Gujarat High Court
Bhumisth Kanjibhai Makwana vs Gaurangbhai Dineshbhai Patel on 10 February, 2025
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C/FA/78/2025 ORDER DATED: 10/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 78 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 78 of 2025
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BHUMISTH KANJIBHAI MAKWANA
Versus
GAURANGBHAI DINESHBHAI PATEL & ORS.
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Appearance:
MR BHAVESH BABARIYA(6788) for the Appellant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 10/02/2025
ORAL ORDER
1. Heard Mr. Bhavesh Babariya, learned advocate on record for
the appellant- original defendant no.4.
2. The present appeal is filed at the instance of the original
defendant no.4, being aggrieved and dissatisfied with the judgment
and decree dated 22.10.2024 passed by learned Principal Senior Civil
Judge, Sanand, Ahmedabad (Rural) in Special Civil Suit No.524 of 2017
(old Special Civil Suit No.772 of 2014) (hereinafter to be referred as
"the impugned judgment and order"), whereby the learned Judge has
allowed the suit preferred by the present respondent no.1-original
plaintiff, seeking specific performance of the agreement to sell dated
09.08.2010 executed by the original defendant no.1 in his favour as
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well as seeking cancellation of subsequent registered sale deed
no.4640 dated 30.07.2012 executed by the original defendant no.1 in
favour of original defendant nos.2 and 3 and also for cancellation of
notarized agreement to sell dated 22.12.2011 executed by original
defendant no.1 in favour of original defendant no.4-present appellant
herein.
3. The facts, which can be gathered from the record, in nutshell,
are as under:
3.1 The dispute pertains to land bearing revenue survey no.243
admeasuring 2-82-94 hector Are sq. mtrs. of Khata no.279 situated at
village-Chekhla, Taluka-Sanand, District- Ahmedabad (hereinafter
referred as "the subject land"). It is the case of the original plaintiff
that the defendant no.1 was the owner of the subject land and during
the month of July-2010, the defendant no.1 had approached to the
plaintiff through land broker one Mr. Dineshbhai Dulera with an offer
to sell the subject land. After deliberations, the parties have agreed to
sell the property for total amount of consideration of Rs. 31 Lakhs.
The notarized agreement to sell dated 09.08.2010 was entered upon
between the parties i.e. plaintiff and defendant no.1, whereby earnest
money of sum of Rs.11 Lakhs has been paid by the plaintiff to the
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defendant no.1. It was also agreed therein that defendant no.1 shall
obtain title clearance certificate from one M/s. H. Desai & Company,
Solicitor and also obtained non-agricultural permission and after
getting the plan approved for construction of the residential plots
within the period of six months, thereafter, the plaintiff shall pay the
remaining amount of sale consideration as agreed and as against that
the defendant no.1 shall execute the register sale deed in favour of
the plaintiff.
3.2 It is further pleaded by the plaintiff that the defendant no.1 had
appointed his nephew namely Vijaybhai Gangaram Vaniya to
undertake the exercise of title clearance certificate in respect of
subject land. The plaintiff was, therefore, waiting for the aforesaid
formalities to be completed to proceed with the part payment and to
get execute registered sale deed in his favour, however, with utter
surprise, he was served with court summons in a suit preferred by the
defendant no.1 being Special Civil Suit No. 315 of 2012 against the
plaintiff as well as the defendant no.4 i.e. present appellant. On
noticing the case of the original owner in the aforesaid suit, the
plaintiff became aware about execution of subsequent agreement to
sell in favour of the defendant no.4-appellant herein. The plaintiff also
came across the fact that subsequently the original owner-defendant
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no.1 had entered into a registered sale deed dated 30.07.2012
executed in favour of the defendant nos.2 and 3. By making the
aforesaid pleadings, the cause of action had arisen for the plaintiff to
initiate appropriate proceedings seeking cancellation of aforesaid
documents and substantial relief seeking specific performance of his
agreement to sell dated 09.08.2010.
4. Mr. Bhavesh Babariya, learned advocate on record for the
appellant- original defendant no.4, at the outset, has invited attention
of this Court to the impugned judgment and order and the issues
framed by the learned Judge. Learned advocate has fairly pointed out
that the summons were duly served upon all the defendants; however,
neither of the defendants has chosen to contest the aforesaid suit by
filing written statement. In absence of any written statement being
filed, the learned Judge had proceeded to close the stage of filing
written statement by passing specific order below Exh.13 thereby
closing the right of written statement to be filed qua defendant nos.2
to 4. As regards the defendant no.1 is concerned, the summons were
duly served and was represented through lawyer, who had sought an
adjournment at Exh.10; however, the said defendant chose to remain
absent as well as to file written statement. He has, therefore,
submitted that the suit had remained uncontested by all the
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defendants having voluntarily chosen not to file any written
statement against the specific case put forward by the plaintiff.
4.1 By inviting attention of this court to the aforesaid fact, learned
advocate has further pointed out that various documentary evidences
have been laid by the plaintiff. The plaintiff had also entered into the
witness box. The details of the evidence produced before the learned
court are reproduced hereunder:
Sr. No. Particulars Exhibit
ORAL EVIDENCE
1. Affidavit of Examination-in-Chief of 20
plaintiff-Mr. Gaurangbhai Dineshbhai Patel
DOCUMENTARY EVIDENCE
1. Certified copy of extract of Village Form 25
No.7/12 in respect of Revenue Survey
No.243 paiki
2. Original notarized Agreement to Sale 26
dated 09-08-2010 executed by the
defendant no.1 in favour of the plaintiff
vide Sr. No.8526
3. Certified copy of Spl. Civil Suit No.315/2012 27
(new SPCS No.327/2017) filed before
Principal Sr. Civil Court at Sanand along
with injunction application and order
passed below Exh.1 dated 19-07-2021
4. Certified copy of written statement filed 28
by the defendant no.1 in SPCS
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No.315/2012
5. Certified copy of registered sale deed 29
no.4640/2012 dated 30.07.2012 executed
by defendant no.1 in favour of defendant
no.2 & 3
6. Certified copy of Spl. Civil Suit No.540/2012 30
(new SPCS No.348/2017) filed by the
present defendant no.1 against the
present defendant no.2 & before Principal
Sr. Civil court at Sanand along with
injunction application.
7. Certified copy of notarized Agreement to 31
Sale dated 22.12.2011 executed by present
defendant no.1 in favour of defendant no.4
4.2 In absence of any cross-examination, the plaintiff had tendered
the closing pursis at Exh.32 declaring closure of his evidence.
Sufficient opportunity was granted to the defendant to cause their
appearance before the court and therefore, by recording the
aforesaid facts, the court had proceeded to decide the issues framed
at Exh.53, in light of the evidence brought on record. The same reads
as under:
:: ISSUES::
"1. Whether the Plaintiff establishes that, the
Notarized Earnest Money Deed dated 22/12/2011,
executed by the Defendant No. 1 in favor of the
Defendant No. 4 with regard to the suit land, as
stated at Para-1 of the suit application, is illegal,
void and fraudulent and is liable to be set aside?
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2. Whether the Plaintiff establishes that, he is
entitled for Specific Performance of the Contract
from the Defendant No.1 with regard to the
Notarized Earnest Money Deed executed by him on
09/08/2010 for the suit land?
3. Whether the Plaintiff establishes that, he was
always willing to comply with the terms and
conditions of the Notarized agreement, executed
with the Defendant No.1 on 09/08/2010 and the
Defendant No.1 has breached the conditions of the
Contract?
4. Whether the Plaintiff establishes that the
registered Sale Deed No. 4640, executed by the
Defendant No.1 in favor of the Defendant No. 2 and
3 on 30/07/2012, for the suit land, being illegal,
fake, void and fraudulently executed, it is not
binding on the Plaintiff and is liable to be set aside?
5. Whether the Plaintiff appears to be entitled
for the relief prayed for in Para-7 of the Plaint ?
6. What order and decree ?
My reply to the above issues are as under;-
1. In affirmative.
2. In affirmative.
3. In affirmative.
4. In affirmative.
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5. In affirmative.
6. As per final order."
4.3 Learned advocate has further pointed out that the learned
Judge has mainly relied upon the provisions contained in Order VIII
Rule 5 of the Code of Civil Procedure, 1908, and has therefore,
believed the case of the plaintiff, in light of the oral and documentary
evidences being brought on record, which had remained un-
controverted.
4.4 By referring to the aforesaid facts, learned advocate has
submitted that merely because the pleadings of the plaint as averred
by the plaintiff, had remained uncontroverted in absence of the
written statement or any evidence being brought on record contrary
to the evidence placed for consideration by the plaintiff, the learned
Judge ought not to have in toto believed the case of the plaintiff. He
has further submitted that the learned Judge has not independently
examined and evaluated the evidence brought on record to arrive at
such finding. It was further submitted that the trial court ought not to
have cancelled the agreement to sell executed in favour of the
present appellant merely on assertion of the opponent no.2 regarding
fraud as alleged in the plaint of the suit being Special Civil Suit No.312
of 2017 preferred by the defendant no.1, as according to him, the said
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suit has ultimately culminated into the order of abatement in absence
of heirs and legal representatives of the deceased plaintiff being
brought on record. He has, therefore, urged this Court to issue notice
upon the respondent and to admit the present appeal. The prayer was
also made to call for record and proceedings so as to examine the
findings and the reasons assigned by the learned Judge, in light of the
evidence forming part of the record.
5. Considering the submissions made by learned advocate for the
appellant-original defendant no.4, findings and the reasons as
emerged on record from the impugned judgment and order passed by
learned Judge, it would be appropriate to consider the status of the
present appellant. It is an undisputed fact that the present appellant
claims to be the holder of an agreement to sell dated 22.12.2011
executed by the original owner- original defendant no.1 in his favour.
It is also an undisputed fact that original owner had preferred one
Special Civil Suit No.315 of 2012 (new Special Civil Suit No.327 of
2017), whereby the challenge was made not only to the agreement to
sell dated 09.08.2010 executed in favour of the original plaintiff, but
also to the subsequent agreement to sell dated 22.12.2011 executed
in favour of the present appellant-original defendant no.4 as recorded
by the learned Judge.
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6. The specific case was put forward by the plaintiff of the
aforesaid suit i.e. the original owners of disputing the execution of
aforesaid agreement to sell in favour of the respective parties, which
includes the present appellant as well. With such pleadings forming
part of the plaint, the question arises that the cause of action had
arisen for the present appellant-original plaintiff to immediately
approach before the competent forum either praying for cancellation
of the earlier agreement to sell dated 09.08.2010 executed in favour
of the original plaintiff as well as for relief seeking specific
performance of his agreement to sell dated 22.12.2011 as well as to
seek further prayer of injunction restraining the original owner from
entering into any transaction by creating third-party rights. This Court
had inquired from the learned advocate for the appellant-original
defendant no.4 as to whether summons were served in the aforesaid
proceedings and whether any proceedings have been initiated at the
instance of the present appellant-original defendant no.4 against the
original owner as well as against the present plaintiff, to which, the
learned advocate, under instructions, has submitted that no
proceedings have been preferred by the present appellant- original
defendant no.4 against either of the parties, till date.
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7. The question, therefore, falls for consideration before this
Court as to whether the present appellant- original defendant no.4
can be said to be an 'aggrieved person' to entertain the present
appeal at his instance against the impugned judgment and order,
which is passed ex parte. The Constitution Bench of the Hon'ble
Supreme Court in the case of U.P. Awas Evam Vikas Parishad vs Gyan
Devi (Dead) By L.Rs. And Ors reported in 1995 (2) SCC 326 has held
that right of appeal is statutory right and the court concerned confer
or infer it. Thus, right of appeal is a statutory right conferred by
legislation in the form of Section 96 of the C.P.C. against order passed
by the court below, however the party to the lis owes obligation to
demonstrate that decree has adversely affected the party. It is
settled legal position of law that to be entitled to file an appeal, the
person must be one aggrieved by the decree. In the case of Baldev
Singh vs Surinder Mohan Sharma & Ors reported in 2003 (1) SCC 34,
the Hon'ble Supreme Court held that an appeal under Section 96 of
the C.P.C. would be maintainable only at the instance of a person
aggrieved and dissatisfied with the judgment and decree. It would be
appropriate to consider paras 10,11, 12 and 13, which read as under:
"10. There is no dispute that as against a
decree, an appeal would be maintainable in terms of
Section 96 of the Code of Civil Procedure. Such an
appeal, however, would be maintainable only at the
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instance of a person aggrieved by and dissatisfied
with the judgment and decree. As noticed
hereinbefore, the dispute between the parties was in
relation to a property. The First Respondent herein,
save and except, inter alia, making complaints
against the appellant and his wife to their respective
employers purported to be relying on or on the basis
of the statements made by the appellant herein
during cross-examination in the aforementioned suit,
had nothing to do with the status of Sarbjit Kaur and
the appellant herein as spouses or otherwise.
11. 'Locus' of a person to prefer an appeal in a
matter of this nature is vital as the right of privacy of
two spouses would be interfered thereby. The court
cannot enlarge the scope of 'locus' in a case of this
nature where the parties are fighting litigations.
Allegations made by the First Respondent in his
revision application does not disclose any cause of
action for maintaining the said application nor does it
state as to how and in what manner he would be
prejudiced if the impugned judgment is allowed to
stand. In the aforementioned premise bona fide of
the First Respondent was also required to be
determined by the High Court. Having regard to the
facts and circumstances of the case, we are of the
opinion that the application filed by the First
Respondent before the High Court was not a bona
fide one but was filed in furtherance of the pending
disputes between the parties.
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12. In the instant case, it is not necessary for us to
determine the question as to whether the judgment
in question is a judgment in personam or a judgment
in rem. Herein, the status of the parties is not in
question and such judgments ordinarily cannot be
said to be judgments in rem. Even if the said
judgment is a judgment in rem, the respondent
herein could not have questioned the same as he
cannot be said to be aggrieved thereby. In that view
of the matter, the question as to whether in the
instant case, the Civil Court, Ludhiana, had any
jurisdiction to pass the decree in question, takes a
back seat.
13. It is now a well-settled principle of law that an ex
parte decree is as good as a contesting decree unless
it is set aside. An ex parte decree can be set aside by
the court passing it or by an appellate court only at
the instance of a person aggrieved thereby."
In para 15 the Court, thus, observed:
"The First Respondent in relation to his disputes
with the appellant herein has been pursuing his
remedies in appropriate proceedings. What would
be the effect of the said judgment and decree in a
departmental proceeding is required to be
determined by the appropriate authorities. Only
because a departmental proceeding was initiated
against the appellant on the complaint of
Respondent No.1, he, only thereby, cannot be said
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to have any locus to prefer an appeal as has been
contended by Mr. Srivastava. A person aggrieved to
file an appeal must be one whose right is affected by
reason of the judgment and decree sought to be
impugned. It is not the contention of Respondent
No.1 that in the event the said judgment and decree
is allowed to stand, the same will cause any personal
injury to him or shall affect his interest otherwise.
Dissolution of marriage of the appellant and his first
wife would also have no repercussion on the
property in suit. As noticed hereinbefore, the effect
of the aforementioned statements made by the
appellant in the second suit shall have to be
considered by the courts and the departments
concerned on their own merits."
7.1 In the opinion of this Court, the present appellant-original
defendant no.4 has chosen not to seek any relief for specific
performance of his agreement to sell dated 22.12.2011 till date. On
the other hand, the original owners have proceeded to execute a
registered sale deed dated 30.07.2012 in favour of the original
defendant nos.2 and 3, which stands cancelled by virtue of the
impugned judgment and order. However, the fact remains that the
aforesaid facts clearly suggest that there is denial of performance of
the agreement to sell at the instance of the original owners in favour
of the present appellant. The cause of action has, therefore, arisen for
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the appellant-original defendant no.4 to approach the court of
competent forum to seek appropriate relief for specific performance.
Having failed so till date, the right of the plaintiff in the subject land
ceased to exist. Even, if the present appellant -original defendant no.4
approaches the competent forum as on date, the suit for specific
performance or for cancellation of registered sale deed, would be
barred by law of limitation.
8. Article 54 of the Limitation Act prescribes a period of three
years from the date fixed for performance, or, if no such date is fixed,
when the plaintiff has noticed that performance is refused. In the
opinion of this Court, the very fact when the summons were duly
served in the suit preferred by the original owner way back in the year-
2017, and thereafter, in the present suit of year-2017, disclosing the
fact about further transaction in the nature of registered sale deed
being executed in favour of the original defendant nos.2 and 3 at the
instance of the original owners of the subject land, the present
appellant-original defendant no.4 had derived the knowledge about
refusal of the original owners to proceed with the performance of
agreement to sell. This Court cannot ignore the fact that even in
absence of any challenge being made to the registered sale deed at
the instance of the present appellant-original defendant no.4, the
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right to challenge the sale deed having been lost in a way, the
appellant-original plaintiff has acquiesced with his right and interest in
the subject land by virtue of agreement to sell dated 22.12.2011.
9. In light of the aforesaid circumstances, this Court is of the view
that the present appellant-original defendant no.4 had consciously
chosen not to contest the suit though being duly served with the court
summons as he was not aggrieved by any of the aforesaid acts of the
original owners. The appellant- original defendant no.4 having lost his
right or interest in the subject land without seeking any relief for
specific performance or cancellation of sale deed at his instance,
cannot be said to be an 'aggrieved person' to have locus to prefer the
present appeal.
10. So far as the submission made by learned advocate for the
appellant with regard to the provisions of Order VIII Rule 5 of the
Code of Civil Procedure, 1908, is concerned, it is an undisputed fact
that the present appellant-original defendant no.4 though being duly
served with the court's summons, has chosen not to contest the
pleadings by not filing his written statement. The original defendant
no.1 has also not chosen to controvert the evidence brought on record
by the original plaintiff. This Court has closely scrutinized the findings
and reasons assigned by the learned Judge while dealing with the
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issues framed at Exh.53.
11. In the opinion of this Court, after evaluation of the evidence
being brought on record and in absence of any contradictions being
pointed out by any of the defendants, the learned Judge, after
considering the evidence brought on record by the plaintiffs, has
rightly allowed the suit, directing specific performance of his
agreement to sell dated 09.08.2010 as well as cancelling the
agreement to sell dated 22.12.2011 executed in favour of the original
defendant no.4. In fact, the learned Judge has tried to strike out a
balance by directing the return of earnest money of sum of Rs.11
Lakhs paid by the present defendant no.4 in his favour with 9%
interest from 22.12.2011 till its actual amount being realized from
defendant no.1. The learned Judge has proceeded to set aside the
registered sale deed, in absence of any objection being raised by the
respective defendant nos.2 and 3.
12. For the foregoing reasons, the present appeal, in absence of any
question of law and facts being raised, is not admitted, and is hereby
summarily dismissed along with civil application for stay. No order as
to costs.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
