Gujarat High Court
Jahangirkhan Mahebubkhan Pathan vs Shardaben D/O Mangaji Shanaji on 25 August, 2021
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/FA/2493/2020 JUDGMENT DATED: 25/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2493 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
Circulate this judgment in the subordinate judiciary
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JAHANGIRKHAN MAHEBUBKHAN PATHAN & 9 other(s)
Versus
SHARDABEN D/O MANGAJI SHANAJI & 16 other(s)
==========================================================
Appearance:
MR APURVA R KAPADIA(5012) for the Appellant(s) No.
1,10,2,3,4,5,6,7,8,9,9.1,9.2,9.3
DECEASED LITIGANT(100) for the Defendant(s) No. 7.2.1,8
DS AFF.NOT FILED (R)(71) for the Defendant(s) No. 11,12,13
MR ANUJ K TRIVEDI(6251) for the Defendant(s) No. 17
NOTICE SERVED BY DS(5) for the Defendant(s) No.
1,14,15,16,2,3,4,5,6,7.1.1,7.2,7.3
NOTICE UNSERVED(8) for the Defendant(s) No. 7.1.2,7.1.3,7.1.4
UNSERVED EXPIRED (N)(9) for the Defendant(s) No. 10,9
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Page 1 of 45
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C/FA/2493/2020 JUDGMENT DATED: 25/08/2021
Date : 25/08/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. This First Appeal under Section 96 of the Code of Civil
Procedure Code, 1908 is at the instance of the original
plaintiffs and is directed against the order dated 20.1.2017
passed by the 3rd Additional Senior Civil Judge, Ahmedabad
below Ex.27 in the Special Civil Suit No.231 of 2012, by
which the plaint came to be rejected under the provisions of
Order VII Rule 11(a) and (d) of the Code of Civil Procedure.
2. The facts giving rise to the appeal are summarized as
under :-
2.1 The appellants herein are the original plaintiffs. The
respondents are original defendants.
2.2 The appellants (original plaintiffs) instituted the present
suit stating that the land bearing Survey/Block Nos.593, 594,
595 and 596 respectively situated at mouje Village : Ramol,
Taluka Dascroi, District Ahmedabad are of the joint ownership,
possession and in occupation of the plaintiffs and there is a
room constructed on the eastern side of the said parcels of
land near a well and the said room is also in possession and
occupation of plaintiffs. The above referred room is meant for
storing the farming equipments.
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2.3 The defendants Nos.1 to 13 are members of one family.
The defendants Nos.14 and 15 are father and son whereas the
defendant No.16 is a Company and according to the plaintiffs
the defendant No.15 is the Director who undertakes the
business of the respondent No.16 Company.
2.4 According to the plaintiffs, the land owners had agreed
to sell the suit land bearing surveys no.593 to 596 to the
elders of the plaintiffs and accordingly the original owners
executed the agreement to sell with the plaintiffs on
25.02.1976 and on 10.06.1976 respectively. The plaintiffs paid
an amount of Rs.6000 as earnest money towards the sale
consideration on 25.02.1976. It is also the case of the plaintiffs
that at the relevant point of time, vacant and peaceful
possession of said land was handed over by the original
owners of the land to the plaintiffs and since then the
plaintiffs are in possession and occupation of the said land
which is within the knowledge of one and all. The original
land owners were in need of money and hence, they requested
the plaintiffs for the same and accordingly one more document
was executed in favor of the plaintiffs and the plaintiffs paid
the additional amount of Rs. 19,000/- [in all Rupees Nineteen
thousand only] to the land owners and since then the plaintiffs
are in possession and occupation of said land. The plaintiff
No.1 filed one form before the Competent Authority for
availing irrigation connection in the year 1979 for the suit land
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and the same was granted. The land is an agricultural land
and the plaintiffs are cultivating the said land for the purpose
of growing "Juvar".
3. It is the case of the appellants that in view of the fact
that the original owners had entered into an agreement to sell
with the appellants and that the appellants are in possession of
the suit land, the original land owners could not have entered
into sale deeds with the defendants with respect to the suit
land. The transactions between the appellants and the original
owners as also the defendants are produced in the tabular
form:-
Serial Date
No.
1 25.02.1976 & Agreement to sale dated 25.02.1976 and
10.06.1976 10.06.1976 were executed in favour of the
appellants by the defendant no.1 to 13.
2 03.08.2006 Defendant no.8 to 11 executed registered sale
deed for survey no.593 and survey no.595 in
favour of defendants no.14 and 15 on
03.08.2006. Defendant no.12 and 13 are
signatory to the sale deed as the confirming
party.
3 14.05.2008 The defendant no.14 and 15 executed a
registered sale deed in favour of the
defendant no.16 for survey no.593
admeasuring 2671 square meters of land and
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survey no.595 admeasuring 5767 square
meters on 14.05.2008.
4 03.06.2008 Defendant no.7 executed a registered sale
deed in favour of defendant no.14 and 15 for
the survey no.594 admeasuring 1204 square
meters of land and survey no.596
admeasuring 1205 square meters of land.
5 23.06.2009 The defendant no.14 and 15 executed a
registered sale deed in favour of defendant
no.16 on 23.06.2009 of survey no.594
admeasuring 1754 square meters of land and
survey no.596 admeasuring 1551 square
meters of land wherein the defendant no.2 to
6 have signed as confirming parties.
4. The cause of action pleaded in the plaint in para-16 (true
translation) reads as under :-
"The cause of action for filing of the Suit is that, the
land in question was sold to the Plaintiffs by the
original owner by accepting the total Sale
Consideration and possession was handed over to the
plaintiffs and since then the Plaintiffs are cultivating
the land and getting the agriculture produce on the
land and as the original land owners instituted RCS
No 192/1998 and carried out Panchnama and since
we the plaintiffs applied to join as party to the
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proceedings since then and preferred other RCS No
718/2006 in which we gave application to join as
party to proceedings and Hon'ble Court allowed it and
original land owners preferred Complaint against us
before Executive Magistrate and since than Town
Planning Officer published advertisement against
which we raised objections and since than in the year
of 2010 Defendant No. 15 tried to illegally trespass
for which we preferred Complaint against them and
upon making investigation of the revenue record from
office of Sub Registrar and above 4 to 5 days ago,
Defendants tried to take possession with ulterior
motive, the cause of action has arose within local
jurisdiction of this Hon'ble Court and the same is
continuing."
5. In such circumstances referred to above, the appellant
(original plaintiff) was constrained to institute the Special Civil
Suit No.231 of 2012 seeking the following reliefs (true
translation) :-
"(a) Your Honor may be pleased to hold and declare
that Plaintiffs are in the possession of the suit property
mentioned in paragraph 1 and further be pleased to
declare that plaintiffs are the owners and in possession of
the suit property bearing Land bearing Survey/Block No
593 having area of which admeasuring hector 0-41-48 sq
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mtrs having aakar Rs.3.06 paisa, Survey/Block No 594
having area of which admeasuring hector 0-52-61 sq mtrs
having aakar Rs. 3.87 paisa, Survey/Block No 595 having
area of which admeasuring hector 0-57-67 sq mtrs having
aakar Rs. 4.69 paisa, Survey/Block No 596 having area of
which admeasuring hector 0-46-54 sq mtrs having aakar
Rs. 3.81 paisa situated at mouje Ramol Village, Taluka
Dascroi, District Ahmedabad whose description is
mentioned in Para No.1 of the Suit Plaint that and further
be pleased to declare that, neither Defendants nor their
agents, representative, servants, companions, have any
right, title or interest over the suit land and pass the
decree to the said effect in favour of plaintiffs.
(b)Your Honor may be pleased hold and declare that the
execution of Sale Deed dated 03/08/2006 vide Sr No 4303
in favour of defendants no 14 and 15 for the Survey no
593 and 595 be declared as illegal and void ab initio and
further be pleased to hold and declare that the sellers
have no right to execute such sale deed and the
purchasers have no right, title or interest over the suit
property based on the said sale deed and further be
pleased to hold that the same is not binding to the
plaintiffs and be pleased to hold that the sale deed is void
ab initio.
(c) Your Honor be pleased to hold and declare that
execution of sale deed dated 14/05/2008 vide sr no 5114
in favour of defendants no 16 of survey no 593, Town
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Planning Scheme No 107, Final Plot No 58 admeasuring
2671 sq mtrs of land and survey no 595, 5767 sq mtrs
and Town Planning Scheme No 107 final plot no 60
admeasuring 3460 sq mtrs of land be declared as illegal
and void ab initio and further be pleased to hold and
declare that the sellers have no right to execute such sale
deed and the purchasers have no right, title or interest
over the suit property based on the said sale deed and
further be pleased to hold that the same is not binding to
the plaintiffs and be pleased to hold that the sale deed is
void ab initio.
(d) Your Honor be pleased to hold and declare
execution of sale deed dated 03.06.2008 vide Sr.no.5627
in favour of defendant no 14 and 15 by the defendants no
7 for Survey No 594 paiki 0-12-04 and survey no 596
paiki 0-12-05 be declared as illegal and void ab initio and
further be pleased to hold and declare that the sellers
have no right to execute such sale deed and the
purchasers have no right, title or interest over the suit
property based on the said sale deed and further be
pleased to hold that the same is not binding
to the plaintiffs and be pleased to hold that the sale deed
is void ab initio.
(e) Your Honor be pleased to hold and declare
execution of sale deed dated 23.06.2009 registered vide sr
no 3715 in favour of defendant no 14 and 15 by the
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defendants no 1 where the defendants no 2 to 6 has
signed as confirming party for Survey No 594 paiki 0-17-
54 and survey no 596 paiki 0-15-51 be declared as illegal
and void ab initio and further be pleased to hold and
declare that the sellers have no right to execute such sale
deed and the purchasers have no right, title or interest
over the suit property based on the said sale deed and
further be pleased to hold that the same is not binding to
the plaintiffs and be pleased to hold that the sale deed is
void ab initio.
(f)Your Honor may be permanently restrain the
defendants, their agents, servants, from disturbing the
possession of plaintiffs of the Survey/Block No 593
admeasuring hector 0-41-48 sq mtrs having aakar Rs. 3.06
paisa, Survey/Block No 594 admeasuring hector 0-52-61
sq mtrs having aakar Rs.3.87 paisa, Survey/Block No 595
admeasuring hector 0-57-67 sq mtrs having aakar Rs. 4.69
paisa, Survey/Block No 596 admeasuring hector 0-46-54
sq mtrs having aakar Rs.3.81 paisa situated at mouje
Ramol Village, Taluka Dascroi, District Ahmedabad and
further be pleased to permanently restrain the defendants,
their agents, servants from interfering with possession and
using the suit property by the plaintiffs and further be
pleased to restrain the defendants permanently from
transferring, alienating the suit property.
(g) Your Honor may be pleased to permanently
restrain the Defendant no 17 from allotting the final plot
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of said lands of village Ramol in Town Planning Scheme
No. 107 since the Town Planning Scheme is not final and
for which objections already lodged by Plaintiffs and
further be pleased permanently restrain the defendant no
17, their agents, servants, from disturbing the possession
of plaintiffs.
(h) Your Honor is pleased to allow any other prayer
befitting to this Plaintiff, considering the factual aspect of
the suit.
(i) Your Honor is pleased to allow cost of the suit from
the Defendants."
6. The defendants Nos.14 to 16 preferred an application
below Ex.27 under the provisions of Order VII Rule 11(a) and
(d) of the Civil Procedure Code, 1908 and prayed to reject the
plaint on the ground that it fails to disclose any cause of
action and the suit is time barred.
7. The application below Ex.27 under Order VII Rule 11(a)
and (d) reads thus :-
"1. The aforementioned suit of plaintiffs is
completely false, unlawful, contains fabricated facts
and it is barred by limitation. The aforementioned
suit of plaintiffs is false, frivolous and vexatious.
We, respondents have submitted written statement
and documentary evidence in response to the
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aforementioned suit of the plaintiffs. It is requested
to read the same with this application.
2. Prima facie, the aforementioned suit of plaintiff is
barred by limitation. It was not tenable and the
same is not tenable now. It is liable to be rejected.
The aforementioned suit of plaintiffs is barred by
article-56 of the Law of Limitation Act. It is directly
established by the plotting and statement of the
aforementioned suit of the plaintiffs that the said
suit is barred by limitation. We, respondent pray to
the Hon'ble Court to exercise the judicial authority
in accordance with the provisions of C.P.C. Order-7
Rule-11(A) and (D), in the larger interest of justice,
in order to prevent burden of unnecessary cases in
the Court, wasting the valuable time and resources
of the Court and to prevent the wrongful
proceedings.
3. Considering the plaint and the pleadings at
para no.3 of the application for stay, it appears
clearly that the original owners had executed the
agreement to sell on 25/02/1976 and 10/06/1976 in
favor of the plaintiffs and their ancestors about the
disputed lands. If the said agreement to sell had
been executed by the plaintiffs or their ancestors
and the said consideration had been paid, why have
they not got the sale deed of the disputed lands
executed? As it is stated in the plaint that the said
agreement to sell was executed on 25/02/1976, the
plaintiffs and their ancestors should have filed a
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plaint for execution of agreement within three years
that is latest by 25/02/1979. But, the plaintiffs have
not done so. As the present suit of plaintiffs is filed
after the time limit, prima facie it is not legally
maintainable and therefore, it is liable to be
rejected.
4. The plaintiffs have filed the present suit after
33 years, on the basis of the so-called agreement to
sell dated 25/02/1976. It is prayed for declaration
that the registered sale deed no. 4303 dated
03/08/2006 executed by the original owners in favor
of we the respondents for the disputed lands at
Survey no. 593 and 595, the registered sale deed
no. 5114 dated 14/05/2008 executed by the original
owners in favor of we the respondents for the
disputed lands at Survey no. 593 and 595, the
registered sale deed no. 5627 dated 03/06/2008
executed by the original owners in favor of we the
respondents for the disputed lands at Survey no.
598 and 586 and the registered sale deed no. 3715
dated 23/06/2009 executed by we the respondent
no.1 in favor of we the respondent no.14 for
disputed lands at Survey no. 594 and 596 be set
aside and all the agreements be declared as void ab
initio. It has been prayed to declare that the sellers
did not have any right to execute the deeds. Also,
prayed for permanent injunction. Considering all
the facts, it is clearly evident that the plaintiffs do
not have any legal right to file such a plaint. The
original owners of the lands had executed the Sale
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Deeds of the stated lands in favor of we the
respondents. They had accepted the consideration
thereof and the sale deeds have been registered
with the office of Sub-Registrar. Therefore, as the
case of the plaintiffs is based on wrong facts and
without any authority, the same is liable to be
rejected.
5 The plaintiffs, without any entitlement, have
filed this suit on the basis of the alleged agreement
to sell dated 25/02/1976. However, the alleged
deeds have not been executed lawfully and the
plaintiffs have not obtained any ownership or direct
possession through them. Prior to filing this suit,
the plaintiffs have never filed a suit against the
original owners for execution of the alleged
agreement to sell dated 25/02/1976 till date. The
plaintiffs, by fabricating false statements and filing
this suit without any entitlement after 34 years,
have prayed for relief to set aside the above
mentioned sale-deeds executed by the original
owners in favour of us - the opponents. The
plaintiffs do not have any legal right to seek or get
such reliefs. On this ground also, the reliefs for a
declaration and a permanent injunction prayed by
the plaintiffs by filing this suit cannot be granted
legally. As the suit is barred by limitation and as the
plaintiffs, not having any ownership or direct
possession of the disputed property, have filed this
false suit and application for injunction with a
malafide intention to gain monetary benefits from
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us - the opponents in a wrongful manner and
without any entitlement due to rise in the price of
the land, the suit and the application for injunction
are prima facie liable to set aside.
6 The names of the opponents have been
registered in the revenue record of rights on the
basis of the sale-deeds. The plaintiffs have filed this
suit on the basis of the alleged agreement to sell
dated 25/02/1976 without any entitlement after 34
years. Considering it, as the suit of the plaintiffs is
barred by limitation, the suit is liable to set aside as
per the mandatory provisions of the Law of
Limitation Act.
7. The plaintiffs will not suffer any loss due to
hearing of this application and if the same is not
heard, we the respondent may suffer extensive loss
which can not be compensated in terms of money.
Principle of natural justice and balance of
convenience and principle of speedy justice are in
favor of the respondent and the plaintiff has filed
the suit falsely.
8. The plaintiff does not have any reasonable
cause to file this suit nor they have mentioned the
same. The plaint is frivolous and void due to lack of
cause. Although it is mandatory to mention the
grounds, the plaintiff has not mentioned the same.
9. The suit of the plaintiff is not tenable as the
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plaintiffs have not used the appropriate Court fee
stamp and also as the court fee stamp as per the
current market price has not been used.
10. The suit is also barred under other Act
and the plaintiffs have filed the present suit with
malicious intension. For that reason too, it is prayed
to reject the suit.
11. The suit of the plaintiffs is liable to be
rejected as the same is out of jurisdiction and
barred by time limit.
12. We the respondents pray that :-
(A) We the respondents pray to reject the suit of
plaintiffs due to the grounds mentioned in the
aforesaid application as per C.P.C. order -7 rule-
11(A) and (D)."
8. The Trial Court after considering the rival contentions of
both the parties rejected the plaint and held as under in
paragraphs 5 to 8 (true translation) :-
"5. On plain reading of application under Exh. 27 it
transpires that application is relying upon clauseA and D
of Rule11 of Order7 of CPC. As per ratio
established in various judgments delivered by
Hon'ble Apex Courts. For purpose of adjudication of
application under order 7 rule 11 only plaint can be
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taken in to consideration. On reading of reliefs claimed
by plaintiffs in the suit are to obtain declaration of
disputed sale deeds are null and void and illegal,
Hence permanent injunction should be granted as
prayed on grounds like defendants have got registered
sale deeds by collusion with each other.
6. I may refer to the statements made in the plaint
which can said to be admissions of the plaintiffs on the
record of the suit that 1. Agreement sell to the suit
property executed on 10.2.1976. 2. Revenue record viz.
form No.7-12, extract-6 etc do'nt show any right of the
plaintiff on the record as produced by the plaintiff
themselves. 3. No relief of specific performance
of the contract or order of the registration of sale deed
have been claimed in the present plaint. It means
plaintiff never sought such kind of relief till the
institution of the suit. Only agreement to sell the suit
property does not give any right or title regarding to the
suit property to the plaintiff. Hence. here is no valid
or legal cause of action to file the suit to declare the
sale deeds executed by defendant to other defendants are
null and void ab initio or restrict to defendants from use
of the rights as ownership because they purchased the
suit property by owner of the land. Hence I hold that
plaint is without cause of action to the suit.
7. 2nd question is to be considered about time limit of
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the suit. It is pertinent to note that after entering in to
agreement to sell the suit property plaintiff ought to
have been instituted the suit for compulsory registration
of sale deed and specific performance of the contract
within 3 years from the date of agreement or time
prescribed as per agreement executed between the
parties. It would be appropriate to know that what time
limit had been prescribed between predecessors of the
plaintiffs and defendants of the suit for purpose of
decision of the question when time of limitation
has started to run? Agreement dated 23.2.76
regarding to part of suit property survey no
594 indicates time for specific performance is
decided between party up to dated 31.7.77
registered sale deed would be registered. For survey no
595,. In the agreement it has stated that " No sale deed
is registered at present but when it would start to
register party shall register it, regarding to the other
survey no (survey no is illegible as xerox copies ) one
month had been fixed by the parties to the agreement.
Definite the person who is party of the
agreement must be aware of the time limit
for performance although suit for it has been not
instituted till up to date. Hence arguments of the
plaintiff that question of limitation is mixed
question of facts and law which has been supported from
the citation of the judgment of Hon'ble High court of
Gujarat, Himanshu v/s Dr. B.M.Pujari 2005(3) GLH 385
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can not be sustained further as plaintiffs were well
informed about their right from the date of execution of
agreement to sell the suit property. Contrary views taken
by Hon'ble High court of Gujarat in case of Kanjibhai
bhagwanji bhai v/s Nanduben shamjibhai in year of 2013
that when it appears to court that suit is primafacie
barred by time limit as per limitation law suit must be
rejected the plaint under o.7.rule 11 of cpc. Clever
drafting of the suit can not extend the time limit.
Therefore arguments advanced by plaintiff can not be
accepted here with.
8. Here it would be proper to note that according to
Articles 54, 58 of the part III are three years from the
date of performance for contract. and to obtain any
kind of declaration limitation for filing the suit is 3 years
from the right to sue first accrues. As points discussed
above when time limit of agreements over right accrues
at first instance on the ground of non performance of
agreement to sell the suit property. Hence, Principle
derived from authorities cited by Ld. advocate of the
defendant I hold that suit is barred by time limit as
prescribed as law of limitation the application filed under
Ex.27 entitled to be allowed and plaint is liable to be
rejected as discussed here in above. Therefore, In
interest of justice following order is passed herewith.
O R D E R
This application under Exh.27 under O.7 Rule 11
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rejection of plaint is hereby granted.
Suit is rejected herewith under order 7.Rule 11 of cpc
Necessary order may be passed under exhibit1 Plaint.
cost of the suit of defendant must be born by plaintiff.
Decree is drawn accordingly herewith."
Submissions on behalf of the appellants (original
plaintiffs) :-
9. Mr. Apurva R. Kapadia, the learned counsel appearing for
the appellants submitted that the appellants are in possession
of the suit land which was handed over by the original land
owners pursuant to agreement to sell dated 25.2.1976 and
10.6.1976 respectively entered into between the appellants and
the original land owners. The appellants on the basis of
agreement to sell are occupying the suit land and are
cultivating the land. The appellants over and above are
carrying on agricultural activities and also sought permission
for irrigation from the competent authority and the same is in
the name of the appellants and at present the appellants are
cultivating the crop of 'Juar'. The appellants paid an amount
of Rs.6000/- towards sale consideration to the original land
owners on 25.2.1976 by way of earnest money and also paid
an additional amount of Rs.19000/- to the land owners since
they were in need of money and resultantly the appellants are
in possession of the suit land since then.
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9.1 Mr. Kapadia submitted that the defendants instituted
Regular Civil Suit No.192 of 1998 against the plaintiffs in the
Court of Principal Civil Judge, Ahmedabad Rural for the
disputed land in which the panchnama was drawn from which
it clearly transpires that the possession and occupation of the
land is with the appellants and the appellants are deriving
agricultural income by cultivating the said land. It was further
submitted that since the dispute arose between the elders of
the appellants there were Court proceedings and a decree was
drawn in the year 1981 which again held that the appellants
were in possession and occupation of the suit land. When the
defendant No.16 issued a public notice, the appellants filed
objections to the said public notice. The defendants instituted
Regular Civil Suit No.178 of 2006 before the Principal Judge,
Ahmedabad Rural and in the said suit the appellants filed an
application for joining as party and the appellants are joined
as defendants in the suit. The appellants also filed objections
against the implementation of the town planning scheme in
Ramol village pursuant to the notice published on 5.11.2010.
9.2 Mr. Kapadia submitted that though the appellants were
in possession of the land which never belongs to the
defendants it came to the knowledge of the appellants that the
defendants Nos.8 to 11 had sold the suit land bearing Survey
No.593 to defendants Nos.14 and 15 by registered sale deed
No.4303 on 3.8.2006 and that the defendants Nos.12 and 13
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were confirming party to the sale deed and he mentioned that
the defendants Nos.8 to 11 would hand over possession of the
suit land to the defendants Nos.14 and 15. It was submitted
that it was not open for the defendants i.e. original landlord to
hand over possession to the subsequent purchaser since they
could not have a better title than the appellants as also the
purchaser did not possess any title over the land in question.
Therefore, the sale deeds entered into by the original landlord
with the defendants was not sustainable in the eye of law and
the same were illegal and void.
9.3 It was submitted that the defendants Nos.14 and 15 by a
sale deed dated 14.5.2008 registered as No.5114 executed in
favour of the defendant No.16 Company and the defendant
No.15 was the Director of defendant No.6 Company, who
executed and signed the sale deed and, therefore, the said sale
deed is illegal and void. It was submitted that though it is
mentioned in the sale deed that the defendants would hand
over possession of the suit land, the defendants were never
actually in possession of the said suit land and the appellants
have been in possession of the suit land since 1976 and as on
date the appellants are in possession of the suit land and,
therefore, handing over possession to the subsequent purchaser
does not arise.
9.4 Mr. Kapadia would submit that though the suit land is
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in possession and occupation of the plaintiffs, the defendant
No.15 tried to take over possession of the suit property by
trespassing and, therefore, brother of the plaintiffs Jajaykhan
Mehbubkhan registered a FIR being CR No.I-157 of 2020
against the defendant No.15 and the defendant No.15 in turn
lodged a complaint against the appellants. He submitted that
since the defendant No.15 tried to trespass the suit land which
is duly occupied and cultivated by the appellants, the
appellants were constrained to institute the present suit against
the defendants.
(9.5-A) Mr. Kapadia submitted that the learned trial Court
committed an error in not appreciating the fact that the
property was handed over to the plaintiffs after executing the
agreement to sell and the same was forming part of the
panchnama which was carried out by a Court Commissioner in
the Regular Civil Suit No.192 of 1998 and, therefore, the sale
deed executed in favour of the defendants are at a subsequent
point of time and, therefore, the plaint could not have been
rejected for want of cause of action and that there was delay
of 33 years in filing the suit.
(9.5-B) He further submitted that the learned trial Court
failed to appreciate the fact that the plaintiffs are in possession
of the suit property pursuant to the agreement to sell dated
25/02/1976 and 10/06/1976 and merely on the basis of the
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sale deed executed in favour of the defendants Nos.14 to 17
the plaint could not have been rejected without permitting the
plaintiffs to lead cogent evidence.
(9.5-C) He further submitted that the appellants are party
to other suit proceedings which are pending and, therefore, the
learned trial Court has erred in coming to the conclusion that
the suit is initiated by the appellants after a period of 33 years
and that the same is barred by delay and latches.
(9.5-D) Mr. Kapadia submitted that the learned trial
Court has also committed an error in rejecting the plaint on
the ground of delay under the provisions of Order VII Rule
11(d) though it was pointed out to the Court that the law is
well settled that question of delay is a mixed question of law
and fact and that the application could not have been rejected
under Order VII Rule 11(d).
(9.5-E) He lastly submitted that the learned trial Court has
committed grave error in rejecting the plaint under Order VII
Rule 11 and the suit is required to be heard on its own merits
by leading cogent evidence on its own merits.
Submissions on behalf of the respondents (original
defendants Nos.14, 15 and 16) :-
10. Mr.Ankit Pandya, the learned counsel appearing for the
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original defendants Nos.14 to 16 submitted that the suit filed
by the appellants is time barred. It was submitted that the
ancestor of the appellants had entered into an agreement to
sell with the original owners. Two agreements to sell
25/02/1976 and 10/06/1976 respectively came to be executed.
No sale deed came to be executed pursuant to the agreement
to sell. It was submitted that in view of above if the appellants
were interested in purchasing the suit property then they were
required to enter into a registered sale deed which they failed
to execute. The suit is barred by law since the appellants
ought to have instituted the suit within a period of three years
after execution of agreement to sell dated 25/02/1976 and
10/06/1976 respectively. However, having failed to do so the
suit is barred by delay and laches and the trial Court has
rightly rejected the plaint. It was further submitted that the
defendants had purchased the property by registered sale deeds
and, therefore, the declaration sought for by the appellants
pursuant to the agreement to sell dated 25.2.1976 which is
after a span of 33 years is rightly rejected.
Analysis :-
11. Having heard the learned counsel appearing for the
parties and having gone through the materials on record, the
only question that falls for our consideration is whether the
Court below committed any error in rejecting the plaint.
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11.1 We are of the view that the trial Court has not been able
to understand the subject matter of the suit. In other words,
the trial Court has not been able to understand the true nature
of the relief which is sought to be prayed for by the plaintiffs.
It is not in dispute that there are two agreements for sale
dated 25.2.1976 and 10.6.1976 respectively duly executed in
favour of the plaintiffs by the defendants Nos.1 to 30
respectively. It is the case of the plaintiffs that since 1976 they
are in possession of the suit property. There are averments in
this regard in the plaint and supported by prima facie
documentary evidence in this regard. The trial Court is under a
serious misconception of law while saying in the impugned
order that how can the plaintiffs seek to enforce the two
agreements to sell of the year 1976 after so many years and
more particularly when the suit property stood transferred for
four times between 2006 and 2009. The trial Court proceeded
on the footing as if the plaintiffs are praying for specific
performance of the two agreements. The case of the plaintiffs
is very plain and simple. They seek protection from the Court
so far as their possession is concerned. It is altogether a
different issue whether if the plaintiffs would have prayed for
specific performance of the two agreements for sale, then such
relief could be said to have been time barred or not. We also
proceed on the footing that the plaintiffs have lost the
limitation even to challenge the sale deeds.
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11.2 The aforesaid should have been examined by the Court
below keeping in mind the provisions of Section 53-A of the
Transfer of Property Act.
11.3 Before proceeding further, it will be relevant to have a
look on the provisions of Section 53-A of T.P.Act, which reads
as follows :-
"53A. Part performance.--Where any person contracts to
transfer for consideration any immovable property by writing
signed by him or on his behalf from which the terms necessary
to constitute the transfer can be ascertained with reasonable
certainty, and the transferee has, in part performance of the
contract, taken possession of the property or any part thereof,
or the transferee, being already in possession, continues in
possession in part performance of the contract and has done
some act in furtherance of the contract, and the transferee has
performed or is willing to perform his part of the contract,
then, notwithstanding that 2[***] where there is an instrument
of transfer, that the transfer has not been completed in the
manner prescribed therefor by the law for the time being in
force, the transferor or any person claiming under him shall be
debarred from enforcing against the transferee and persons
claiming under him any right in respect of the property of
which the transferee has taken or continued in possession,
other than a right expressly provided by the terms of the
contract:
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Provided that nothing in this section shall affect the rights of
a transferee for consideration who has no notice of the
contract or of the part performance thereof."
2[***] The words, "the contract, though required to be
registered, has not been registered, or" were omitted by Act
No.48 of 2001 w.e.f. 24.09.2001. Section 12 of the Act No.48
of 2001 regarding the application of Section 10 vide which the
above words were deleted, provides as follows:-
"12. Saving.--Notwithstanding anything contained in Section
6 and 10, any--
(a) right of a transferor or any person claiming under him
debarred under Section 53-A of the Transfer of Property Act,
1882 immediately before the commencement of this Act shall
remain so debarred as if Section 10 had not come into force in
respect of such right;"
11.4 The Supreme Court while considering the scope of
Section 53-A of T.P.Act, in case of Delhi Motor Company vs.
U.A.Basrurkar (dead) by his Lrs and others, AIR 1968 Supreme
Court 794, has observed as follows :-
"In our opinion, this argument proceeds on an incorrect
interpretation of Sec. 53-A, because that section is only meant
to bring about a bar against enforcement of rights by a lessor
in respect of property of which the lessee had already taken
possession; but not give any right to the lessee to claim
possession or to claim any other rights on the basis of an
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unregistered lease. Section 53-A of the Transfer of Property Act
is only available as a defence to a lessee and not as conferring
a right on the basis of which the lessee can claim rights
against the lessor."
11.5 The bare perusal of Section 53-A T.P. Act would
indicate that a person claiming protection of Section 53-A, has
to prove that he has a contract in his favour for transfer of
immovable property in writing signed by the transferor or on
his behalf from which the terms necessary to constitute the
transfer can be ascertained with reasonable certainty. The
possession has been delivered to the transferee in part
performance of the contract or where he was already in
possession he continues in possession in part performance of
the contract and has done some act in furtherance of the
contract and the transferee has performed or willing to perform
his part of the contract.
11.6 The above terms as laid down in Section 53-A of T.P.
Act specifically provide that in addition to the terms of written
contract, delivery of possession to the transferee, it is required
to be proved by the transferee that he has done some act in
furtherance of the contract and has performed or is willing to
perform his part of the contract.
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11.7 The learned counsel appearing for the plaintiffs has
argued that the entire sale consideration was paid by his
clients and his clients were put into possession of the suit
property way back in the year 1976. He argued that his clients
are in settled possession of the suit property by virtue of the
two agreements for sale. In such circumstances, according to
the learned counsel, the plaintiffs are entitled to protection of
Section 53-A of the T.P.Act.
11.8 It is well settled that a person in possession, pursuant
to a contract for sale, does not get title to the land unless
there is a valid document of title in his favour. In the
instant case the plaintiffs came into possession in
pursuance of the two agreements for sale but no valid deed
of title was executed in their favour. Therefore, the ownership
remained with the original owners i.e. defendants Nos.1 to 13
respectively. But even in the absence of a valid deed of title
the possession pursuant to an agreement of transfer cannot
be said to be illegal and the transferee is entitled to remain
in possession. If by any chance they are dispossessed by the
transferor they can recover possession. The transferor cannot
file any suit for getting back possession but all the same he
will continue to be the owner of the land agreed to be
transferred.
11.9 In the aforesaid context, we may refer to a Full Bench
decision of the Bombay High Court in the case of Sadashiv
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Chander Bhamgare vs. Eknath Pandharinath Nangude, AIR
2004 Bom 378.
11.10 The special Bench was constituted to consider the
following question :-
"Whether a suit simplicitor for injunction which is filed
seeking protection under Section 53-A of the Transfer of
Property Act is maintainable".
The Full Bench answer the reference as under :-
"5. For the purpose of deciding this reference we are taking
following as admitted position:
i. that the plaintiff was given possession of the suit
property pursuant to an agreement of sale;
ii. The" plaintiff has paid the amount of the agreed
consideration substantially;
iii. The defendant has not executed sale-deed in favour of
the plaintiff;
iv. The plaintiff continues to be in possession of the land
though there is no sale deed in his favour,
v. The plaintiff filed a civil suit seeking a decree of
perpetual injunction against the defendant, who is transferor,
restraining him from disturbing the possession of the plaintiff;
6. Section 53-A of the Act, which falls for consideration reads
as under:--
53-A. Part performance.-- Where any person contracts to
transfer for consideration any immoveable property by
writing signed by him or on his behalf from which the
terms necessary to constitute the transfer can be ascertained
with reasonable certainty, and the transferee has, in part
performance of the contract, taken possession of the
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property or any part thereof, or the transferee, being
already in possession, continues in possession in part
performance of the contract and has done some act in
furtherance of the contract,and the transferee has performed
or is willing to perform his part of the contract, then,
notwithstanding that where there is an instrument of
transfer, that the transfer has not been completed in the
manner prescribed therefor by the law for the time being in
force, the transferor or any person claiming under him shall
be debarred from enforcing against the transferee and
persons claiming under him any right in respect of the
property of which the transferee has taken or continued in
possession, other than a right expressly provided by the
terms of the contract:
Provided that nothing in this Section shall affect the rights
of a transferee for consideration who has no notice of the
contract or of the part performance thereof.
Section 53-A did not find place in the Transfer of Property
Act. It was inserted by Act 20 of 1929. The Supreme Court in
its judgment in the case of Shrimant Shamrao Suryavanshi and
Anr. v. Pralhad Bhairoba Suryavanshi (dead) by Lrs. and Ors.,
has considered the circumstance in which it became necessary
for the Government to set up a Special Committee for making
recommendation whether the British equitable doctrine of part-
performance be extended to India also. The Supreme Court in
paragraph 15 of its judgment in the case of Shrimant
Suryavanshi referred to above has referred to the aims and
object of the Amending Act, 1929 insofar as provisions
of Section 53-A are concerned and has observed that the
purpose behind enacting Section 53-A was to provide
protection to a transferee who in part performance of the
contract has taken possession of the property even after
limitation to bring a suit for specific performance has expired.
Perusal of the provisions of Section 53-A shows that before the
transferee becomes entitled to claim protection of the
provisions of Section 53-A of the Transfer of Property Act, he
has to satisfy certain conditions. Those conditions are
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(i) there must be a contract for transfer for consideration of
any immoveable property;
(ii) the contract must be in writing, signed by the transferor,
or by someone on his behalf;
(iii) the writing must be in such words from which the terms
necessary to construe the transfer can be ascertained;
(iv) the transferee must in part-performance of the contract
take possession of the property, or of any part thereof;
(v) the transferee must have done some act in furtherance of
the contract; and
(vi) the transferee must have performed or be willing to
perform his part of the contract;
7. For the purpose of deciding this reference we are
proceeding on the basis that the plaintiff, transferee, has
complied with all these conditions which are necessary to be
complied with in terms of the provisions of Section 53-A of
the Transfer of Property Act for the transferee to be entitled
to claim the equity under Section 53-A of the Act to protect
his possession of the suit property.
8. Therefore, the only controversy to be considered is whether
the transferee is entitled to maintain the suit seeking a decree
of perpetual injunction restraining the transferor from
disturbing his possession.
9. Perusal of the above quoted Section 53-A shows that the
provision does confer right on the transferee if the conditions
of that Section are fulfilled. The right that is conferred on
such a transferee is to have the transferor or any person
claiming under him barred from enforcing against the
transferee and person claiming under him any right in respect
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of the property of which the transferee has taken or continued
in possession. Thus the right that is conferred on the
transferee is that as against the transferor or any person
claiming under him the transferee can protect his possession.
The purpose behind Section 53-A is thus to provide a shield of
protection to the proposed transferee to remain in possession
against the original owner who has agreed to sell the land to
the transferee if the proposed transferee satisfies other
conditions of Section 53-A. That protection is available to the
transferee as a shield against the transferor and would
disentitle the transferor from disturbing the possession of the
proposed transferee who is put in possession pursuant to such
agreement. But this has nothing to do with the ownership of
the proposed transferor who remains full owner of the land till
it is legally conveyed by sale-deed to the proposed transferee.
In other words on the basis of the provisions of Section 53-A,
the proposed transferee, who is in possession, cannot claim
title. On the basis of Section 53-A the transferee in possession
cannot institute a suit for declaring himself as the owner of
the land.
10. So far as the judgment of the learned Single Judge in
Hussain Khan's case is concerned, the learned Single Judge has
relied on the judgment of the Privy Council in the case
of Probodh Kumar Das and Ors. v. Dantmara and Company
Ltd. It appears that that judgment has been considered by the
Division Bench of Allahabad High Court in the case of Pandit
Ram Chander v. Pandit Maharaj Kunwar and Ors. , and the
Division Bench has observed thus :--
It was contended for the plaintiff that in the present suit he
was merely seeking the remedy which Section 53-A, T. P.
Act, afforded debar the defendants from enforcing against
him a right in respect of the property of which he had
taken possession. It was maintained for the respondents on
the other hand that the benefits of the provisions of Section
53-A were only available to a party in litigation who was a
defendant. In support of this contention learned counsel for
the respondents referred to the case in 41 C W N 54. This
decision clearly supports the defendants' contention. The
case is however distinguishable from the present because
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there the transferee sought a direct relief in support of his
title. The decision appears to have been based upon certain
observations of Lord Macmillan in the Privy Council case in
1934 ALJ 912. At page 916 of the judgment of the Board it
is observed :
It remains to take note of the fact that since the present
suit was brought the law in India has been altered by
the Transfer of Property (Amendment) Act 20 of 1929 which
has inserted a new Section 53-A in the principal Act,
whereby a defendant in an action of ejectment may, in
certain circumstances, effectively plead possession under an
unregistered contract of sale in defence to the action. Their
Lordships' views, as expressed in the present case, must
therefore be understood to be referable to the state of law
before this partial importation into India of the English
equitable doctrine of part performance.
Learned Counsel for the defendants-respondents founded
particularly upon the words whereby a defendant in an
action of ejectment may, in certain circumstances,
effectively plead possession under an unregistered contract
of sale in defence to the action.
In the first place it is to be noted that the above
observations of the Board are obiter, and, secondly, it does
not at all follow from these observations that their Lordships
intended to lay down that the only remedy which was open
to a transferee under Section 53-A, T. P. Act, was to plead
as a defendant in possession under an unregistered or
invalid document. We would note further that the above
observation concludes with the statement that the views of
the Board, as expressed in the case, must be understood to
be referable to the state of law before the introduction
of Section 53-A, into the T. P. Act in 1929. In our
judgment, that part of Section 53-A, T. P. Act, under
consideration presents little difficulty. The words appear to
us to be perfectly simple and straightforward. Where a
person has been party to a transfer which is invalid because
the formalities of the law have not been complied with,
then that person is to be debarred from enforcing, as
against his transferee, any right in respect of the property of
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which the transferee has taken or continued in possession.
In other words, the intention of the Legislature plainly was
that the transferor was not to be entitled merely because
the transfer was invalid as the result of a non-compliance
with the formalities of the law to enforce, as against the
transferee, a right which the deed of transfer was intended
to convey.
It is clear from the above observations that in the case that
was considered by the Privy Council the proposed transferee
in possession had instituted a suit seeking transfer of title in
his favour and in those circumstances the Privy Council
observed that the proposed transferee in possession can only
take benefit of the provisions of Section 53-A to protect his
possession.
11. In our opinion, in view of the judgment of the Supreme
Court in the case of Patel Natwarlal Rupji (supra) really
speaking the question that has been referred stands answered.
The Supreme Court in that case was considering the rights
that are conferred on the proposed transferee in possession by
the provisions of Section 53-A of the Act. The observations of
the Supreme Court in paragraphs 6 and 7 of that judgment, in
our opinion, are relevant. They read as under :--
6. Though the doctrine of part performance embodied
in Section 53-A of the Act is part of equitable doctrine in
English law. Section 53-A gives statutory right which is
available to the transferee for consideration in possession
of the property had under the contract. In terms of the
section, so long as the transferee has done and is willing
to perform his part of the contract or, in other words, is
always ready to abide by the terms of the contract and
has performed or is always ready and willing to perform
his part of the contract, the transferee is entitled to avail
of this statutory right to protect his possession as a shield
but not as a sword. The right to retain possession of the
property rests on the express provisions 6f the Act and on
his compliance thereof. A person who pleads equity must
come to the Court with clean hands and he alone is
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entitled to the benefit of this section. The section does not
create a right or title in the defendant. It merely operates
as a bar to the plaintiff to assert his title. The transferor
is barred from enforcing his rights other than those
expressly provided by the contract. The section, therefore,
imposes a bar on the transferor, when the conditions
mentioned in the section are fulfilled by the transferee,
and the section also bars the transferor to enforce his
rights against such transferee or person deriving right,
title and interest from such transferee. It would, therefore,
be clear that Section 53-A confers a right on the
transferee, to the extent it imposes a bar on the
transferor, to protect the transferee's right to retain
possession of the property had under the contract. It
would thus be clear that Section 53-A confers no title on
the transferee but imposes a statutory bar on the
transferor to seek possession of the immovable property
from the transferee. Equally, Section 53-A does not confer
any title on the defendant in possession or can he
maintain a suit on title, 7. In Ram Gopal Reddy v. Addl.
Custodian Evacuee Property, a Constitution Bench of this
Court had held that the benefit of Section 53-A cannot be
taken aid of by the plaintiff to establish his right as
owner of the property. Therefore, Section 53-A can be
used as a shield but not as an independent claim either as
a plaintiff or as a defendant. In Delhi Motor Co. v. U.A.
Basrurkar, a Bench of three Judges had held that Section
53-A is meant only to bring out a bar against the
enforcement of a right by a lessor in respect of the
property of which the lessee had already taken possession
but does not give any right to the lessee to claim
possession or to claim any other right on the basis of an
unregistered lease. Section 53-A is available only as a
defence to a lessee and not as conferring a right on the
basis of which the lessee can claim rights against the
lessor. In that case the appellants had put forward certain
documents as a lease which was admittedly beyond 11
months and, therefore, It was held that the company was
not entitled to avail of the statutory right under Section
53-A. In Sardar Govindrao Mahadik v. Devi Sahai, this
Court had held that the Court would look at the writing
that is offered as a contract for transfer for consideration
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of any immovable property, then examine the acts said to
have been done in furtherance of the contract, and find
out whether there is a real nexus between the contract
and the acts pleaded as a part performance so that to
advantage or benefit of the contract, backs out and pleads
nonregistration as a defence, a defence analogous to
Section 4 of the Statute of Frauds. In that case it was
held that the mortgagee in possession was not entitled to
claim title of ownership against suit of mortgagor for
redemption. Therefore, the doctrine of part performance
in Section 58(3) was held not available to establish title to
the property. In Sheth Maneklal Mansukhbhai v. Hormusji
Jamshedji Ginwalla and Sons, this Court had held
that Section 53-A of the Act is only a partial importation
of English doctrine of part performance.
It is clear from the observations of the Supreme Court quoted
above that Section 53-A of the Act imposes a statutory bar on
the transferor to seek possession ok the immovable property
from the transferee in possession. In other words, therefore, it
disentitles the transferor from seeking possession from the
proposed transferee in possession. Therefore, if the transferor,
though he has been denied that right by Section 53-A, tries to
take possession forcibly, the proposed transferee in possession
would be entitled to institute a suit to enforce the bar
of Section 53-A against the transferor. In such a situation,
when the proposed transferee in possession comes to the Court
seeking a decree of perpetual injunction restraining the
transferor from disturbing his possession, he does not come to
the Court for enforcement of any rights conferred on him, but
he comes to the Court for enforcement of the bar created
by Section 53-A against the transferor. If the proposed
transferee in possession is denied the right to institute a suit
for enforcing the bar against the transferor enacted by Section
53-A so as to protect his possession, then the proposed
transferee in possession would be rendered remedyless. In our
opinion from the observations of the Supreme Court quoted
above it is clear that when it is said that the proposed
transferee in possession can use Section 53-A as a shield, but
not as a sword, it means that he can use Section 53-A either
as a plaintiff or as a defendant to protect his possession, but
he cannot use Section 53-A either for getting title or for
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getting possession if he is not actually in possession. To put it
in other words, when the transferee in possession comes to
the Court as a plaintiff seeking a decree of perpetual
injunction against the transferor he is using Section 53-A as a
shield to protect his possession. It is thus clear that the
proposed transferee in possession cannot use Section 53-A to
sue the transferor for a declaration of title, but he can avail of
benefits of Section 53-A as a shield to retain his possession.
12. Insofar as the judgment of the Supreme Court in the case
of Delhi Motor Co, referred to above is concerned, it becomes
clear from the observations of the Supreme Court in paragraph
7 of that judgment that the Supreme Court has referred to the
judgment of the Allahabad High Court in the case of Ram
Chander v. Maharaj Kunwar, as also the judgment of the Privy
Council in the case of Probodhkumar Das. It is clear from
those observations that the Supreme Court has also read the
judgment of the Privy Council referred to above in
Probodhkumar Das's case to lay down the law that the
proposed transferee in possession, on the basis of the
provisions of Section 53-A cannot claim title or any other
right. So far as the judgment of the Division Bench in the case
of Yashwantrao Mukane is concerned, perusal of that judgment
shows that there was a dispute in that case in relation to
nature of possession of the plaintiff. In fact, in paragraph 9 a
finding has been recorded that the plaintiff did not enter into
possession in part performance of the agreement of sale. Thus
the controversy that was decided by the Division Bench was
totally different.
13. The question whether a suit of particular nature is
maintainable or not has to be decided with reference to the
provisions of Section 9 of the Code of Civil Procedure. Section
9 of Civil Procedure Code reads as under:--
9. Courts to try all civil suits unless barred.-- The Courts
shall (subject to the provisions herein contained) have
jurisdiction to try all suits of a civil nature excepting suits
of which their cognizance is either expressly or impliedly
barred.
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Explanation (I).-- A suit in which the right to property or
to an office is contested is a suit of a civil nature,
notwithstanding that such right may depend entirely on
the decision of questions as to religious rites or
ceremonies.
Explanation (II).-- For the purposes of this section, it is
immaterial whether or not any fees are attached to the
office referred to in Explanation I or whether or not such
office is attached to a particular place.
Thus, the Civil Court has jurisdiction to try all suits except
where the jurisdiction of the Civil Court to entertain a
particular type of suit is either expressly barred by law or it is
barred by necessary implications. Insofar as the judgments of
the learned Single Judges, who decided the Hussain Khan's
case as also the Mathurabai Koli 's case, we do not find any
reference made to the provisions of Section 9 of Civil
Procedure Code, in order to hold that a suit filed by the
prospective purchaser in possession claiming a decree of
perpetual injunction restraining the transferor from disturbing
his possession, relying on the provisions of Section 53-A of T.
P. Act, is not maintainable. We will have to find whether
there is any law by which the jurisdiction of the Civil Court
to take cognizance of such a suit is either expressly barred or
it is barred by necessary implications. No provision of any law
is pointed out to us which expressly bars the jurisdiction of
the Civil Court to entertain such a suit. Perusal of the
judgment of the learned Single Judge in Mathurabai Koli's case
shows that in that case agreement was entered into on 1-11-
1978, possession of the property was handed over to the
prospective purchaser, the entire consideration was also paid,
but the sale-deed was not executed, because it was to be
executed after obtaining permission from the Revenue
authorities. The learned Single Judge found that no steps were
taken by the plaintiff in that case to get the sale-deed
executed, the plaintiff did not institute a suit for specific
performance of the contract and then the learned Single Judge
observed in paragraph 4 of the judgment as follows :--
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4. No doubt, the present plaintiff/respondent No. 1 has
obtained the possession of the suit land by way of a part
performance of an agreement on 1-11-1978 and that the
amount of consideration has been paid by the plaintiff.
However, the sale deed was to be executed after
obtaining the necessary permission from the revenue
authorities for executing the said sale deed as per the
agreement to sell. These facts point out that since 1978 if
the plaintiff/respondent No. 1 is in possession of the
land, as to why the permission was not obtained for a
period of ten years and if there was avoidance on the
part of the defendants to get such a permission. The
plaintiff/respondent No. 1 should have insisted for the
performance of the said contract. It appears that till 1988
no progress was made. And the averments in respect of
this aspect have not been made. However, the moment
the plaintiffs possession was questioned in 1988, in fact,
that amounted to denial of and/or breach of the
agreement to sell and, therefore, the cause of action
which takes place on such a occasion is not a cause of
action simpliciter for suit of injunction, but a cause of
action for filing the suit for specific performance and,
therefore, such a plaintiff is supposed to file a suit for
specific performance and perpetual injunction. It is very
difficult to digest that there will be a separate cause of
action for the purpose of suit of injunction and for suit
of specific performance of contract. If the cause of action
in that eventuality is one and the same, namely, the
denial of agreement or violation of breach of agreement,
then to permit the filing of two suits on the same cause
of action is against the principles of the Code of Civil
Procedure, "because the law requires that all those reliefs
based on same cause of action should be pleaded and
claimed in the same suit and shall not be claimed by
separate suit. One more aspect is that Section 41(h) of
the Specific Relief Act, states that the Court shall not
grant perpetual injunction when there is an equally
efficacious remedy available to a party. Equally
efficacious remedy in which the injunction can be
claimed is a full-fledged suit for specific performance
C/FA/2493/2020 JUDGMENT DATED: 25/08/2021
with perpetual injunction. This Court in 1986 Mh.LJ. 659
: 1986(1) BCR 533 (supra) has observed thus:
"Clause (e) of Section 41 of the Specific Relief Act is
relevant to the extent and in the context of the provisions
of Section 53-A of the Transfer of Property Act, which
requires the plaintiff to satisfy that he was ready and
willing to perform his part of the contract. It is only when
such readiness and willingness is there that the contract or
agreement for sale can be specifically enforced. If this basic
readiness and willingness is not established, then the
performance could not be specifically enforced. It follows,
therefore, that by reason of the principle underlying Section
41(e) of the Specific Relief Act, when the plaintiff seeks
injunction so as to prevent breach of a contract whose
performance cannot be specifically enforced, such an
application has to be refused. Similarly, when a suitor of
such a type would have equally efficacious relief available
so as to enforce the contract by taking appropriate remedy,
without recourse to it, it would be indeed difficult to extend
the discretionary relief of permanent injunction. It is not as
if that in a suit to enforce the agreement itself, such a relief
is sought. On the other hand, although the plaintiff came to
the Court with the allegation that the other party has
repudiated the agreement for sale, he has omitted to seek
its enforcement and is trying to hold the property obviously
without seeking to complete his title by enforcing the
agreement for sale. To such a case, the principle underlying
Clause (h) of Section 41 of the Specific Relief Act can be
extended so as to refuse such an ancillary relief."
The above referred judgment has been followed by the Single
Judge of this Court in 1988(4) BCR 60 : 1988 Mh.LJ. 55
(supra), wherein it has been observed that the suit filed
simpliciter for injunction where the claim is founded purely to
claim the protection under Section 53-A of the Transfer of
Property Act is not maintainable. Such a suitor is not entitled
to claim relief in view of the provisions of Section 41(h) of
the Specific Relief Act.
C/FA/2493/2020 JUDGMENT DATED: 25/08/2021
In our opinion, even it is assumed that the cause of action for
instituting a suit for a decree of specific performance had
accrued and the plaintiff in that case omitted to institute the
suit for specific performance, then also by virtue of the
provisions of Order 2, Rule 2 of Civil Procedure Code the suit
of the plaintiff for a decree of specific performance would be
barred, but his suit for a decree of perpetual injunction for
protecting his possession would not be barred. Insofar as the
reference to the provisions of Section 41 of the Specific Relief
Act is concerned, it does not operate on the jurisdiction of
the Court to entertain a suit, but it relates to the exercise of
that jurisdiction. Grant of relief of injunction is in the
discretion of the Court and Section 41 lays down as to how
that discretion is to be exercised. The learned Single Judge
has relied on the judgment of the Division Bench in the case
of Yeshwantrao v. Khushal referred to above. But perusal of
that judgment as also the observations which have been
quoted by the learned Single Judge in paragraph 4 of his
Judgment shows that the Division Bench does not hold that
because of the provisions of Section 41 of the Specific Relief
Act such a suit is not maintainable. The Division Bench says
that in such a situation the Court will not grant ancillary
relief of injunction in favour of the plaintiff. In our opinion,
occasion for a prospective purchaser in possession to institute
a suit for perpetual injunction for protecting his possession
may arise even when the cause of action for instituting the
suit for specific performance has not arisen or where it is
barred by the law of limitation. For example, there may be
an agreement which allows time to the prospective purchaser,
who has been placed in possession, to pay the balance
amount of consideration if the possession of such a person is
threatened even before the time that is allowed to him for
paying the balance amount of consideration is over, in our
opinion, he can institute a suit even though the cause of
action for instituting a suit for specific performance has not
arisen. The Full Bench of this Court in the case of Mahadeo
Nathuji Patil v. Surjabai Khushalchand Lakkad and Ors., 1994
Mh.LJ. 1145 has held that the equity under Section 53-A is
available to the prospective purchaser even after the period of
limitation for instituting a suit for specific performance has
expired. We find that the view taken by the Full Bench in
Mahadeo Patil's case has been approved by the Supreme Court
C/FA/2493/2020 JUDGMENT DATED: 25/08/2021
in its judgment in the case of Shrimant Shamrao Suryavanshi
(supra). Paragraphs 20 and 21 of that judgment of the
Supreme Court are relevant. They read as under:--
20. It is, therefore, manifest that the Limitation Act does not
extinguish a defence, but only bars the remedy. Since the
period of limitation bars a suit for specific performance of a
contract, if brought after the period of limitation, it is open
to a defendant in a suit for recovery of possession brought by
a transferor to take a plea in defence of part-performance of
the contract to protect his possession, though he may not be
able to enforce that right through a suit or action.
21. In the present case, it is not disputed that the transferee
has taken possession over the property in part-performance of
the contract. It is also not disputed that the transferee has not
brought any suit for specific performance of the agreement to
sell within the period of limitation. It is also not disputed that
the transferee was always and is still ready and willing to
perform his part of the contract. Further, the view taken by
the High Court in judgment under appeal was overruled by
the Full Bench of the Bombay High Court in the case
of Mahadeo Nathuji Patil v. Surjabai Khushalchand
Lakkad which, according to our view, lays down the correct
view of law. In that view of the matter these appeals deserve
to be allowed.
11.11 Thus, where a suit for a decree for specific
performance is barred by the Law of Limitation, the
prospective purchaser in possession would not be in a position
to institute a suit for decree of specific performance,
but Section 53-A creates an equity in his favour, as a result of
which he is entitled to continue in possession. If it is held that
though his possession is protected, he cannot institute a suit in
case he finds that his possession has been threatened would
C/FA/2493/2020 JUDGMENT DATED: 25/08/2021
amount to denying a remedy for enforcing the equity which is
created in his favour by Section 53-A. In a case where the
prospective purchaser has a live cause of action for instituting
a suit for specific performance, he omits to institute such a
suit, and instead files a suit only for perpetual injunction for
protection of his possession, in that situation it is for the Court
to consider whether to grant him a decree of perpetual
injunction or not but that will be in the realm of exercise of
the jurisdiction. It will not be a case of absence of jurisdiction
to entertain the suit. Therefore, we find that there is nothing
in Specific Relief Act also which can be said to have barred
the jurisdiction of the Civil Court to take cognizance of such a
suit even by necessary implications.
11.12 From what has been observed above, it becomes clear
that in view of the judgment of the Supreme Court now there
can be no doubt that a proposed transferee in possession can
institute a suit for protection of his possession, which is^
threatened.
11.13 Thus, in view of the aforesaid, we have reached to the
conclusion that the impugned order being not sustainable in
law deserves to be quashed and set aside and the same is
hereby quashed and set aside.
11.14 In the result, this appeal succeed and is hereby allowed.
C/FA/2493/2020 JUDGMENT DATED: 25/08/2021
The impugned order passed by the 3 rd Additional Senior Civil
Judge, Ahmedabad, dated 20.1.2017 below Ex.27 in the
Special Civil Suit No.231 of 2012 is hereby quashed and set
aside. The plaint stands restored to the file of the trial Court
to its original number for being proceeded in accordance with
law. All contentions available to both the parties are kept upon
including the issue of limitation to be decided alongwith the
other issues on the basis of the plea taken in the Writ
Statement, if any, and the evidence produced by the parties in
that behalf uninfluenced by the observations made in the
present judgment on factual matrix.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
