Harishbhai Chandrakant Madhu vs Ranchhodbhai Kalubhai Bharwad
2023 Latest Caselaw 7010 Guj

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    C/CRA/303/2015                                CAV JUDGMENT DATED: 22/09/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/CIVIL REVISION APPLICATION NO. 303 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

================================================================ HARISHBHAI CHANDRAKANT MADHU Versus RANCHHODBHAI KALUBHAI BHARWAD & 13 other(s) ================================================================ Appearance:

MR SANJAY M AMIN(130) for the Opponent(s) No. 3,4,5,6 MR TATTVAM K PATEL(5455) for the Opponent(s) No. 1,2 NOTICE SERVED for the Opponent(s) No. 10,11,11.1,11.2,12,13,14 NOTICE UNSERVED for the Opponent(s) No. 7,8,9 ================================================================

CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

Date : 22/09/2023

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1.Heard learned advocate Mr. D.K. Puj for the

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petitioner and learned advocate Mr. Tatvam K.

Patel for the respondent nos. 1 and 2.

2.The petitioner is the original defendant no.5

and respondent nos. 1 and 2 are the original

plaintiffs in Civil Suit No. 605/2010 whereas

other respondents are defendants in the said

suit. The parties are therefore, referred to

as the plaintiffs and the defendants

accordingly.

3.The plaintiffs filed Civil Suit No.605/2010

in the Court of Principal Civil Judge (SD) at

Ahmedabad (Rural), Ahmedabad for specific

performance of the contract as well as

permanent injunction and also for

cancellation of registered sale deed and

Agreement to Sale in respect of land bearing

survey no.76/4/A, Block No. 164 admeasuring

about 2023 sq. mtrs situated at village

Ambli, Taluka Daskroi, District and Sub-

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District Ahmedabad forming part of Town

Planning Scheme No.215(Ambli), Final Plot

no.13 admeasuring about 1417 sq. mtrs

(hereinafter referred to as "the suit land").

4.The petitioner defendant no.5 filed

application Exh.51 under Order VII Rule 11(d)

of the Code of Civil Procedure, 1908 (For

short "the Code") in the said suit on the

ground that the plaintiffs have suppressed

material facts with regard to the proceedings

under the Bombay Tenancy and Agricultural

Lands Act, 1948 (For short "the Tenancy Act")

in respect of the suit land and therefore,

under section 85 of the Tenancy Act, the suit

is barred by law as Civil Court has no

jurisdiction to settle decide or deal with

any question which is by or under the Tenancy

Act required to be settled, decided or dealt

with by the Mamlatdar, Collector or the

Gujarat Revenue Tribunal or the State

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Government in appeal or revision in exercise

of its power conferred under the Tenancy Act.

The petitioner also raised the issue of

limitation as the Agreement to Sale executed

in the year 1998 is sought to be enforced by

the suit for specific performance in the year

2010 by the plaintiffs.

5.Learned Judge by order dated 21.12.2012

dismissed application Exh.51 under Order VII

Rule 11 of the Code filed by the petitioner.

The petitioner, therefore, being aggrieved

has preferred this revision application under

section 115 of the Code.

6.It is a trite law that while considering the

application under Order VII Rule 11(d) of

Code, the Court is required to consider the

averments made in the plaint together with

the documents produced with the plaint.

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7.The grounds taken by the petitioner with

regard to the revenue proceedings pertaining

to suit land are not referred to in the

plaint by the plaintiffs. The plaintiffs have

only stated that original defendant nos. 1 to

4 have executed registered Agreement to Sale

dated 09.03.1998 in favour of the plaintiffs

and co-owner Gopalbhai Chaturbhai Amin for

the sale of suit land for Rs.5,00,000/- as

the owners through inheritance and as has

been possession of the suit land. It was also

averred by the plaintiffs that their co-

sharer Gopalbhai Chaturbhai Amin and both the

plaintiffs paid Rs.1,50,000/- each in cash to

the defendant nos. 1 to 4 towards the

consideration. It is also stated in the

plaint that on death of Gopalbhai Chaturbhai

Amin, her widow Manjulaben Gopalbhai Amin

executed the release deed dated 19.09.2008 in

favour of the plaintiffs by relinquishing the

rights in the suit land. The plaintiffs

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referred to and relied upon the conditions of

Agreement to Sale which included the

condition that the sale deed is to be

executed with the title clearance certificate

together with the permission for non-

agricultural purpose as the suit land was new

tenure agricultural land. It was therefore,

averred in the plaint that upon repeated

requests made by the plaintiffs to execute

the sale deed, defendant nos. 1 to 4 informed

that the suit land is new tenure land and

because of that necessary permissions are

required.

8.With regard to the cause of action for filing

the suit in the year 2010, it was stated in

paragraph nos.5 and 6 of the plaint that the

plaintiffs came to know about the Board

placed by the petitioner in the suit land in

the year 2008 and thereafter on search being

made by the plaintiffs, it came to the

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knowledge of the plaintiffs that the sale

deed is executed by petitioner-defendant no.5

through his Power of Attorney Holder-

defendant no.6 in favour of defendant nos. 7

to 9 on 15.12.2006 and one registered

Agreement to Sale is executed by the

petitioner-defendant no.5 on 22.12.2008 in

favour of the defendant nos. 10 to 13 though

he has no right, title or interest in the

suit land.

9.The plaintiffs, therefore, prayed for

specific performance of Agreement to Sale

dated 09.03.1998 with a further prayer to

declare the sale deed executed by the

petitioner in favour of defendant nos. 7 to 9

as well as Agreement to Sale executed in

favour of defendant nos. 10 to 13 should be

declared as null and void and direct the

defendant nos. 1 to 4 to execute the sale

deed in favour of the plaintiffs.

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10. The plaintiffs also placed on record the

documents comprising of registered Agreement

to Sale dated 09.03.1998 in their favour,

copy of Release Deed dated 19.09.2008,

receipt of amount paid for search of the

revenue record dated 22.12.2009 along with

statement obtained from the revenue record,

copy of sale deed dated 15.12.2006, copy of

Agreement to Sale dated 22.12.2008, copy of

cancellation of sale deed dated 17.07.2009,

copy of 7/12 extract of the suit land and

copy of Plan No.3 of the Town Planning

Scheme.

11. Learned advocate Mr. D.K. Puj for the

petitioner submitted that the plaintiffs have

suppressed by not disclosing the material

facts in the plaint. It was submitted that on

perusal of the village extract of 7/12 placed

on record, name of the petitioner is shown

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therein. It was also submitted the sale deed

dated 22.12.2008 placed on record by the

plaintiffs also refers to the fact with

regard to the revenue proceedings under the

Tenancy Act by which the petitioner became

the owner of the land in question as under:

1) The petitioner was tenant of the suit

land from 1981-1982 and was cultivating the

same.

2) The proceedings under section 70(b) of

the Tenancy Act was initiated by the

petitioner as Tenancy Case No.3054/1986 along

with proceedings under section 32(o) of the

Tenancy Act registered as Tenancy Case

No.3065/1986 against the owners of the land

namely, Shri Kaalaji Kalaji and Machiben,

widow of Kaalaji Mohanji as well as Shakaji

Amthaji.

3) As a result of such proceedings, the

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petitioner was held to be the owner/occupier

of the suit land and name of the petitioner

was mutated in the revenue record village

form No. 7/12 extract as a tenant.

4) Mamlatdar and ALT after verifying the

revenue record, determined the price of the

land and on payment of the said price, the

petitioner became the legal owner and

occupier of the suit land on 25.05.1987. The

petitioner thereafter cultivated the land.

12. Learned advocate Mr. Puj submitted that

above facts are stated in the sale deed

executed by the Power of Attorney Holder-

defendant no.6 in favour of defendant nos. 7

to 9 joined in the suit but these facts are

suppressed in the plaint.

13. Learned advocate Mr. Puj submitted that

the sale deed executed by the petitioner was

cancelled, which is also placed on record.

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However, facts with regard to the same is

also not stated in the plaint. It was

submitted that the plaintiffs by executing

registered Agreement to Sale in the year

1998, in collusion with defendant nos. 1 to 4

to snatch away the suit land from the

plaintiffs, have abused the process of law

though defendant nos. 1 to 4 have no right,

title or interest in the suit land.

14. It was submitted that without referring

to the tenancy proceedings by which the

petitioner has become the owner, the suit is

filed for specific performance in the year

2010 for execution of the Agreement to Sale

dated 09.03.1998 which is beyond the period

of limitation as prescribed under Article 54

of the Limitation Act.

15. On the other hand, learned advocate Mr.

Tatvam Patel appearing for respondent nos. 1

and 2 original plaintiffs submitted that on

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bare perusal of the averments made in the

plaint as well as the documents produced on

record, the plaintiffs have made sufficient

averments for maintainability of the suit for

specific performance of the Agreement to Sale

dated 09.03.1998. It was submitted that the

petitioner has failed to point out the

provision of law under which the suit is

barred inasmuch as there is nothing on record

to show that the petitioner is the owner of

the suit land at any point of time and by

virtue of entries in the revenue record, the

petitioner cannot claim to be owner of the

suit land. It was submitted that the

petitioner has filed an application under

Order VII Rule 11 of the Code based upon his

defense which is required to be considered by

the Court during the course of trial.

16. With regard to the issue of limitation,

it was submitted that the trial Court has

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rightly come to the conclusion that it is a

mixed question of facts and law and

therefore, the same can be considered during

the proceedings of the suit.

17. Learned advocate Mr. Patel referred to

and relied upon the conditions for execution

of the sale deed in Agreement to Sale sought

to be enforced to point out that condition

no.3 clearly stipulates that the sale deed

would be executed only upon obtaining title

clearance certificate and necessary

permission from the Government as the suit

land is of restricted tenure. It was

therefore submitted that the suit was rightly

not considered to be barred by law of

limitation by the Court below.

18. Learned advocate Mr. Patel would submit

that the question of suit being filed for

specific performance of Agreement to Sale on

the conditions mentioned therein and

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therefore, the contentions raised on behalf

of the petitioner for rejecting the plaint

has rightly not been considered by the Court

and no interference is required to be made in

the impugned order rejecting the application

Exh.31 filed under Order VII Rule 11(d) of

the Code by the petitioner.

19. Having heard the learned advocates for

the respective parties and having considered

the averments made in the plaint and the

documents annexed therewith by the

plaintiffs, it appears that the plaintiffs

have filed the suit for specific performance

without referring to the correct facts

inasmuch as on perusal of the copy of sale

deed executed in favour of respondent nos. 7

to 9 by the Power of Attorney Holder of the

petitioner, it emerges that defendant nos. 1

to 4 who claim to be legal heirs of Kalaji

Mohanji and Kaalaji Kalaji have no right,

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title or interest over the suit land in view

of the tenancy proceedings which have

achieved finality in the year 1987-1988 as

stated in paragraph nos. 3 to 6 of the

registered sale deed placed on record

executed by the Power of Attorney Holder of

the petitioner. Facts stated therein are not

at all mentioned in the plaint and only

reference is made to the Agreement to Sale

executed in the year 1998.

20. On perusal of the Agreement to Sale also

there is no reference as to how defendant

nos. 1 to 4 have become the owners of the

suit land and as such Agreement to Sale is

also silent to the title derived by the

owners - defendant nos. 1 to 4 who are the

legal heirs of Kalaji Mohanji and Kaalaji

Kalaji.

21. The Learned Judge has rejected the

application filed by the petitioner under

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Order VII Rule 11 of the Code on the ground

that the petitioner has failed to point out

under the provision of which law, suit is

barred by law. However, on perusal of the

averments made in the plaint together with

documents produced on record, it is clear

that the suit is barred by law in view of

suppression of material facts by the

plaintiffs for filing the suit for specific

performance in the year 2010 on the basis of

Agreement to Sale executed in the year 1998.

22. Trial Court has also failed to

appreciate that there is a delay of more than

12 years in preferring the suit for specific

performance by relying upon the condition in

Agreement to Sale. The trial court has also

not considered the averments made in the

plaint with regard to cause of action as the

plaintiffs have failed to point out any event

which has taken place between the period 1998

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to 2008.

23. Thus, the plaintiffs have failed to

point out what efforts were made by the

plaintiffs and defendant nos. 1 to 4 for

obtaining permission for sale of the land nor

anything is mentioned in the suit about cause

of action for readiness and willingness of

the plaintiffs for execution of the sale

deed. It appears that averments of the plaint

is nothing but a clever drafting to file the

suit for specific performance.

24. In view of facts emerging from the

record, more particularly, only on the ground

when the plaintiffs have suppressed the

material facts which is emerging from the

documents annexed with the plaint in form of

sale deed and Agreement to Sale executed by

the petitioner in the year 2008 and 2009, the

plaint is liable to be rejected under Order

VII Rule 11 of the Code.

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25. In view of the foregoing reasons,

revision application succeeds and is

accordingly allowed. Plaint is ordered to be

rejected under Order VII Rule 11 (d) of the

Code. Rule is made absolute to the aforesaid

extent. No order as to costs.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR