Gujarat High Court
Hurbanu Wd/O Gulammohiyuddin ... vs Mohammadali Mohammadhusen Gandhi on 8 February, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
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C/CRA/13/2024 JUDGMENT DATED: 08/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 13 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HURBANU WD/O GULAMMOHIYUDDIN MOHAMMADHUSEN AFINWALA
Versus
MOHAMMADALI MOHAMMADHUSEN GANDHI
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Appearance:
MR VISHAL C MEHTA(6152) for the Applicant(s) No. 1
MR N V GANDHI for the Opponent(s) No. 1
for the Opponent(s) No. 2,3,3.1,3.2,3.3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 08/02/2024
ORAL JUDGMENT
Mr. N.V. Gandhi, learned advocate has instructions to
appear on caveat for and on behalf of the respondent No.1.
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Registry to accept the Vakalatnama.
1. The present Civil Revision Application under Section 115
of the Code of Civil Procedure, 1908 is instituted challenging
the order dated 22.08.2023 passed by the 5 th Additional Senior
Civil Judge, Ahmedabad (Rural) at Mirzapur in Special Civil Suit
No.181 of 2021 below application Exh. 33 whereby, the
competent Court has rejected the application below Exh.33
preferred by the applicants herein by refusing to reject the
plaint under Order VII Rule 11 on the ground that though, some
of the co-owners of the land-in-question are not signatories to
the alleged Deed of Understanding executed in favour of the
respondent No.1, the respective shares of the co-owners and
receipt of part consideration from the respondent No.1 cannot
be decided in absence of leading of any evidence for the same
and without considering the relevant provisions of law
applicable to the facts of the plaint.
Being aggrieved by the impugned order as referred
above, the applicants herein are constrained to approach this
Court by filing the present Civil Revision Application.
2. The brief facts leading to the filing of the present Civil
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Revision Application read thus:
2.1 The applicants herein are the original defendant Nos.1 to
7 and the respondent No.1 is the original plaintiff. The
father/husband of the defendants and the deceased -
Gulammohyuddin Mohammadhusen Afinwala, are the sole
owners of the property i.e. land registered at Ahmedabad
District, Sub-District Ahmedabad - 10 (Vejalpur) Vejalpur
Village of Vejalpur Taluka, Block/Survey No.726+729 paiki
share No.1/G/3 admeasuring 2323 sq. mtr i.e. 2778 sq. yard
non agriculture land included in Vejalpur Gyaspur Muktampur
Town Planning Scheme No.83. The same came to be included
in Final Plot No.76/1 paiki land. (for short 'subject property').
2.2 The original defendant Nos.4 and 6 and the ancestor of
the defendant Nos.1 to 3 decided to sale the property-in-
question to the original plaintiff - respondent No.1 herein for
consideration of Rs.12,00,00,000/- and Agreement/Deed of
Understanding with respect to the same has been executed in
favour of the original plaintiff on 06.02.2018. At the said point
of time, 7/12 extract reflected the name of the original
defendant Nos.4, 6 and the deceased - Gulammohiyuddin
Mohammadhusen Afinwala and the defendant Nos.1,5 and 7.
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When the plaintiff - respondent No.1 herein asked with respect
to the same, the deceased - Gulammohiyuddin
Mohammadhusen Afinwala and defendant Nos.4 and 6 stated
that the property-in-question is owned by the deceased -
Gulammohiyuddin Mohammadhusen Afinwala and the
defendant Nos.4 and 6 but, the defendant Nos.2, 5 and 7 are
the wives of deceased - Gulammohiyuddin Mohammadhusen
Afinwala and the defendant Nos.4 and 6 respectively. In view
thereof, their names are shown as purchaser while purchasing
the property and the deceased - Gulammohiyuddin
Mohammadhusen Afinwala and the defendant Nos.4 and 6
have authority to enter into transaction including the sale of
the property and the defendant Nos.1, 5 and 7 would put their
signature if required, at the time of entering the sale deed and
when the other procedure would be undertaken. On such
assurance given to the plaintiff - respondent No.1 herein by
the original defendants herein and the deceased -
Gulammohiyuddin Mohammadhusen Afinwala, the plaintiff -
respondent No.1 herein entered into the transaction with
respect to the disputed property.
2.3 The respondent No.1 herein - original plaintiff deposited
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an amount of Rs.20,00,000/- as consideration i.e.
Rs.15,00,000/- by cheque of State Bank of India bearing
No.866427 dated 06.01.2018 of Ambawadi Branch,
Ahmedabad and Rs.5,00,000/- in cash and executed an
Agreement/Deed of Understanding on 06.02.2018. A
Supplementary Agreement came to be executed between the
same parties on 19.02.2019. The possession of the property-in-
question was handed over to the respondent No.1 where, the
respondent No.1 has also kept watchman and constructed a
room. The respondent No.1 - original plaintiff has in all
deposited Rs.60,00,000/- with the defendants.
2.4 In line of the aforesaid, the plaintiff - respondent No.1
herein having shown readiness and willingness to execute the
contract, approached the defendants to proceed further and
entered into the sale deed. However, the defendants did not
reply to the Notice issued by the plaintiff - respondent No.1
and acted contrary to the assurance given to the plaintiff -
respondent No.1. After issuance of Notice by the plaintiff -
respondent No.1 on 19.01.2021, the defendants issued public
notice in Divya Bhaskar on 24.04.2021 and Gujarat Samachar
on 27.04.2021 through solicitors and advocates to obtain title
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clearance certificate in respect of the suit property wherein,
they stated that the defendants were determined to sell the
aforesaid property to the defendant No.8.
2.5 The plaintiff - respondent No.1 gave objection application
on 27.04.2021 against the aforesaid public notice through
advocate wherein, it is mentioned that the defendants entered
into agreement after getting earnest purchase money and
consideration from the plaintiff - respondent No.1 and entered
into supplementary agreement; possession of the aforesaid
suit property was also handed over to the plaintiff and the
plaintiff had acted in accordance with the agreement to sell as
referred above. On receipt of the objections, the defendants
gave oral assurance that they are ready and willing to execute
sale deed with respect to the suit property in favour of the
plaintiff - respondent No.1 by acting as per the agreement to
sell. That, they would not sale the suit property to the
defendant No.8 and therefore, it was requested to the plaintiff
- respondent No.1 not to take any legal action with respect to
the suit property.
2.6 Having kept faith in the assurances of the defendants,
the plaintiff did not take any immediate action. Thereafter, the
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defendants replied on 03.07.2021 to the Notice dated
19.01.2021 through their advocate. In the aforesaid reply, the
defendant Nos.1 to 7 concealed the true facts and mentioned
false facts to create false defence. The plaintiff - respondent
No.1 gave reply to their reply dated 03.07.2021 through his
advocate on 14.07.2021. By the conduct of the defendants, the
plaintiff realized that the defendants do not want to act as per
their assurances and promises. Having mentioned false facts,
the plaintiff was compelled to institute the Special Civil Suit
No.181 of 2021 for obtaining decree for specific performance
of contract to the effect that the defendants shall act as per
the agreement to sell dated 06.02.2018 and supplementary
agreement dated 19.02.2019 and get the requisite revised
plan approved for the construction on the suit property by
taking necessary actions and execute sale deed in favour of
the plaintiff - respondent No.1 herein.
3. Heard Mr. Mehul S. Shah, learned Senior Counsel with Mr.
Vishal C. Mehta, learned advocate appearing for the applicants
and Mr. N.V. Gandhi, learned advocate appearing on caveat for
the respondent No.1.
4. Mr. Mehul S. Shah, learned Senior Counsel appearing for
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the applicants, submitted that the alleged Deed of
Understanding dated 06.02.2018 is not executed by all the co-
owners of the land-in-question and therefore, as per the settled
position of law, the said Deed of Understanding /Agreement to
Sell is not valid and legal. It was submitted that the respondent
No.1 - original plaintiff has preferred the suit on the basis of
void and illegal Deed of Understanding/Agreement to Sell and
in view thereof, the suit itself is not maintainable at all. It was
submitted that as per the report of the Court Commissioner as
well as the averments made in the application below Exh.15
preferred by the respondent No.1 - original plaintiff, it is clearly
established that the actual physical possession of the land-in-
question is with the applicants and the respondent No.1 -
original plaintiff has failed to seek relief of recovery of
possession of the land-in-question from the applicants in the
plaint of the present suit more particularly, when the
respondent No.1 - original plaintiff preferred application below
Exh.46 for amendment of plaint of the present suit.
4.1 Mr. Shah, learned Senior Counsel, submitted that the
concerned Court ought to have considered that neither in the
alleged Deed of Understanding nor in the Supplementary
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Deed, the possession of land-in-question handed over to the
respondent No.1 and the same is duly supported by the report
of the Court Commissioner. In view thereof, it is clearly
established from the documents produced on record by the
respondent No.1 - original plaintiff that the possession of the
land-in-question is with the applicants - original defendants
herein and not with the respondent No.1 - original plaintiff. It
was submitted that the concerned Court ought to have
considered that in view of the execution of the registered
Development Agreement in favour of the respondent Nos.3,
3(1) to 3(3) by the applicants in respect of the land-in-
question, the respondent No.1 preferred an application below
Exh.46 for amendment of the plaint of the present suit as well
as for joining the said respondents as party - defendants to the
present suit however, the respondent No.1 - original plaintiff
has failed to challenge the said registered Development
Agreement executed in respect of the land-in-question.
4.2 Mr. Shah, learned Senior Counsel, submitted that the
respondent No.1 - original plaintiff failed to seek further reliefs
available to him, the plaint of the present suit is required to be
rejected as the same being barred by provisions of Section 34
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of the Specific Relief Act. It was submitted that the concerned
Court ought to have considered that though the applicants
have not raised any other grounds which are available to them
for rejection of the plaint of the present suit in an application
below Exh.33, the same can be appreciated by the concerned
Court as well as this Court.
4.3 Mr. Shah, learned Senior Counsel, submitted that the
application below Order VII Rule 11 came to be filed by the
applicants herein after finding that admittedly, some of the co-
owners have not signed the alleged Deed of Understanding as
well as the Supplementary Deed executed in favour of the
respondent No.1 with respect to the land-in-question is not
maintainable at all; the same being void and illegal.
4.4 Placing reliance on the aforesaid submissions, Mr. Shah,
learned Senior Counsel, submitted that the application filed by
the applicants herein below Order VII Rule 11 was required to
be allowed. The concerned Court having erred in
dismissing/rejecting the said application, the order passed by
the concerned Court below Exh.33 dated 22.08.2023 in Special
Civil Suit No.181 of 2021 be quashed and set aside.
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4.5 Reliance was placed on the ratio laid down by the Hon'ble
Apex Court in 2015 (5) SCC 355 in case of Pemmada
Prabhakar & Ors. vs. Youngmen's Vysya Association & Ors. and
in AIR 1972 SC 2685 in case of Ram Saran & Anr. vs. Smt.
Ganga Devi.
5. Per contra, Mr. N.V. Gandhi, learned advocate appearing
on caveat for the respondent No.1, submitted that the order
passed by the concerned Court rejecting the application filed
by the applicants - original defendants below Order VII Rule 11
on the ground that a Deed of Understanding dated 06.02.2018
executed by the applicant Nos.4 and 6 and predecessor of the
applicant Nos.1 to 3 for total sum of Rs.12,00,00,000/- and out
of said amount of consideration, Rs.15,00,000/- in Cheque and
Rs.5,00,000/- in cash plus further amount of Rs.40,00,000/-,
were allegedly paid to the applicants by the respondent No.1
and the Supplementary Deed entered into between the same
parties, has rightly rejected the said application. Reliance was
placed on the averments made in the plaint and it was
submitted that the impugned order requires no interference. It
was submitted that the plaint cannot be rejected on the
defence raised by the defendants. While considering the
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application under Order VII Rule 11, the averments in the
plaint are required to be considered by the concerned Court
and having considered the same, concluded that the suit is
required to be adjudicated after leading of evidence.
Analysis:-
6. Considered the submissions advanced by the learned
advocates appearing for the respective parties. The
respondent No.1 - original plaintiff preferred Special Civil Suit
No.181 of 2021 on 14.07.2021 for the following reliefs:
"(a) Kindly pass a decree of a specific performance of the contract in
favour of me - the plaintiff and against the defendant No.1 to 7 and 9
to 12, directing the defendant No.1 to 7 and 9 to 12 to act in
accordance with the terms of the agreement to sell (described as a
Memorandum of Understanding) executed on 06/02/2018 for selling
the disputed property - the non-agricultural land admeasuring 2323
Sq.M., i.e. 2778 Sq.Yards of Block/Survey No.726+729 paiki part No.1/
G/3 in the sim of village - Vejalpur of taluka Vejalpur in sub district -
Ahmedabad-10 (Vejalpur) of district - Ahmedabad, which upon being
included in Vejalpur Gyaspur Muktampur town planning scheme No.83,
has been included in the land of final plot No.76/1 paiki, to me - the
plaintiff and the supplementary agreement dated 19/02/2019 executed
with respect to the said agreement to sell and to perform relevant
necessary procedures and to execute a registered sale deed for the
said property in favour of me - the plaintiff or the person as may be
suggested by me - the plaintiff and in case of default by the defendant
No.1 to 7 and 9 to 12 in performing accordingly, the Court may appoint
a commissioner and get a registered sale deed executed for the said
property in favour of me - the plaintiff or the person as may be
suggested by me - the plaintiff.
This suit is valued at Rs.12,00,00,000/-.
(b) Kindly pass a permanent injunction refraining the
defendant No.1 to 7 and 9 to 12 from transferring or assigning the
disputed property - non-agricultural land admeasuring 2323 Sq.M., i.e.
2778 Sq.Yards of Block/Survey No.726+729 paiki part No.1/G/3 in the
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sim of village - Vejalpur of taluka Vejalpur in sub district - Ahmedabad-
10 (Vejalpur) of district - Ahmedabad, which upon being included in
Vejalpur Gyaspur Muktampur town planning scheme No.83, has been
included in the land of final plot No.76/1 paiki, through sale, mortgage,
gift or otherwise or executing any agreement to sell, possession
agreement, power of attorney or any instrument in favour of the
defendant No.8 or any third party or creating any obstruction through
their connected persons, servants, agents or contractors in the actual
possession and occupation by me - the plaintiff.
(c) Kindly grant any other relief which the Court may deem fit and
proper.
(d) Kindly grant the cost of this suit to be recovered from the
defendants."
7. It is apposite to refer to paragraphs 1,2,3,4 and 11 of the
Special Civil Suit No.181 of 2021 preferred by the respondent
No.1 - original plaintiff, which read thus:
"1) As the said land registered at Ahmedabad District, Sub-district
Ahmedabad-10 (Vejalpur) Vejalpur Village of Vejalpur Taluka, block/
Survey No.726+729 paiki share No.1/G/3 admeasuring 2323 sq.m.
i.e. 2778 sq. yard non-agriculture land was included in Vejalpur
Gyaspur Maktampur Town Planning Scheme No.83, the same was
included in Final Plot No.76/1 paiki land. The same hereinafter referred
as "property in question" in this suit.
2) The father/husband of the respondent No.1 to 3, Gulam-
mohyuddin Mohammadhusen Afinvala and the respondent No.4 to 6
stated that, they are the sole owner of the said "property in question"
and no other person has ownership or share in the said property and
no other person except them has right, share, dealing with the said
land and by giving such assurance for the same, decided to sale the
property in question to us the plaintiff for Rs.12,00,00,000/- Rupees
Twelve crore only and agreement to sell of the same (which is titled as
memorendom of understanding) has been executed in favor of me the
plaintiff in on 06/02/2018. At the time of the agreement to sell, the
respondent No.4, 6 and the deceased Gulammohiyuddin Afinvala gave
me the extract of 7/12 village form containing name of respondent
no.1 and respondent No.5 and 7 along with respondent No.4 and 6.
When I, the plaintiffs asked regarding the same to the deceased
Gulammohayuddin and respondent No.4, 6, they stated that, the
property in question is owned by the deceased Gulammohayuddin and
respondent No.4 and respondent No.6 but the respondent No.2, 5 and
7 are the wives of deceased Gulammohayuddin and respondent No.4
and 6 respectively. Therefore, their names are shown as the purchaser
while purchasing the said property and the deceased
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Gulammohayuddin Afinvala and respondent No.4 and 6 has authority
to make any transaction including sale of the said property and they
will put their signature for the respondent No.1, 5 and 7, if required at
the time of sale deed and other procedure. Such assurance was given
to us the plaintiffs by Gulammohayuddin Afinvala and respondent
No.4 and 6. Relying upon such assurance we the plaintiff made
transaction for purchasing the said property with them.
3) As stated in para-2 of the agreement to sell executed by
deceased Gulammohayuddin Afinvala and respondent No.4 and 6 on
06/02/2018, out of the names of the sellers, Gulammohayuddin
Afinvala has died on ............. The respondent No.1 as his wife and
respondent No.2, and 3 as his daughters are his heirs. Therefore, as
they have right in the property in question as the heirs of deceased
Gulammohayuddin Afinvala, they have been included as party. As the
signatures are made in the agreement to sell dated 06/02/2018 before
the Notary Shri Mohammad-rafiq G. Shekh, the notary has put their
signature and affixed seal in the same. As stated and admitted in the
said agreement to sell, they have received Rs.15,00,000/- Rupees
Fifteen Lakhs as the consideration amount from us the plaintiffs vide
State Bank of India, Ambavadi Ahmedabad Branch, cheque no.866427
dated 06/01/2018 and Rs.5,00,000/- Rupees Five Lakhs i.e total of
Rs.20,00,000/- Rupees Twenty Lakhs only and thereafter, executed the
agreement to sell on 06/02/2018 in favor of us the plaintiffs. The said
agreement to sell is described as an memorandum of understanding
therein. The important terms of the agreement to sell mentioned
therein at para 4(B) (C ) and (D) are as below.
(B)... In the north of the said land, there is land of Survey
No.726+729 paiki 1/G/1 and 726+729 paiki 1/G/2 are situated
which is under the ownership of Mohammadi Charitable Trust.
They have obtained construction permission for a hospital
namely "Amena Khatun Hospital" in the land of their ownership
from the Ahmedabad Urban Development Authority vide order
No.P.R.M./ 19/ 12001 dated 08/08/2001 of Senior Town Planner
and in that plan pass, the land decided to be sold to you is
mentioned as parking and common plot, for this reason revised
plan is to be carried out in the said land as per new G.D.C.R. of
the Ahmedabad Muni. Corporation. But, as the said land was
included in the town planning scheme, admissible land of final
plot and for construction therein as wished by you the
purchaser, the said land is to be deducted and revised plan is
necessary be implemented as per the bylaws of the Municipal
Corporation and as per that plan, construction of basement is
necessary for the use of the Hospital. After the deduction as per
law, you the purchaser can make the construction as per F.S.I.
and as per the permission granted under the bylaws of the
Municipal Corporation. As the procedure for the same is very
costly and time consuming, as per the important term of this
agreement, the time limit of the said agreement shall be the
time until the deduction in the land and the permission is
obtained for new revised construction in the said land as per
new G.D.C.R. and bylaws of the Municipal Corporation.
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C... Ahmedabad Urban Development Authority has passed
the plan regarding construction of hospital property towards
North direction on the land, which was decided to sell to you. By
this deed, I have decided to sell the aforesaid land to you, but by
showing parking / common plot in the aforesaid land as
construction is not possible on this land at present, it is essential
to get passed revised plan afresh on this land from Ahmedabad
Municipal Corporation and construction plan on this land is /
would be produced with our signature before Ahmedabad
Municipal Corporation. We, the vendors and trustees of
Mohammadi Charitable Trust have to/shall have to make
signatures wherever our signatures, consent, witness and
admission are required for approval of the said plan. As per
significant condition of the aforesaid agreement, the vendee has
to make expenditure up to Rs.2,00,00,000/- (In words Rupees
Two Crore only) towards passing of plan regarding carrying out
construction on the aforesaid land, making basement and
making the plot final. Then, vendors shall have to bear
expenditure up to Rs.2,00,00,000/- (In words Rupees Two Crore
only) and the same shall have to be borne by the vendee at
present and this deed has been executed with clear
understanding that the amount of said expenditure shall have to
be adjusted against the total amount of the deal, but the
vendors shall have to return the remaining amount to the
landlord after making required expenditure thereof.
D... As per the above-written details, as procedure to pass
plan to carry out construction work on this land gradually
initiates positively further in Ahmedabad Municipal Corporation,
you shall have to make part payment from the amount of sell as
per the agreement executed between both the parties and after
passing construction plan in Municipal Corporation regarding the
land for use from the said land; upon receipt of total
consideration sale amount, we and our landlords have to/shall
have to jointly execute sale deed with construction plan on the
said land.
(4) As stated above, after executing sale deed in respect of
"Property in question", by the virtue of agreement to sale, Defendant
Nos.1 to 7 have handed over direct possession of "Property in
question" to the plaintiff and the plaintiff has kept watchman in the
aforesaid land and he has also got constructed a small room thereon at
his cost and watchman resides there during daytime. In this way, as
per conditions of agreement to sale dated 06/02/2018, after taking
partial action, I have paid Rs.40,00,000/- (In words Rupees Forty Lakh
only) to these Defendant Nos.4, 6 and the deceased Gulammohiyuddin
Afinwala as per the following details.
Rs.7,50,000/- In words Rupees Seven lakh Fifty thousand only on
10/08/2018
Rs.1,00,000/- In words Rupees One lakh only by Cheque No.162902
dated 17/09/2018 of State Bank of India, Bhadra
Branch, Ahmedabad.
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Rs.1,00,000/- In words Rupees One lakh only by Cheque No.162903
dated 17/09/2018 of State Bank of India, Bhadra
Branch, Ahmedabad.
Rs.50,000/- In words Rupees Fifty thousand only by Cheque
No.162904 dated 17/09/2018 of State Bank of India,
Bhadra Branch, Ahmedabad.
Rs.10,00,000/- In words Rupees Ten lakh only by Cheque No.000015
dated 18/02/2019 of Bank of Baroda, Juhapura Branch
in the name of the deceased Gulammohiyuddin
Afinwala
Rs.10,00,000/- In words Rupees Ten lakh only by Cheque No.000014
dated 18/02/2019 of Bank of Baroda, Juhapura Branch
in the name of Defendant No.4
Rs.10,00,000/- In words Rupees Ten lakh only by Cheque No.453467
dated 17/02/2019 of Axis Bank Ltd., Ahmedabad
Rs.40,00,000/- In words Rupees Forty Lakh only
In view of the aforesaid details, I, the plaintiff, have paid
Rs.60,00,000/- In words Rupees Sixty Lakh only to these Defendant
Nos.1 to 7 towards total amount of agreement to sale and sale
consideration of the property in question. In this way, I, the plaintiff,
have partially acted as per agreement to sale dated 06/02/2018. Thus,
by partially acting as per agreement to sale, these Defendants have
executed supplementary agreement on 19/02/2019 in connection with
agreement to sale dated 06/02/2018. I was/ am willing and ready to act
as per the aforesaid agreement to sale.
(11) The cause of action has arisen in the jurisdiction of this Court in
Ahmedabad City since deceased Gulammohiyuddin Afinwala and
defendant No.2, 4 and 6, by stating that the disputed property was
solely owned and occupied by them and deciding to give the disputed
land to me - the plaintiff through absolute sale and obtaining an
earnest money for the same, executed the agreement to sell
(described as a Memorandum of Understanding) dated 06/02/2018 and
since I - the plaintiff performed partly as per the terms of the
agreement to sell and since I paid the amount of remaining
consideration to the defendants and since the defendants, in respect of
the said agreement to sell, executed the supplementary agreement
dated 19/02/2019 and since the defendants kept wasting the time after
giving assurance and promise of performing as per the said agreement
to sell and since I - the plaintiff sent a letter dated 14/12/2020 to the
defendants and sent a reply dated ___/01/2021 to their reply and sent
a notice dated 19/01/2021 informing that I was and am always ready
and willing to perform as per the agreement to sell and get a sale-deed
executed and told the defendants to execute a sale-deed by
performing in accordance with the agreement to sell and since the
defendants did not perform accordingly and since they attempted to
create a false defence by sending false replies of the said letter and
notice and since they prepared for transferring the disputed property
to the defendant No.8 and other third party."
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8. The applicants - original defendants preferred an
application under Order VII Rule 11 praying for rejection of the
plaint in favour of the defendant Nos.1 to 7 mainly on the
ground that the respondent No.1 - original plaintiff sought for
execution of the registered sale deed by way of specific
performance of Deed of Understanding (Banakhat) dated
06.02.2018 and Supplementary Agreement dated 19.02.2019
and decree as well as permanent injunction order thereof.
However, the same is not executable in view of the fact that
the deceased defendant No.1 - Gulammohiyuddin
Mohammadhusen Afinwala and the ancestor of the deceased
defendant No.1 being applicants - original defendant Nos.
1,2,3 as well as defendant Nos.4 to 7 are co-owners and
occupiers of the land-in-question. The respondent No.1 -
original plaintiff was provided with a copy of the village form
No.7/12 at the time of Deed of Understanding. The applicant -
defendant Nos.4, 6 and deceased - Gulammohiyuddin
Mohammadhusen Afinwala executed a Deed of Understanding
on 06.02.2018 in view thereof, the plaintiff - respondent No.1
herein has stated in paragraph 2 of his plaint that the entire
agriculture land is agreed to be sold vide Deed of
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Understanding dated 06.02.2018. The said agreement have
been executed by the deceased - Gulammohiyuddin
Mohammadhusen Afinwala. The original plaintiff - respondent
No.1 herein himself has produced a copy of 7/12 extract which
reflect that the suit land was originally occupied by the
deceased - Gulammohiyuddin Mohammadhusen Afinwala. In
view of the aforesaid, the plaintiff has admitted in the suit that
the deceased - Gulammohiyuddin Mohammadhusen Afinwala
is the owner and occupier of the land-in-question and in view
thereof, Section 17 of the Specific Relief Act applies to the suit
proceedings. The plaintiff was aware that the ownership of the
disputed property lies with the ancestor of the defendant
Nos.1,2,3 and 4 to 7 i.e. Gulammohiyuddin Mohammadhusen
Afinwala. Thus, according to the declaration of the plaintiff,
only 3 out of 6 owners of land executed the Agreement/Deed
of Understanding dated 06.02.2018 and Supplementary
Agreement dated 19.02.2019 and in view thereof, late
Gulammohiyuddin Mohammadhusen Afinwala, defendant
Nos.4 and 6 who executed the said agreements, do not have
absolute title or ownership towards the disputed land and
therefore, the said Agreement/Deed of Understanding cannot
be legally enforced as per Section 17 of the Specific Relief Act
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and in view of bar of Section 17 of the Specific Relief Act, the
suit be rejected under the provisions of the Order VII Rule 11.
9. The aforesaid was considered by the concerned Court
and the said application below Order VII Rule 11 preferred by
the applicants - original defendant Nos.1 to 7 came to be
rejected vide order dated 22.08.2023 considering the
following:
"(8) Upon perusal of the plaint, it appears that plaintiffs have
instituted the present suit for the specific performance of the
agreement of the suit land and for permanent injunction. The plaintiffs
have averred in the plaint that they have possession of the suit land.
Thereafter, plaintiffs have submitted application at Exh. No. 15 to
obtain mandatory injunction directing the Defendants to hand over the
possession of the suit land to them by averring therein that the
Defendants dispossessed them of the suit land on 02/10/2021. Upon
perusal of the plaint, it is averred in the para no. 2 of the plaint that,
"When agreement to sell was executed in favour of the Plaintiffs on
06/02/2019, Defendant Nos. 4, 6 and deceased Gulammohiyuddin
Afinwala gave a copy of village form no. 7/12 in respect of the aforesaid
property to the Plaintiffs, wherein names of Defendant Nos. 4, 6 and
deceased Gulammohiyuddin Afinwala were recorded as owners.
Therefore, as we, the Plaintiffs, asked Defendant Nos. 4, 6 and
deceased Gulammohiyuddin Afinwala in that regard, they stated that
suit land belongs to Defendant Nos. 4, 6 and deceased
Gulammohiyuddin Afinwala. But, Defendant Nos. 2, 5 and 7 are wife of
the deceased Gulammohiyuddin Afinwala, Defendant Nos. 4 and 6
respectively and therefore, their names have been shown as
purchasers at the time of the purchase of the said property, and
Gulammohiyuddin Afinwala and Defendant Nos. 4 and 6 have power to
make all transactions including sale in respect of the aforesaid property
on behalf of them. The deceased Gulammohiyuddin Afinwala,
Defendant Nos. 4 and 6 gave firm assurance to the Plaintiffs that when
signatures of Defendant Nos. 1, 5 and 7 are required at the time of sale
deed and other proceedings, they would sign. Relying upon the said
firm assurance, we, the Plaintiffs, have done transactions with them to
purchase aforesaid property." In view of the memorandum of
understanding produced at mark 3/1, it prima facie appears that
aforesaid MOU bears signatures of ancestor of Defendant No.1 -
deceased Gulammohiyuddin Mohammadhusen Afinwala, Defendant No.
4 Iqbalhusen Mohammadhusen Afinwala and Defendant No. 6
Mukhtyarhusen Afinwala. It prima facie appears that the aforesaid
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MOU does not bear signatures of Defendant Nos. 2, 3, 5 and 7. The
persons, who entered into aforesaid MOU, have averred on the page
no. 2 of the aforesaid MOU that we are owners and possessors of the
land and there is no owner or co-owner of the said land other than us
OR no one other than us has any right or share in the said land. In view
of supplementary MOU dated 06/02/2018 produced vide mark 3/2, it
prima facie appears that it bears the names of ancestor of Defendant
No.1 - deceased Gulammohiyuddin Mohammadhusen Afinwala,
Defendant No. 4 Iqbalhusen Mohammadhusen Afinwala and Defendant
No. 6 Mukhtyarhusen Afinwala as sellers and their signatures. In view of
village form no. 7/12 of the suit land produced vide mark 3/12, it
appears that names of ancestor of Defendant No.1 - deceased
Gulammohiyuddin Mohammadhusen Afinwala, Defendant No. 4
Iqbalhusen Mohammadhusen Afinwala and Defendant No. 6
Mukhtyarhusen Afinwala along with Defendant Nos. 1, 5 and 7 are
found in the revenue record of the suit land. It prima facie appears that
aforesaid MOUs do not bear signatures of Defendant Nos. 1, 5 and 7. It
prima facie appears that there is no dispute in respect of the fact that
MOU and supplementary MOU in respect of suit land do not bear
signatures of ancestor of Defendant Nos.1 to 3 - deceased
Gulammohiyuddin Mohammadhusen Afinwala, Defendant No. 4
Iqbalhusen Mohammadhusen Afinwala and Defendant No. 6
Mukhtyarhusen Afinwala. The persons, who entered into MOU, have
accepted the amount of consideration as mentioned in the aforesaid
MOU by making averments. It is an issue of evidence as to under which
conditions the persons, who entered into aforesaid MOU, have
accepted the amount of consideration as per the aforesaid MOU and as
to whether all the parties have received the amount of consideration or
not and as to whether original proposal has been accepted as per the
aforesaid MOU or not. Without appreciation of the evidences, no
presumption can be drawn at the present stage as to whether, the so
called agreement to sell, which took place between Plaintiffs and
ancestor of Defendant Nos.1 to 3 - deceased Gulammohiyuddin
Mohammadhusen Afinwala, Defendant No. 4 Iqbalhusen
Mohammadhusen Afinwala and Defendant No. 6 Mukhtyarhusen
Afinwala, is as per the ingredients of section 10 or not.
(9) It becomes necessary to peruse section 17 of the Specific Relief
Act, 1963, which is as under :-
17. Contract to sell or let property by one, who has no title not
specifically enforceable.
(1) A contract to sell or let any immovable property cannot be
specifically enforced in favour of a vendor or lessor - (a) who,
knowing himself not to have any title to the property, has
contracted to sell or let the property; (b) who, though he entered
into the contract believing that he had a good title to the
property, cannot at the time fixed by the parties or by the Court
for the completion of the sale or letting, give the purchaser or
lessee a title free from reasonable doubt.
(2) The provisions of sub-section (1) shall also apply as far as may
be contracts for the sale or hire of movable property.
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Now, if facts of the present suit are taken into account, it prima facie
appears that names of ancestor of Defendant Nos.1 to 3 - deceased
Gulammohiyuddin Mohammadhusen Afinwala, Defendant No. 4
Iqbalhusen Mohammadhusen Afinwala and Defendant No. 6
Mukhtyarhusen Afinwala, who entered into agreement with the
Plaintiffs, were shown as owners of the suit land. The names of
Defendant Nos. 1, 5 and 7 are also found in the revenue record of the
suit land in addition to aforesaid names. No presumption can be drawn
without recording evidence as to what share all the persons, whose
names have been entered as owners in the revenue record, have in the
suit land. In view of aforesaid discussion, out of the owners of the suit
land, ancestor of Defendant Nos.1 to 3 - deceased Gulammohiyuddin
Mohammadhusen Afinwala, Defendant No. 4 Iqbalhusen
Mohammadhusen Afinwala and Defendant No. 6 Mukhtyarhusen
Afinwala entered into memorandum of understanding with Plaintiffs
and therefore, there is a reason to believe that ancestor of Defendant
Nos.1 to 3 - deceased Gulammohiyuddin Mohammadhusen Afinwala,
Defendant No. 4 Iqbalhusen Mohammadhusen Afinwala and Defendant
No. 6 Mukhtyarhusen Afinwala, who entered into agreement, have
share as owners in the suit land. Further, as per the averments made in
the plaint of the Plaintiffs, Defendant Nos. 1 to 7 handed over the
actual possession of the suit land, and that is why it cannot be decided
at the present stage without recording evidence as to whether there
was an indirect consent of other Defendants in the agreement in
respect of the suit land or not.
(10) On behalf of the Respondent Nos.1 to 7, below given cross-
Judgments are cited, in corroboration of their arguments.
The details of (1) Judgment of the Hon'ble Supreme Court in the
case of Civil Appeal No.7835/2014 of Premada Prabhakar and Others
Vs. Yongmen's Vasaya Association and Others, (2) Judgment of the
Hon'ble High Court of Gujarat in the case of Ashwinkumar Manilal Shah
and Others Vs. Chhotabhai Jethabhai Patel and Others, AIR 2001,
Gujarat 90 are perused respectfully. It is established in the Judgments
of aforesaid cases that out of the owners of the property, some co-
shares cannot be entitled for the sale of entire property. The principle
established in the Judgment of aforesaid case is accepted. As per the
above discussion, the Appellant has submitted that possession of the
property has been handed over to him. Therefore, the point as to
whether possession of suit property was handed over to all the
Respondents or not, at this stage it cannot be decided without
recording the evidences. Therefore, it appears that it is a subject
matter of evidence as to whether all respondents agreed in the sale of
suit property.
The details of (1) the Judgment of the Hon'ble Chhattisgarh High
Court in the case of First Appeal No.106/2010 of Mohammad Yusuf Raja
Vs. Aziz Khan and Others, (2) the Judgment of Hon'ble Andhra Pradesh
High Court in Second Appeal No.562/2018 are respectfully perused. It is
established in the Judgments of aforesaid cases that when the titles of
the sellers are erroneous, the Decree of compliance of the Agreement
cannot be executed against it. The principle established in the
Judgments of above cases are respectfully appreciated. As per the
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discussion done above, there is no dispute regarding the fact that the
Respondents who have made signatures in the Agreement, they must
be joint owners of the property. Further, the decision cannot be taken
without calling for the evidences as to whether other Respondents,
upon handing over possession of the suit property to the Respondents.
The details of (1) the Judgment of the Hon'ble Supreme Court in
the case of Civil Appeal No.439/2022 of M/s Shri Surya Developers and
Promoters Vs. Enan Shailesh Prasad, (2) the Judgment of Hon'ble
Supreme Court in the case of Rajendra and Others Vs. Hemant Kumar
Jalan and Others, AIR 2021 Supreme Court 4594, (3) the Judgment of
Hon'ble Supreme Court in the case of Special Leave Petition (Civil)
No.35844/2018 of Akbar Ali Vs. K. Ummar, (3) Maharaj Shri
Manvendrasinhji Jadeja Vs. Rajmata Vijaykunvarba, 1999(2) GLR 261.
The details of Judgments of the cases cited are respectfully perused. It
is established in the Judgments of aforesaid cases that the reason of
suit drafted cleverly cannot be believed. As the reasons of suit are not
been mentioned, the same should be dismissed. The principle
established in aforesaid case is appreciated. But, as per the above
discussion, the points in dispute in present suit, are the mixed points of
evidence and the Act.
(11) On behalf of the appellant, in corroboration of his
arguments, the judgments of below mentioned cases are cited,
the same are respectfully perused.
The Judgments given by (1) The Patna High Court in the case of
Diwali Lal and Others Vs. Sardar Baldev Singh, AIR 1985 Patna 344, (2)
Hon'ble Andhra Pradesh High Court in Netyam and Others Vs.
Mahankali Narsimha, AIR 1994 AP 244, (3) Hon'ble Rajasthan High
Court in M/s Umakant and Co. Ltd. Vs. Niranjan Prasad Mahesh and
Others, AIR 2006, Rajasthan 46, (4) Hon'ble Supreme Court in Kamanna
Sabamurari Vs. Kalipatanapu and Others, 2010(3) Law Summary 159,
(5) Hon'ble Supreme Court in A. Abdul Rashid Khan Vs. PAKA Shahul
Hamid, Civil Appeal No.4898/1991, (6) Hon'ble Supreme Court in
Kartarsinh Vs. Harjindar Singh in the Civil Appeal No.745/1975. It is held
in the Judgments of aforesaid case that qua the share of co-sharers, the
Appellant is entitled for the specific performance of the Agreement. The
principles established in above established Judgments is appreciated. In
the instant case, the discussion has been done as per the principle
established in aforesaid case. As per the above discussion, regarding
the details in the disputed agreements produced in connection with
present case, no conclusion can be given without recording the
evidence.
The Judgments given by (1) The Hon'ble Andhra Pradesh High
Court in the case of Mir Hakim Khan Vs. Abdul Kadari in LPA
No.177/1968, (2) The Punjab and Haryana High Court in the matter of
Mrs.Nirmal Vs. Lakhpatsing, Civil Revision No.938/1999, (3) Hon'ble
Punjab and Haryana High Court in the case of Lakhbirsinh Vs. Darshan
Sinh, in R.S.Appeal No.800/2013 have been respectfully perused. The
principle established in aforementioned Judgments are appreciated. I
humbly believe that the facts of the case in hand are different.
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The details of Judgment given by the Hon'ble Supreme Court in
the case of B.Santosh and Others Vs. D.Sarala and Others, in Civil
Appeal No.3574/2009 are respectfully perused. The principle
established in the Judgment of aforesaid case is appreciated. In the
said case, it is held that the relief of specific performance of the
Agreement as sought for is inappropriate. At the present stage, final
judgment of the case cannot be taken.
The details of the Judgment given by (1) The Hon'ble Supreme
Court in Sejal Glass Vs. Navlin Merchants Ltd., Civil Appeal
No.10802/2017, (2) Hon'ble Supreme Court in Ramesh B. Desai Vs.
Bipin Vadilal Maheta, in Civil Appeal No.4766/2001, (3) Hon'ble
Supreme Court in Urvashiben and Others Vs. Krishnakant Manuprasad
Trivedi, Civil Appeal No.12070/2018, (4) Hon'ble Supreme Court in
Chhotaben and Others Vs. Kiritbhai Thaker, Civil Appeal No.3500/2018,
(5) Hon'ble Supreme Court in PV Guru Raj Re. by GPA Laxmi Narayan
Reddy and Others Vs. P Niradha Reddy and Others, Civil Appeal
No.5254/2006 are respectfully perused. The principles established in
aforesaid Judgments are appreciated. Pursuant to the principles
established in the Judgments of above cases only, the discussion
regarding present case is done and that the discussion regarding
defence of the Respondents Nos.1 to 7 is not done.
(12) Thus, considering entire details as discussed above and
the Statements made in the suit application, without granting
opportunity to the Applicant to produce his evidence, the suit
cannot be dismissed. Further, upon considering entire details,
facts and legal provisions as above, in response to this
application, the following final order is hereby passed in the
interest of justice.
:: Order ::
1. Present application of Ex-33 produced by the
Respondent Nos.1 to 7 are hereby dismissed, in the
interest of justice.
2. The costs of this application will be according to
the final judgment of the suit."
10. The concerned Court considered the provisions of Section
17 of the Specific Relief Act, 1963 and prima facie, concluded
that the names of ancestor of the deceased -
Gulammohiyuddin Mohammadhusen Afinwala original
defendant Nos.1, 2 and 3, original defendant No.4 - Iqbalhusen
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Mohammadhusen Afinwala and the original defendant No.6 -
Mukhtyarhusen Mohammadhusen Afinwala, who entered into
an Agreement/Deed of Understanding with the respondent
No.1 - original plaintiff, were shown as the owners of the land.
The names of applicant - original defendant Nos.1, 5 and 7 are
also found in the revenue record of the land-in-question in
addition to the aforesaid. No presumption can be drawn
without recording evidence as to what share of all the persons,
whose names have been entered into as owners in the revenue
record, have in the suit land. In view of the aforesaid, it was
held that out of owners of the land-in-question, ancestor of
deceased - Gulammohiyuddin Mohammadhusen Afinwala,
original defendant - applicant Nos.1, 2 and 3, defendant No.4
and defendant No.6 entered into Deed of Understanding with
the respondent No.1 - original plaintiff and therefore, there is a
reason to believe that the ancestor of Gulammohiyuddin
Mohammadhusen Afinwala defendant Nos.1, 2 and 3,
defendant No.4 and defendant No.6 who entered into an
Agreement/ Deed of Understanding have share as owners of
the land-in-question.
11. At this stage, it is apposite to refer to the Order VII Rule
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11 of the Code of Civil Procedure, 1908, which read thus:
"11. Rejection of plaint. The plaint shall be rejected in the following
cases- (a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being
required by the Court to correct the valuation within a time to be fixed
by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is
returned upon paper insufficiently stamped, and the plaintiff, on being
required by the Court to supply the requisite stamp-paper within a
time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be
barred by any law:
Provided that the time fixed by the Court for the correction of the
valuation or supplying of the requisite stamp-paper shall not be
extended unless the Court, for reasons to be recorded, is satisfied that
the plaintiff was prevented by any cause of an exceptional nature form
correcting the valuation or supplying the requisite stamp-paper, as the
case may be, within the time fixed by the Court and that refusal to
extend such time would cause grave injustice to the plaintiff."
11.1 As referred above, Order VII Rule 11 provides that the
plaint can be rejected on the ground that it does not disclose a
cause of action or if it is an abuse of process of Court. The
"cause of action" is a bundle of facts which taken with the law
applicable to them gives the plaintiff the right to relief against
the defendant. Every fact which is necessary for the plaintiff to
prove to enable him to get a decree should be set out in clear
terms. 'Cause of action' must include some act done by the
defendant since in the absence of such an act no cause of
action can possibly accrue.
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12. On reading of the plaint, the respondent No.1 - original
plaintiff has stated that when the Agreement/Deed of
Understanding was executed in favour of the plaintiff on
06.02.2018 by the deceased - Gulammohiyuddin
Mohammadhusen Afinwala and the defendant Nos.4 and 6,
whose name figure in the 7/12 extract, the land-in-question is
under sole ownership and possession of the said defendants
and that, there is no owner/co-owner of the land other than
them has any right or share in the land-in-question. In view
thereof, the Supplementary Agreement dated 19.02.2019 also
came to be executed wherein, the name of ancestor of the
defendant Nos.1 to 3 deceased - Gulammohiyuddin
Mohammadhusen Afinwala, defendant Nos.4 and 6 figures as
sellers with their signatures.
13. On perusal of the impugned order dated 22.08.2023, it is
the case of the respondent No.1 - original plaintiff that the
possession of the land was with the respondent No.1 - original
plaintiff however, the same was taken over pending the suit
proceedings for which an application below Exh.15 is pending.
The concerned Court also proceeded to hold that names of
defendant Nos.1, 5 and 7 are also figure in the revenue record
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of the land-in-question in addition to the names of the
defendant Nos.4, 6 and deceased - Gulammohiyuddin
Mohammadhusen Afinwala. No presumption can be drawn
without recording of evidence with respect to the shares of the
persons whose names have been entered as owners in the
revenue record of the land-in-question. In view thereof, the
concerned Court held that out of the owners of the land-in-
question, ancestor of the defendant Nos.1, 2 and 3 i.e.
deceased - Gulammohiyuddin Mohammadhusen Afinwala,
defendant Nos.4 and 6 entered into Deed of
Understanding/Agreement with the original plaintiff -
respondent No.1 herein and therefore, there is reason to
believe that the ancestor of the defendant Nos.1,2 and 3,
defendant Nos.4 and 6 who entered into an agreement have
share as co-owners in the land-in-question.
14. Reliance is placed by Mr. Shah, learned Senior Counsel
appearing for the applicants on AIR 1972 SC 2685 in case of
Ram Saran & Anr. vs. Smt. Ganga Devi, wherein, in the facts of
the said case, the plaintiffs claimed a declaration that the
plaintiffs are the sole owners of the suit property, they did not
claim possession either of the entire or any portion of the
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property. It was concurrently held that the Courts while
rejecting the suit for want of limitation also held that the suit
was hit by Section 42 of the Specific Relief Act.
In the facts of the present case, the applicants have
prayed for specific performance of the Deed of Understanding.
The plaintiff was in possession of the property since 2018
however, came to be dispossessed after the filing of the suit
and steps are taken by the plaintiff by filing an application
seeking injunction below Exh.15. The aforesaid also raises
disputed questions of fact and it is undisputed that the
applicants herein are the co-owners of the property-in-question
and the dispute-in-question can be decided by leading
evidence. In the opinion of this Court, the plaintiff cannot be
non-suited under Order VII Rule 11 of the Code.
14.2 Reliance is placed on 2015 (5) SCC 355 in case of
Pemmada Prabhakar & Ors. vs. Youngmen's Vysya Association
& Ors., wherein, in the facts of the said case, considering the
pleadings it was held by the Hon'ble Apex Court that the
plaintiff did not approach the Trial Court with clean hands. The
aforesaid was in respect of an appeal filed against the
judgment and final order dated 04.11.2011 passed by the
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Andhra Pradesh High Court wherein, the Second Appeal was
dismissed.
14.3 In 1995 (5)SCC 115 in case of N.P. Thirugnanam (D) By
Lrs. vs Dr. R. Jagan Mohan Rao & Ors., the Hon'ble Supreme
Court observed that remedy of specific performance is an
equitable remedy and is in discretion of the Court, which
requires to be exercised according to the settled principles of
law and not arbitrarily as adumbrated under Section 20 of the
Specific Relief Act, 1963. Further, specific performance is
compelling a person to perform his contract or statutory
obligation which requires careful scrutiny.
14.4 The judgments/decisions relied upon by Mr. Shah,
learned Senior Counsel, are after leading of evidence wherein,
it is held that the agreement-in-question were such that the
same could not be performed.
15. At this stage, this Court deems it fit to deal with the
submissions made by Mr. Shah, learned Senior Counsel
appearing for the applicants:
15.1 The submission of Mr. Shah, learned Senior Counsel, that
the contract is a contingent contract and cannot be tried.
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Section 31 of the Contract Act provides that a contingent
contract is a contract to do or not to do something, if some
event, collateral to such contract, does or does not happen. In
the opinion of this Court, the submission made by Mr. Shah,
learned Senior Counsel, can be a defence that the contract is a
contingent contract and the same can be considered while
considering the suit on its own merits.
15.2 Under Section 10 of the Specific Relief Act, 1963, the
2018 amendment has (i) done away with the discretion
granted to the Court to grant specific performance and (ii)
removed the requirement of inadequacy of damages as a
ground of specific relief. All contracts, subject to sections
11(2), 14 and 16 of the Specific Relief Act can now be
specifically enforced. The specific performance is equitable
relief, given by the Court to enforce against a defendant the
duty of doing what he agreed by contract to do; a plaintiff may,
therefore, obtain judgment for specific performance even
though there has not, in the strict sence, been any default by
the defendant before the issue of the writ. In the suit for
specific performance, the plaintiff must show (i) that, there
was a concluded contract between himself and the defendant;
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(ii) that, he performed or was ready and willing to perform the
terms of the contract on his part to be then performed (iii)
that, he was ready and willing to do all matters and things on
his part thereafter to be done; (iv) whether it is equitable to
grant the relief of specific performance to the plaintiff or
whether it will cause hardship to the defendant and, if that is
the case, how, in what manner, and to what extent such relief
is to be granted to the plaintiff; and (v) whether the plaintiff is
entitled to a refund of earnest money or any other form of
alternative relief. The aforesaid requirement, as referred
above, has been granted to remove the discretion of the
Courts on whether to grant specific relief or not.
15.3 Section 13 of the Specific Relief Act, 1963 deals with the
active rights of purchaser or lessee against a person with no
title or imperfect title, whereas this section gives the
'defences' which are available to a purchaser or lessee in a suit
for specific performance filed by the vendor or lessor with no
title or imperfect title.
15.4 Section 17 of the Specific Relief Act, 1963 cannot be
invoked by the vendor against the vendee and therefore,
whether the contract can be enforceable or not is a matter of
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trial. The aforesaid is well settled in AIR 1972 Andhra Pradesh
178 in case of Mir Abdul Hakeem Khan (Supra) wherein, the
Hon'ble Andhra Pradesh High Court held that it is settled law
that if a person executes an agreement to sell, the vendor is
not entitled to put forward, in a suit for specific performance
by the purchaser the defence that the vendor had no title. It is
open to the purchaser to set up a defence that the vendor had
no title or defective title in a suit for specific performance by
the vendor. But the vendor cannot set up defect in his own title
as a defence in a suit for specific performance by the
purchaser. It is apposite to refer to paragraphs 10,11,12,13 of
the said decision which read thus:
"10. The reason for the absence of or had defective title is obvious. It
is settled law that if a person executes an agreement to sell property,
the vendor is not entitled to put forward, in a suit for specific
performance by the purchaser the defence that the vendor had no
title. It is open to the purchaser to set up a defence that the vendor
had no title or has defective title in a suit for specific performance by
the vendor. But the vendor cannot set up defective in his own title as a
defence in a suit for specific performance by the purchaser. In
Balushami Aiyar v. Lakshmana Aiyar, ILR 1921 Mad 172 (FB) it was
observed:
"Where a person sues for specific performance of an agreement
to Coney and simply impleads the party bound to carry out to
the agreement there is no necessity to determine the question
of the vendor's title and the fact that the title which the
purchaser may acquire might be defensible by a third party is
no ground for refusing specific performance if the purchaser is
willing to take such title as the vendor has. But where a party
seeking specific performance seeks to bind the interests of
persons not parties to the contort alleging grounds which under
Hindu law would bind their interests and enable the vendor to
give a good title as against them and makes them parties, it is
difficult to see how the question as t the right of the contracting
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party to convey any interest except his own can be avoided and
a decree passed, the effect of which will merely be to create a
multiplicity of suits."
In this case there is no question of the plaintiff attempting to
bind the interest of persons not parties to the contract and making
them parties, the only party in this case being the defendant. The
observations of the Full Bench were followed in Muni Samappa v.
Gurunanjappa, . In that case, in a suit on foot of an agreement to sell a
house imploding only the two executants, it was held that there was no
necessity to determine the question of the vendor's title and the fact
that the title which the purchaser may acquire might be defeasible by
the sons of defendant was no ground for refusing specific performance
if the purchaser was willing to take such title as the vendors had. In
the same manner it is unnecessary in this suit which is filed only
against the defendant who has executed the agreement and in whose
name the patta of the lands stand, to go into the question whether his
title is defective or whether the property belongs only to the
partnership of which he is a partner.
11. We may also refer to Hals- bury's Laws of England (Third Edition,
Volume 36, Page 335) where the proposition clearly laid down is that a
vendor cannot be permitted to except to his own title. See also Fry on
Specific Performance of Contracts (Second Edition page 557) where it s
stated that the Vendor cannot except to the title so as to assert his
own title to be bad.
12. In Bradley v. Munton, (1852) 15 Beav 460 the vendor took an
exception contesting in effect the validity of his own title. The Master
of the Rolls said he had never before seen an exception in which a
vendor assert his title was bad and that he should be sorry to sanction
it, that he had no hesitation in saying, that it was wrong in substance
as well as in form, and must be overruled.
13. We are therefore, of the view that the question whether the
property belonged to the partnership and not to the defendant ought
not to have been gone into and the trial court below was wrong in
refusing specific performance to the purchaser on the ground that the
vendor's title was defective."
15.4.1 The Hon'ble Supreme Court in AIR 1995 SC 1607 in
case of S.V.R. Mudaliar (dead) by Lrs. And Ors. vs. Mrs. Rajabu
F. Buhari(Dead) by Lrs. & Ors., confirmed the aforesaid ratio as
laid down in AIR 1972 SC 178. It is apposite to refer to
paragraph 27 of the said decision which reads thus:
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"27. In so far as the delay in the disposal of the case and the rise in
prices during interregnum, Shri Parasaran urges that the delay not
having been occasioned by any act of the plaintiff, he may not be
punished for the same on the principle of ' actus curiae neminem
gravabit" an act of the court shall prejudice no man. As regards the
rise in prices,, the submission is that it should not weigh with the court
in refusing the relief if otherwise due, as opined in S. V. Sankaralinga
Nagar v. P.I.S. Ratnaswami Nadar, AIR 1992 Madras 389, which
decision was cited with approval in Mir Abdul Hakeem Khan v. Abdul
Menon Khadri, AIR 1972 Andhra Pradesh 178. We are in agreement
with this view because of the normal trend of price in prices of
properties situate especially in metropolitan city like Madras, where
the property in question is situate. If merely because the prices have
risen during the pendency of litigation, we were to deny the relief of
specific performance if otherwise due, this relief could hardly be
granted in any case, because by the time the litigation comes to an
end sufficiently long period is likely to elapse in most of the cases.
This factor, therefore, should not normally weigh against the suitor in
exercise of discretion by a court in a case of the present nature."
15.5 At this stage, it is apposite to refer to the ratio as laid
down by the Hon'ble Division Bench in First Appeal No.1951 of
2021. The Hon'ble Division Bench in the said decision has held
that Section 20 of the Specific Relief Act empowers the Court
with a discretion as to decreeing specific performance.
15.6 Section 34 of the Specific Relief Act, 1963 provides for
the discretion which the Court has to exercise considering the
settled principles of law. The Court is required to look into the
contract and exercise discretion.
16. In line of the aforesaid, it is also apposite to refer to the
ratio as laid down in 2023 SCC Online SC 1282 in case of
Sajjan Singh vs. Jasvir Kaur and Others .
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"4. Having heard the learned counsel for the parties, we have taken
note that the grievance essentially put forth by the respondents for
which an application under Order VII Rule 11 was filed, is that the
appellant herein, had not sought for an appropriate prayer to declare
the sale deeds dated 03.12.2015 and 26.02.2016 as illegal, null and
void and no court fee in that regard was paid.
5. To that extent, we take note that the prayer, as made, in any event,
had been valued and the court fee has been paid. Whether an
appropriate prayer should have sought, is a matter ultimately to be
decided in the suit and not an issue to be considered while deciding
the application under Order VII Rule 11 of CPC, in the manner in which
it had been done in the facts and circumstances arising in the instant
case. Therefore, to that extent, we are of the opinion that the High
court was not justified.
6. Hence, the Order dated 25.03.2019 passed by the High Court of
Punjab and Haryana at Chandigarh is set aside. The Civil Suit bearing
C.S. No. 192/2016 dated 26.09.2016 is restored to the file of the
learned Additional Civil Judge(SD),Khamnon, District Fatehgarh Sahib,
Punjab to proceed further in the matter.
7. The contentions, as put forth by the respondents herein, in the
Order VII Rule 11 application, is open to be taken up in the written
statement and the Trial Court will frame appropriate issues in that
regard and all contentions are left open for the parties to be urged in
that regard."
17. Further, this Court has considered the averments made in
the plaint. The defendant Nos.1 to 7 handed over actual
possession of the suit land to the respondent No.1 - original
plaintiff and the respondent No.1 - original plaintiff kept
watchman in the aforesaid land and has also got constructed a
small room thereon at his own cost and watchman resides
there during the day time. In this way, as per the conditions of
the Agreement to Sale dated 06.02.2018, after taking partial
possession, the plaintiff has paid Rs.40,00,000/- to the
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defendant Nos.4,6 and deceased - Gulammohiyuddin
Mohammadhusen Afinwala as per the following details:
Rs.7,50,000/- In words Rupees Seven lakh Fifty thousand only on
10/08/2018
Rs.1,00,000/- In words Rupees One lakh only by Cheque No.162902
dated 17/09/2018 of State Bank of India, Bhadra
Branch, Ahmedabad.
Rs.1,00,000/- In words Rupees One lakh only by Cheque No.162903
dated 17/09/2018 of State Bank of India, Bhadra
Branch, Ahmedabad.
Rs.50,000/- In words Rupees Fifty thousand only by Cheque
No.162904 dated 17/09/2018 of State Bank of India,
Bhadra Branch, Ahmedabad.
Rs.10,00,000 In words Rupees Ten lakh only by Cheque No.000015
/- dated 18/02/2019 of Bank of Baroda, Juhapura Branch
in the name of the deceased Gulammohiyuddin
Afinwala
Rs.10,00,000 In words Rupees Ten lakh only by Cheque No.000014
/- dated 18/02/2019 of Bank of Baroda, Juhapura Branch
in the name of Defendant No.4
Rs.10,00,000 In words Rupees Ten lakh only by Cheque No.453467
/- dated 17/02/2019 of Axis Bank Ltd., Ahmedabad Branch
Rs.40,00,000 In words Rupees Forty Lakh only
/-
The respondent No.1 - original plaintiff has accordingly,
partially acted as per the agreement dated 06.02.2018. Thus,
by partially acting as per the agreement to sale, the applicants
- original defendants have executed Supplementary
Agreement on 19.02.2019 in connection with Agreement to
Sale dated 06.02.2018. The respondent No.1 was ready and
willing to act as per the Agreement to Sell.
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17.1 Considering paragraphs 1,2,3,4, and 5 of the plaint, as
referred above, as also paragraph 11 which states that the
cause of action has arisen for the plaintiff - respondent No.1
herein since the deceased - Gulammohiyuddin Afinwala and
the defendant Nos.2, 4 and 6 stating that the disputed
property was solely owned and occupied by them and having
decided to give the disputed land to the plaintiff - respondent
No.1 herein through absolute sell and the plaintiff - respondent
no.1 having deposited the earnest amount of money for the
same, the parties having executed to agreement to sell dated
06.02.2018. The plaintiff - respondent No.1 herein having
performed in part as per the terms of the agreement to sell
and having paid the remaining amount of consideration to the
defendants, the defendants having executed supplementary
agreement on 19.02.2019, the defendants kept on giving
assurances and promises to the plaintiff - respondent No.1 for
performance of the agreement to sell. However, on a public
advertisement having been issued by the defendants with
respect to the sell of subject land in favour of the defendant
No.8, the plaintiff - respondent No.1 was constrained to file the
suit-in-question. Considering the aforesaid, the plaint discloses
the cause of action giving a right to sue to the plaintiff -
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respondent No.1 herein. Further, Section 17 of the Specific
Relief Act, 1963 cannot be pressed into service against the
respondent No.1 - original plaintiff and therefore, whether the
contract can be enforceable or not is a matter of trial.
17.2 In light of the aforesaid, the plaint cannot be rejected at
the stage of Order VII Rule 11. Evidence is required to be led
as to whether there is an indirect consent of the other
defendants in agreement in respect of the land-in-question or
not; also with respect to the share of the co-owners more
particularly, defendant Nos.2,5 and 7 being wives of deceased
- Gulammohiyuddin Afinwala and defendant Nos.4 and 6
respectively. The respondent No.1 - original plaintiff has also
deposited an amount of Rs.40,00,000/-, as stated in paragraph
4 of plaint. The plaintiff has paid total amount of
Rs.60,00,000/- to the ancestor of the defendant Nos.1 to 3 and
the defendant Nos.4 and 6.
17.3 It is the defence of the applicants that the only remedy
that is available to the applicants is seeking a relief of refund
of amount which can also be considered at the time when the
suit proceeds on its own merits.
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This Court has also considered the paragraphs 6 and 7 of
the plaint, which also raises disputed questions of facts.
18. Considering the cause of action as stated in the plaint,
the contentions raised in the plaint, the position of law and the
provisions of the Act, as referred above, and considering the
reasons assigned by the competent Court, this Court is not
inclined to interfere in the order dated 22.08.2023 passed by
the 5th Additional Senior Civil Judge, Ahmedabad (Rural) at
Mirzapur in an application below Exh.33 in Special Civil Suit
No.181 of 2021.
19. For the foregoing reasons, the present Civil Revision
Application stands dismissed.
(VAIBHAVI D. NANAVATI,J)
NEHA
