Gujarat High Court
Hanspur Road Co.Op.Housing ... vs Vithal Mandir Trust on 12 January, 2023
Bench: Ashutosh Shastri
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2015
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2016
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2022
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2007
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2014
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2
of 2022
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ORDERS) NO. 3 of 2007
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ORDERS) NO. 3 of 2014
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2018
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 3
of 2022
In
R/FIRST APPEAL NO. 3517 of 2000
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With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 4
of 2022
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 5
of 2022
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 6
of 2022
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CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 7
of 2022
In R/FIRST APPEAL NO. 3517 of 2000
=============================================
HANSPUR ROAD CO.OP.HOUSING SOCIETY LTD.
Versus
VITHAL MANDIR TRUST & 14 other(s)
=============================================
Appearance:
MR YATIN N. OZA, SENIOR COUNSEL WITH
MR YH MOTIRAMANI(3720) for the Appellant(s) No. 1
APPEARANCE WITHDRAWN for the Defendant(s) No. 12
MS BELA A PRAJAPATI(1946) for the Defendant(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 10,9
THAKKAR AND PAHWA ADVOCATES(1357) for the Defendant(s)
No. 11,13
UNSERVED EXPIRED (N) for the Defendant(s) No. 7,8
GOVERNMENT PLEADER for the Defendant(s) No. 15
MR SHALIN MEHTA, SENIOR COUNSEL WITH
MR ANKIT SHAH(6371) for the Defendant(s) No.
6.1,6.1.1,6.1.2,6.1.3,6.1.4
MR BM MANGUKIYA(437) for the Defendant(s) No. 1
MR MEHUL S. SHAH, SENIOR COUNSEL WITH
MR MG NAGARKAR(496) for the Defendant(s) No. 3,5
MR NIRAJ V ASHAR(2562) for the Defendant(s) No. 15
=============================================
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
Date : 12/01/2023
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR)
1. This first appeal is directed against the
judgment and decree passed in Special Civil Suit No.167
of 1984 dated 23.10.2000 whereunder suit filed for
specific performance of Agreement of Sale dated
27.12.1974 came to be dismissed.
BRIEF BACKGROUND OF THE CASE:
2. The parties are referred to as per their rank in
the trial court.
3. Plaintiff claiming to be a cooperative society
registered under the Gujarat Cooperative Housing
Societies Act sought for a decree of specific performance
being passed in its favour contending inter alia that
property bearing Survey Nos.37 and 39 situated at village
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
Thaltej, Taluka Daskroi, District Ahmedabad,
admeasuring 2-Acres and 29-Gunthas and 4-Acres and 38-
Gunthas respectively belonged to first defendant which is
a trust registered under the Bombay Public Trusts Act
(for short, 'BPT Act') and defendant Nos.2 to 8 are its
trustees. It was further contended that defendants had
executed an Agreement for Sale dated 18.08.1966 in
favour of Pramukhlal Jivanlal Parikh and Ambalal
Ishvarlal Prajapati. Said Pramukhlal Jivanlal Parikh as
well as the Trust executed an Agreement of Sale dated
21.09.1970 in favour of Gangaram Bhaskarrao Pavde.
Said Gangaram Bhaskarrao Pavde assigned his rights in
favour of a partnership firm M/s.Jalpa Traders through its
partner Mukundbhai Chimanlal Shah. One of the trustees
Mr.Kunjbiharilal Madhavlal Bhagwat is said to have
executed an Agreement to Sell dated 08.05.1972 in
favour of the partnership firm Jalpa Traders through its
partner Mukundbhai Chimanlal Shah and he had also
previously executed an Agreement dated 03.04.1972. As
such, Jalpa Traders claimed all rights under the
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
Agreement to Sell acquired by it. The said rights of
Agreement of Sale which was acquired by Jalpa Traders
came to be assigned by the said firm through its partners
in favour of M/s.Chhaganlal and Company vide
Agreement to Sell dated 23.11.1973, who entered into an
Agreement of Sale in favour of the plaintiff society to sell
the land under the Agreement of Sale dated 27.12.1974,
under which agreement plaintiff society is said to have
paid a sum of Rs.15,000/- to M/s.Chhaganlal and
Company. Plaintiff also claimed that a sum of Rs.25,000/-
is paid on 20.05.1975 and Rs.5,000/- on 15.12.1978 and
in all Rs.45,000/- was paid to said Chhaganlal &
Company. Plaintiff claimed that all trustees of the
defendant trust have agreed to continue the Agreement
of Sale dated 27.12.1974 executed by M/s.Chhaganlal and
Company and at the first instance, the agreed price was
Rs.3.25 per sq.meter and it was agreed to be revised
upwards by Rs.2 per sq.meter totaling to Rs.5.25 per
sq.meter. It is also contended that while assigning all
rights over the said land in favour of the plaintiff society
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
by the defendants, all the defendants have executed their
writings over the Agreement to Sell dated 27.12.1974 and
on 18.04.1976 vacant and peaceful possession of the land
(hereinafter referred to as 'suit schedule property')
agreed to be sold in favour of plaintiff society was handed
over to the plaintiff.
4. It is further contended by the plaintiff that
defendant trust had received a sum of Rs.20,001/-
towards consideration by Cheque dated 21.10.1982 which
has been duly accepted that it was in lieu of Cheque
dated 11.08.1982 owing to certain mistake in the said
cheque. It is also contended that further sum of
Rs.5,500/- was paid towards sale consideration on
30.12.1982 and a sum of Rs.5,000/- paid on 04.06.1983 by
cheque drawn on Ahmedabad District Cooperative Bank.
Thus, plaintiff society claimed that in all it had paid
Rs.30,501/- to the defendant trust.
5. Plaintiff also claimed that one Shri Babaji
Bapuji had been as appointed on 01.10.1976 as
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Watchman for the suit schedule property after obtaining
possession and a sum of Rs.4,800/- was paid to him by
Chhaganlal and Company and same had been refunded by
plaintiff to Chhaganlal and Company. Plaintiff als claimed
a sum of Rs.4,800/- was paid on 25.09.1978 and on
16.12.1978, further sum of Rs.4,800/-, Rs.5,300/- on
10.06.1980 and Rs.5,300/- on 17.06.1981. Thus, in all a
sum of Rs.25,000/- was claimed to have been paid to the
said Babaji Bapuji by the plaintiff society. It is further
contended that plaintiff society appointed Shri
Jagbahadur Lagbadahur Thapa as Watchman on monthly
salary and presently Rs.400/- is paid to him towards his
salary. It is contended that a room has been constructed
for the residence of said watchman and as such, plaintiff
claimed to be in possession of the suit schedule property.
6. Plaintiff has contended that it was desirous of
constructing houses for its members and as such had got
a layout plan drawn by the Engineer which plan was also
duly signed by the trustees. Plaintiff has contended that
defendant trust had also filed an application before the
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Charity Commissioner seeking permission to sell the suit
land as required under Section 36 of the BPT Act. Plaintiff
also contended that defendants have filed Form No.1 at
Gandhinagar as per Section 20 of the Urban Land
(Ceiling and Regulation) Act seeking exemption from the
provisions of said law wherein it is specifically mentioned
that defendant has proposed to sell the suit land to the
plaintiff.
7. Contending that defendant No.1 trust was
attempting to dispose of the suit land to someone else
owing to price escalation and there is likelihood of
plaintiff being disturbed of possession and despite being
told by the plaintiff to execute the sale, said demand is
not being complied by defendant and as such, plaintiff
initially instituted a Civil Suit No.210 of 1983 for
perpetual injunction which was withdrawn with
permission on 17.07.1984 and the present suit was filed
on the same day i.e. on 17.07.1984 seeking for specific
performance of the Agreement of Sale dated 27.12.1984.
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
8. On service of suit summons, defendant Nos.1 to
4 and 6 appeared and filed their written statement
denying the averments made in the plaint except to the
extent expressly admitted thereunder. It was contended
that similar suit had been filed earlier and it has been
withdrawn and therefore the present suit was barred by
res judicata. It was also contended that present suit was
barred by limitation. It was specifically contended that
suit is not maintainable as per Section 51 of BPT Act
since written permission from the Charity Commissioner
for filing of the suit was not obtained and on this ground
suit was liable to be dismissed. It was also contended that
Charity Commissioner is a necessary and proper party to
the suit as contemplated under Section 51(3) of the BPT
Act and for non-joining of necessary party, the suit is
liable to be dismissed. Contending that under Section 80
of the BPT Act, the Civil Court does not have jurisdiction
to hear and adjudicate the suit, defendants sought for its
dismissal.
9. It was also contended that defendants had
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
entered into Banakhat - Agreement to Sell the sit land to
Pramukhlal and Ambalal but later on the trust and
Pramukhlal made another Banakhat - Agreement to Sell
in favour of Gangaram Pavde which agreement was not
duly signed by all the trustees. It was further contended
that in the earlier Agreement to Sell entered into by the
trust with Pramukhal and Ambalal, it did not contain the
signature of Ambalal and as such, the said Banakhat -
Agreement to Sell was pleaded to be not legal. Denying
the fact that Gangaram Pavde had transferred his
Banakhat rights to third party, the plaintiff has been put
to strict proof of the same. It is further contended that
from amongst the trustees of the first defendant trust,
one of the trustees on advise of the plaintiff had entered
into Agreement to Sell in favour of Mukundbhai on behalf
of Jalpa Traders on 08.05.1972. This Agreement to Sell
was signed by Mr.Kunjbihari who had not been
authorized by all the trustees to enter into such
agreement. Hence, contending that trust is not
responsible or answerable for such transaction and
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
denying that Kunjbihari being the Managing Trustee of
the trust or having any such unilateral power to enter
into Agreement of Sale, they have denied said agreement.
The agreement dated 03.04.1972 was also pleaded not to
be in the knowledge or not being in the knowledge of
defendants and plaintiff was put to strict proof of the
same. The right of Jalpa Traders transferring their
Banakhat rights, defendants pleaded their lack of
personal knowledge as also the right of Chhaganlal and
Company transferring their Banakhat rights in favour of
the plaintiff. The contention raised by the plaintiff in the
plaint in this behalf has been denied and plaintiff has
been put to strict proof of the same. The fact of
possession having been delivered to the plaintiff by the
trustees is also denied. The execution of the document
with regard to possession of the suit schedule property
having been delivered to the plaintiff is also denied by the
defendants. It was contended that one Mr.Anubhai
Premchand was claiming to be the tenant and the dispute
in this regard was pending before the Revenue Tribunal.
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
The Banakhat - Agreement to Sell between Chhaganlal
and Company and M/s.Jalpa Traders on 13.11.1973 about
delivery of vacant possession is denied. It was specifically
denied that plaintiff was put in possession of the suit
lands.
10. Plaintiff was put to strict proof with regard to
affixure of signature of defendants with regard to layout
plan. However, defendants admitted to have made an
application before the Charity Commissioner for selling
the suit land and filing the form before the ULC
authorities.
11. It is also contended that defendant is a public
trust registered under BPT Act and without obtaining
permission to sell, the suit schedule property cannot be
sold to any private person and this fact is well within the
knowledge of the plaintiff. Hence, the alleged delivery of
possession of suit schedule property in favour of plaintiff
came to be denied. It was contended that suit land is in
possession of the tenants and case was pending before
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the Revenue Tribunal. Hence, it was contended that
plaintiff was not in possession of the suit land.
12. The defendants denied the plaintiff's claim of
having made any oral demand for executing the sale and
contended that there is no direct contact between the
plaintiff and defendants to sell the suit schedule land.
Contending that the trust cannot sell the land to the
plaintiff, as it does not have permission and defendants
are also not bound to sell the suit schedule land. It was
specifically contended that all the trustees have not
affixed their signatures and there is no legal contract
between plaintiff and defendants qua the suit land. On
these grounds amongst others pleaded in the written
statement, they sought for dismissal of the suit.
Defendant No.5 and 15 have filed their written
statements as per Exhibits-54 and 126 respectively.
Subsequently, 15th defendant was ordered to be deleted
and accordingly 1st defendant has been deleted. The
Charity Commissioner has not filed any reply. No other
defendants have filed their written statement. Hence,
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
based on the pleadings of the parties, the learned Trial
Judge framed ten (10) issues for determination. Learned
Trial Judge has answered issue No.1 in the affirmative
and issue Nos.2, 8(a), 9 and 10 partly affirmative. Issue
Nos.3 to 8 in the negative.
13. In order to substantiate the averments made in
the plaint, one Shri Babulal got himself examined as only
witness on behalf of the plaintiff. His deposition has been
marked as Exhibit-49. No witnesses were examined on
behalf of plaintiffs. On appreciation of oral and
documentary evidence, learned trial Judge by judgment
and decree dated 23.10.2000 partly decreed the suit and
directed defendant Nos.1 to 8 and defendant No.14 to
refund sum of Rs.25,000/- plus Rs.40,000/- to the plaintiff
with interest at 12% per annum from the date of receipt
of judgment and dismissed the prayer for specific
performance. The relief of perpetual injunction sought for
has been rejected and the interim order which had been
granted on Exhibit-5 application came to be revoked.
Hence, this appeal.
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
14. We have heard the arguments of Shri Yatin
Oza, learned Senior Counsel appearing for the appellant
and Shriyuths Shalin Mehta, Mehul S. Shah and Devang
Nanavati, learned Senior Advocates alongwith Shriyuths
Brijesh Trivedi, N.M.Kapadia and B.M.Mangukiya,
learned advocates for contesting respondents.
14.1 It is the contention of Mr. Yatin Oza, learned
Senior Advocate appearing for the appellant that Trial
Court had committed a serious error in not considering
the pleadings in proper perspective. He would contend
that learned Trial Judge ought to have appreciated the
fact that none of the defendants had tendered any oral
evidence in support of their pleadings and as such the
suit ought to have been decreed as prayed for. He would
contend that trial judge erred in arriving at a conclusion
that there is no existence of agreement of sale in favour
of the appellant warranting a decree of specific
performance by completely ignoring the fact that Trial
Court itself has accepted that plaintiff had proved that
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
part of sale consideration had been paid by the plaintiff to
defendant No.1 trust which would itself indicate the
existence of an agreement of sale.
14.2 He would also contend that if there had been
no intention on the part of the appellant and respondent
No.1 trust to act upon the said agreement of sale, no
steps could have been taken by defendant No.1 as well as
by the appellant and the very fact that requisite
permission from the concerned authorities having been
filed not being in dispute was itself sufficient to arrive at
a conclusion that there was existence of an agreement of
sale and there was no intention on the part of plaintiff
and defendant No.1 not to act upon said agreement.
14.3 He would also contend that in part performance
of the agreement of sale, possession of the suit land had
been handed over to the plaintiff and as such defendant
No.1 is precluded from taking contrary stand in this
Appeal. He would submit that oral testimony of the
plaintiff's witness would get support from the
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documentary evidence tendered and same has been
completely ignored by the Trial Court and the ones which
have been considered is not accepted without any reasons
being assigned and as such there is no justification for
the learned Trial Judge to have arrived at a conclusion
that plaintiff was not in possession of the suit schedule
property.
14.4 He would elaborate his submissions by
contending that learned Trial Judge erred in arriving at a
conclusion that agreement of sale Exhibit 194 through
which the interest possessed by Chhaganlal & Company
was transferred to plaintiff was not having signatures of
all the trustees of respondent No.1 trust would be of no
consequence since way back in the year 1978, i.e. on
11.11.1978, a resolution had been passed by trust which
conclusively disclosed that defendant No.1 had consented
to the sale transaction in favour of Chhaganlal &
Company and thereafter in favour of the appellant,
subject to permission being obtained from the Charity
Commissioner and as such any stand taken contrary to
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the same either by defendant No.1 or by other trustees is
of no consequence.
14.5 He would contend that had it been the case of
the appellant not being ready and willing, it would not
have affected the payment of part consideration and
plaintiff would not have moved the authorities for
obtaining various permissions under provisions of various
statutes, nor would it have deployed its watchman for the
purpose of maintaining the suit land. He would also
contend that the provisions of Sections 50 and 51 of the
Gujarat Public Trusts Act, 1951 would not be attracted to
the facts on hand as defendant No.1 trust is not a public
trust. He would also contend that provision contained
under Section 36A of the Gujarat Public Trusts Act, 1951
is applicable only to transfer by way of sale, mortgage or
release and not to a transaction of agreement of sale
which is distinct and different from that of transaction of
sale. Hence, he contends that question of obtaining prior
permission would not arise. He would also contend that
the documents produced along with civil applications
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seeking for additional evidence would clearly disclose the
existence of agreement of sale Exhibit 194 between
plaintiff and defendant No.1 and by referring to various
documents produced along with the plaint which though
produced had not been exhibited but referred to in the
deposition of plaintiff's witness to contend that all the
trustees except defendant No.7 had filed application
under Section 36 of the Gujarat Public Trusts Act, 1951
before the Charity Commissioner seeking permission to
sell the suit schedule property to the plaintiff which itself
was sufficient to hold that there was an agreement of sale
executed by defendant No.1 in favour of the plaintiff. He
would draw the attention of the Court to the agreement of
sale marked as Exhibit 194 to contend that pursuant to
the said agreement executed in favour of plaintiff
executed by the said Chhaganlal & Company which had
been endorsed by 5 trustees and subsequently ratified on
18.4.1976 by 4 trustees and as such there being a clear
evidence to said effect, there was no impediment for the
Trial Court to have decreed a suit as sought for. He
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would also contend that as per the said endorsement
dated 18.4.1976 made by defendant No.1 trust and its
trustees, the possession of the suit schedule property was
handed over to the plaintiff and in furtherance of the
same, defendant No.2 on behalf of defendant No.1 trust
had filed Form No.1 before Urban Land Ceiling Authority
seeking exemption for selling the suit scheduled land. He
would also draw the attention of the Court to the
document dated 28.8.1978 issued by the District
Panchayat whereunder permission had been granted to
the plaintiff to purchase the suit land. By inviting the
attention of the Court to the order dated 20.10.1978
passed by the Revenue Department rejecting the
application seeking exemption under Sections 19 and 20
of the Urban Land Ceiling Act, he would contend that
same would reflect that there was an agreement of sale in
favour of the plaintiff. He would further contend that
defendant No.1 trust had passed a resolution on
11.11.1978 resolving to sell the suit land to the plaintiff,
which resolution was duly signed by defendant Nos.2 to 4
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and 6 which would evident that there was an agreement
of sale and this when read along with Exhibit 205 to 207
would clearly evidence the fact of there being an
agreement of sale between plaintiff and defendant.
14.6 He would contend that even assuming and
accepting that only few trustees have signed the
agreement of sale then also appellant would be entitled to
seek specific performance and mere non-execution of the
agreement of sale by other trustees would not render the
agreement of sale invalid. He would contend that when
Form No.1 was filed before the Urban Land Ceiling
Authority for exemption, same was not objected to by any
other trustee and thus, defendant No.2 was held to be
authorised to act for and on behalf of other trustees.
Insofar as finding recorded by the Trial Court with regard
to advance money of Rs.45,000/- paid to defendant No.14,
he would submit that said defendant itself admitted in the
written statement filed to the said effect and as such
finding of the Trial Judge requires to be set aside. He
would also contend that plaintiff has complied with the
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terms and conditions of the agreement Exhibit 194 and
has paid Rs.25,001/- to defendant No.1 as per the agreed
terms viz. within 6 months. On account of defendants
having not denied this fact, he prays for adverse
inference being drawn against the defendants.
14.7 Insofar as possession of the suit schedule
property is concerned, he would submit that even in the
application filed by the trustees before various statutory
authorities, they admit that plaintiff was in possession of
the suit property and even otherwise Trial Judge failed to
consider the question of possession being immaterial
while adjudicating the suit filed for specific performance
of agreement of sale (Exhibit 194).
14.8 He would also contend that permission under
Section 36 of the Gujarat Public Trusts Act, 1951 not
being there on record was the reason for dismissing the
suit and same is contrary to the principles laid down by
this Court in AIR 1984 GUJ 145 and the judgment of the
Hon'ble Apex Court in 2020 SCC OnLine SC 825. he
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would contend that even otherwise subsequent
application can be filed and in view of subsequent law viz.
Urban Land Ceiling Act having been repealed, question of
obtaining permission under ULC Act did not arise.
14.9 On the issue of readiness and willingness, he
would submit that very fact that plaintiff has complied
with all terms and conditions of the agreement would
indicate its continuous readiness and willingness having
been exhibited by the plaintiff. He would contend that
very fact that appellant has agreed to pay the revised
rates to the trustees; and has paid consideration towards
the defendant trust as well as defendant No.14 as agreed
to Exhibit 194 is a mirror to the fact that the appellant /
plaintiff has been ready and willing to perform his part of
the contract. He would also contend that though plaintiff
has not stated in actual words and stated to the effect
that he is ready and willing, the very fact that the plaintiff
is ready to pay the balance consideration as stated in the
prayer would suffice for this Court to arrive at a
conclusion that plaintiff has been ready and willing to
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perform his part of the contract. Non-consideration of
these vital aspects has resulted in miscarriage in
administration of justice.
14.10 Mr.Yatin Oza, learned Senior Counsel
appearing for the appellant would contend that
interlocutory applications filed for production of
additional evidence be allowed and the documents
produced along with the said application be admitted in
evidence. He would also contend that no time limit has
been fixed for filing of an application for additional
evidence. He would also contend that some of the
documents have come into existence subsequent to the
filing of the present appeal and as such this Court can
take note of subsequent events. He would also contend
that some of the documents which are prior to the filing
of the appeal were not in the custody of the appellant and
appellant had no knowledge as appellant was not a party
in the proceedings held by the Charity Commissioner and
as such these documents could not have been produced
at earlier point of time. He would submit that even
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otherwise for substantial cause the documents can be
taken on record and some of the documents being public
documents, this Court should adopt liberal approach in
receiving the same by way of additional evidence.
14.11 He would further contend that Explanation-II of
Section 16(c) will have no application. He would contend
that Section 114 of the Gujarat Public Trusts Act which is
analogous to Section 80 of the Bombay Public Trusts Act
will have no application inasmuch as no Civil Court has
decided any issue and as such a conditional decree can be
passed by this Court. He would contend that escalation of
the price would not be a ground on which plaintiff can be
denied the relief of specific performance and he would
draw the attention of the Court to the judgment of
Hon'ble Apex Court in the matter of Nirmal Anand Vs.
Advent Corporation Private Limited reported in
(2002) 8 SCC 146. Hence, he has prayed for Appeal
being allowed. In support of his submissions, he has
relied upon following judgments :
(1) (2005) 1 SCC 172 - J.P. Srivastava & Sons
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Pvt. Ltd. vs. Gwalior Sugar Co. Ltd. And
Ors.
(2) AIR 1930 Mad 476 - Sultan Mahomed
Rowther vs. Muhammad Esur Rowther
and Ors.
(3) AIR 1952 P&H 234 - Shankar Das Rup Lal
vs. Governor - General in Council
(4) (1970) 2 SCC 386 - Jugraj Singh and Anr.
Jaswant Singh & Ors.
(5) 2018 (1) Mh.L.J. 259 - LIC of India versus
Digvijaysingh Gangasingh
(6) (1999) 3 SCC 573 - Vidhyadhar v.
Manikrao and Anr.
(7) (1927) 29 BOM LR 1392 - Sardar
Gurbaksh Singh vs. Gurdial Singh
(8) 2021 SCC OnLine SC 802 - Jitendra Singh
vs. State of MP and Ors.
(9) (2001) 7 SCC 698 - Adcon Electronics Pvt.
Ltd. Versus Daulat and Anr.
(10) AIR 1984 Guj. 145 - Shah Jitendra Nanalal
Ahmedabad vs. Patel Lallubhai Ishverbhai
Ahmedabad and Ors.
(11) 2020 SCC Online SC 825 - Ferrodous
Estates (Pvt.) Ltd. Versus P. Gopirathnam
(12) (2002) 5 SCC 481 - Nirmala Anand versus
Advent Corporation (P) Ltd.
(13) (1977) 3 SCC 179 - Govindbhai
Gordhanbhai Patel and Ors. vs. Gulam
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
Abbas Mulla Allibhai & Ors.
(14) 2020 SCC Online SC 825 - Ferrodous
Estates (Pvt.) Ltd. Versus P. Gopirathnam
(15) (1969) 3 SCC 120 - Nathulal vs.
Phoolchand
(16) (1999) 6 SCC 337 - Syed Dastagir vs T.R.
Gopalakrishna Setty
(17) Civil Appeal No. 5110 of 2021 - Sughar
Singh vs. Hari Singh (Dead) through Lrs.
& Ors.
(18) (1970) 3 SCC 140 - R.C. Chandiok and
Anr. vs. Chuni Lal Sabharwal and Ors.
(19) CO 40 of 2018 - Bimal Chandra
Mukhopadhyaya vs. Pashupati Sengupta
& Ors.
(20) 2019 (132) ALR 640 - Jamal Ahmad Khan
vs. Shamim Jahan
(21) (2001) 10 SCC 619 - State of Rajasthan
versus T.N. Sahani
(22) (2012) 8 SCC 148 - Union of India vs.
Ibrahim Uddin and Anr.
(23) (2001) 9 SCC 245 - Badami Devi and Anr.
Ambuja Raghavan
(24) (1992) Supp (2) SCC 623 - Ramesh kumar
v. Kesho Ram
(25) (2015) 1 SCC 677 - Wadi v. Amilal & Ors.
(26) 2022 SCC Online SC 292 - Sanjay Singh
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
versus State of Jharkhand
(27) (2001) 10 SCC 619 - State of Rajasthan
versus T.N. Sahani
(28) AIR 1963 SC 1526 - K. Venkataramian v.
Seetharama Reddy
(29) IDMC Erstwhile Indian Dairy Machinery
Company Ltd. vs. Mohini Pressuram
Tilwani - CA NO. 2 of 2019 in LPA No.
1225 of 2019 in SCA No. 10252 of 2018
(30) 2005 (1) ALT 212 - Sridevgamma v. K.
Shivaraj and Ors.
(31) AIR 1994 HP 172 - Mehar Chand and
Others versus Lachhmi and Ors.
(32) (2013) 10 SCC 758 - Kaliya versus State
of MP
(33) (2016) 16 SCC 482 - Rakesh Mohindra vs.
Anita Beri and Ors.
(34) (2000) 6 SCC 735 - Marwari Kumhar and
Ors. Versus Bhagwanpuri Guru
Ganeshpuri and Anr.
(35) 1993 Mh.L.J. 588 - Abaji Daulata Yadav
since deceased by his heirs and Others
versus Dhondiram Jagedevrao Yadav and
Ors.
(36) AIR 1972 HP 19 - M/s. Lim & Co. vs. K.M.
Sayeed
(37) 2022 SCC Online 351 - Premlata @ Sunita
vs. Naseeb Bee and Ors.
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
(38) LPA No. 1153 of 1998 - Legal Heirs of
deceased Mithabhai Mavjibhai vs. State of
Gujarat
(39) 2010 SCC Online Guj. 8105 - Patel
Motibhai Galbabhai vs. Patel Dahiben
Valjibhai & Ors.
(40) Civil Appeal No. 2095 of 2022 - P.
Ramasubbamma vs. V. Vijayalakshmi &
Ors.
14.12 Mr.Shalin Mehta, learned Senior Counsel
appearing for the 6th defendant has contended that
agreements dated 18.08.1966, 21.09.1970, 08.05.1972
and 03.04.1973 as well as agreement dated 13.11.1973
which has been referred to in Exhibit 194 were never
produced and marked as exhibits and as such the very
basis on which plaintiff seeks specific performance has
not been proved, question granting decree for specific
performance does not arise. He would also contend that
plaintiffs have never demanded defendants for execution
of Sale Deed and would draw the attention of the Court to
paragraph 12 of the written statement filed by defendant
Nos.1 to 4 and 6. He would submit that after rejection of
the application by the Charity Commissioner no steps
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
were taken by plaintiffs. He would contend that in the
instant case there were three rejections namely on
27.10.1970, the Charity Commissioner accorded
permission to sell the suit schedule property within a
fixed time. Subsequently, by order dated 26.02.1986 it
rejected the application filed by Vitthal Mandir Trust,
against which two revisions were filed namely one by the
trust which was subsequently withdrawn and another
revision by Bansilal Amritlal Parikh which came to be
dismissed on merits on 13.06.2001 which was confirmed
in Special Civil Application No.7360 of 2001. He would
contend that trustees are also pujaris and they have a
hereditary right. He would contend that terms and
conditions of the agreement of sale dated 27.12.1974
(Exh-194) are not fulfilled by the plaintiff and hence
specific performance ought to be rejected. He would
contend permission as required under Section 36 has not
been obtained from the Charity Commissioner for sale of
suit schedule property; time limit as contemplated under
agreement dated 30.11.1973 is not adhered to; plaintiff
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
was not possessing money as agreed to be paid under
Exhibit 194 and this is evident from the audit report
Exhibit 36.
15. He would submit that obtaining prior
permission under Section 36 is mandatory and till filing of
the suit and even as on date no such permission has been
obtained from the Charity Commissioner by the plaintiff.
16. He would submit that plaintiff had earlier filed
a suit No.210 of 1983 and withdrew the same without any
opportunity to institute fresh suit. He would contend that
plaintiff has never whispered a word about readiness and
willingness. He would also submit that plaintiff who had
to aver and prove that he has performed or has been
always ready and willing to perform has not been averred
and proved. He would contend that ULC permission has
been rejected and proof of payment of advance amount
has not been proved by the plaintiff. Hence, he has
prayed for dismissal of the Appeal. In support of his
submissions, he has relied upon the following judgments :
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
(i) 2021 Law Suit (SC) 601 - K. Karuppuraj versus
M. Ganesan
(ii) 2022 Law Suit (SC) 62 - Shenbagam and others
vs. K.K.Rathinavel
17. Shri Mehul Suresh Shah, learned Senior
Counsel appearing for 3rd defendant would submit that
there is no cause of action for the suit and the one alleged
in the plaint is without any basis and same is liable to be
rejected. He would also contend that Exhibit 194 is a
contingent contract and cannot be enforced. By
contending that subsequent event is to be taken note of
by relying upon the judgment of Hon'ble Apex Court in
the matter of Pasupuleti Venkateswarlu vs. The Motor
& General Traders reported in (1975) 1 SCC 770, he
prays for application for additional evidence filed being
allowed. Contending that permission to sell the suit
schedule property was not there and same has not been
obtained by plaintiff. He would contend that there are no
pleading in the plaint with regard to readiness and
willingness and plaintiff has also admitted under Exhibit
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208 which is an audit report of the plaintiff society for the
period 01.01.1984 to 30.06.1985 that closing balance as
on 1985 was only Rs.724.70ps. which would indicate that
plaintiff society do not have any money, muchless the
balance amount of consideration being available or
possessed by it.
18. He would submit that a duty is cast on the
Court to protect the public property. In support of his
submission, he has relied upon 1978 GLR 661 and
(2007) 7 SCC 482.
19. He would submit that plaintiff had examined
only one witness as per the examination-in-chief Exhibit
49 and said witness had no authority and he had been
removed from the membership of society even as on the
date he tendered the evidence, he was not a member of
the plaintiff society. He has relied upon following
citations in support of his submission.
(1) 2021 SCC OnLine SC 147 - Asha John
Divianathan vs. Vikram Malhotra
(2) (2019) 19 SCC 42 - Narayanamma and
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
Another vs. Govindappa and Others
(3) 2010 (4) GLR 3562 - Prabodhkumar
Maganbhai Patel vs. Modasa Kadva
Patidar Chhatralaya and Others
(4) 2005 SCC OnLine Bom 706 - Janardan s/o
Ramchandra Bute (Wanjari) vs. Ganapati
Devasthan, Tahsil Deoll
(5) 2020 (3) Mh. L.J. 323 - Avinash
Kishorchand Jaiswal and Another vs. Shri
Rammandi Deosthan, Pavnar and Others
(6) (2006) 7 SCC 470 - M. Meenakshi and
Others vs. Metadin Agarwal (Dead) By LRs
and Others
(7) Civil Appeal No.150 of 2022 (SC) -
Shenbagam and Others vs. K.K. Rathinavel
(8) Civil Appeal No.9124 of 2018 (SC) - Jagjit
Singh (D) through LRs vs. Amarjit Singh
(D) through his LRs
(9) (2020) 3 SCC 280 - C.S. Venkatesh vs.
A.S.C. Murthy
(10) (2019) 3 SCC 704 - Kamal Kumar vs.
Premlata Joshi and Others
(11) (2019) 19 SCC 415 - Mehboob-Ur-Rehman
(Dead) through LRs vs. Ahsanul Ghani
(12) 1978 GLR 661 - Hamumiya Bachumita vs.
Mehdihusen Gulamhusen
(13) (2007) 7 SCC 482 - A.A. Gopalkrishnan vs.
Cochin Devaswom Board and Others
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
(14) 1996 SCC OnLine P&H 548 - Punjab State
Coop. Bank Ltd. vs. Milkha Singh and
Another
(15) (2015) 13 SCC 579 - Baluram vs. P.
Chellathangam and Others
20. Shri Brijesh Trivedi, learned counsel appearing
for the 4th defendant would contend that plaintiff has not
pleaded and proved readiness and willingness. He would
submit that no issue has been framed by the Trial Court
in this regard and no evidence has also been tendered. In
support of this proposition, he has relied upon AIR 2022
Online SC 998 and 2022 (1) JT 344.
21. By relying upon the judgment of the Hon'ble
Apex Court in the case of Khasgi (Devi Ahilyabai
Holkar Charities) Trust, Indore & Anr. Versus Vipin
Dhanaitkar & Others reported in 2022 Law Suit (SC)
854, he would contend that property of public trust
cannot be sold without obtaining permission. He would
also contend that there is no error in the judgment and
decree passed by the Trial Court and plaintiff having
failed to prove his capability to mobilize funds, the
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
discretionary relief which has not been granted requires
to be affirmed. On the issue of possession of the suit
schedule property, he would contend that the Trial Court
has recorded a clear finding that plaintiff is not in
possession but defendant is in possession of the suit
scheduled proceeding which would not call for
interference. Hence, he prays for dismissal of the appeal.
In support of his submission, he has relied upon following
citations:
(i) 2022 LawSuit (SC) 62 - Shenbagam and others
vs. K.K.Rathinavel
(ii) AIR OnLine 2022 SC 998 - U.N. Krishnamurthy
(since deceased) Thr. Lrs. Versus A.M.
Krishnamurthy
(iii) 2022 Law Suit (SC) 854 - Khasgi (Devi
Ahilyabai Holkar Charities) Trust, Indore &
Anr. Versus Vipin Dhanaitkar & Others.
22. Shri N.M. Kapadia, learned counsel appearing
for 5th defendant would draw the attention of the Court to
the written statement filed by defendant Nos.1, 4 and 6.
He would submit that from the date of alleged agreement
of sale till filing of the suit, no demand has been made by
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
the plaintiff and plaintiff has failed to prove its readiness
and willingness throughout. He would submit that
plaintiff's evidence has to be discarded by trial court and
rightly so, inasmuch as said witness had already resigned
as a member of the society on 13.09.1999 and by relying
upon the resolution dated 13.09.1999 passed by the
plaintiff society, he prays this Court should also ignore
the evidence of the plaintiff witness. He would also draw
the attention of the Court to the finding recorded by the
Trial Court on issue Nos.2 and 3 to contend that plaintiff
has made false statements at four places and plaintiff's
witness did not produce authorization to represent the
plaintiff or file the suit or depose before the Court. He
would submit that a specific defence has been taken by
the 5th defendant in paragraph 2 of the written statement
and as such, the evidence tendered by the plaintiff cannot
be looked into by this Court. By relying upon the
judgment of the Hon'ble Apex Court in Man Kaur
(Dead) by Lrs. vs. Hartar Singh Sangha reported in
(2010) 10 SCC 512 (paragraph 17), he would submit
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
that only person with personal knowledge could have
deposed about the transaction and present witness
Mr.Babulal is not a signatory to Exhibit 194 and none of
the persons who have witnessed the execution of Exhibit
194 have entered the witness-box. Hence, he would
contend that evidence of Babulal need not be looked into.
23. He would also contend that there is no pleading
to the effect that Kunjbihari Bhagwat was the only trustee
and he was authorized to sign on behalf of all the
trustees. In the absence of pleading no amount of
evidence will help the party. In support of this
proposition, he has relied upon the judgment in the case
of Biraji Alias Brijraji and another vs. Surya Pratap
and others reported in (2020) 10 SCC 729. He would
also contend that plaintiff is guilty of suppression of facts
namely it has not whispered a word in the pleadings
about the application filed under Section 36 having been
rejected and hence, plaintiff is not entitled for
discretionary relief namely specific performance. In
support of said submission, he has relied upon the
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
judgment of the Hon'ble Apex Court in Bhaskar Laxman
Jadhav and others vs. Karamveer Kakasaheb Wagh
Education Society and others, reported in (2013) 11
SCC 531. He would contend that the conduct of the
plaintiff disentitles it to any relief and by drawing the
attention of the Court to the order dated 05.03.1992
passed in CRA No.141 of 1987 as per the Exhibit 134 to
contend that even after direction issued, plaintiff had
obtained 49 adjournments and as such, he prays for
rejection of the appeal. He would contend that when
Gujarat Revenue Appellate Tribunal in Appeal
No.TGNAA.33 of 1986 had affirmed the order of the
Charity Commissioner, who had refused to grant
permission to sell the property, question of granting
conditional decree does not arise. Hence, he prays for
rejection of the appeal. In support of his submission, he
has relied upon following judgments :
(1) N. Vijaya Kumar vs. Smt. Y.N.Leelavanthi
- Judgment dated 05.05.2020 in Regular
First Appeal No.1627 of 2014 passed by
Karnataka High Court, Bengaluru Branch
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
(2) (2010) 10 SCC 512 - Man Kaur (Dead) by
Lrs. vs. Hartar Singh Sangha
(3) (2007) 12 SCC 175 - Rozan Mian vs.
Tahera Begum and others -
(4) (2013) 11 SCC 531 - Bhaskar Laxman
Jadhav and others vs. Karamveer
kakasaheb Wagh Education Society and
others -
(5) Anubhai Premchand Shah vs. Vithoba
Mandir Through its trustees and others -
Order dated 21.04.1992 passed in Special
Civil Application No.4656 of 1990
(6) (1975) 1 SCC 770 - Pasupuleti
Venkateswarlu vs. The Motor & General
Traders
(7) (1997) 7 SCC 297 - Jaipur Development
Authority vs. Kailashwati Devi (Smt.)
(8) (1985) 1 SCC 251 - Variety Emporium vs.
V.R.M. Mohd. Ibrahim Naina
(9) (2016) 13 SCC 124 - Union of India vs.
K.V.Lakshman and others
(10) (2008) 8 SCC 511 - North Eastern
Railway Administration, Gorakhpur vs.
Bhagwan Das (Dead) by Lrs.
(11) (2018) 6 SCC 574 - Y.P.Sudhanva Reddy
and others vs. Chairman and Managing
Director, Karnataka Milk Federation and
others
(12) (2008) 5 SCC 444 - Lachhman Singh
(Deceased) Through Legal
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
Representatives and others vs. Hazara
Singh (Deceased) Through Legal
Representatives and others
(13) (2004) 10 SCC 507 - Jayramdas and Sons
vs. Mirza Rafatullah Baig and others
(14) (2011) 15 SCC 692 - Radhakrishna
Dharmartha Private Trust and others vs.
Parmanand Soni (Dead) By Lrs.
(15) (2020) 10 SCC 729 - Biraji Alias Brijraji
and another vs. Surya Pratap and others
(16) (2019) 9 SCC 495 - Sri Ganapathi Dev
Temple Trust vs. Balakrishna Bhat Since
Deceased by His Legal Representatives
and others
(17) (1994) 1 SCC 1 - S.P.Chengalvaraya
Naidu (Dead) By Lrs. vs. Jagannath (Dead)
by Lrs. and others
(18) Appeal Suit No.1052 of 1997 - Judgment
dated 03.12.2019 rendered in case of
Dr.K.Ananda Rao vs Andhra Evangelical
Lutheran
(19) Appeal No.TEN.A.A. 33 of 1986 -
Judgment dated 13.06.2001 rendered by
Gujarat Revenue Tribunal in the case of
Bansidhar Amritlal Parikh vs. Yadavrao
Madhavrao Bhagvat
(20) Special Civil Application No. 7360 of 2001
- Bansidhar Amritlal parikh vs.
Ranchhodbhai Visabhai Desai and Others.
(21) Special Civil Application No. 9962 of 2004
- Harjibhai Karamsibhai Desai vs. Swami
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
Abhinnatmanand
24. Mr.Devang Nanavati, learned Senior Advocate
appearing for applicant in Civil Application No.3 of 2018
would contend that applicants are the holders of
agreement of sale dated 18.08.1966 for which the Charity
Commissioner had granted permission and claims to be
necessary and proper party to the present proceedings as
the suit schedule property for which the applicants have
initiated proceedings for specific performance. Hence,
he prays for the application being allowed. He has relied
upon following judgments : -
(i) (2007) 10 SCC 82 - Sumtibai and Others
versus Paras Finance Co. Regd.
Partnership Firm Beawer (Raj.) Through
Mankanwar (Smt.) W/o Parasmal Chordia
(Dead) and Others
(ii) (2010) 7 SCC 417 - Mumbai International
Airport Private Limited vs. Regency
Convention Centre and Hotels Private
Limited and others
25. Mr. Mangukiya, learned counsel appearing for
respondent Nos.1, 12 and 13 would contend that
respondent No.1 is a juristic person and acts of human
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
agency does not bind the trust. He would submit that
trustees and trust have fiduciary relationship. He would
also contend that suit schedule property is an agricultural
land and plaintiffs/purchasers are not agriculturists and
the transaction in question is hit by Section 63 of the
Gujarat Tenancy and Agricultural Lands Act. He would
submit that Section 36 and Section 80 of the Trusts Act
bars Civil Court's jurisdiction to grant any relief, as also
Sections 10, 11 an 14 of the Specific Relief Act. He would
contend that there is no pleadings in the plaint that
transaction is for the benefit of trust and trustees had
acted bonafide in the interest of trust. He would contend
that in the memorandum of appeal, there is no mention
about the finding of the Trial Court being erroneous or
incorrect.
26. He would also elaborate his submissions by
contending that neither the bye-laws of the plaintiff
society have been produced nor the resolution. He would
submit that the provisions of Order VI Rule 14 and 15 has
not been complied and the plaint presented is not in
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
accordance with Order XXIX. Hence, he prays for
dismissal of Appeal. In support of his submissions he has
relied upon following judgments : -
(1) AIR 2022 SC 3361 - U.N. Krishnamurthy
(since deceased) Thr. Lrs. Versus A.M.
Krishnamurthy
(2) Civil Appeal No. 150 of 2022 & 2022 (2)
SCALE 56 - Shenbagam and others vs.
K.K.Rathinavel
(3) AIR 2020 SC 3413 - Atma Ram v. Charanjit
Singh
(4) 1994 AIR 853; 1994 SCC (1) 1 - S.P.
Chengalvaraya naidu vs. Jagannath
(5) 1978 GLR 661 - Hamumiyan V.Bachumiyan
(6) (2007) 7 SCC 482 - A.A. Gopalkrishna v.
Kochin Devasthanam
(7) 2005 SCC Online Bom 706 - Janardan v.
Ganapathi Devasthanam
(8) 2010 (4) GLR 3562 - Prabodhkumar v.
Modasa Kadva Patidar
(9) (2006) 7 SCC 470 - M. Meenakshi & Ors.
vs. Metadin Agarwal (D) by Lrs. & Ors.
(10) (1997) 1 GLR 547 - Najmudin I. Bharmal
and Ors. v. Charotar Gramoddhar Sahakari
27. By way of reply arguments, Shri Yatin Oza,
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
learned Senior Counsel appearing for the appellant has
contended that there is an endorsement in Exhibit 194 of
possession of suit schedule property having been
delivered to the plaintiff and as such proving the contents
of Exhibit 194 does not arise. By referring to Exhibit 205,
he would contend that trustees (three trustees) have
consented for sale of suit schedule property in favour of
the plaintiff. According to him, when defendants have
agreed and admitted that they have consented for sale of
suit schedule property, they cannot take any contrary
stand in this Appeal. He would rely upon Exhibit 205 to
207 to contend that all trustees have declared that all
four trustees have signed and have given approval to the
agreement of sale Exhibit 194 by filing an application
filed before the Charity Commissioner dated 16.04.2001.
28. He would also submit that defendant Nos.2 to 6
having gone before the Charity Commissioner seeking
permission to compromise and admitting thereunder that
they would be willing to execute the Sale Deed, they
cannot now contend that there are no pleadings with
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
regard to readiness and willingness. He would draw the
attention of the Court to Civil Application No.2 of 2014
and Civil Application No.6 of 2022 to contend that
plaintiffs have admitted to have filed application before
the Charity Commissioner agreeing and willing to sell the
suit schedule property in favour of plaintiff. Shri Oza,
learned Senior Counsel would contend since ULC Act has
been repealed, the order of rejection of ULC authorities
would be of no consequences and in support of his
submission, he has relied upon 2020 SCC Online 825.
29. By relying upon the judgments reported in
2022 SCC Online (SC) 351 and (2016) 14 SCC 161,
he would contend that defendants cannot be allowed to
take contradictory stands namely having taken a stand
before the Charity Commissioner agreeing to sell the suit
schedule property in favour of the plaintiff cannot now
contend and try to find holes in the plaint to stave off the
claim of plaintiff. He would also contend that
endorsement made on 18.04.1976 in Exhibit 194 by
defendants would clearly go to show that possession of
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
the suit schedule property was delivered to plaintiff. He
would also submit that issue regarding readiness and
willingness was not framed and Court below had
committed an error in recording a finding on the said
aspect without framing an issue. In reply to the argument
of Mr.Mangukiya that the suit is hit by Order II Rule 2, he
relies upon the judgment of the Hon'ble Apex Court in
(2004) 11 SCC 219. In reply to the argument that
Exhibit 194 is hit by Section 63 of the Gujarat Tenancy
and Agricultural Lands Act, he would contend that Clause
(c) of the Section 63 was inserted with effect from 1977
namely by Act 30 of 1977 and Section 64A then prevailing
permitted sale of agricultural property in favour of a
cooperative housing society and this provision was
deleted only from 1987 namely by Act 21 of 1987 and as
such, he prays for rejection of the contentions raised by
the respondents and prays for appeal being allowed.
30. Having heard the learned advocates appearing
for the parties we are of the considered view that
following points would arise for our consideration :
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
(i) Whether the applications filed for
additional evidence in Civil Application
Nos. 2 of 2007, 3 of 2007, 2 of 2014, 3 of
2014, 1 of 2015, 2 of 2022, 3 of 2022, 4
of 2022, 5 of 2022 and 6 of 2022,
deserve to be allowed or rejected ?
(ii) Whether Civil Application No. 1 of 2016
filed by 5th respondent under section 151
CPC and order 14 Rule 2(2) of CPC and
Section 46 of Bombay Public Trust Act,
1950 deserves to be allowed or
dismissed ?
(iii) Whether Civil Application No. 1 of 2022
filed by appellant for deletion of
respondent no. 2 to 10 from the Appeal
appeal deserves to be allowed or
rejected ?
(iv) Whether Civil Application No. 3 of 2018,
filed by the proposed respondents for
being impleaded as respondents in First
Appeal deserves to be allowed or
dismissed ?
(v) Whether Civil Application No. 7 of 2022
filed by the appellant deserves to be
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
allowed and as such proposed applicants
are to be impleaded as respondents 16
and 17 or it is to be rejected ?
(vi) Whether the judgment and decree
passed in Special Civil Suit No. 167 of
1984 deserves to be set aside or
confirmed or to be varied ?
(vii) Whether the court below has properly
evaluated the evidence both oral and
documentary tendered before it in
proper perspective or it suffers from any
infirmity whatsoever calling for
interference ?
(viii) Whether what order ?
31. During the pendency of the present appeal,
several applications for additional evidence, production of
documents to bring Legal representatives, condoning the
delay in filing such applications, framing of preliminary
issue, impleading of certain parties, deleting of
respondent Nos. 2 to 10 have been filed. In fact, it would
not be out of context to refer at this juncture itself that
some of the applications have been filed without even
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
specifying the provisions of law. For the purposes of
convenience, we have tabulated the said interlocutory
applications hereinbelow:
Sr. Particulars
No.
1. CA No.1/2007 (Renumbered as CA
No.6547/2007) - Whereunder 9 documents
have been sought for being produced.
This Court by order dated 12.4.2022 dismissed
the said application as not pressed, since learned
counsel appearing for the appellant who had
filed the said application had made a submission
to the said effect.
2. CA No.2/2007 (Old CA No.6594/2007) filed by
respondent No.5 herein seeking for production
of 12 documents. None of the documents are
originals or certified copies.
3. CA No.3/2007 (Old CA No.9391/2007) filed by
respondent No.5 herein seeking for production
of 9 documents. None of the documents are
originals or certified copies.
4. CA No.2/2014 (Old CA No.6097/2014) filed by
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
respondent No.5 herein seeking for production
of 4 documents. None of the documents are
originals or certified copies. Shri Yatin Oza,
learned Senior Counsel appearing for the
appellant has submitted that he has no
objection for allowing this application.
5. CA No.3/2014 (Old CA No.8385/2014) filed by
No.5 herein seeking for production of 4
documents. Though none of the documents are
certified copies, subsequently along with
affidavit dated 30.7.2022, the third document
viz. certified copy of the order dated 9.1.2004
passed in Appeal No. CIT(A)-I CC.1(I)/24.2.2003
by CIT (Appeals) has been tendered.
6. CA No.1/2015 (Old CA No.7389/2015) filed by
respondent No.5 herein seeking for production
of the order dated 13.6.2001 (photocopy)
passed by Gujarat Revenue Tribunal in Appeal
No.TEN A.A 33/1986. Subsequently, the
applicant by affidavit dated 11.2.2022 has
tendered certified copy of said order dated
13.6.2001.
7. CA No.2/2015 (Old CA No.7388/2015) filed by
the applicant seeking for being impleaded. The
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said application has been dismissed vide
order dated 13.8.2018 and it has reached
finality.
8. CA No.1/2016 (Old CA No.12486/2016) filed by
respondent No.5 herein under Section 151 and
Order 14 Rule 2(2) of CPC and Section 46 of the
Bombay Public Trusts Act, 1950 to frame
preliminary issue regarding maintainability
of suit / appeal on the ground of absence of
permission under Section 36 of the Bombay
Public Trusts Act, 1950, the prayer for specific
performance does not survive.
9. CA Nos.1 and 2/2018 filed by applicant for
condoning the delay in bringing the legal
heirs of deceased respondent No.6.1 (Shri
Kishor Sankhyari Bhagwat) and to bring the
legal representatives. These applications have
been allowed vide order dated 2.5.2018 and
legal heirs of deceased respondent No.6 have
been brought on record as respondent Nos.6.1.1
to 6.1.4.
10. CA No.3/2018 filed by the proposed respondents
seeking for impleadment as party
respondents in the First Appeal without
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invoking provisions of law and claiming that they
had filed an application for impleading in
Regular Civil Appeal No.27/2006 and they have
interest in the suit schedule property.
11. CA No.1/2022 filed by appellant herein for
from the appeal.
12. CA No.2/2022 filed by appellant herein for
production of additional evidence viz. to
mark the documents as exhibits which are
produced along with the plaint - list of
documents as Mark 3/1 to 3/3, 3/5, 3/6, 3/8, 3/9,
129/16, 129/32, 129/33, 129/34. The applicant
has also sought for production of 6 documents as
morefully described in paragraph 4 of the
application. All these documents are
photocopies. In fact, document Nos.3 to 6 have
come into existence subsequent to the impugned
judgment and decree. Further, it requires to be
noticed that these documents viz. 3 to 6 have
been produced by respondent No.5 along with
Civil Application No.6447/2007 (New CA
No.1/2007 which has been dismissed as not
pressed vide order dated 12.4.2022.
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13. CA No.3/2022 filed by appellant herein for
production of scheme dated 6.6.1989 framed
by the Charity Commissioner, Gujarat which
is a photocopy and not accompanied by original
or certified copy. However, this very document
has also been produced by respondent No.5
herein along with CA No.6794/2007.
14. CA No.4/2022 filed by respondent No.5 herein
under Order 41 Rule 27 and Order 11 Rule 14 of
CPC for production of 9 documents, out of
which document Nos.1 to 5 and 8 have come into
existence subsequent to the impugned judgment
and decree passed by the Trial Court.
15. CA No.5/2022 filed by appellant herein under
Order 41 Rule 27 of CPC read with Order 11
Rule 5 of CPC and Section 107(2) of CPC for
direction to respondent No.15 to produce the
order dated 16.9.1991 passed by Joint Charity
Commissioner, Ahmedabad in Inquiry Case
No.30/85.
16. CA No.7/2022 filed by appellant herein under
Order 1 Rule 10 of CPC read with Section 107(2)
of CPC for impleading Shri Jatin
Rameshchandra Jalundhwala and Dr. Malay
Rameshbhai Mahadeviya on the ground that they
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have been appointed as trustees of defendant
No.1 trust by the Charity Commissioner vide
order dated 29.11.2021.
FINDINGS OF THE TRIAL JUDGE :
32. On the basis of pleadings of the parties, learned
trial Judge has framed the following issues : -
"(1) Whether the plaintiff proves that plaintiff
society is duly registered under the Gujarat Co-
operative Societies Act?
(2) Whether the plaintiff proves that the
earnest deed of the suit land was executed by
M/s. Chhaganlal and Company, in their favour
and the defendants have also given their
consent in this respect?
(3) Whether the plaintiff proves that they
have paid the amount of Rs.45,000/- to
M/s.Chhaganlal and Company and the
defendant trust as contended in para 1 of the
plaint?
(4) Whether the plaintiff proves that on the
day of filing of the present suit they are in
possession of the suit lands?
(5) Whether the plaintiff proves that the
defendants are trying to take away the
possession of the suit land from them and also
trying to transfer the suit lands in favour of
other persons?
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(6) Whether the defendant proves that the
suit of the plaintiff is bad for non-joinder of
necessary party?
(7) Whether the defendant No.1 to 6 proves
that this Court has got no jurisdiction to try this
suit?
(8) Whether the defendants No.1 to 6 proves
that the suit of the plaintiff is time barred?
(8a) Whether the present suit is maintainable
in view of the decree regarding the suit
property in favour of defendant No.15 passed
in Civil Suit No.16 of 1971 filed F.A. No.362 of
1976 of Gujarat High Court?
(9) Whether the plaintiffs are entitled to get
relief as prayed for?
(10) What order and decree?"
33. As noted above, one Mr. Babulal came to be
examined on behalf of plaintiff. Learned trial Judge while
adjudicating issue No. 2 & 3 has held plaintiff had failed
to prove of having made payment of Rs. 30,501/- to
defendant No. 1 to 8 and Rs. 45,000/- to 14 th defendant.
It has been further held defendants have admitted to
having consented to have executed agreement of sale
dated 18.04.1976 and on the ground of defendant Nos. 7
and 8 having not affixed their signatures to sale
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agreement, issue No. 2 has been held to have been
proved partly.
34. On issue No. 3, learned trial Judge has arrived
at a conclusion that plaintiffs have failed to prove the
same namely having paid Rs. 45,000/- to defendant No.
14 and Rs. 30,501/- to defendant Nos. 1 to 8.
35. Issue No. 4 and 5 related to plaintiff proving its
alleged possession of suit schedule property and same
has been held to have not been proved by plaintiff, by
arriving at a conclusion that plaintiff had failed to prove
possession of suit schedule property having been
delivered by 14 defendant to plaintiff. It has been further
held that form 7/12 for the year 1975-76 would reflect the
name of Anubhai Premchand in the columns of
possession. It has also been held plaintiff has not
examined the Watchman who according to plaintiff had
been appointed to take care of suit schedule property.
The alleged claim of plaintiff that defendants were
attempting to dispossess the plaintiff from suit schedule
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property has been negatived by answering issue no. 5
against plaintiff and it has been further held that plaintiff
had failed to prove alleged threat of defendants and their
attempts to take forcible possession of suit schedule
property.
36. At regards issue No. 6 to 8 it has been held in
the negative by the trial Court. To prove issue no. 6,
burden was cast on defendants. It was the plea of
defendant that suit schedule property was in possession
of a tenant. On account of document having not been
tendered before trial Court, it has been held that
defendants had failed to prove said issue. Issue No. 7 & 8
are also held to be not proved by defendants according to
learned trial Judge on the ground that extension of time
was agreed for performance of agreement of sale.
37. Insofar as issue No. 8-A which related to res
judicata, it came to be held by trial Judge that plaintiff
had filed an application to get itself impleaded in First
Appeal No. 362 of 1976, which came to be rejected by
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observing that consent decree passed in Civil Suit No. 16
of 1971 would not affect the right of plaintiff vide order
dated 07.07.1983 passed in Civil Appeal No. 2437 of 1983
(Exhibit 124/1) and considering said order, present suit
was held to be maintainable and it was not barred by res
judicata.
38. While answering issue No. 9 & 10 in the
negative, learned trial Judge has observed permission of
Charity Commissioner was lacking; permission from
competent authority for selling agricultural land was not
there; all the conditions of agreement of sale is not
satisfied; plaintiff was not ready and willing to pay
balance sale consideration; ULC permission was not
available; on these grounds these two issues were
answered against plaintiffs.
39. Having regard to the alternative prayer of
refund of advance money paid by plaintiff, same has been
ordered to be re-paid by defendant Nos. 1 to 8 and 14
namely Rs. 25,000/- & 40,000/- respectively with interest
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@ 12% p.a. from date of receipt.
40. In the aforesaid background, we proceed to
adjudicate the points formulated hereinabove.
DISCUSSION AND FINDINGS
RE : POINT NO. (i)
41. These applications namely Civil Application No.
2 of 2007, 3 of 2007, 2 of 2014, 3 of 2014, 1 of 2015, 2 of
2022, 3 of 2022, 4 of 2022, 5 of 2022 and 6 of 2022 have
been filed under Order 41 Rule 27 for production of
additional evidence.
42. Before proceeding to adjudicate as to whether
these applications are to be allowed or dismissed, it
would be apt and appropriate to note the contours of
consideration of such applications. It is trite law that
jurisdiction of the Appellate Court would be exercised not
only when Clause (a) or Clause (aa) of Sub-Rule (1) of
Rule 27 of Order 41 of the code is attracted but also
where such document is required by the Appellate Court
to pronounce the judgment or for any other substantial
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cause. If such additional evidence would have a material
bearing on the crucial issue arising for decision between
the parties, such application would be allowed de hors
the allowable deficiency, if any. If certified copy of public
documents are produced and they have a bearing on the
issue involved in the Appeal or the said document would
throw light on the issue to be adjudicated in the Appeal,
then also appellate Court would be justified in allowing
the application for additional evidence. However, if the
said documents would in no way espouse the cause of
either of the parties or it has some remote connection
which would not be necessary for arriving at ultimate
conclusion, then, such documents would not be permitted
to be taken on record. In the absence of plea raised, no
any amount of evidence tendered would be of any use.
43. The Appellate Court has power to allow
additional evidence not only if it requires such evidence
"to enable it to pronounce judgment" but also for "any
other substantial cause". Though general rule is that
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ordinarily, the Appellate Court would not travel outside
the record of the lower Court and additional evidence,
whether oral or documentary is not admitted, but Section
107 of CPC carves out in exception to the General Rule
and enables the Appellate Court to take additional
evidence or to require such evidence to be taken, subject
to such conditions and limitations as may be prescribed
namely as prescribed under Rule 27 of Order 41.
Circumstances under which additional evidence are
adduced are; firstly - the Court from whose decree the
Appeal is preferred has refused to admit evidence which
ought to have been admitted [Clause (a) of Sub-Rule (1)],
secondly - the parties seeking to produce additional
evidence establishes that notwithstanding the exercise of
due diligence such evidence was not within the
knowledge or after exercise of due diligence be produced
by him at the time when the decree appealed against was
passed (Clause (aa) of Sub-Rule (1)); thirdly - the
Appellate Court requires any document to be produced or
any witness to be examined to enable it to pronounce
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judgment, or for any other substantial cause (Clause (b)
of Sub-Rule (1).
44. The scope of Sub-Rule (1) of Rule 27 of Order
41 was examined by Privy Counsel way back in 1931 in
the matter of Parsotim Thakur versus Lal Mohar
Thakur reported in AIR 1931 PC 143 and held by
observing that provisions of Section 107 is elucidated by
order 41 Rule 27 are not clearly intended to allow litigant
who has been unsuccessful in the Lower Court to patch
up the weak parts of his case and fill up the omissions in
the Court of Appeal. The aforesaid principle was noticed
by the Hon'ble Apex Court in the case of North Eastern
Railway Administration, Gorakhpur vs. Bhagwan
Das (Dead) by Lrs. - (2008) 8 SCC 511 and held as
under : -
"15. Again in K. Venkataramiah Vs. A. Seetharama
Reddy & Ors. a Constitution Bench of this Court while
reiterating the afore-noted observations in Parsotim's
case (supra), pointed out that the appellate court has
the power to allow additional evidence not only if it
requires such evidence 'to enable it to pronounce
judgment' but also for 'any other substantial cause'.
There may well be cases where even though the court
finds that it is able to pronounce judgment on the state
of the record as it is, and so, it cannot strictly say that
it requires additional evidence 'to enable it to
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pronounce judgment', it still considers that in the
interest of justice something which remains obscure
should be filled up so that it can pronounce its
judgment in a more satisfactory manner. Thus, the
question whether looking into the documents, sought to
be filed as additional evidence, would be necessary to
pronounce judgment in a more satisfactory manner,
has to be considered by the Court at the time of
hearing of the appeal on merits."
45. Thus, irresistible conclusion which can be
drawn is, if appellate Court finds that additional evidence
sought to be admitted, are necessary to pronounce
judgment in a satisfactory manner, it would allow the
application as otherwise it would be dismissed. The
caveat on this issue would be that before considering or
adjudicating the Appeal on merits, it would be apt and
appropriate that such application filed for additional
evidence being taken up before taking up the Appeal.
Hence, we are examining these applications
independently before proceedings to adjudicate the
Appeal on merits.
46. In the instant case, it requires to be noticed
that plaintiff has filed the suit for specific performance of
agreement to sell dated 27.12.1974 (Exhibit 194). In
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order to substantiate their respective pleadings,
applications for additional evidence have been filed by
both the parties namely the plaintiff and the defendants
seeking production of certain documents. It is also in this
background, these applications are being considered by
us.
Civil Application No. 2 of 2007
47. This application has been filed by fifth
defendant. These documents undisputedly have come
into existence not only subsequent to the filing of the Suit
but also subsequent to the judgment and decree passed
by the trial Court. The documents which are sought to be
produced are:-
Sr. Document
No.
1. Income Tax Appellate Order dated
09.01.2004 in Appeal No. (CIT) (a)=I
CC.1(I)/24.02.03 in case of Jivraj V. Desai
regarding the period between 01.04.1990
to 20.10.2000 indicating transaction of the
popular builders taking over the structure
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of appellant society
2. Letter dated 07.05.2007 by Suhas Bhagwat
to the Assistant Commissioner of Income
Tax requesting to supply certified copies of
the documents regarding block assessment
in connection with Jivrajbhai V. Desai.
3. Letter dated 12.05.2006 by Suhas Bhagwat
to the Assistant Commissioner of Income
Tax requesting to supply certified copies of
the documents regarding block assessment
in connection with Jivrajbhai V. Desai
4. Audit reports dated 06.12.2004 for the
period between 01.04.2003 to 31.03.2004
of the Vitthal Mandir Trust
5. Audit reports dated 26.12.2005 for the
period between 01.04.2004 to 31.03.2005
of the Vitthal Mandir Trust
6. Audit reports dated 21.10.2002 for the
period between 01.04.2021 to 31.03.2002
of the Vitthal Mandir Trust
7. Audit reports dated 03.09.2001 for the
period between 01.04.2000 to 31.03.2001
of the Vitthal Mandir Trust
8. Audit reports dated 28.12.2000 for the
period between 01.04.1998 to 31.03.1999
of the Vitthal Mandir Trust
9. Audit reports dated 28.12.2000 for the
period between 01.04.1997 to 31.03.1998
of the Vitthal Mandir Trust
10. Audit reports dated 28.04.1998 for the
period between 01.04.1997 to 31.03.1998
of the Vitthal Mandir Trust
11. Order framing the Scheme by the Joint
Charity Commissioner dated 06.06.1989
bearing scheme application no. 17/1985
regarding Vitthal Mandir Trust giving
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details of the beneficiaries of Bhagwat
Family members (effect of decree of the
Court) (certified copy of the scheme
produced on record vide separate affidavit
in Civil Application)
12. Memorandum of Understanding (MoU)
recovered from Arvind Shah the accountant
of Jivram Master indicating the purchase of
structure of appellant society by Popular
Builder dated 05.07.1998 received along
with Income Tax Order. (certified copy is
placed on record with Civil Suit No.
1847/04)
48. According to applicant - 5th defendant, these
documents were obtained from Income Tax Department
and it relates to the assessment order passed in respect
of Mr. Jivraj B. Desai, audit reports relating to first
defendant - trust as well as the scheme framed by Joint
Charity Commissioner dated 06.06.1989 contending inter
alia that these documents are necessary to establish or
required to prove alleged criminal conspiracy which has
been hatched by the persons in collusion with each other
to grab the valuable property of the trust viz. suit
schedule property.
49. By this application, the applicant also seeks
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production of application filed for granting permission
before the Charity Commissioner under section 35 fo the
Act, after entering into MoU. A perusal of the averments
made in the application would indicate that in order to
drive home the inter se disputes then existing amongst
the trustees is sought to be placed on record as already
noticed hereinabove. These documents are not only
photocopies but also not certified copies. Even otherwise
said documents would not be required to adjudicate the
real controversy involved in the present Appeal. That
apart, the applicant has failed to prove the ingredients of
Sub-rule (1) of Rule 27 of Order 41 and has also failed to
prove as to how these documents would have any bearing
on the aspects involved in this Appeal or issues involved
in the suit. Hence, we are of the considered view Civil
Application No. 2 of 2007 (Old Civil Application No. 6794
of 2007) filed by defendant No. 5 deserves to be rejected
and accordingly it stands rejected.
Civil Application No. 3 of 2007
50. This is an application filed by fifth respondent
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seeking production of 9 documents namely following
documents : -
Sr. Document
No.
1. List of documents by the Court
Commissioner dated 26.10.1989 in RCS No.
543/89 in case of Anubhai Premchand Shah
v. Mittal Mandir Trust before the Civil
Court, Ahmedabad Rural
2. Intimation by the Court Commissioner
dated 24.10.89 to carry out the Court
Commission in RCS No. 543/89 in case of
Anubhai Premchand Shah v. Mittal Mandir
Trust before the Civil Court, Ahmedabad
Rural
3. Written statement dated 27.09.89 by the
trustees of Vitthal Mandir Trust in RCS No.
543/89 in case of Anubhai Premchand Shah
v. Mittal Mandir Trust before the Civil
Court, Ahmedabad Rural, pleading the
possession of the suit land with the trust
only
4. Panchnama dated 24.10.89 of the suit land
indication possession of Vitthal Mandir
Trust in RCS No. 543/89 in case of Anubhai
Premchand Shah v. Mittal Mandir Trust
before the Civil Court, Ahmedabad Rural
along with typed copy (certified copy is
placed on record with CA 8385/14)
5. The notice dated 21.12.2006 by the District
Registrar regarding proceedings of
cancellation & Liquidation of Appellant
Society
6. Letter dated 15.10.2005 by the District
Registrar Co-operative Societies (Rural)
Ahmedabad by Suhas Bhagwat asking to
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remain present for supply of documents
regarding appellant society
7. Report dated 30.11.2004 by the certified
auditor of the appellant society for the
period between 01.071999 to 31.03.2004
received under the RTI Act by Suhas
Bhagwat along with the accounts and the
list of members as on 31.03.2004 and the
register of the members
8. Reply dated 16.01.2007 by the appellant
society to the District Registrar Co-
operative Societies
9. The relevant page of yellow pages
indicating address of Popular Buildings at
Shanti Chambers, Ashram Road,
Ahmedabad
51. The applicant who is fifth defendant before trial
court has contended that in order to establish that
appellant has made incorrect statement with regard to
possession of suit schedule property by contending that
Shri Ranchodbhai V. Desai and Harjibhai K. Desai,
respondent No. 11 and 12 respectively, have stated
before the Charity Commissioner in the proceedings
initiated in Section 35 of the Bombay Public Trust Act and
before AUDA that possession of suit schedule property is
with the trust and simultaneously they had made a
incorrect statement before the Charity Commissioner on
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subsequent occasion that the possession of the suit
property is with the appellant. By relying upon the report
of the Court Commissioner made in Regular Civil Suit No.
543 of 1999 they seek to displace the stand of appellant.
It is also the endeavour of fifth defendant to establish
before this Court that plaintiff society is changing the
members and office bearers of the society and to
establish the said fact and prove new members have been
added to the society, this application has been filed
seeking production of documents specified in the
application. The issue relating to possession has to be
adjudicated not only as on date of agreement Exhibit 194
but also as on date of suit. Said exercise can be done
without looking into the documents sought to be
produced. None of the documents are original or certified
copies and for the reasons already indicated by us while
disposing of Civil Application No. 2 of 2007 and for the
same reasons, this application deserves to be rejected
and accordingly it stands rejected.
Civil Application No. 2 of 2014
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52. This application has been filed by fifth
defendant seeking production of following documents:-
Sr. Document
No.
1. Certified copy of Application for according
consent to the compromise with the
appellant dated 16.04.2001 regarding
present First Appeal made to the Charity
Commissioner
2. Certified copy of the order of rejection dated
05.12.2001 by the Charity Commissioner
regarding application for compromise with
the appellant dated 16.04.2001 regarding
presnet First Appeal made to the Charity
Commissioner
3. Certified copy of the application for the sale
of land to the appellant u/s 36 of Bombay
Public Trust Act by the trustees dated
30.08.2003 to the Charity Commissioner
4. Certified copy of the order dated 31.01.2004
to the appellant u/s 36 of the Bombay Public
Trust Act by the trustees dated 30.08.2003
53. We have heard the arguments of Shri N.M.
Kapadia, learned counsel appearing for fifth defendant
and Mr. Yatin Oza, learned Senior Counsel appearing for
appellant, who has submitted that he has no objection for
allowing this application. A perusal of the averments
made in the said application would indicate that fifth
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defendant intends to place on record that respondent no.
11 to 13 herein in alleged collusion with the appellant has
sought permission to sell the suit schedule property and
had filed an application under section 36 of the Bombay
Public Trusts Act on 23.10.2000, during the pendency of
the Appeal, which came to be rejected by the Charity
Commissioner vide order dated 31.01.2004 and
contending that it is a subsequent event which had taken
place and seeking production of aforesaid four
documents, this application has been filed.
54. In the light of learned Senior Counsel
appearing for appellant having stated no objection this
application is allowed and four documents are ordered to
be marked as Exhibit 219 to Exhibit 222 and
accordingly they are marked.
Civil Application No. 3 of 2014
55. This application has been filed for production of
following four documents : -
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Sr. Document
No.
1. Certified copy of Application by the trustees
of the Charity Commissioner for the
construction of temple and Dharmashala
dated 12.10.98 under section 35 of the
Bombay Public Trust Act
2. Certified copy of the order dated 10.02.1999
by the Charity Commissioner regarding
application by the trustees to the Charity
Commissioner for the construction of temple
and Dharamshala dated 12.10.98
3. True copy of the Income Tax Appellate order
dated 19.01.2004 in Appeal No. CIT(A)-
ICC.1(I)/24/02/03 in case of Jivraj V. Desai
regarding Block period between 01.04.1990
to 20.10.2000 indicating transaction of the
Popular Builders taking over the structure
of appellant society (Certified copy
produced before the Civil Court in Civil Suit
No. 1847 of 2004)
4. Certified copy of the panchnama dated
24.10.89 of the suit land indication
possession of Vitthal Mandir Trust in RCS
No. 543/89 in case of Anubhai Premchand
Shah v. Vitthal Mandir Trust before the Civil
Court, Ahmedabad Rural along with typed
copy
56. By this application, fifth defendant is seeking
production of aforesaid four documents contending inter
alia that said documents are essential for deciding the
controversy that has arisen in this Appeal. It has been
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contended, though permission had been granted to the
trustees to construct Nursing Home, commercial complex
and residence, but trustees had applied for construction
of commercial units and contending that they are guilty of
fraud perpetrated, they are seeking production of these
documents. None of these documents have any bearing
for deciding the real controversy between the parties
involved in the present Appeal. Except document No. 3,
which is a certified copy of the order passed by the
Commissioner of Income Tax (Appeals) that too along
with an affidavit dated 30.07.2022. All other three
documents are not certified copies, that apart we find
that these documents would not be required for
adjudication of the real controversy between the parties
and as such, said application stands rejected.
Civil Application No. 1 of 2015
57. This is an application filed for production of the
order dated 13.06.2007 passed by Gujarat Revenue
Tribunal. Subsequently by affidavit dated 11.02.2022,
certified copy has been produced which would reflect by
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the said order, tribunal had confirmed the order of the
Charity Commissioner dated 26.02.1986 who had rejected
the application filed seeking permission to sell the suit
schedule property. Since one of the issue involved in the
present Appeal is whether there was a permission by the
Charity Commissioner under section 36 of the Gujarat
Public Trusts Act to sell the suit schedule property by the
first defendant trust or otherwise, we are of the
considered view that said application requires to be
allowed and accordingly it is allowed and the document is
permitted to be marked as Exhibit 223.
Civil Application No. 2 of 2022
58. This is an application filed for production of
following documents by way of additional evidence : -
1. Photocopy of the order passed by the
Charity Commissioner dated 26.06.1967.
2. Photocopy of the order dated 16.09.1991
passed by the Joint Charity Commissioner,
Ahmedabad in Inquiry Case No. 30/85.
3. Photocopy of the application bearing No.
1/2001 said to have been filed by the trustees
of Vitthal Mandir Trust before the Charity
Commissioner (Filed on 16.04.2001).
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4. Photocopy of the order dated 05.12.2001
passed in Application No. 1/2001 by the
Charity Commissioner along with covering
letter dated 06.12.2001;
5. Photocopy of the application
No.36/59/2003 said to have been filed by
trustees of Vitthal Mandir Trust before the
Charity Commissioner on 30.08.2003.
6. Copy of the order dated 31.01.2004 in
Application No. 36/59/2003.
59. The documents which are sought to be
produced as Annexure C to F (as indicated in the Civil
Application) have also been sought for being produced by
the fifth respondent in Civil Application No. 2 of 2014,
which has been allowed by us by order of even date
hereinabove. Thus, what remains to be considered is
whether documents styled as Annexure A and B are to be
produced or not ? These are two orders which are
passed by the Charity Commissioner and Joint Charity
Commissioner dated 26.06.1967 and 16.09.1991 along
with enclosures thereto to contend that trustees of the
first defendant have given consent for agreement to sell
dated 27.12.1974 (Exhibit 194) as same is reflected in the
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said order. Both these orders are photocopies and
original or certified copies are not produced. On this
ground alone, it is liable to be rejected and accordingly it
stands rejected. Consequently Civil Application No. 2 of
2022 stands rejected.
Civil Application No. 3 of 2022
60. By this application defendant intends to
produce the copy of the scheme dated 06.06.1989 framed
by the learned Charity Commissioner in respect of first
defendant trust. On the short ground, this document was
also sought to be produced by fifth respondent by Civil
Application No. 2 of 2007 (Old Civil Application No. 6794
of 2007), which has already been dismissed vide order of
even date referred to supra, we are of the considered
view that entertaining of this application would not arise
and it stands rejected. It is also noticed said document is
sought for being produced along with Civil Application
No.6 of 2022 and as such it would be examined when we
take-up Civil Application No.6 of 2022.
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Civil Application No. 4 of 2022
61. By this application, fifth defendant has sought
for production of nine documents styled as Annexure A to
I. By these documents, fifth defendant seeks to buttress
the arguments that structure of the plaintiff society has
changed and most of the old members of the society were
removed and new persons were inducted. The
application filed before the Assistant District Registrar,
Cooperative Society, Ahmedabad, seeking the list and
members of the plaintiff society and exchange of
correspondence between fifth defendant and the officials
of the Corporation Department, is sought to be produced.
In substance, fifth defendant intends to place reliance on
the reply received from Cooperative Department to
contend that old members have resigned and new
members have been inducted to the plaintiff society.
Undisputedly, these documents have come into existence
subsequent to the filing of the suit. It is no doubt true
that subsequent events can be taken note by this Court as
held by the Hon'ble Apex Court in the case of M/s.
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Variety Emporium vs. V.R.M. Mohd. Ibrahim Naina,
reported in 1985 AIR SC 207. At the cost of repetition,
it requires to be noticed that applicant will have to be
necessarily establish as to how the said evidence would
be of any relevance for adjudication of the issue relating
to the grant of decree for specific performance or not. It
is not doubt true that issue of hardship or exercise of
discretionary relief is concerned, same would be
considered as one of the factors. However, that by itself
would not be sufficient to arrive at a conclusion one way
or the other. In other words, the issue relating to grant
of specific performance or refusal would not hinge upon
these documents and it would not be of any vital
importance for this Court to adjudicate the rival claims
that has been raised in this regard. Hence, we are of the
considered view that these documents would not be of
any relevance for adjudicating the real controversy
between the parties and as such Civil Application No. 4 of
2022 stands rejected.
Civil Application No. 5 of 2022 and 6 of 2022
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62. These applications have been filed for
production of documents specified therein. As could be
seen from Civil Application No. 5 of 2022, plaintiff -
appellant is seeking for production of copy of the order
dated 16.09.1991 passed by Joint Charity Commissioner,
Ahmedabad in Inquiry Case No. 30/85 and for production
of application dated 12.04.2022 filed by it seeking
certified copies from the Charity Commissioner. In fact
these two documents have also been sought for being
produced through Civil Application No.6 of 2022. On this
ground, Civil Application No.5 of 2022 is dismissed.
63. Whereas, Civil Application No. 6 of 2022 is filed
by appellant seeking production of two documents
referred to hereinabove, as well as copy of order dated
26.06.1967 and applications filed by the trustees of the
first defendant - Trust before the Charity Commissioner
including the order passed thereon. Subsequently the
certified copies of the application dated 12.04.2001,
application dated 06.12.2001, order dated 05.12.2001
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passed by the Charity Commissioner, application dated
30.08.2003 filed by the first defendant - Trust before the
Charity Commissioner, the scheme dated 06.06.1989,
consent terms dated 12.07.1984 executed in First Appeal
No. 362 of 1976, order dated 12.07.1984 passed in First
Appeal No. 362 of 1976, judgment dated 19.11.1997
passed in C.R.A. No. 1235 of 1992, order dated
14.10.2010 passed by Charity Commissioner in Revision
Application No. 11 of 2005, order dated 29.11.2011
passed by Charity Commissioner, Gujarat State,
Ahmedabad, application dated 29.11.2021 (Exhibit 13)
and order dated 13.02.2017 and 11.01.2018 passed in
First Appeal No. 1814 of 2012, judgment passed in Civil
Misc. Application No. 1052 of 2010 by the City Civil
Court, Ahmedabad dated 02.09.2011, order dated
31.01.2004 passed by Charity Commissioner, are only
allowed and marked as Exhibit 224 to 237 since these
documents would have some relevance on the
controversy involved in this appeal and in the background
of pleadings laid before trial court. Accordingly, Civil
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Application No. 6 of 2022 stands partly allowed.
RE : POINT NO. (ii)
64. Civil Application No.1 of 2016 is filed under
section 151 of CPC read with Order XIV Rule 2(2) praying
this Court to frame the following preliminary issues : -
"(i) Whether the Suit/Appeal is maintainable in view
of the absence of and/or are rejection of application
under section 36 of the Bombay Public Trust Act and
also dismiss the appeal as barred by law and also by
holding that cause of action does not survive and also
in view of the fact the conduct of the respondents 11 to
13;
(ii) In the alternative dismiss First Appeal No. 3517
of 2000 filed by the original applicant, qua prayer of
specific performance and to confirm the judgment and
decree passed by the learned trial Judge in the suit."
65. A perusal of averments made in the application
would indicate fifth defendant is contending inter alia
that on account of application filed under section 36 of
the Bombay Public Trusts Act having been rejected, the
present Appeal would be barred by Law as cause of
action would not survive for consideration. This is an
issue which requires to be examined in the Appeal by
examining the correctness and legality of the judgment
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and decree passed by the trial Court, in the teeth of the
pleadings and the evidence available. Hence, we are of
the considered view that this application requires to be
rejected and accordingly it stands rejected.
RE. POINT NO. (iii)
66. Civil Application No.1 of 2022 has been filed by
the plaintiff under section 151 of CPC for deletion of
respondent Nos. 2 to 10 from this Appeal on the ground
that they have either resigned or have been removed
from the trustship of 1st defendant. It is also stated that
first defendant - trust is presently represented by the
existing trustees, who are joined as respondent Nos. 11 to
13 and contending that defendant Nos. 2 to 10 namely
defendants - respondents being ex-trustees are no longer
proper and necessary parties in the present First Appeal.
Plaintiff admit that first defendant - trust is contesting
the present Appeal. It is also admitted by the applicant -
plaintiff that there is dispute amongst the trustees and if
it were to be so, it is for the said parties namely the 1 st
defendant trust and its trustees to work out their rights in
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appropriate Forum and in this suit for specific
performance inter se dispute even if any between the
trustees or between the trust and the trustees cannot be
the subject matter of consideration in this Appeal, which
is filed by unsuccessful plaintiff being aggrieved by
judgment and decree passed dismissing the suit for
specific performance and decreeing the suit for refund of
money paid by it. Hence, Civil Application No. 1 of 2022
stands rejected.
RE. POINT NO. (iv)
67. Civil Application No.3 of 2018 has been filed by
the legal heirs of Mr. Pramukhlal Jivanlal Parikh and Mr.
Ambalal Ishwarlal Prajapati seeking for being impleaded
as parties to the present appeal. Mr. Devang Nanavati,
learned Senior Advocate appearing for the applicants
would contend that an agreement of sale had been
executed by Mr. Madhavrao Bhagwat as trustee of
defendant No.1 in favour of Mr. Pramukhlal Jivanlal
Parikh and Mr. Ambalal Ishwarlal Prajapati to sell the suit
schedule property in their favour and permission had also
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been granted on 27.10.1970 by the learned Charity
Commissioner for sale of suit schedule property in favour
of Shardaben Chimanlal Trust. It is contended that
trustees of Vitthal Mandir Trust - defendant No.1
executed an agreement of sale in favour of Mr.
Mukundbhai Chimanbhai Shah (Jalpa Traders) on
3.4.1972 for selling the suit schedule property and in turn
Jalpa Traders executed an agreement in favour of
Chhaganlal & Company - defendant No.14 on 23.11.1973
and this was confirmed by defendant No.1 trust. It is
further stated that Chhaganlal & Company executed an
agreement of sale in favour of the plaintiff society on
27.12.1974. He would contend that defendant No.1 trust
had also executed an agreement to sell on 23.5.1964 in
favour of Mr. Manharlal Nagindas Bhandari and
permission had also been granted by the Charity
Commissioner on 4.6.1964 to sell the suit schedule
proper in favour of Mr. Manharlal Bhadari and he had
instituted a Civil Suit No.16 of 1971 against Bhagwat
Family, Mr. Pramukhlal Jivanlal Parikh, Mr. Ambalal
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Ishwarlal Prajapati and Sharda Mandir Trust for specific
performance, damages and for the permanent injunction
which came to be dismissed on 17.4.1976 which was
challenged in First Appeal No.362 of 1976, wherein a
settlement was arrived at agreeing thereunder that in
case consent terms were not acted upon, liberty being
reserved to proceed with the suit. Hence, the original
applicants are said to have filed SCS No.68 of 1983 for
specific performance which has been dismissed on
13.9.1996 which was challenged in First Appeal No.5304
of 1996 which appeal came to be transferred to the
District Court and renumbered as RA No.27 of 2006
which was then partly allowed on 19.6.2012 and
remanded the matter back to the Trial Court as directed
thereunder. An application filed in the said suit by the
legal heirs of Mr. Pramukhlal Jivanlal Parikh and Mr.
Ambalal Ishwarlal Prajapati came to be dismissed by the
Trial Court on 1.10.2015 and consequently held that
Special Civil Suit No.68 of 1983 had stood abated.
Against the said order, Special Civil Application No.18589
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of 2015 was filed challenging the order dated 1.10.2015
and same is said to be pending. Hence, contending that
any judgment and decree passed in this appeal would
adversely affect their interest in pending Special Civil
Application No.18589 of 2015, applicants are before this
Court for being impleaded / joined as parties.
68. Reiterating the contentions raised in the
application and grounds urged thereunder, Mr. Devang
Nanavati, learned Senior Advocate seeks for allowing the
said application. In support of his submission, he has
relied upon the judgment of the Hon'ble Apex Court in
the case of Sumtibai and others vs. Paras Finance Co.
and others [(2007) 10 SCC 82] and in the case of M.P.
State Agro Industries Development Corporation Ltd.
and Another vs. Jahan Khan [(2007) 10 SCC 88]. The
general rule for impleadment is that the plaintiff being
the dominus litis would choose the person against whom
he intends to litigate and he cannot be compelled to sue a
person against whom he does not seek any relief. A plain
reading of sub-rule (2) of Rule 10 of Order 1 would make
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it explicitly clear that a court may at any stage of the
proceedings either upon or even if any application, and
on such terms as may appear to it to be just, direct that
any person who ought to have been joined whether as
plaintiff or defendant, or whose presence before the court
may be necessary in order to enable the court to
effectually and completely adjudicate upon and settle all
questions involved in the suit, be added as party. In short,
court is given the discretion to add a person as a party
who is found to be necessary parties are proper parties.
The Hon'ble Apex Court in the case of Mumbai
International Airport Private Limited vs. Regency
Convention Centre and Hotels Private Limited and
Others [(2010) 7 SCC 417] has indicated as to who
would the necessary party or a proper party. It has been
held as under:
"15. A `necessary party' is a person who ought to have
been joined as a party and in whose absence no
effective decree could be passed at all by the Court. If a
`necessary party' is not impleaded, the suit itself is
liable to be dismissed. A `proper party' is a party who,
though not a necessary party, is a person whose
presence would enable the court to completely,
effectively and adequately adjudicate upon all matters
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in disputes in the suit, though he need not be a person
in favour of or against whom the decree is to be made.
If a person is not found to be a proper or necessary
party, the court has no jurisdiction to implead him,
against the wishes of the plaintiff. The fact that a
person is likely to secure a right/interest in a suit
property, after the suit is decided against the plaintiff,
will not make such person a necessary party or a
proper party to the suit for specific performance."
69. The Hon'ble Apex Court in the case of Kasturi
vs. Iyyamperumal [(2005) 6 SCC 733] has held that
following persons are to be considered as necessary
parties:
(i) The parties to the contract which is sought
to be enforced or their legal
representatives;
(ii) Transferee of the property which is the
subject matter of the contract.
70. It has also been held that a person claiming
title adverse to the title of the vendor could not be
impleaded. Keeping these principles in mind when we
turn our attention to the facts on hand it would clearly
indicate that applicants who are claiming to be the legal
heirs of Mr. Pramukhlal Jivanlal Parikh and Mr. Ambalal
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Ishwarlal Prajapati in whose favour there was an
agreement of sale are seeking to be impleaded in the
present proceedings which is a suit filed by the plaintiff
claiming specific performance on the strength of
agreement to sell dated 27.12.1974 Exhibit 194. If at all
applicants are having any right by virtue of the
agreement of sale dated 18.8.1966 which they are
claiming to be and espousing their cause by instituting
SCS No.68 of 1983 which has also been dismissed and
appeal filed thereon having abated and now pending in
Special Civil Application No.18589 of 2015 they would be
at liberty to work out their rights in the pending Special
Civil Application and applicants are neither proper
parties nor necessary parties in the present appeal, which
can also be adjudicated and disposed of by answering the
issues involved, even in the absence of the applicants.
The inter-se dispute even if any between the applicants
on the one hand and plaintiffs or defendant Nos.1 to 8
and 14 cannot be the subject matter of scrutiny or
examination by this Court in the present appeal. Hence,
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this Court is of the considered view that Civil Application
No.3 of 2018 is liable to be rejected and accordingly it
stands rejected.
RE. POINT NO. (v)
71. Civil Application No.7 of 2022 under Order 1
Rule 10 of CPC read with 107(2) of CPC has been filed by
plaintiffs for impleading Shri Jatin Rameshchandra
Jalundhwala and Dr. Malay Rameshbhai Mahadeviya,
contending inter alia that after filing of the present
Appeal, respondent Nos. 2 to 10 have either resigned or
have been removed and they are no longer trustees and
one of the newly added trustee namely Yash Kishor
Bhagwat is already on record as respondent No. 6.1.4 and
proposed respondents are necessary and proper parties
to these proceedings. Perusal of averments made in the
application do not indicate as to how they are necessary
and proper parties. Any inter se controversy or dispute
between the trustees cannot be subject matter of
consideration. The first defendant - trust being a party
and represented by Counsel, any inter se dispute between
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the trust and trustees can be resolved in appropriate
proceedings and in appropriate forum. Hence, without
expressing any opinion on the claim made and we find
that it is not necessary to issue notice to the proposed
respondents as specified in the present application.
Hence, Civil Application No. 7 of 2022 stands rejected by
reserving liberty to the parties to work out their rights in
accordance with law before proper forum.
POINT NOS. (vi) AND (vii) :
72. The issues framed by the Trial Court and
adjudicated essentially revolves around these two points.
The incidental points that may arise for consideration
would also be formulated as and when necessary and at
appropriate stage of this judgment and during the course
of our discussion on these two points and while re-
evaluating the evidence tendered before the Court below.
73. Since above points are interlinked and finding
recorded on one point is likely to overlap with other, we
have taken up these two (2) points together for being
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adjudicated and answered.
74. Plaintiff which is a Co-operative Housing
Society has brought the suit for specific performance of
agreement to sell dated 27.12.1974 which document
came to be marked as Exhibit 194.
75. Plaintiff has contended that it is a registered
cooperative housing society and being in need of houses
for its members had agreed to purchase the lands bearing
Survey No. 37 and 38 measuring 2 Acre 29 gunthas and 4
Acre 38 gunthas situated at Thaltej (referred to as 'suit
schedule property') Taluka Daskroi, Dist. Ahmedabad
which belonged to or owned by first defendant. It is the
case of the plaintiff that defendants had executed an
agreement to sell the suit schedule property dated
18.08.1966 in favour of Mr.Pramukhlal Jeevanlal Parikh
and Mr.Ambalal Ishwarlal Prajapati. It is further case of
plaintiff that Mr.Pramukh Jeevanlal Parikh as well as first
defendant trust executed an agreement to sell dated
21.09.1970 in favour of Mr.Gangaram Bhaskar Rao Pavde
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and said Mr.Gangaram Bhaskar Rao Pavde had assigned
his rights in favour of a partnership firm M/s. Jalpa
Traders represented by its partners Mukundbhai
Chimanlal Shah. It is further case of plaintiff that trustee
of the first defendant trust, Mr. Kunjbiharilal Madhavlal
Bhagwat (for short hereinafter referred to as
'Kunjbiharilal') had executed an agreement to sell dated
08.05.1972 in favour of the said partnership firm M/s.
Jalpa Traders. It is also stated that Kunjbiharilal had
previously executed an agreement dated 03.04.1972 also
in favour of Jalpa Traders. Hence, it was contended that
all rights under agreement to sell was acquired by M/s.
Jalpa Traders. The said agreement holder M/s. Jalpa
Traders through its partner Mr. Mukundbhai Chimanlal
Shah is said to have assigned its rights in favour of M/s.
Chhaganlal & Company vide agreement to sell dated
13.11.1973. In turn, M/s. Chhaganlal & Company is said
to have assigned all its rights in favour of the plaintiff -
society vide agreement to sell dated 27.12.1974 (Exhibit
194), whereunder it is said to have been agreed to sell
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the suit schedule property for Rs. 13.25 paise per sq. yds.
and received Rs. 15,000/- in cash on the date of
agreement to sell. It is further stated that a further sum
of Rs. 25,000/- was paid by the plaintiff on 20.05.1975
and Rs. 5,000/- was paid on 15.12.1975 and thus, in all a
sum of Rs. 45,000/- is said to have been paid by the
plaintiff to M/s. Chhaganlal & Company. It is further
contended by plaintiffs that all the trustees of the first
defendant trust agreed to continue the agreement of sale
dated 27.12.1974 executed by M/s. Chhaganlal &
Company. It is further pleaded that at the first instance
agreed price was Rs. 3.25 paisa per sq. mtr., and same
was agreed to be revised upwards by Rs. 2 per sq. mtr.
totalling Rs. 5.25 per sq. mtr. while assigning all rights
over the suit land in favour of plaintiff society by the
defendants. It is stated in the plaint that all the
defendants have endorsed their consent for the
agreement to sell dated 27.12.1974. Plaintiff further
pleads that on 18.04.1976, vacant and peaceful
possession of the suit schedule property was handed over
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to the plaintiff by the defendants.
76. It is the further case of the plaintiff that first
defendant has received Rs. 20,001/- towards sale
consideration by cheque dated 21.10.1982 which has
been duly accepted by the first defendant and same was
paid in lieu of defective cheque dated 11.08.1982. It is
further case of the plaintiff - society in all had paid
Rs.30,501/- to the defendant trust.
77. Plaintiff also claimed after obtaining possession
of suit schedule property that one Mr. Babji Bapuji,
watchman was appointed to look after the security of suit
schedule property after obtaining possession and he was
being paid salary every month. Subsequently, one Shri
Jagbahadur Lokbahadur Thapa was appointed as
Watchman to take care of suit schedule property and he
was residing in the room constructed in the suit schedule
property. It is further case of the plaintiff that a layout
plan was drawn by an Engineer Shri Kantilal R. Patel as
plaintiff society was desirous of constructing houses for
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its members and the said plan drawn by the Engineer was
signed by all the trustees of defendant trust.
78. Plaintiff has further pleaded that defendant
trustees filed an application seeking permission to sell the
suit schedule property before the Charity Commissioner -
16th defendant under section 36 of the BPT Act. The
defendants are also said to have filed form No. 1 under
section 20 of the Urban Land Ceiling Act (then
prevailing), wherein it is said to have been stated
specifically by the defendants that suit land was being
sold to the plaintiff.
79. Plaintiff has contended that first defendant -
trust was attempting to dispose of the suit land to
someone else, owing to escalation in land price and it
would adversely effect its rights. It was also contended
that plaintiff's possession over the suit schedule property
was sought to be disturbed and attempts were made to
dispossess the plaintiff from suit schedule property by
posing threats. It is contended that defendants were not
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executing the sale deed in spite having demanded and a
police complaint was lodged in that regard contending
that trustees of the defendant trust are attempting to sell
the suit schedule property to third party and pleading
that members of the plaintiff society are middle class
person and have invested huge amounts they would be
put to great loss if the defendants were to sell the suit
schedule property to third party or disturb plaintiff's
possession. Hence, plaintiff filed a Civil Suit No. 210 of
1983 for permanent injunction which was withdrawn on
17.07.1984 and thereafter the present suit for specific
performance came to be filed.
80. On service of suit summons, defendants No. 1
to 4 and 6 appeared and have filed their written
statements denying the averments made in the plaint and
putting plaintiff into strict proof of the same. It has been
specifically contended as noticed hereinabove, the
present suit was barred by res judicata since similar suit
filed earlier had been withdrawn without any valid
reason. It was also contended that suit is barred by
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limitation; suit was not maintainable as per section 51 of
BPT Act, since written permission had not been obtained
from the Charity Commissioner for filing the suit. It was
contended that defendant had executed an agreement to
sell the suit schedule property to Mr. Pramukhlal and
Mr.Ambalal and later on first defendant trust and
Mr.Pramukhlal executed another agreement to sell the
suit land in favour of Mr.Gangaram Pavde which
agreement was not duly signed by all the trustees. It was
also contended that agreement to sell entered into
between first defendant and Mr.Pramukhlal and
Mr.Ambalal did not contain the signature of Mr.Ambalal
and as such it was not a legal and valid document. The
assignment or transfer of the rights by Mr.Gangaram
Pavde to third party was denied and plaintiff was put to
strict proof of the same. It was contended that agreement
to sell dated 08.05.1972 executed in favour of
Mr.Mukundbhai on behalf of Jalpa Traders had been
signed by one of the trustees namely Mr. Kunjbihari, who
had not been authorized by all the trustees to enter into
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such agreement and as such denied that trust was
answerable and also denied that Kunjbihari being the
managing trustee of the trust was entiteld to enter an
agreement of sale of suit schedule property. Other
averments made in the plaint had also been denied as
already noticed hereinabove. It was specifically denied
that first defendant being a public trust registered under
BPT Act, it cannot sell the suit schedule property without
obtaining permission from the 17th defendant and there
was no such permission granted by the Charity
Commissioner. The delivery of possession of suit schedule
property also came to be denied. As noticed hereinabove
averments made in the plaint has been denied by these
defendants. Sum and substance of the defence put forth
by defendant no. 1 to 4 and 6 have already been noticed
by us hereinabove.
81. In this background, when judgment passed by
the trial court is looked into, it would emerge therefrom
that on the issue of agreement of sale, the learned trial
Judge has framed to two issues namely issue no. 2 and 3
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and has answered partly in the affirmative and partly in
the negative. In this process, the learned Trial Judge has
recorded a finding at paragraph 7 of the judgment, the
substance of which can be formatted as under.
82. The agreement to sell dated 27.12.1974 marked
as Exhibit 194 has been held to have not been duly signed
by all the trustees; the say of the plaintiff that Exhibit 194
reflects Rs. 5,000/- and there is no mention of plaintiff
having paid 5,500/- to defendants - trustees on
30.12.1982 and no receipts are produced; there is
inconsistency in the pleadings namely at one breath
plaintiff has stated on oath that defendants have not filed
necessary application seeking permission. Whereas in
another breath, namely in the plaint they have contended
necessary applications have been filed by defendants
before the Charity Commissioner and they had also filed
form no. 1 under the Urban Land Ceiling Law; defendant
no. 7 and 8 having not affixed their signatures to Exhibit
194 and thereby the plea of the plaintiff that all the
trustees of the trust having signed Exhibit 194 has been
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disbelieved by the trial court.
83. At the outset, it requires to be noticed that
burden is on the plaintiff to prove the execution of the
agreement of sale dated 27.12.1974. In the instant case,
undisputedly the first defendant has not executed the
agreement of sale dated 27.12.1974 in favour of the
plaintiff and this is an admitted fact or in other words,
plaintiff does not dispute this fact. On the other hand,
witness examined on behalf of plaintiff namely Mr.
Babubhai who claimed to be the Chairman of the plaintiff
society has clearly admitted in his deposition that
defendants no. 2 to 8 are trustees of the first defendant
trust which is a trust registered under the Bombay Public
Trust Act. He further deposes that defendant no. 1 to 8
executed the agreement of sale dated 18.08.1966 in
favour of Mr. Pramukhlal Jeevanlal Parikh and Mr.
Ambalal Ishwarlal Prajapati. It is pertinent to note at
this juncture that said agreement of sale dated
18.08.1966 has not seen the light of the day. He
further deposes that Mr. Pramukhlal Jeevanlal Parikh and
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the first defendant trust together executed an agreement
of sale on 21.09.1970 in favour of one Shri Gangaram
Bhaskarrao Pavde. It is pertinent to note at this
juncture that said agreement of sale also has not
seen the light of the day. It is further case of plaintiff
that on 03.04.1972, said Shri Gangaram Bhaskarrao
Pavde assigned the rights of his sale agreement in favour
of a partnership firm M/s. Jalpa Traders represented by
its partner Mr. Mukundbhai Chimanlal Shah. The said
agreement of assignment dated 03.04.1972 has also
not seen the light of the day. It is further necessary to
notice at this juncture that agreement of sale executed in
favour of Shri Gangaram Bhaskarrao Pavde was by Shri
Pramukhlal Jeevanlal Parikh and the first defendant trust
only. In other words, the other person who possessed the
right by virtue of agreement of sale dated 18.08.1966
namely Shri Ambalal Ishwarlal Prajapati has not affixed
his signature to the agreement of sale dated 21.09.1970.
Thus, no right flowed in favour of Shri Gangaram
Bhaskarrao Pavde to execute the agreement of sale or
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assign his rights in favour of M/s. Jalpa Traders, in
respect of suit schedule property that too in respect of
share of Mr.Pramukhlal Jeevanlal Parikh. Thus, what
right flowed to either Jalpa Traders or Mukundbhai
Chimanbhai Shah is only limited right or half of the right
he possessed over the suit schedule property.
84. Be that as it may. The said Mukundbhai
Chimanbhai Shah partner of M/s. Jalpa Traders is said to
have executed an agreement of sale or assigned the
rights which partnership firm possessed or acquired on
03.04.1972 in favour of Chhaganlal & Company under a
deed of Agreement of Sale dated 23.11.1973. It is
pertinent to note at this juncture that said
agreement of sale has also not seen the light of the
day. All these deeds, agreements or assignment deed/s
have neither been tendered come before the trial Court
nor it has been tendered by the plaintiff before this Court.
On account of these documents having been denied in
toto by defendant no. 1 to 4 and 6 in their written
statement, burden cast on the plaintiff has not been
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discharged. However, for reasons best known, plaintiff
did not produce any of these deeds or documents to prove
the chain of events which culminated in execution of the
subject agreement of sale dated 27.12.1974 Exhibit 194.
85. Thus, initial burden which was cast upon
plaintiff has not been discharged and on this ground
alone, plaintiff ought to have been non-suited.
86. Now we turn our attention to the agreement of
sale Exhibit 194 dated 27.12.1974 based on which suit
has been filed. This is an agreement of sale - said to have
been executed by partner of M/s.Chaganlal & Co., in
favour of plaintiff society and plaintiff claims same has
been consented to by the 1st defendant - trust and its
trustees and as such it is binding on them and they are
required to execute the sale deed in favour of plaintiff. It
is contended by the plaintiff that it had paid a sum of Rs.
15,000/- on the date of agreement of sale to its vendor
namely Chhaganlal & Company - 14th defendant. It has
been further pleaded that a sum of Rs. 20,000/- was paid
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on 21.10.1982 and then Rs. 5,000/- is paid on 30.12.1982.
It is also claimed that another sum of Rs. 5,000/- was paid
on 04.06.1983 by cheque. Thus, plaintiff claimed that in
all it had paid Rs. 30,501/- to defendant trust. Whereas
PW-1 claims that plaintiff in all had paid Rs. 45,000/- to
M/s. Chhaganlal & Company, the 14th defendant.
Whereas, averments made in the plaint is contrary to
what is stated in plaint. Thus, as rightly pointed out by
the trial Judge, the plea in the plaint itself is not only
inconsistent but also contrary to the plea raised in the
plaint as well as statement made on oath by plaintiff's
witness Mr. Babulal in his deposition.
87. Thus, plaintiff is claiming right to seek specific
enforcement of agreement of sale dated 27.12.1974
(Exhibit 194). To prove said agreement one Shri Babubhai
has been examined. Perusal of his examination-in-chief
would indicate plaintiffs have tried to trace their right to
seek specific performance based on Exhibit 194, which is
an agreement of sale dated 27.12.1974 executed by the
partner of M/s.Chaganlal & Co., namely Mr. Chhaganlal
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Girdhar Patel in favour of plaintiff society. There is a
reference to agreement to sell dated 18.08.1966 said to
have been executed by trustee and administrator of 1 st
defendant trust in favour of Shri Pramukhlal Jivanlal
Ambalal and Ambalal Ishwarlal Prajapati (which
document is not produced or has seen light of the day, as
already observed hereinabove). Aforesaid two agreement
holder namely Shri Pramukhlal and Shri Ambalal, one of
them namely Shri Pramukhlal Jivanlal Ambalal along with
one Shri Kunjbihari Madhavdas Bhagvat, Managing
Trustee of 1st defendant trust is said to have executed an
agreement of sale on 21.09.1970 in favour of Shri
Gangaram Baskarrao Pavde (which document has also
not seen light of the day). It is also contended that by
virtue of said Banakhat dated 21.09.1970, Shri Gangaram
Bhaskarrao Pavde gave away all the rights of Banakhat
and assigned it to Shri Mukundbhai Chimanlal Shah,
partner of M/s. Jalpa Traders on 08.05.1972 along with
Shri Kunjbihari Madhavlal Bhagwat. The said M/s. Jalpa
Traders is said to have executed a banakhat assigning all
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
rights in favour of M/s. Chhaganlal & Co. Plaintiff has
further pleaded by virtue of the said rights having vested
with M/s. Chhaganlal & Co., they in turn have executed
an agreement to sale dated 27.12.1974 (Exhibit 194) in
favour of plaintiff. In order to prove the averments made
in the plaint, as noticed hereinabove, plaintiff has got
examined Shri Babubhai, who has stated to the following
effect :
"Defendant is Vithal Mandir Trust. It is a .....xxx......
above trust. Defendants 1 to 8 execute sale agreement
of the said land in favour of Pramukhlal Jivanlal Parikh
and Ambalal Ishwarlal Prajapati on the date
18.08.1966. Pramukhlal Jivanlal Parikh and the trust
came together and made sale agreement in favour of
Shri Gangaram Bhaskarrao Pavde on the day
21.09.1970. On the day 03.04.1972, Gangaram
Bhaskarrao Pavade assigns the rights of his sale
agreement to Mukundbhai Chimanlal Shah, a partner
of the partnership firm in the name of Messers Jalpa
Traders on the basis of said sale agreement. He made
sale agreement in favour of Mukundbhai Chimanlal
Shah. Thereafter, all the rights has been given to
Messers Chhaganlal & Co. from Shri Mukundbhai
Chimanlal Shah, a partner of Messers Jalpa Traders on
the day 23/11/73. On the basis of all the rights in said
agreement, Chhaganlal & Co. granted all its rights and
sale said land to plaintiff on the day 27.12.1974. For
that, plaintiff has given Rs. 15,000/- on the same date
at the time of sale agreement. Then Rs. 25,000/- is
given on 20.05.1975, and then Rs. 5,000/- is given on
15.12.1978. In this way, the plaintiff has paid Rs.
45,000/- to Messers Chhaganlal & Co. The execution of
the sale agreement on dated 27.12.74 has been
continued by the partners of Messers Chhaganlal & Co.
and all the trustees of the aforesaid defendant trust.
Defendant No. 1 to 8 have given all the rights of the
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above land to the plaintiffs. The plaintiff is occupying
the claimed land."
87-A. Thus, comparison of the pleadings and
deposition wold clearly indicate that there is
inconsistencies. On one hand, in the plaint, it has been
stated at paragraph 1 to the effect that plaintiff society
has in all paid Rs. 30,501/- to the defendant trust,
whereas witness examined on behalf of plaintiff has
stated that Rs. 45,000/- is paid to M/s. Chhaganlal & Co.
This inconsistency is at large and staring at face and as
such, we are of the considered view that plaintiff has
failed to prove the plea raised in the plaint or there has
been inconsistency between the pleadings and evidence.
88. In order to prove its claim the plaintiff has
examined one witness Mr.Babulal who claims that he is the
chairman of the plaintiff society on the date he was
deposing. He is neither signatory to the Agreement of Sale
Exhibit 194 nor witness to the said document. A perusal of
his deposition would indicate as though he is speaking to
facts and being conversant with same or in other words, he
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
was having personal knowledge of the facts which is
otherwise. Burden is cast on the plaintiff to prove that said
witness had either personal knowledge or he was informed
by any one of the signatories to Exhibit 194 about the facts
of which he has deposing. None of these are present in the
instant case. In his examination-in-chief dated 26.09.2000,
he has deposed to the following effect :
"I was doing part-time job in Chhaganlal & Co. in the
year 1973 and in this manner I was connected with the
said company. Mr.Chhaganlal Girdharlal Patel is the
main partner of Chhaganlal & Co. I know him very well.
I saw him writing frequently when I was doing part-time
job in Chhaganlal & Co. and therefore, I know his
signature well."
89. Thus, the witness examined on behalf of plaintiff who
was an employee of Chhaganlal & Co. had no authority to
depose on behalf of the plaintiff society. That apart, there
is no authorization given by the plaintiff society to
Mr.Babulal to depose on behalf of the plaintiff society.
There is no resolution passed by the plaintiff society
authorizing Mr.Babulal to depose before the Court. There
is absolutely no material to show that Mr.Babulal was a
member of the plaintiff society or he was the Chairman of
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the plaintiff society. There is no material placed by the
plaintiff to establish that as on 1974 when Exhibit 194
came into existence, Mr.Babulal was a member of the
plaintiff society. On the other hand, the admission in the
examination-in-chief dated 26.04.2000 which is extracted
hereinabove would suggest that as on 1973, he was doing
part-time job in Chhaganlal & Co. (Defendant No.14)
90. The Hon'ble Supreme Court in the case of Man
Kaur (Dead) by Lrs. vs. Hartar Singh Sangha, reported
in (2010) 10 SCC 512, has held that where a party to the
suit does not appear in the witness-box and states his own
case on oath and does not offer himself to be cross-
examined by the other side, a presumption would arise
that the case set up by him is not correct. It is also held
that only the person with personal knowledge of details of
transaction can depose. It has been further held :
"17. To succeed in a suit for specific performance,
the plaintiff has to prove: (a) that a valid agreement of
sale was entered by the defendant in his favour and the
terms thereof; (b) that the defendant committed breach
of the contract; and (c) that he was always ready and
willing to perform his part of the obligations in terms of
the contract. If a plaintiff has to prove that he was
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
always ready and willing to perform his part of the
contract, that is, to perform his obligations in terms of
the contract, necessarily he should step into the witness
box and give evidence that he has all along been ready
and willing to perform his part of the contract and
subject himself to cross examination on that issue. A
plaintiff cannot obviously examine in his place, his
attorney holder who did not have personal knowledge
either of the transaction or of his readiness and
willingness. Readiness and willingness refer to the state
of mind and conduct of the purchaser, as also his
capacity and preparedness on the other. One without the
other is not sufficient. Therefore a third party who has
no personal knowledge cannot give evidence about such
readiness and willingness, even if he is an attorney
holder of the person concerned.
18. We may now summarise for convenience, the
position as to who should give evidence in regard to
matters involving personal knowledge:
(a) An attorney holder who has signed the plaint and
instituted the suit, but has no personal knowledge of
the transaction can only give formal evidence about the
validity of the power of attorney and the filing of the
suit.
(b) If the attorney holder has done any act or
handled any transactions, in pursuance of the power of
attorney granted by the principal, he may be examined
as a witness to prove those acts or transactions. If the
attorney holder alone has personal knowledge of such
acts and transactions and not the principal, the
attorney holder shall be examined, if those acts and
transactions have to be proved.
(c) The attorney holder cannot depose or give evidence
in place of his principal for the acts done by the
principal or transactions or dealings of the principal, of
which principal alone has personal knowledge.
(d) Where the principal at no point of time had
personally handled or dealt with or participated in the
transaction and has no personal knowledge of the
transaction, and where the entire transaction has been
handled by an attorney holder, necessarily the attorney
holder alone can give evidence in regard to the
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
transaction. This frequently happens in case of
principals carrying on business through authorized
managers/attorney holders or persons residing abroad
managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted
through a particular attorney holder, the principal has
to examine that attorney holder to prove the
transaction, and not a different or subsequent attorney
holder.
(f) Where different attorney holders had dealt with the
matter at different stages of the transaction, if evidence
has to be led as to what transpired at those different
stages, all the attorney holders will have to be
examined.
(g) Where the law requires or contemplated the plaintiff
or other party to a proceeding, to establish or prove
something with reference to his `state of mind' or
`conduct', normally the person concerned alone has to
give evidence and not an attorney holder. A landlord
who seeks eviction of his tenant, on the ground of his
`bona fide' need and a purchaser seeking specific
performance who has to show his `readiness and
willingness' fall under this category. There is however a
recognized exception to this requirement. Where all the
affairs of a party are completely managed, transacted
and looked after by an attorney (who may happen to be a
close family member), it may be possible to accept the
evidence of such attorney even with reference to bona
fides or `readiness and willingness'. Examples of such
attorney holders are a husband/wife exclusively
managing the affairs of his/her spouse, a son/daughter
exclusively managing the affairs of an old and infirm
parent, a father/mother exclusively managing the affairs
of a son/daughter living abroad."
91. The witness who had been examined on behalf of
the plaintiff Mr.Babulal having no personal knowledge of
the transaction (Exhibit 194) cannot be held to be a person
who knew as to what transpired when the Agreement of
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Sale Exhibit 194 came into existence. Hence, the
contention raised by the plaintiff that it had proved the
contents of Exhibit 194 also cannot be digested and it has
to be rejected.
92. As could be seen from the judgment and decree
of the trial Court, the suit has been dismissed essentially
on the following grounds :
(i) Non-availability of permission from
Charity Commissioner;
(ii) Permission not obtained from ULC
authorities;
(iii) All trustees have not signed the agreement
of sale dated 27.12.1974 (Exhibit 194);
(iv) Readiness and willingness has not been
shown or exhibited by plaintiff;
(v) Possession of the suit schedule property is
not with the plaintiff or plaintiff has failed
to prove said claim.
93. One of the prime contention raised by both the
sides is that on account of permission from the Charity
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Commissioner has not been obtained, the agreement to
sell Exhibit 194 cannot be enforced. In fact in the written
statement filed by defendant Nos. 1 to 4 and 6, it has
been contended in paragraph 12 that defendant had filed
such application before the Charity Commissioner and it
was rejected. It was also specifically averred in the
written statement to the following effect :
"12. With regard to para no. 4 ...xxxxx...
corrospondence with the defendant. The defendant in
this matter are public trust registered under the
Bombay Public Trusts Act and as per the provisions
therein that obtaining legal permission to sell from the
Government, they cannot sell such land to any private
person and the plaintiff is aware of the fact very well
and therefore, without obtaining such permission, the
question of handing over peaceful possession does not
arise. ..........xxxx........."
94. Contention has also been raised in this regard
in this Appeal also. Appeal being continuation of original
proceedings and though there is no much discussion on
this aspect by the learned trial Judge, we have examined
the same on this issue also. In order to adjudicate the
same, we are of the considered opinion that it would be
necessary to extract Section 36 of the Gujarat Public
Trusts Act, 1950, as applicable, and it reads as under : -
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"36. (1) Notwithstanding anything contained in the
instrument of trust--
(a) no sale, mortgage, exchange or gift or any
immovable property, and
(b) no lease for a period exceeding ten years in
the case of agricultural land or for a period exceeding
three years in the case of non-agricultural land or a
building.
belonging to a public trust, shall be valid without the
previous sanction of the Charity Commissioner.
(2) The decision of the Charity Commissioner under
sub-section (1) shall be communicated to the trustees
and shall be published in such manner as may be
prescribed.
(3) Any person aggrieved by such decision may appeal
to the Gujarat Revenue Tribunal within thirty days from
the date of its publication.
(4) Such decision shall, subject to the provisions of sub-
section (3) be final."
95. Mr. Yatin Oza, learned Senior Counsel
appearing for appellant has contended that even if
permission sought for has been rejected, conditional
decree can be passed and has pressed into service the
Full Bench Judgment of this Court in the case of Shah
Jitendra Nanalal Ahmedabad vs. Patel Lallubhai
Ishverbhai Ahmedabad and Ors. AIR 1984 Guj. 145.
A perusal of this judgmetn would indicate that in the case
of Shah Jitendra, the Full Bench had formulated question
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no. 2 in the background of facts obtained therein and had
opined as under : -
"13. In this view, in answer to the second question
referred to us we hold that a conditional decree for
specific performance subject to exemption being
obtained under section 20 of the Urban Land (Ceiling
and Regulation) Act, 1976 (Act No. 33 of 1976) is
permissible. As we have said earlier, we do not propose
to answer the first question as it may not be necessary.
The case will be sent back."
96. As could be seen from the above judgment, it
has been held that such conditional decree can be passed
subject to exemption being obtained under section 20 of
the Urban Land (Ceiling and Regulation) Act, 1976 (since
repealed). However, as on date of the suit ULC Act was
in force and even applying the said principle, it would not
detain us for too long to brush aside the contention
raised by learned Senior Advocate Mr. Yatin Oza for the
reasons more than one; the words and expression found
in Clause (a) of sub-section (1) of Section 36 commences
with non-obstante clause namely with expression "no
sale, mortgage, exchange or gift of any immovable
property", would be valid without the previous sanction
of the Charity Commissioner, if such immovable property
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belongs to a Public Trust.
97. In the instant case, the permission sought for
had been rejected even according to plaintiff. The sole
witness examined on behalf of plaintiff in his evidence
recorded on 26.04.2000, has stated to the following
effect:
"the trustees of the defendant trust applied to the
Charity Commissioner for permission to sell claimed
land. Copy of submitted application is represented at
Exhibit 129/34. Application is signed by trustees. The
application Number is 36/8/80."
98. He has also deposed that an application under
section 20 of the ULC Act had been filed seeking
exemption. Nowhere he has stated that permission from
ULC had been granted. Even otherwise according to
contention raised by respective learned advocates
appearing for parties, the Charity Commissioner rejected
the permission on 26.02.1986. Against which, two
Revision Applications were filed. The revision application
filed by trust challenging the rejection order came to be
dismissed as withdrawn. One Mr. Banwarlal Amrutlal
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Parikh, challenged the order of rejection passed by
Charity Commissioner, resulted in its dismissal on merits
on 13.06.2001. This was challenged in Special Civil
Application No. 7360 of 2001, which has been dismissed
on 12.03.2003. Certified copy of the order dated
13.06.2001 passed by the Gujarat Revenue Tribunal in
Appeal No. TEN AA 33/1986 has been produced along
with Civil Application No. 1 of 2015 (Old Civil Application
No. 7389 of 2015), which has been allowed by order of
even date, to be received as additional evidence and
marked as Exhibit 223, it would clearly indicate that
order passed by the Charity Commissioner on 26.02.1986
was affirmed. The copy of order dated 12.03.2003 passed
in Special Civil Application No. 7360 of 2001 produced
along with Civil Application No. 1 of 2016 (at page 50
therein) would clearly indicate that the order of Tribunal
dated 13.06.2001 has also been affirmed.
99. In other words, the order of rejection passed by
Charity Commissioner had attained finality or to put it
differently, there is no order passed by the Charity
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Commissioner as required under section 36 for
permitting the sale of suit schedule property by the first
defendant trust which is a Public Charitable Trust.
100. The Full Bench of the High Court of Mumbai in
the case of Avinash Kishorchand Jaiswal and Another
vs. Shri Rammandi Deosthan, Pavnar and Others,
reported in 2020 (3) Mh. L.J. 323, has held that
previous sanction of the Charity Commissioner for sale of
property belonging to trust is mandatory and any
alienation of trust property without the same is null and
void. It has been held as under :-
"8. In our view, the requirement of obtaining
previous sanction of the Charity Commissioner under
Section 36(1)(a) of the said Act to sell or alienate the
immovable property belonging to a public trust is
mandatory and the power can be exercised only on the
application made under Section 36(1)(c) by a trust or
the trustees, seeking authorization to dispose of such
property. Any sale or alienation of an immovable
property of the public trust without such sanction is
null and void. While deciding such application, the
Charity Commissioner has to have regard to the
interest, benefit and the protection of the trust. The
power cannot be exercised suo motu or on his own by
the Charity Commissioner. The power to grant sanction
includes power to refuse sanction on the ground that it
is not in the interest and benefit of the trust and that
the property needs to be protected."
101. In the background of suit schedule property
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being public trust property and both the parties namely
plaintiff and defendant (some of them) being ad idem on
this had sought permission from the Charity
Commissioner to sell the suit schedule property. Even
according to the plaintiff, application had been made by
trustees of defendant No.1 trust way back in the year
1980. The said application though produced along with
the plaint with Mark 129/34 but not marked as exhibit
would clearly indicate that for sale of suit schedule
property, permission had to be obtained from the Charity
Commissioner. The said permission had been sought for
and had been rejected by the Charity Commissioner vide
order dated 26.2.1986, confirmed by the Tribunal by
order dated 13.6.2001 (Exhibit 223) and affirmed in
Special Civil Application No.7360 of 2001 vide order
dated 12.3.2003. Hence, we are of the considered view
that the principle enunciated by the Full Bench in Shah
Jitendra's case referred to supra would be inapplicable as
in the said case, it was a claim simpliciter for grant of
decree of specific specific performance even when such
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permission having sought for had been refused.
102. Even assuming that the said principle as
enunciated by the Full Bench of this Court is to be
accepted, we are of the considered view that it would be
applicable or operate in a situation where there is no
permission sought for and such permission having not
been refused. In a given case where the trust or any one
else on behalf of the trust who were to apply for grant of
permission under Section 36 of the Bombay Public Trusts
Act, 1950 and such permission is refused, in such
circumstances, it cannot be gainsaid that the conditional
decree can be passed. This proposition also gets support
from the authoritative pronouncement of the Hon'ble
Apex Court in the case of M. Meenakshi and Others
vs. Metadin Agarwal (Dead) By LRs and Others
[(2006) 7 SCC 470].
103. In the instant case, agreement of sale dated
27.12.1974 Exhibit 194 has relied upon by plaintiff for
the relief of specific performance against the defendant,
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on account of alleged defendants refusal to execute the
sale deed. A perusal of the said agreement would clearly
indicate that it has been entered into between plaintiff
society and 14th defendant. Said agreement has been
executed on behalf of society by its Chairman Mr.Patel
Manilal Atmaram (who has not entered the witness-
box). The vendor i.e. 14th defendant who is said to have
executed the said agreement in favour of the plaintiff is
on the strength of agreement of sale dated 13.11.1973,
which has been produced at Mark 193/1. However, same
was not exhibited as already noticed hereinabove. It is
agreed under the said agreement that permission of the
Charity Commissioner to sell the suit schedule property
has to be obtained by the "Owner". This agreement is
said to have been signed by the partner of M/s.
Chhaganlal & Co. and also witnessed by Mr.Mukundbhai
Chimanlal Shah and Mr.Gangarao Bhaskarrao Pavde on
behalf of M/s.Jalpa Traders. However, none of them have
been examined in the instant case. The agreement of sale
marked as Exhibit 194 has been appended with two
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additional sheets and the purported first endorsement
dated 18.4.1976 is said to have been signed by the
trustees of 1st defendant. However, the records do not
disclose as to who are all trustees of the first defendant
trust at the relevant point of time. On this issue, we
would be dealing at a later stage. Turning our attention
back to the core issue, namely non-obtaining of the
permission from the Charity Commissioner is concerned,
we notice undisputedly the owner of the suit schedule
property (1st defendant) had to obtain permission from
Charity Commissioner to sell the suit land and in the
written statement filed by defendants 1 to 4 and 6, it has
been specifically contended by them that no such prior
permission had been obtained by defendant trust.
Plaintiff's witness in his further examination-in-chief
recorded on 29.03.2000 has also admitted this fact which
is to the following effect :
"The plaintiff society xxxx land in question. As per the
terms of the said agreement, necessary permissions, in
order to get final sale deed registered, were required to
be obtained by the defendants. The defendants had
not obtained or made an application to get the
necessary permission which were required to be
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obtained. Therefore, I had requested the defendants
to obtain necessary permissions and after obtaining the
same, to get the final sale deed registered, but the
defendants did not take any action to obtain
permissions. And if any such action has been done,
the defendants had not made me aware thereof. If the
defendants xxxx willing for the same." (Emphasis
supplied by us)
104. He has also deposed that trustees of the 1 st
defendant trust had submitted an application to the
Charity Commissioner to sell the suit schedule property
as per the application vide Mark-129/34 and they had also
filed a declaration before the ULC authorities as per
application Mark-129/35. However, for reasons best
known both these documents were not marked as an
exhibit. The application marked as 129/34 is a photocopy
of the application submitted to the Charity Commissioner
and is said to have been signed by the trustees of 1 st
defendant trust (not all trustees) seeking for exemption.
Learned advocates appearing for both parties admit that
application filed before the Charity Commissioner on
27.10.1970 (not exhibited) came to be rejected by the
Charity Commissioner vide order dated 26.02.1986,
against which the trust filed a revision application and
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same was dismissed as withdrawn. Being aggrieved by
the order of rejection, Mr.Banvarilal Amrutlal Parikh had
filed a revision application in Appeal No.TEN AA 33/1996
which came to be dismissed on merits on 13.06.2001 -
Exhibit 223, whereunder it had been observed to the
following effect :
"10. The learned advocate for the respondent xxxx
before the Charity Commissioner. The person who is
the proposed purchaser from the trust has no locus
standi before the Charity Commissioner. The only
aggrieved person can be the trust and in this case, the
trust no longer wishes to proceed with the same. The
trust had filed a revision application 35 of 1986 before
this Tribunal. This has been withdrawn by the trust.
Consequently, the trust is no longer having any
grievance against the order of the Charity
Commissioner."
105. It has also been observed by the Tribunal that
from the papers available on record, it is not evident as to
why the properties of the trust are required to be
disposed of and how the proceeds of the same would be
utilized for the benefit of the trust. It has been further
observed by the tribunal thus :
"18. It may be noted xxxx also has not succeeded. It
may, therefore, be said that the matter is now once
again wide open. It does not appear in the interest of
the trust to give approval for the erstwhile agreements
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
made by the earlier trustees, because the interest of
the trust and reasonableness of the proposals of the
trust have not been fully explained. The need to dispose
of the property has also to be fully examined. Under the
circumstances, I find that the order of the Charity
Commissioner is quite proper and should not be
interfered with. I therefore xxxx order."
This would clearly indicate that permission to sell the suit
schedule property sought for was not granted by the
Charity Commissioner and order of rejection had attained
finality.
106. Appellant - plaintiff has also made an attempt
to produce certain documents during the pendency of this
appeal by way of additional evidence, contending it has
come into existence after the judgment and decree
passed by the trial Court and during the pendency of the
present appeal and said documents have a bearing on the
facts of the present case. Even accepting the same for a
moment and for the limited purpose of looking into the
documents annexed to CA No.6 of 2022 it would clearly
emerge therefrom that the Charity Commissioner
rejected the application No.36/59/2003 said to have been
filed by four trustees and said application having been
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
dismissed vide order dated 31.01.2004. The application
filed for such permission was on 17.04.2001 and it would
indicate that same was filed on account of the proposed
compromise to be entered into in the appeal, whereunder
they had sought permission to sell the suit schedule
property. However, said application also came to be
dismissed on 31.01.2004. Thus, it would emerge from the
records that undisputedly there was no permission
accorded by the Charity Commissioner to sell the suit
land in favour of plaintiff.
107. The Hon'ble Apex Court in the case of
Narayamma and others vs. Govindappa and others -
(2019) 19 SCC 42 has held if a decree were to be
granted in favour of the plaintiff on the basis of an illegal
agreement which is hit by statute, it will be rendering an
active assistance by the Court in enforcing an agreement
which is contrary to law. It has been further held :
"20. It could thus be seen that, although illegality is not
pleaded by the defendant nor is relied upon by him by
way of defence, yet the court itself, upon the illegality
appearing upon the evidence, will take notice of it, and
will dismiss the action ex turpi causa non oritur actio. It
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
has been held, that no polluted hand shall touch the
pure fountain of justice. It has further been held, that
where parties are concerned in illegal agreements or
other transactions, courts of equity following the rule of
law as to participators in common crime will not
interpose to grant any relief, acting upon the maxim in
pari delicto potior est conditio defendetis et
possidentis.
*** *** ***
28. Now, let us apply the another test laid down in the
case of Immani Appa Rao (supra). At the cost of
repetition, both the parties are common participator in
the illegality. In such a situation, the balance of justice
would tilt in whose favour is the question. As held in
Immani Appa Rao (supra), if the decree is granted in
favour of the plaintiff on the basis of an illegal
agreement which is hit by a statute, it will be rendering
an active assistance of the court in enforcing an
agreement which is contrary to law. As against this, if
the balance is tilted towards the defendants, no doubt
that they would stand benefited even in spite of their
predecessor-in-title committing an illegality. However,
what the court would be doing is only rendering an
assistance which is purely of a passive character. As
held by Gajendragadkar, J. in Immani Appa Rao
(supra), the first course would be clearly and patently
inconsistent with the public interest whereas, the latter
course is lesser injurious to public interest than the
former."
108. Any sale of an immovable property belonging to
a public trust would be void ab-initio if sold without
permission of Charity Commissioner as held by this Court
in the case of Prabodhkumari Maganbhai Patel vs.
Modasa Kadva Patidar - 2010 (4) GLR 3562,
whereunder it has been held :
"15. At the outset, it is required to be noted and it is
an admitted position that the suit property is the
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
property of Public Trust, Shri Modasa Kadva Patidar
Trust at Modasa, District: Sabarkantha which is a Trust
registered under the Bombay Public Trusts Act. The
aforesaid Public Trust was running the Boarding in the
suit property in question and there was an open space
on the front side of the Boarding upon which, the shops
in question have been constructed and they are in
occupation and in possession of the respective
petitioners herein. Respective petitioners claim to be in
possession of the disputed shops in question as alleged
and claiming through respondent Nos. 2 and 3 herein
as Trustees of the Trust. It is the case on behalf of the
respective petitioners that respondent Nos. 2 and 3
herein as Trustees of aforesaid Trust have leased the
shops in question to the respective petitioners thereby,
they have become the tenant of the suit shops in
question. That as the property in question belongs to
the Trust registered under the Bombay Public Trusts
Act, it is subject to restrictions/provisions under the
Bombay Public Trusts Act. Section 36 of the Bombay
Public Trusts Act creates a clear embargo/bar of
transferring in any manner whatsoever the Trust
property without prior sanction of the Charity
Commissioner.
Section 36 of the Bombay Public Trusts Act reads as
under:
36[(1)] [Notwithstanding anything contained in the
instrument of trust -]
(a) no sale, mortgage, exchange or gift or any
immovable property, and
(b) no lease for a period exceeding ten years in the case
of agricultural land or for a period exceeding three
years in the case of non-agricultural land or a building,
belonging to a public trust, shall be valid without the
previous sanction of the Charity Commissioner.
[(2) The decision of the Charity Commissioner under
sub-section (1) shall be communicated to the trustees
and shall be published in such manner as may be
prescribed.
(3) Any person aggrieved by such decision may appeal
to the Gujarat Revenue Tribunal within thirty days from
the date of its publication.
(4) Such decision shall, subject to the provisions of sub-
section (3) be final.]
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
Therefore any sale, mortgage, exchange or gift of any
immovable property and/or lease for a period
exceeding 3 years in the case of non-agricultural land
or a building belonging to a public trust is void ab
initio. As held by this Court in the case of Huseinmiya
Safimiya v. Habibsha Hasamsha Fakir reported in 1985
(2) GLR 928 any alienation of the immovable property
of the public trust without express permission of the
Charity Commissioner as required under Section 36 of
the Act shall be invalid and is void and not binding to
the Trust. Similar view has been expressed by this
Court in the case of Pratik Medicines v. Board of
Management reported in 2005 (2) GLH (UJ) 15 Page 26
and it is held that lease of the Trust property without
prior permission of the Charity Commissioner is void ab
initio. In the present case, admittedly, before alleged
lease in favour of the respective petitioners admittedly
prior permission of the Charity Commissioner is not
obtained. On the contrary permission under Section 36
of the Act has specifically refused by the Charity
Commissioner. Under the circumstances, alleged lease
in favour of the respective petitioners is nullity and void
ab initio. It is required to be noted that in the present
case, not only there is no prior permission of the
Charity Commissioner before the alleged lease in
favour of the respective petitioners, there was already
an application submitted by the respondent Nos. 2 and
3 alleged to be the Trustees at the relevant time when
the shops in question were leased and submitted the
application before the Charity Commissioner under
Section 36 of the Act for post-facto permission and to
regularize the lease in favour of the respective
petitioners and the Charity Commissioner has
dismissed the said application and refused to regularize
the lease in favour of the respective petitioners and
refused to grant post-facto permission under Section 36
of the Act. It is required to be noted that before the
Charity Commissioner, the respective petitioners were
also heard. It is also required to be noted that there
were objections filed by the respondent Nos. 4 to 11
who were the Trustees of the Trust and direction was
sought and the learned Charity Commissioner has
while rejecting the application submitted by the
respondent Nos. 2 and 3 herein claiming to be the
Trustees of the Trust at the relevant time when there
was a lease in favour of the respondent petitioners, has
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
specifically observed that respondent Nos. 2 and 3
through whom the petitioners are claiming the lease in
their favour and inducted the petitioners, were not the
trustees of the Trust. There is a specific finding given
by the Charity Commissioner that respondent Nos. 2
and 3 who have alleged to have leased the shops in
question in favour of the petitioners had no authority to
lease the suit property belonging to the public trust.
That the learned Charity Commissioner after hearing
the parties not only dismissed the application
submitted for post facto permission under Section 36 of
the Act but has also allowed the objections submitted
by the respondent Nos. 4 to 11 herein Trustees of the
Trust and has directed the Trustees of the Trust to get
back the possession after following due process and
report to the Charity Commissioner within 60 (sixty)
days. It is required to be noted that the order passed by
the Charity Commissioner was challenged by the
respective petitioners before the Gujarat Revenue
Tribunal by way of revision application and the said
revision application is dismissed and the order passed
by the Charity Commissioner has become final.
Thus the alleged lease in favour of the respective
petitioners is not only hit by Section 36 of the Bombay
Public Trusts Act and is a nullity and void ab initio but
as observed by the Charity Commissioner, the same
was by the persons i.e respondent Nos. 2 and 3 who
were not the Trustees on the PTR of the Trust and that
they had no Authority to lease shops in
question/premises in question on behalf of the Trust.
Therefore, the rights of the respective parties have
been adjudicated upon by the Charity Commissioner
who is the only Competent Authority under the
provisions of the Bombay Public Trusts Act. Under the
scheme and provisions of the Bombay Pubic Trusts Act,
Charity Commissioner is the only Competent Authority
to decide the dispute with respect to the property of
the public trust.
18. Now to appreciate the aforesaid submissions, it is
required to be noted that admittedly, the property in
question belong to the public trust. For any dispute
with respect to the property belonging to the public
Trust only Charity Commissioner has the jurisdiction
under the Bombay Public Trust Act. Not only that but
even with respect to the lease of the property
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
belonging to the public trust, prior sanction of the
Charity Commissioner is must as required under
Section 36 of the Act. Except the Charity
Commissioner, no other Authority or Court has any
jurisdiction with respect to the Trust property. As per
Section 80 of the Bombay Public Trusts Act, no Civil
Court has jurisdiction to decide and deal with any
question which is by or under Public Trust Act to be
decided or dealt with by any officer or authority under
the Bombay Public Trusts Act or in respect of which
decision or order such officer or authority has been
made final and conclusive."
109. A plain reading of Section 36 of BPT Act would
indicate that for sale of property owned by a public trust
the condition precedent is previous sanction. Hence, ex-
post facto sanction cannot be obtained after the sale
transaction as it is not a sanction in the eye of law and it
would not be valid. Such grant of prior sanction is not
technical or procedural, but it affects the very right of the
trust and the public who have interest in the suit
property. Hence, the agreement of sale cannot be valid
unless there is a previous sanction. In fact the Hon'ble
Apex Court in the case of Minakshi and other vs.
Metadin Agarwal reported in (2006) 7 SCC 470 has
held conditional decree cannot be granted when the
permission is applied and rejected. It has been further
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
held:
"17. The competent authority under the 1976 Act
was not impleaded as a party in the suit. The orders
passed by the competent authority therein could not
have been the subject-matter thereof. The Plaintiff
although being a person aggrieved could have
questioned the validity of the said orders, did not chose
to do so. Even if the orders passed by the competent
authorities were bad in law, they were required to be
set aside in an appropriate proceeding. They were not
the subject matter of the said suit and the validity or
otherwise of the said proceeding could not have been
gone into therein and in any event for the first time in
the Letters Patent Appeal.
39. Furthermore, Section 20 of the Specific Relief
Act confers a discretionary jurisdiction upon the courts.
Undoubtedly such a jurisdiction cannot be refused to
be exercised on whims and caprice; but when with
passage of time, contract becomes frustrated or in
some cases increase in the price of land takes place,
the same being relevant factors can be taken into
consideration for the said purpose. While refusing to
exercise its jurisdiction, the courts are not precluded
from taking into consideration the subsequent events.
Only because the Plaintiff-Respondents are ready and
willing to perform their part of contract and even
assuming that the Defendant was not entirely vigilant
in protecting their rights in the proceedings before the
competent authority under the 1976 Act, the same by
itself would not mean that a decree for specific
performance of contract would automatically be
granted. While considering the question as to whether
the discretionary jurisdiction should be exercised or
not, the orders of a competent authority must also be
taken into consideration. While the court upon passing
a decree for specific performance of contract is entitled
to direct that the same shall be subject to the grant of
sanction by the concerned authority, as was the case in
Mrs. Chandnee Vidya Vati Madden v. Dr. C.L. Katilal
and Others [AIR 1964 SC 978] and Nirmal Anand v.
Advent Corporation (P) Ltd. And Others [(2002) 5 SCC
481]; the ratio laid down therein cannot be extended to
a case where prayer for such sanction had been prayed
for and expressly rejected. On the face of such order,
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
which, as noticed hereinbefore, is required to be set
aside by a court in accordance with law, a decree for
specific performance of contract could not have been
granted."
110. In the instant case the order of the Charity
Commissioner rejecting the application filed under
section 36 of the Act came to be passed on 26.02.1996
which has been confirmed by the Gujarat Revenue
Tribunal on 13.06.2001 (Exhibit 223) and order of the
Tribunal has also been confirmed by the learned Single
Judge of this Court in SCA 7360 of 2001 and as such it
cannot be gainsaid by the appellant that notwithstanding
the orders of the Charity Commissioner refusing to grant
permission to sell the suit schedule property either prior
to entering into agreement to sell or during the pendency
of these proceedings, yet a conditional decree of specific
performance can be passed. Said contention is without
merit and it is liable to be rejected and accordingly, it
stands rejected. In the light of said finding recorded by
us, the judgments relied upon by Mr.Yatin Oza, learned
Senior Counsel appearing for the appellant would not
come to the rescue of the appellant.
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
111. Another ground on which the learned Trial
Judge has refused to grant the specific performance of
the agreement to sell dated 27.12.1974 - Exhibit 194 is
on the ground that all the trustees of the 1 st defendant
trust have not affixed their signatures.
112. It is an undisputed fact that Exhibit 194 has
been entered into between plaintiff and 14 th defendant. It
is also the contention of plaintiff that agreement of sale
executed by 14th defendant in favour of the plaintiff as per
Exhibit-194 have been ratified by the 1st defendant and its
trustees and as such 1st defendant trust and its trustees
defendant Nos. 2 to 8 bound by it. The plea raised by
plaintiff in this regard is traceable to paragraph 1 of the
plaint, which is to the following effect :
"1. The plaintiff society xxxx by the defendants. All
the defendants have executed their writings over the
agreement to sell dated 27.12.1974. Thereafter, xxxx
hereinbelow."
113. In the written statement filed by defendant
Nos. 1 to 4 and 6, it has been specifically contended that
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
defendants had earlier entered into an agreement to sell
the suit property with Shri Pramukhlal and Shri Ambalal,
who in turn had entered into another Banakhat -
Agreement to Sell on 21.09.1970 in favour of Shri
Gangaram Pavde and in the said agreement all the
trustees have not signed. It was further pleaded that in
the agreement of sale entered into between the 1 st
defendant trust with Shri Pramukhlal and Shri Ambalal, it
did not contain the signature of Mr.Ambalal. The
defendants have specifically denied of Mr.Gangaram
Pavde having assigned his rights in favour of M/s.Jalpa
Traders under agreement dated 03.04.1977. It was also
specifically pleaded that agreement to sell the suit
schedule property on 08.05.1972 has been entered into
by one trustee only in favour of Jalpa Traders and
admittedly the said agreement did not contain the
signatures of all the trustees and the burden which was
cast on the plaintiff to prove that the sole trustee
Mr.Kunjbihari Madhavlal Bhagwat having been
authorized by all other trustees has not been proved or in
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
other words, this factual aspect has remained in vacuum.
Mr. Yatin Oza, learned Senior Counsel appearing for the
appellants has contended that Mr. Kunjbiharilal
Madhavlal Bhagwat was acting on behalf of all the
trustees and he was authorised to sign all the documents
on behalf of the trust and as such he has affixed the
signature to the agreements and various applications filed
before the statutory authorities. Hence, he contends that
non-signing of the agreement of sale Exhibit 194 or any
other document by all other trustees would not erase the
value of Exhibit 194 or in other words, it can be enforced
against defendant No.1 trust. Such contention cannot be
accepted for reasons more than one. Firstly, there is no
proof of Kunjbiharilal Madhavlal Bhagwat alone being
authorised to act on behalf of defendant No.1 trust.
Except said point having been canvassed during the
course of arguments. In fact, there is no plea also raised
in this regard. The witness examined on behalf of plaintiff
also does not whisper a word on this issue. In the absence
of any cogent material tendered by the plaintiff in this
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
regard, the contention of Mr. Yatin Oza, learned Senior
Counsel cannot be accepted. In the absence of pleadings,
no amount of evidence will assist the parties as held by
the Hon'ble Apex Court in the case of Biraji Alias
Brijraji and another vs. Surya Pratap and others
[(2020) 10 SCC 729] whereunder it came to be held to
the following effect:
"8. Having heard the learned counsels on both sides,
we have perused the impugned orders and other
material placed on record. The suit in Original Suit No.
107/2010 is filed for cancellation of registered adoption
deed and for consequential injunction orders. In the
adoption deed itself, the ceremony which had taken
place on 14.11.2001 was mentioned, hence it was
within the knowledge of the appellants- plaintiffs even
on the date of filing of the suit. In the absence of any
pleading in the suit filed by the appellants, at belated
stage, after evidence is closed, the appellants have filed
the application to summon the record relating to leave/
service of Ramesh Chander Singh on 14.11.2001 from
the Rajput Regiment Centre Fatehgarh. It is fairly well
settled that in absence of pleading, any amount of
evidence will not help the party. When the adoption
ceremony, which had taken place on 14.11.2001, is
mentioned in the registered adoption deed, which was
questioned in the suit, there is absolutely no reason for
not raising specific plea in the suit and to file
application at belated stage to summon the record to
prove that the second respondent- Ramesh Chander
Singh was on duty C.A.Nos.4883-4884 of 2017 as on
14.11.2001. There was an order from the High Court
for expeditious disposal of the suit and the application
which was filed belatedly is rightly dismissed by the
Trial Court and confirmed by the Revisional Court and
High Court."
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
114. Thus, it would emerge from the above
discussion that :
(i) The Agreement to Sell dated 21.09.1970
said to have been executed by Jivanlal Parikh and
the 1st defendant, all the trustees of the 1 st
defendant had not affixed their signature or in
other words, plaintiff has not proved the
execution of said agreement or the said
agreement having the signature of all the trustees
of 1st defendant trust;
(ii) In the agreement to sell dated 18.08.1966
entered into between the 1st defendant with
Pramukhlal Jivanlal Parikh and Ambalal Ishwarlal
Prajapati the signature of Mr.Abmalal is not
forthcoming;
(iii) The agreement to sell dated 08.05.1972
executed by Mr.Kunjbiharilal Madhavlal Bhagwat
in favour of M/s.Jalpa Traders undisputedly did
not contain the signatures of other trustees of the
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
1st defendant trust.
(iv) The plaintiff has failed to prove that
Kunjbiharilal Madhavlal Bhagwat alone was
empowered to act on behalf of the trust or he
alone was empowered to execute the agreement
to sell.
115. Hence, in our considered opinion, the finding
recorded by the trial Court that plaintiff had failed to
prove all the trustees of 1 st defendant trust have affixed
their signatures to the agreement of sale dated
24.12.1972 (Exhibit 194) as well as the prior agreements
under which the plaintiff is claiming right has also not
been proved rightly so. In this background, it has to be
necessarily held that either ratification by the new
trustees of the sale agreement executed in favour of the
plaintiff by either giving declaration or approving the
same through any means would be of no consequence. In
that view of the matter, contentions raised by the
appellant in this regard cannot be accepted and it stands
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
rejected.
116. The learned advocates appearing for the
contesting defendants have vehemently contended that
there is no averment made in the plaint with regard to
readiness and willingness and even in the event of this
Court arriving at a conclusion that reading of all the
averments made in the plaint in toto would indicate such
averments being there, then in such an event it has to be
construed as a conditional plea and it ought not to be
accepted. In fact the defendants 1 to 4 and 6 in their
written statement at paragraph 14 have specifically
pleaded that plaintiff has never shown any willingness nor
made any demand.
117. Section 16 (c) of the Specific Relief Act would
indicate that specific performance of a contract cannot be
enforced in favour of a person, if he fails to prove that he
has performed or has always been ready and willing to
perform the essential terms of the contract which are to
be performed by him, other than terms the performance
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
of which he has been prevented or same has been waived
by the defendant. The expression "who fails to prove" was
substituted by Act 18 of 2018 and prior to the same the
words - expression "must aver" was found in Section
16(c). In other words, the expression "must aver" which
existed earlier was substituted by the words "who fails to
prove". This amendment has come into effect from
19.09.2018. Thus, it is incumbent upon party who wants
to enforce the performance of a contract has to aver and
prove that he has performed or has been always ready
and willing to perform the essential terms of the contract.
A plain ready of Section 16(c) of the Specific Relief Act
makes it absolutely clear, that plaintiff has to plead
readiness and willingness to perform the essential terms
of the contract and it is a condition precedent for
obtaining relief of specific performance. Plaintiff has to
allege or aver and prove his "continuous" "readiness and
willingness" to perform his part of the contract from the
date of contract. Hon'ble Apex Court in the case of
Shenbagam and others vs. K.K.Rathinavel, reported
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in 2022 LawSuit (SC) 62, has held : -
"29. We shall now advert to the respondent‟s conduct
throughout the sale transaction. The respondent has
failed to provide any documents or communication
which would indicate that he called upon the appellants
to perform their obligations or discharge the mortgage
within the time period stipulated in the contract. Even
after the expiry of the six months, the respondent did
not reach out to the appellants. It is only in response to
the appellants‟ legal notice that the respondent
demanded performance of their obligations. Merely
averring that he was waiting with the balance
consideration and believed that the appellants would
clear the encumbrance is insufficient to prove that the
respondent-plaintiff was willing to perform his
obligations under the contract."
118. It would be of benefit to note the judgment of
the Apex Court in the case of Syed Dastgir vs T.R.
Gopalkrishna Seatty [(1999) 6 SCC 337], whereunder
it has been held that readiness and willingness to perform
essential terms of the contract as required to be pleaded
under Section 16(c), there cannot be any specific
phraseology. It has been held :
"9. So the whole gamut of issue raised is, how to
construe a plea specially with reference to Section
16(c) and what are the obligations which the plaintiff
has to comply with reference to his plea and whether
the plea of the plaintiff could not be construed to
conform to the requirement of the aforesaid Section, or
does this section require specific words to be pleaded
that he has performed or has always been ready and is
willing to perform his part of the contract. In
construing a plea in any pleading, Courts must keep in
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
mind that a plea is not an expression of art and science
but an expression through words to place fact and law
of ones case for a relief. Such an expression may be
pointed, precise, some times vague but still could be
gathered what he wants to convey through only by
reading the whole pleading, depends on the person
drafting a plea. In India most of the pleas are drafted
by counsels hence aforesaid difference of pleas which
inevitably differ from one to other. Thus, to gather true
spirit behind a plea it should be read as a whole. This
does not distract one from performing his obligations
as required under a statute. But to test, whether he has
performed his obligations one has to see the pith and
substance of a plea. Where a statute requires any fact
to be pleaded then that has to be pleaded may be in
any form. Same plea may be stated by different persons
through different words then how could it be
constricted to be only in any particular nomenclature
or word. Unless statute specifically require for a plea to
be in any particular form, it can be in any form. No
specific phraseology or language is required to take
such a plea. The language in Section 16(c) does not
require any specific phraseology but only that the
plaintiff must aver that he has performed or has always
been and is willing to perform his part of the contract.
So the compliance of Readiness and willingness has to
be in spirit and substance and not in letter and form.
So to insist for mechanical production of the exact
words of an statute is to insist for the form rather than
essence. So absence of form cannot dissolve an essence
if already pleaded. "
119. Thus, if it could be gathered from the
averments made in the plaint that averments with regard
to readiness and willingness can be found, it would
suffice and on account of exact words not being found,
the plaintiff cannot be non-suited.
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
120. The Apex Court in the case of K.Kupuraj vs M.
Ganeshan - AIR 2021 SC 4652 has held :
"8. It is required to be noted that as per the case of
the original plaintiff, the defendant was required to
evict the tenants and hand over the physical and vacant
possession at the time of execution of the sale deed on
payment of full sale consideration. Even in the suit
notice issued by the plaintiff, the plaintiff called upon
the defendant to evict the tenants and thereafter
execute the sale deed on payment of full consideration
from the plaintiff. Even when we consider the pleadings
and the averments in the plaint, it appears that the
plaintiff was never willing to get the sale deed executed
with tenants and/or as it is. It was the insistence on the
part of the plaintiff to deliver the vacant possession
after evicting the tenants. Therefore, on the basis of the
pleadings in the plaint and on appreciation of evidence,
the learned Trial Court held the issue of willingness
against the plaintiff. However, before the High Court,
the plaintiff filed an affidavit stating that he is now
ready and willing to get the sale deed executed with
respect to the property with tenants and unfortunately,
the High Court relying upon the affidavit in the first
appeal considered that as now the plaintiff is ready and
willing to purchase the property with tenants and get
the sale deed executed with respect to the property in
question with tenants, the High Court has allowed the
appeal and decreed the suit for specific performance.
The aforesaid procedure adopted by the High Court
relying upon the affidavit in a First Appeal by which
virtually without submitting any application for
amendment of the plaint under Order VI Rule 17 CPC,
the High Court as a First Appellate Court has taken on
record the affidavit and as such relied upon the same.
Such a procedure is untenable and unknown to law.
First appeals are to be decided after following the
procedure to be followed under the CPC. The affidavit,
which was filed by the plaintiff and which has been
relied upon by the High Court is just contrary to the
pleadings in the plaint. As observed hereinabove, there
were no pleadings in the plaint that he is ready and
willing to purchase the property and get the sale deed
executed of the property with tenants and the specific
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pleadings were to hand over the peaceful and vacant
possession after getting the tenants evicted and to
execute the sale deed. The proper procedure would
have been for the plaintiff to move a proper application
for amendment of the plaint in exercise of the power
under Order VI Rule 17 CPC, if at all it would have
been permissible in a first appeal under Section 96
read with Order XLI CPC. However, straightaway to
rely upon the affidavit without amending the plaint and
the pleadings is wholly impermissible under the law.
Therefore, such a procedure adopted by the High Court
is disapproved.
The learned Trial Court held the issue of willingness
against the plaintiff by giving cogent reasons and
appreciation of evidence and considering the pleadings
and averments in the plaint. We have also gone through
the averments and the pleadings in the plaint and on
considering the same, we are of the opinion that the
learned Trial Court was justified in holding the issue of
willingness against the plaintiff. The plaintiff was never
ready and willing to purchase the property and/or get
the sale deed executed of the property with tenants. It
was for the first time before the High Court in the
affidavit filed before the High Court and subsequently
when the learned Trial Court held the issue of
willingness against the plaintiff, the plaintiff came out
with a case that he is ready and willing to purchase the
property with tenants. For the purpose of passing the
decree for specific performance, the plaintiff has to
prove both the readiness and willingness. Therefore,
once it is found on appreciation of evidence that there
was no willingness on the part of the plaintiff, the
plaintiff is not entitled to the decree for specific
performance. Therefore, in the present case, the
learned Trial Court was justified in refusing to pass the
decree for specific performance."
121. A plea was raised in the aforesaid case by the
defendant that plaintiff has not pleaded readiness and
willingness, which was rebutted by the plaintiff. It was
agreed under the agreement of sale therein that
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defendant would evict the tenants and hand over physical
and vacant possession of the suit schedule property at the
time of execution of the sale deed. This plea was
considered by the Hon'ble Apex Court as plaintiff therein
was not willing to obtain the sale deed with tenants.
When this principle enunciated by the Hon'ble Apex
Court is applied to the facts of this case and when we
turn our attention to Exhibit 194 namely agreement of
sale dated 27.12.1974, it would indicate that
consideration of Rs.25,000/- was paid by the plaintiff to
the 14th defendant (not to the 1st defendant trust) for
purchasing the suit schedule property on the condition
that owner (1st defendant) will have to obtain permission
of the Charity Commissioner for selling the suit schedule
property and title clearance certificate has to be obtained
from the competent authority within six months. It was
also stipulated by the plaintiff that necessary NA
permission, ULC permission will have to be furnished by
the vendor viz., 14th defendant or 1st defendant. These
conditions stipulated under Exhibit 194 would indicate
C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023
that plaintiff was only willing to purchase the suit
schedule property conditionally namely if there were to
be permission granted by the Charity Commissioner and
other statutory permissions being available. In other
words, plaintiff was not willing to purchase the suit
schedule property in the absence of these permissions. As
such, the principles enunciated by the Apex Court in
Karuppuraj's case referred to supra would be applicable.
122. In this background, when we look at the
deposition of PW-1 it would emerge therefrom that there
is not even a whisper by said witness expressing his
readiness and willingness. The principles enunciated by
Hon'ble Apex Court in the matter of Man Kaur (dead)
by LRS vs Hartar Singh Sanga - (2010) 10 SCC 512
would be apposite to be quoted, wherein it has been held
that if plaintiff has to prove readiness and willingness, he
has to step into the witness-box and has to give evidence
that he was all along ready and willing to perform. It has
been further held :
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"17. Section 10 of the Act deals with cases in which
specific performance of contract is enforceable. It
provides that except as otherwise provided in that
Chapter (dealing with Specific Performance of
Contracts) of the Act, specific performance of any
contract may, in the discretion of the court, be
enforced when the act agreed to be done is such that
compensation in money for its non-performance would
not afford adequate relief. Explanation (i) to section 10
provides that unless and until the contrary is proved,
the court shall presume that the breach of a contract to
transfer immovable property cannot be adequately
relieved by compensation in money. Sub-sections (2)
and (5) of section 21 of the Act provide that in a suit for
specific performance, if the court decides that specific
performance ought not to be granted, but that there is
a contract between the parties which has been broken
by the defendant, and that the plaintiff is entitled to
compensation for that breach, it shall award him such
compensation accordingly; and that no compensation
shall be awarded under this section unless the plaintiff
has claimed such compensation in his plaint. Section 23
of the Act provides that a contract otherwise proper to
be specifically enforced, may be so enforced, though a
sum be named in it as the amount to be paid in case of
its breach and the party in default is willing to pay the
same, if the court, having regard to the terms of the
contract and other attending circumstances, is satisfied
that the sum was named only for the purpose of
securing performance of the contract and not for the
purpose of giving to the party in default an option of
paying money in lieu of specific performance."
123. Plaintiff must allege and aver that he was ready
and willing to perform his part of contract from date of
agreement till the date of institution of the suit as held by
the Hon'ble Apex Court in the case of Sandhya Rani vs
Sudha Rani reported in AIR 1978 SC 537. In the instant
case, there is not even whisper in the plaint to the said
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effect or averments made in the plaint does not even
remotely suggest about readiness and willingness of the
plaintiff either prior to the suit or at the time of
institution of the suit or thereafter. The evidence of PW-1
is also silent. In totality, there is no averment found
anywhere from the pleadings, for this Court to arrive at a
conclusion that plaintiff has been ready and willing to
perform its part of the contract and defendants had failed
to perform their part of the contract. In the absence of
pleadings and evidence, refusal to grant discretionary
relief by the trial court cannot be found fault with and
said findings have t be necessarily held as just and proper
and same would not call for our interference in appellate
jurisdiction. If two views are possible and the one taken
by the trial Court being in consonance with material
evidence available on record, this Court would not disturb
such finding in exercise of appellate jurisdiction.
124. It would be further necessary to note yet
another plea has been raised by Mr.Yatin Oza, learned
Senior Counsel appearing for the plaintiff contending that
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when there is no issue in this regard framed by trial
Court, there was no need or necessity for plaintiff to
prove the said issue. Though said argument would look
attractive at first blush, it cannot be accepted for reasons
more than one. Firstly, consent cannot confer
jurisdiction. Secondly, Section 16(c) being mandatory,
absence of plea in the plaint and in the deposition it
would not otherwise cure the glaring defect. Thirdly,
plaintiff has not sought for recasting of the issues but on
the other hand with open eyes, having known the defense
put up by the defendants Nos.1 to 4 and 6 in their written
statement at paragraph-14 has proceeded with the suit
and submitted himself to the jurisdiction of the Court and
called for an opinion or judgment in that regard.
Fourthly, the judgment of the trial court would indicate
at paragraph-11 while adjudicating issue No.9 and 10
learned Trial Judge has examined this issue and held that
terms of the agreement would indicate that plaintiff had
expressed or given its conditional willingness, which has
already been noticed by us hereinsupra as impermissible
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in the teeth of judgment of the Apex Court in Karuppura's
case supra. Thus, contentions raised in this regard stands
rejected.
125. While the court exercises the discretionary
power for grant or refusal of a decree of specific
performance, one of the paramount considerations would
be the conduct of the plaintiff which would be taken into
consideration. If the conduct of the plaintiff is such that
which would not inspire confidence, then necessarily the
discretionary power would not be exercised to grant the
relief, but, on the other hand, if the plaintiff has come the
court with clean hands and has played his role with
utmost sincerity, necessarily the discretionary relief
would be granted. The Hon'ble Apex Court in the case of
Atma Ram v. Charanjit Singh [AIR 2020 SC 3413]
has held as under:
"... ... ... A person issues legal notice on particular year
claiming readiness and willingness and files a suit for
mandatory injunction and after three years converts the
said suit to specific performance suit will not be entitled
to the relief of specific performance."
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126. Yet another important aspect which the court
would take into consideration while considering the plea
for grant of specific performance would be readiness and
willingness where the balance sheet of the plaintiff does
not reflect of having sufficient fund to discharge the
plaintiff's part of the contract, the discretionary relief
would not be granted as held by the Hon'ble Apex Court in
the case of U.N. Krishnamurthy (since deceased) Thr.
Lrs. Versus A.M. Krishnamurthy [AIR 2022 SC 3361].
In the instant case, the plaintiff's balance sheet as per
Exhibit 208 reflects it does not possess any fund and there
is negative profit and as such question of granting specific
performance would not arise. Hence, point Nos. (vi) and
(vii) is answered by holding that judgment and decree
passed in Special Civil Suit No. 167 of 1984 deserves to be
confirmed and there is no error committed by the Trial
Court in dismissing the suit.
127. This Court places on record its appreciation for
valuable assistance rendered by all the learned advocates
who appeared in the matter and extending their
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cooperation for disposing of the lis which commenced in
the year 1984 which is a off-shoot of an alleged agreement
of sale dated 27.12.1974 (Exhibit 194).
128. For the reasons aforestated, we proceed to pass
following
JUDGEMENT
(i) Civil Application No.2/2007, Civil Application
No.3/2007, Civil Application No.3/2014, Civil
Application No.1/2022 and Civil Application
No.2/2022 are hereby dismissed.
(ii) Civil Application No.2/2014 is allowed and documents
are ordered to be marked as Exhibits 219 to 222.
(iii) Civil Application No.1/2015 is allowed and the
document viz. certified copy of the order dated
13.6.2001 passed by the Gujarat Revenue Tribunal is
ordered to be marked as Exhibit 223.
(iv) Civil Application No.3/2022, Civil Application
No.4/2022 and Civil Application No.5/2022 are
dismissed.
(v) Civil Application No.6/2022 is allowed in part and
documents are ordered to be marked as Exhibits 224
to 237.
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(vi) Civil Application No.1/2016, Civil Application
No.1/2022, Civil Application No.3/2018 and Civil
Application No.7/2022 are hereby rejected.
(vii) First Appeal No.3517/2000 is hereby dismissed and
judgment and decree dated 23.10.2000 passed by the
6th Joint Civil Judge (Senior Division) at Ahmedabad
(Rural) in Special Civil Suit No.167/1984 is affirmed.
No order as to costs.
(viii) Registry is directed to draw the decree accordingly.
(ARAVIND KUMAR,CJ)
(ASHUTOSH SHASTRI, J)
FURTHER ORDER IN FIRST APPEAL No. 3517 OF 2000
Learned counsel appearing for appellant seeks to
continue the order of stay of judgment and decree passed
by the Trial Court. We are of the considered view that
since we have examined the issues from all angles,
question of continuing the said stay does not arise and
said prayer stands rejected.
(ARAVIND KUMAR,CJ)
(ASHUTOSH SHASTRI, J)
Bharat/Gaurav/Amar
