
lord over suit property extinguished. He submitted that on 28th
February 2003, appeal filed by the land lords challenging issuance
of certificate under section 32(M) of the Bombay Tenancy and
19-cra869-2012.doc
Agricultural Lands Act, 1948, was dismissed. On 21 st May 2004,
legal representatives of the land-lord has executed agreement to
sell in favour of the plaintiff on which date legal representatives of
the land-lord had no right, title and interest in the suit property.
With the result, they could not have transferred better title that
themselves. Based on such document, the plaintiff cannot claim
any right over the suit property.
5. Learned advocate for the plaintiff submitted that there is
difference between no cause of action and failure to disclose cause
of action. In the facts of the case at the most, the plaint can be
termed as a suit failing to disclose cause of action but certainly it
could not be termed as a plaint with no cause of action. In support
of his submission, he placed reliance on the judgment of the
Division Bench of this Court in the case of M.V. "Sea Success I"
vs. Liverpool and London Steamship Protection and
Indemnity Association Ltd. reported in 2002 Bombay 151.
6. I have heard counsels for the parties. On consideration of
documents on record, following factual scenario emerges:
(i) On 22nd March 2001, under section 32(M) of the
Bombay Tenancy and Agricultural Lands Act, 1948,
certificate issued in favour of the legal representatives of the
tenant;
(ii) On 28th February 2003, appeals filed by the
representatives of the land lord were dismissed by the
appellate authority under Bombay Tenancy and Agricultural
Lands Act, 1948;
19-cra869-2012.doc
(iii) On 21st May 2004, representatives of the land lord
executed agreement to sell of suit property in favour of the
plaintiff;
(iv) On 2nd March 2010, defendant Nos.23 to 35 executed
sale deed of suit property in favour of defendant No.36;
(v) On 30th September 2010, the plaintiff filed present
Special Civil Suit. No.2223 of 2010;
(vi) The Trial Court by order dated 23rd July 2012 rejected
the application under order 7 Rule 11 of the Civil Procedure
Code, 1908.
7. On overall consideration of the factual scenario which
emerges based on the plaint and the documents furnished along
with the plaint, it appears that on the date of execution of
agreement to sell in favour of the plaintiffs i.e. on 21 st May 2004,
the legal representatives of the land-lord had no right, title and
interest over the suit property in view of extinguishment of their
rights by issuance of certificate under section 32(M) of the Act,
1948. Section 32(M) of the Act, 1948, confers status of conclusive
proof of contents thereof to certificate under said section. Such
certificate amounts to extinguishment of right, title and interest of
the land-lord over the suit property. Therefore, legal
representatives of the land-lord on 21 st May 2004, could not have
executed agreement to sell in favour of the plaintiff. Resultantly,
the plaintiff cannot claim enforceable right based on such
agreement to sell against legal representatives of tenant and
subsequent purchasers.
19-cra869-2012.doc
8. Undisputedly, the suit is based on agreement to sell dated
21st May 2004 which is unenforceable against legal representatives
of tenants and subsequent purchasers. Therefore, the relief prayed
by the plaintiff in the suit is not available to the plaintiff.
Therefore, the Trial Court ought to have allowed the application
under Order 7 Rule 11(d) of the Civil Procedure Code, 1908.
Hence, following order:
a) The impugned judgment and order passed by the Trial
Court dated 23rd July 2012 by 6th Additional Judge, Small
Causes Court, Pune in Special Civil Suit No.2223 of 2010
below Exhibits-51, 74 and 81 is set aside;
b) The applications below Exhibits-51, 74 and 81 in
Special Civil Suit No.2223 of 2010 are allowed;
c) The Special Civil Suit No.2223 of 2010 stands
dismissed.
9. The civil revision application stands disposed of. No costs.
10. In view of disposal of the civil revision applications, all
interim applications do not survive the same stand disposed of.
(AMIT BORKAR, J.)
