Gujarat High Court
Dashrathsinh Gambhirsinh Sarvaiya vs Bhupatbhai Mavjibhai Baraiya on 26 June, 2024
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C/SA/496/2023 JUDGMENT DATED: 26/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 496 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SECOND APPEAL NO. 496 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DASHRATHSINH GAMBHIRSINH SARVAIYA
Versus
BHUPATBHAI MAVJIBHAI BARAIYA & ORS.
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Appearance:
MR RUTVIJ S OZA(5594) for the Appellant(s) No. 1
for the Respondent(s) No. 1,10,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 26/06/2024
ORAL JUDGMENT
1. This Second appeal filed under section 100 of CPC
challenges concurrent findings of judgment and decree, whereby,
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learned Principal Senior Civil Judge, Talaja in Regular Civil Suit
No.49 of 2015 dismissed the suit of the plaintiff by judgment
dated 01.02.2021. Unsuccessful challenge has been made by
way of First Appeal being Regular Civil Appeal No.5 of 2021
before the learned Additional District Judge, Bhavnagar at Talaja
and learned Appellate Court dismissed the Appeal vide judgment
dated 31.08.2023.
2. For convenience, the parties are referred as per status in
the suit.
3. Facts of the Second Appeal are as under :-
3.1. According to the plaintiff, he is resident of Village Nava
Sangana, Ta : Talaja, Dist : Bhavnagar whereas; the
defendants are the resident of Unchadi Village, Ta :
Talaja, Dist : Bhavnagar and the defendants are having
agricultural (Khedvan) land bearing revenue survey no. 215
paiki 7 admeasuring 012647 HecAreSqm means Acre 03 -
05 Gunthas (hereafter "suit property") and that the defendants
have entered into an agreement to sell the suit property to
the plaintiff by fixing the price of Rs.31,000/ per Vigha and
thereby, the defendants have accepted Rs. 25,000/ from the
plaintiff as an earnest money and executed written
agreement to sell (Banakhat) in favour of the plaintiff to
this effect. Further, as per the terms of the agreement to sell, the
plaintiff had been instructed by the defendants that the
registered sell deed would be executed in favour of him by
accepting the remaining amount. Inspite of repeated
request made by the plaintiff to execute the registered
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sell deed, he was ignored by the defendants therefore,
the plaintiff had issued a legal notice on dtd :26.04.2011 to the
defendants through his ld.advocate for performance their
part of agreement to sell, which was duly served event
hough, the defendants neither care about it nor
executed registered sell deed in favour of the plaintiff. On
being afraid that the defendants would sell the suit
property to third party, a public notice dtd : 23.05.2011 was
published in the daily newspaper "Saurashtra Samachar"
through ld. advocate of the plaintiff. Even the defendants
have not acted as per the terms of the agreement to sell
and did not keep their promise, the suit has been
filed by the plaintiff asking the reliefs for specific
performance and permanent injunction towards the suit
properties. Learned Trial Court after hearing the parties and
appreciating the evidence on record, dismiss the suit. The
plaintiff preferred Regular Civil Appeal before the Appellate Court
and same was also dismissed. Hence, present Second Appeal.
4. Heard learned advocate Mr.Oza for the appellant -original
plaintiff.
5. In appeal memo, following substantial question of law has
been framed by the appellant :-
"[a] Whether entire/whole agreement to sale executed at
Exh.20 by one of the owner respondent No.1 herein would
be per se illegal and void in absence of express authority
by other co-owners ?
[b] Whether agreement to sale vide Exh.20 executed by
respondent No.1 would be void or voidable considering the
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subject land as joint property and considering the
provisions of Indian Contract Act, 1872 ?
[c] Whether the suit filed by the appellant would fail
though the respondents herein have not appeared and
contested the suit ?
[d] Whether the degree of proof remains the same in ex-
parte proceeding and in by-parte proceeding ?
[e] Whether suit filed by the appellant herein would fail on
account of no notice to the respondents though they are
aware about the transaction and though there is public
notice issued in daily news paper ?
[f] Whether the appellant can be non-suited on the ground
of non-joinder of necessary party when they are joined
through their administrator ?
[g] Whether the suit of the plaintiff appellant herein would
fail on ground of non-joinder of necessary parties when
otherwise they are on record through principal respondent
No.1?
[h] Whether the suit filed by the appellant could be decreed
qua share of respondent No.1 as he is also the owner and
he has executed the agreement to sale vide Exh.20 or it
would fail in its entirety ?
[i]Whether the judgment and decree of the Courts bei we
vitiated by non-consideration of various vital evidence on
record?
[j]Whether the judgment & decree passed by the lower
appellate Court is vitiated by not framing and deciding
appropriate point for determination as required under the
provisions of Order 41 Rule 31 of the Code Procedure ?"
6. After referring substantial question of law stated in para 5
of the appeal memo, learned advocate for the appellant would
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submit that learned Courts below committed serious error in
rejecting the suit as well as appeal though agreement to sale was
proved. He would submit that the plaintiff has produced
agreement to sale at Exh.20. Learned Trial Court has taken and
considered the same as evidence and contents thereof are also
proved, which clearly indicates that the plaintiff has proved his
case before the learned Trial Court but on technical
consideration, learned Trial Court rejected the suit which is
erroneously upheld by the learned Appellate Court. He would
further submit that though defendant no.1 has executed
agreement to sale in capacity of administrator of other
respondents - defendants, before filing of the suit for specific
performance, public notice was issued by the appellant - plaintiff
inviting objections from other respondents but none of them
came forward to object that respondent no.1 has no capacity or
authority to execute agreement to sale on their behalf as well as
for himself. Therefore, learned Trial Court has committed serious
error in disbelieving the case of the plaintiff. Learned Appellate
Court continued illegality by rejecting the appeal.
6.1. Upon above submissions, it is submitted to admit this
appeal on above substantial question of law.
7. Having heard learned advocate Mr.Oza for the appellant,
let note undisputed facts on record. The alleged agreement to
sale upon which suit for specific performance was moved has
been executed by Bhupatbhai Baraiya in favour of the plaintiff in
his personal capacity as well as in capacity of administrator of
rest of the respondents. It is unregistered document. In the suit,
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none remain present to contest.
8. Learned Trial Court framed issues at Exh.12(A), which
reads as under :-
"1. Whether the plaintiff proves that the defendants
executed an agreement to sell of the suit property in favour
of the plaintiff on 19.02.2010 for the total consideration of
Rs. 2,42,20000 and the sum of Rs. 25,000/ as an
earnest money had accepted by the defendants for
the same ?
2. Whether the plaintiff proves that he was and is ready
and willing to perform his part of agreement ?
3. Whether the plaintiff proves that the defendants
have refused/failed to perform their part of the
agreement to sell ?
4. Whether the present suit is barred by any law ?
5. Whether the plaintiff is entitled to get the relief as
prayed for?
6. What order and decree ?"
9. The plaintiff was permitted to led evidence to buttress and
to prove issues. Learned Trial Court after hearing plaintiff,
taking aid of section 101 of the Evidence Act believed that
plaintiff has failed to prove any of the issues in his favour.
Therefore, answered all the issues in negative and dismissed the
suit. Reasoning given by the learned Trial Court is discernable in
para 9.3 to 11, which reads as under :-
"9.3 Herein the case, the main disputed document
is agreement to sell which is scripted on a stamp
paper, which is executed in favour of the plaintiff
namely Dashrathsinh Gambhirsinh Sarvaiya and it is
executed by Bhupatbhai Mavjibhai Baraiya in the capacity
of administrator of defendants namely (1) Kalubhai
Mavjibhai, (2) Babubhai Mavjibhai (3)Hiraben Mavjibhai,
(4) Ambaben Mavjibhai (5)Madhuben Mavjibhai, (6)
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Naniben Mavjibhai, (7)Lilaben Mavjibhai, (8) Dipaben
Mavjibhai, (9)Viruben Mavjibhai and (10) Galalben
Mavjibhai and it is Notarized and herein produced at Exh-
20. Now, considering the said agreement to sell, it
is duly signed by Baraiya Bhupatbhai Mavjibhai only and
no any other from the defendants have signed
this document. According to the plaintiff, this
document is executed by the power of attorney holder
(administrator) but at this juncture, a question
arose in the present suit that whether the
executor namely Bhupatbhai Mavjibhai Baraiya had
received any of the power from the defendants to
execute such agreement to sell? On perusal entire records
of the present case, no any single document is provided by
either party that at what capacity the said administrator
had executed this document. No any power of attorney is
produce in the name of the Bhupatbhai Mavjibhai.
Therefore the said agreement to sell is doubtful. Even at
the filing of the present suit, the plaintiff himself
has also ignored for joining the main parties as the
defendants and only the executor is joined as the main
party (as administrator capacity) and the notice is
also issued only to the executor. Hence, no any single
chance is given to the original party or original land
owners to defend their side. Hence, entire proceedings of
the suit is improbable and the present suit seems
to be filed as under collusion both the parties.
Therefore, herein the case, the plaintiff is failed to prove
the legality of the disputed agreement to sell and the
entire dispute is arose only from the said
agreement to sell. Therefore, it can be said that the
plaintiff is failed to prove his case.
10. Therefore, considering the aforesaid discussion, it
can be held that the disputed agreement to sell was
illegally executed by the executor without any power
or without any ownership therefore at this juncture
considering the Doctrine of " Caviet Emptor " (The buyer
should be vigilant at the time of purchasing) it can be say
that the plaintiff was not vigilant at the purchasing the
disputed property. Therefore, the plaintiff is not entitled to
get any benefit of such transactions as the Equity favours
the vigilant and not the indolent.
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11. Now, on perusal the entire records of the
case, no any single document is produced to show that
whether the amount for the agreement to sell was
paid or not. Herein the case, the plaintiff has failed to
prove that the earnest money of Rs. 25,000/ was accepted
or not by the defendants. Moreover, when the plaintiff
is failed the said agreement to sell there is no
question of it's performance hence, there is no question
for willingness too.
Now, considering the ratio laid down by Hon'ble
The Gujarat High Court in the case of "State Of Gujarat vs
Mali Ranchhod Kheta And Ors. on 11 November, 1995
citations: (1996) 2 GLR 501" as;
" In order to establish title or right over the immovable
property, the burden of proof initially lies on the
person claiming ownership/right of that property.
Section 101 of the Evidence Act provides that
whoever desires any Court to give judgment as to any legal
right or liability dependent on the existence of the
facts which he asserts, must prove that the facts
are in existence. When a person is bound to prove the
existence of any fact, it is said that the burden of proof lies
on that person."
The plaintiff has produced the following authorities
which are as under :
1. 1987(1) G.L.H. (U.J.) 22
Kaushik Rajendra Thakore V/s. Allied
Land Corpn
2. 1996 (1) G.L.H. 224
Nitinkumar Laxmidas @ Lakhubhai V/s.
Smt. Savitaben Pranshanker
I have gone through the ratio laid down in the aforesaid
judgments and I agree with the ratio laid down by the
Apex Court in the aforesaid judgments but the
facts of the present suit is different then the facts of the
aforesaid judgment and hence, the ratio laid down
in the said judgments are not squarely applicable to
the present suit.
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Therefore, considering the aforesaid discussions the
issues no1 to 3 are answered in negative."
10. The centric issue which harboured learned Trial Court to
dismiss the suit is that the plaintiff failed to prove that
Bhupatbhai - defendant no.1 is power of attorney holder of rest
of the defendants. In which way defendant no.1 became
administrator of the rest of the defendants is not clear. No power
of attorney is produced. No other evidence in this regard is
produced. The defendants are major. This was main issue which
clinched learned Trial Court and since the plaintiff failed to
answer this issue and remove burden, suit was dismissed.
11. After following provision of Order 41 Rule 31 of CPC and
framing necessary point for determination, first appellate Court
has again address this issue. Relevant para 3 to 5 are as
under :-
"3. I have carefully gone through the oral as well as
documentary evidence adduced by the plaintiff. On perusal
of the same, it becomes clear that, the plaintiff has filed
suit for specific performance of agreement to sale executed
by and between him and the defendant Shri Bhupatbhai. It
is an admitted fact that, the agreement to sale Ex. 20 is
not a registered document and it is also an admitted fact
that, the said agreement to sale does not bear signatures of
all co-owners of the suit property, whose names are
mentioned in the revenue records of the suit property vide
exh. 25, 26. It is also an admitted facts that, the plaintiff
has not produced any document to show that, the
defendant Shri Bhupatbhai was, at the relevant point of
time, acting as an authorized administrator of the suit
property for and on behalf of other co-owners. True it is
that, the defendant Shri Bhupatbhai, has not challenged
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the execution of the agreement to sale. Thus, considering
the provisions of section 49 of The Registration Act and the
settled legal proposition in respect to the admissibility of
an unregistered agreement to sale, it transpires that,
though the unregistered agreement to sale can be looked
into for limited purpose i.e. for collateral purpose in a suit
for specific performance of contract, and considering the
same for collateral purpose, this court is of the view that, it
can be said that, the agreement to sale was executed
between Shri Bhupatbhai and the plaintiff. However, as
there is no evidence with respect to the fact that, the
defendant Shri Bhupatbhai was authorized to act as an
administrator of the suit property for an on behalf of all the
other co owner, the same cannot be received in evidence
against other co owner or can not be enforced against them
unless they are party to the agreement or have given their
consent for the same. Further, the agreement to sale can
be received into evidence for the purpose of receipt of the
amount of Rs. 25,000/- which was given to Shri
Bhupatbhai. However, the same can not be said to be
proof of receipt of amount for the other co owners.
4. At this stage, it is also imperative to note that, the
plaintiff has not prayed for return of his earnest money
and therefore, the ld. Trial Court has also not considered
this aspect in its judgment. The said aspect is neither
referred nor any submission was made before this court
and therefore, the same cannot be considered by this
court.
5. I have carefully gone through the pleadings of the
plaintiff in the plaint and oral as well as documentary
evidence submitted by him. On carefully going through the
same, it transpires that, the agreement to sale vide exh. 20
was executed by Shri Bhupatbhai alone. Though it is the
case of the plaintiff that, it was executed by Shri
Bhupatbhai as an administrator of the suit property for
and on behalf of other co owners. However, there is no
such document on record, supporting the say of the fact
that, Shri Bhupatbhai was acting as an administrator of
the suit property. It further transpires that, the plaintiff
has mentioned name of other co owners in the cause title
but no such notices were issued as well as served upon
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them. It also transpires that, the plaintiff had paid Rs.
25,000/-, whereas, as per the terms and conditions of
agreement to sale, Rs. 35,000/- was fixed price for per
Vigha land. Thus, the total amount paid by the plaintiff to
the defendant Shri Bhupatbhai, is around 10% of the total
value of the agreed price of the suit property. It is also
emerging from the record that, during the course of trial as
well as present appeal, the plaintiff has not deposited or
shown that, he has deposited remaining amount in the
court. It is also imperative to note that, the agreement to
sale was executed in the year 2011 and in the present year
i.e. 2023, the price of the suit property has been increasing
day by day and price is escalated. It is also imperative to
note that, the plaintiff has issued notice vide exh. 21 to the
defendant Shri Bhupatbhai only, but, no attempts were
made by the plaintiff to issue and serve notice to the other
co owners. Thus, even for a moment assuming legality,
validity and enforceability of agreement to sale then also it
cannot be enforced against co owners, who are neither
signatories to the agreement to sale nor given their consent
to execute agreement to sale. Further, the plaintiff has
failed to produce any evidence, supporting the fact that,
the agreement to sale was legally executed by Shri
Bhupatbhai for and on behalf of other co owners, who are
interested parties in the suit property
12. Learned advocate for the appellant in Second Appeal could
not remove the cloud which was raised by the learned Trial
Court and upheld by learned appellate Court that in what
capacity respondent no.1 could execute agreement to sale for
rest of the respondents. This centric issue has been properly
decided by the learned Trial Court. There is nothing in this
Second Appeal. No substantial question of law arise in this
Second Appeal.
13. At this stage, I may refer to judgment of the Hon'ble Apex
Court in the case of Chandrabhan (Deceased) Through Lrs.
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Versus Saraswati [2022 (13) Scale 777]. The Hon'ble Apex Court
in para 33 has summarized principles relating to Second Appeal
under section 100 of CPC as under :-
"33. The principles relating to Section 100 of the CPC
relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a
document is a question of fact. But the legal effect of the
terms of a document is a question of law. Construction of a
document involving the application of any principle of law,
is also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a
question of law.
(ii) The High Court should be satisfied that the case
involves a substantial question of law, and not a mere
question of law. A question of law having a material
bearing on the decision of the case (that is, a question,
answer to which affects the rights of parties to the suit) will
be a substantial question of law, if it is not covered by any
specific provisions of law or settled legal principle emerging
from binding precedents and involves a debatable legal
issue. A substantial question of law will also arise in a
contrary situation, where the legal position is clear, either
on account of express provisions of law or binding
precedents, but the court below has decided the matter,
either ignoring or acting contrary to such legal principle. In
the second type of cases, the substantial question of law
arises not because the law is still debatable, but because
the decision rendered on a material question, violates the
settled position of law.
(iii) The general rule is that the High Court will not
interfere with findings of facts arrived at by the courts
below. But it is not an absolute rule. Some of the well-
recognised exceptions are where (i) the courts below have
ignored material evidence or acted on no evidence; (ii) the
courts have drawn wrong inferences from proved facts by
applying the law erroneously; or (iii) the courts have
wrongly cast the burden of proof. When we refer to
"decision based on no evidence", it not only refers to cases
where there is a total dearth of evidence, but also refers to
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any case, where the evidence, taken as a whole, is not
reasonably capable of supporting the finding."
14. Learned advocate Mr.Oza for the appellant submitted that
plaintiff has issued public notice and no one has raised question
or disputed the aspect. This issue has not been dealt with by the
learned Trial and therefore, serious error has been committed. I
am afraid to hold fathom in this contention. There is no
requirement of issuing public notice calling up objections and if
someone has not objected the same, it would not remedise
agreement to sale which is already faulty and does not attain any
legality in the eyes of law. Section 6 and 7 of the Transfer of
Property Act does not recognize such kind of agreement to sale
and permit administrator to transfer or execute agreement to
sale on behalf of other major / co-shares / co-parcners without
their consent or with without their power of attorney. Even
Contract Act does recognize execution of such contract. As
Exh.20 - agreement to sale inhibits inherent legal defects, it
cannot be specifically performed.
15. This Second Appeal is nothing but one more toss on
gamble to get relief which otherwise was not available since
beginning of the suit.
16. For the foregoing reasons, the Second Appeal is dismissed.
No costs. Civil Application, if any, is also dismissed. Record and
Proceedings, if any, be sent back.
(J. C. DOSHI,J)
SATISH
