Gujarat High Court
Jaikishan Sevaram Torani vs Usha Rakesh Tahiliani on 17 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 169 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SECOND APPEAL NO. 169 of 2024
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2025
In R/SECOND APPEAL NO. 169 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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JAIKISHAN SEVARAM TORANI
Versus
USHA RAKESH TAHILIANI
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Appearance:
MR BHUVNESH GAHLOT(10286) for the Appellant(s) No. 1
A R ROCKEY(7592) for the Respondent(s) No. 1
MR. HARDEEP L MAHIDA(7112) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 17/07/2025
ORAL JUDGMENT
1. The present Second Appeal has been filed under Section 100
of the Code of Civil Procedure, 1908, (for short "the Code")
challenging the judgment and decree passed in Civil Appeal
No.20 of 2023, whereby by an order dated 09.01.2024, the 7 th
Additional District Judge, Anjar has allowed the appeal and set
aside the order dated 06.03.2023. passed by the Additional
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Senior Civil Judge, Anjar-Kachchh in Special Civil Suit No.26
of 2011.
2. For the sake of brevity and convenience the parties are referred
to as per their original status as that in the suit.
3. The brief facts arising in the present proceedings are that, the
plaintiff had filed the suit for specific performance of
agreement to sell dated 27.06.2011 and it was the plaintiff's
case that the plaintiff was ready and willing to perform her part
of the contract and there was no question of balance amount to
be paid, as the plaintiff has paid total consideration amount to
the defendant, as per the agreement, dated 27.06.2011, along
with the relief for specific performance as it was the case of
the plaintiff that in view of the agreement to sell dated
27.06.2011, the possession of the property was also handed
over to the plaintiff, the plaintiff sought for relief restraining
the defendant from interfering with the lawful possession of
the suit premises. The plaintiff examined herself vide exhibit
58 and the witness of the plaintiff were examined vide exhibit
85 and 88. The defendant examined himself vide exhibit 118.
4. The Trial Court framed issues vide exhibit 47(B) which are as
under:
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"1. Whether plaintiff proves that the
defendant agreed to sell the suit property
to him for a consideration of
Rs.4,00,000/- and after accepting
Rs.4,00,000/- as an earnest money has
executed an agreement?
2. Whether plaintiff proves that he was
and is ready and willing to perform his
part of agreement?
3. Whether plaintiff proves that the
defendant has refused to execute
registered sale deed in favour of the
plaintiff?
4. Whether the defendant proves that the
agreement for sale is not registered and
therefore not admissible in evidence?
5. Whether the defendant proves that the
plaintiff has got executed the alleged
agreement to sell by exercising fraud
misinterpretation?
6. Whether the defendant proves that the
suit transaction is enforceable in law?
7. Whether the defendant proves that the
suit transaction is not a sale?
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8. Whether the plaintiff is entitled to get
relief as prayed for?
9. What order and decree?"
5. The Trial Court dismissed the suit on the ground that as the
agreement to sell was unregistered document, the plaintiff
could not have sought for specific performance of the contract,
in view of the fact that under Section 17 of the Registration
Act, the registration of the documents being compulsory,
decree of specific performance could not be passed. The
plaintiff challenged the said judgment and decree of the Trial
Court by way of Regular Civil Appeal No.20 of 2023 and after
reappreciating the evidence, the First Appellate Court
considering the provisions of Section 49 of the Registration
Act, allowed the said suit and ordered the respondent to
execute final sale deed in respect of the suit property and
further directed the respondent to hand over the peaceful and
vacant possession of the premises to the plaintiff hence, the
present Second Appeal is filed for the following substantial
questions of law:
"1. Whether the Ld. Courts below have
committed substantial error of law in
interpreting the provisions of Registration
Act?
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2. Whether the Ld. Courts below have
committed substantial error of law in
interpreting the provisions of contract Act
read with Specific Relief Act?
3. Whether the Ld. Courts below have
committed substantial error of law in
appreciating and interpreting affidavit of the
appellant filed below Exh. 118 as well as
cross examination of the appellant?
4. Whether the Ld. Courts below have
committed substantial error of law in
quashing and setting aside the
judgment/order and decree dated 06/03/2023
passed by the Ld. Additional Senior Civil
Judge, Anjar-Kachchh in Special Civil Suit
no. 26/2011whereby the suit came be
rejected?
5. Whether the Ld. Courts below have
committed substantial error of law in not
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Exhibiting the documents produced by
appellant only on the technical ground of not
filing an application for Exhibiting
documents and
6. Whether the Ld. Courts below have
committed substantial error of law in not
appreciating and considering documents
produced by the appellant?"
Submissions of the learned advocate for the defendant:
6. Learned advocate for the defendant has mainly argued that the
First Appellate Court has committed substantial error of law in
not considering the reasonings given by the Trial Court while
rejecting the suit. It has also been argued that the First
Appellate Court has not considered the facts stated in the
written statement filed by the defendant vide exhibit 10 and
that the First Appellate Court has committed the substantial
error of law in interpreting the law of registration as well as
provisions of Evidence Act.
7. It has also been argued by the learned advocate for the
defendant that the First Appellate Court has not properly
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evaluated the affidavit of the defendant, filed vide exhibit 118
and has also not taken into consideration, the documents that
have been produced by the defendant along with his written
statement and has not taken into consideration the fact that no
receipt for the payment of Rs.4 lakhs has been proved by the
plaintiff.
8. Moreover, it has been argued that the plaintiff herself in her
cross-examination vide exhibit-58 has specifically stated that
the plaintiff does not have receipt of payment made by the
plaintiff with respect to the sale consideration. The plaintiff in
her cross-examination has also stated that on 27.06.2011 i.e.
on the date when the agreement to sell was executed, for the
first time, the plaintiff met defendant and before that they have
never met. The plaintiff in her cross-examination has also
admitted that before the agreement to sell dated 27.06.2011,
there was no transaction between the plaintiff and the
defendant with respect to the suit property, therefore, the fact
of payment of Rs.4 lakhs has not been proved by the plaintiff.
Moreover, learned advocate for the defendant has also argued
that along with the written statement, the defendant has
produced the documentary evidence to the fact that a criminal
complaint was already filed and the fact that there was another
suit which was pending and on the very same day, when the
agreement to sell was executed i.e. on 27.06.2011, a consent
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terms were filed in another suit i.e. Regular Civil Suit No.26 of
2011 with respect to the suit property and therefore, it has been
argued that the entire facts stated in the suit are fabricated with
respect to the agreement to sell i.e. stated to be executed on
27.06.2011.
9. Learned advocate for the defendant has also argued that in the
plaint, the plaintiff has sought for permanent injunction,
restraining the defendants from dispossessing the plaintiff
from the suit premises and therefore, the case that was filed by
the plaintiff was on the basis that the plaintiff is in possession
of the property and while allowing the First Appeal, the First
Appellate Court has directed the defendant to hand over the
peaceful possession of the suit property to the plaintiff and
therefore, the relief that was not sought by the plaintiff has
been granted by the First Appellate Court and therefore also
the present Second Appeal is required to be allowed.
Submissions of learned advocate for the plaintiff:
10. Learned advocate for the plaintiff has mainly argued that there
are no substantial questions of law involved in the present
Second Appeal. The Trial Court had dismissed the suit only on
the ground that in view of the fact that the agreement to sell
being not registered, no decree of specific performance could
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have been allowed. Learned advocate for the plaintiff has
argued that in view of the provisions of Section 49, while
deciding the suit for specific performance, the said document
can be considered even if the said document is not registered.
11. Learned advocate for the plaintiff has also argued that the
entire dispute that has been raised by the defendant in the
present Second Appeal is only on factual aspect and the fact
remains that while deciding the suit. The Trial Court has
already decided the same that the plaintiff has been able to
prove that there was no fraud created on the defendant while
executing the agreement to sell and the fact that the plaintiff
has paid amount of Rs.4 lakhs for the sale consideration and
the plaintiff was ready and willing to abide by the said
agreement to sell has already been decided in affirmative and
the defendant has not challenged the said findings of the Trial
Court and therefore, the same becomes final.
12. In view of the same, there are no substantial questions of law
involved in the present Second Appeal and the present Second
Appeal is required to be rejected. With respect to the fact that
the First Appellate Court could not have granted reliefs
directing the defendant to hand over the possession of the
property to the plaintiff in view of the fact that the plaintiff had
already stated in the plaint that the plaintiff is in possession of
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the property. Learned advocate for the plaintiff has relied upon
the judgment reported in Sultan Said Ibrahim Vs. Prakasan
and Others reported in 2025 INSC 764 and therefore, it has
been argued that there are no substantial questions of law
involved in the present Second Appeal and the present Second
Appeal is required to be dismissed.
Analysis:
13. Having heard learned advocates appearing for the respective
parties and having considered the judgment and decree, the
fact remains that the Trial Court had rejected the application
only on the ground that as the agreement to sell is an
unregistered document, the suit for specific performance could
not be allowed and the Appellate Court while allowing the said
first appeal has taken into consideration the provisions of
Section 49 of the Registration Act, 1908 which reads as under:
"49. Effect of non-registration of
documents required to be
registered.--No document
required by section 17 [or by any
provision of the Transfer of
Property Act, 1882 (4 of 1882)],
to be registered shall-- (a) affect
any immovable property
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comprised therein, or (b) confer
any power to adopt, or (c) be
received as evidence of any
transaction affecting such
property or conferring such
power, unless it has been
registered:"
14. In view of the fact that the plaintiff has sought for relief of
specific performance following judgment is required to be
considered.
In the case of R. Hemalatha Vs. Kashthuri reported in
2023 LiveLaw (SC) 304 it is held at par no.13 as under:
Head note: Regulation Act, 1908; Proviso to Section 49 - An
unregistered document affecting immovable property and
required by Registration Act or the Transfer of Property Act
to be registered, may be received as evidence of a contract in
a suit for specific performance or as evidence of any
collateral transaction not required to be effected by
registered instrument.
"13. Under the circumstances, as per
proviso to Section 49 of the Registration
Act, an unregistered document affecting
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immovable property and required by
Registration Act or the Transfer of
Property Act to be registered, may be
received as evidence of a contract in a suit
for specific performance under Chapter-II
of the Specific Relief Act, 1877, or as
evidence of any collateral transaction not
required to be effected by registered
instrument, however, subject to Section
17(1A) of the Registration Act. It is not the
case on behalf of either of the parties that
the document/ Agreement to Sell in
question would fall under the category of
document as per Section 17(1A) of the
Registration Act. Therefore, in the facts
and circumstances of the case, the High
Court has rightly observed and held
relying upon proviso to Section 49 of the
Registration Act that the unregistered
document in question namely unregistered
Agreement to Sell in question shall be
admissible in evidence in a suit for
specific performance and the proviso is
exception to the first part of Section 49."
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15. Moreover, in view of the said fact even an unregistered
document affecting immovable property and required by the
Registration Act or the Transfer of Property Act to be
registered can be recieved as evidence of a contract in a suit
for specific performance or as evidence of any collateral
transaction not required to be affected by the registered
instrument and therefore the view taken by the Trial Court that
the specific performance could not have been sought in view
of the fact that the agreement was not registered is not as per
the provisions of law and the Appellate Court has rightly held
that in view of the proviso to Section 49 of the Registration
Act, the agreement to sell can be taken in evidence in a suit for
specific performance.
16. Therefore in a suit for specific performance, the Court can
look at the document even if the said document is
unregistered. The fact remains that the on the factual aspect
the Trial Court had framed issues vide exhibit 47B and the
issue with respect to the fact that whether the plaintiff proves
that the defendant agreed to sell the suit property to him for
consideration of Rs.4 lakhs and after accepting Rs.4 lakhs as
the earnest money has executed an agreement, the Trial Court
has in affirmative decided the said issue. With respect to the
issue that the plaintiff has proved that she was ready and
willing to perform her part of agreement, the Trial Court has
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decided the said issue in affirmative. The issue with respect to
whether the plaintiff proves that the defendant has refused to
execute the registered sale deed in favour of the plaintiff is
also decided in affirmative. With respect to the fact that
whether the defendant proves that the plaintiff has got
executed the agreement to sell dated 27.06.2011 by exercising
fraud, misrepresentation, the burden of the said issue was on
the defendant and the defendant has not been able to prove the
same and the said issue has been decided in negative.
17. Therefore, on the factual aspect the defendant has not
challenged the said findings of the Court and therefore, the
said findings become final and in the Second Appeal, this
Court can not take into consideration the factum of existance
of the agreement, readiness and willingness of the plaintiff and
this Court also can not take into consideration that fraud has
been created on the defendant while execution of the
agreement to sell as the said issues have been already decided
and the defendant having not challenged the said issues the
said facts can not be taken into consideration while deciding
the present Second Appeal. Moreover, the issue whether the
defendant could have been directed by the Appellate Court to
handover the peaceful and vacant possession of the suit
premises after the plaintiff having claimed that the plaintiff is
in possession of the property when the suit was filed. The fact
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remains that the suit was for a decree of specific performance
and even in absence of a decree granting possession to the
original plaintiff, the said decree shall get satisfied with the
execution of the sale deed and therefore, the plaintiff was not
required to seek possession of the suit property and in the
present case, though the plaintiff has sought for protection of
the possession, in view of the fact that a decree of specific
performance having been granted and therefore, the transfer of
possession is implicit in the decree of specific performance
and directing the defendant to execute the sale deed in favour
of original plaintiff. In the present case, the judgment that has
been relied upon by the learned advocate for the original
plaintiff Sultan Said Ibrahim (Supra) more particularly para
nos.64, 65 which reads as under will have to be taken into
consideration.
"64. Before we part with the matter, we deem it
appropriate to briefly address the contention of the
appellant that in the absence of decree granting
possession to the original plaintiff, the decree gets
satisfied with the execution of the sale deed and the
original plaintiff is not entitled to seek possession over
the suit property. The position of law is settled on this
aspect and has been reiterated by us in our recent
decision in Rohit Kochhar v. Vipul Infrastructure
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Developers Ltd. reported in 2024 SCC OnLine SC 3584.
In the said decision, relying on the decision of this Court
in Babu Lal v. Hazari Lal Kishori Lal reported in (1982)
3 SCR 94, it was observed thus:
"23. This Court in Babu Lal (supra), upon a
combined reading of Sections 22 and 28(3) of the
Specific Relief Act respectively and Section 55 of
the Transfer of Property Act, observed that the it
was only "in an appropriate case" that the
plaintiff was required to separately seek the relief
of possession, partition, or separate possession, as
the case may be, along with the relief of specific
performance. The Court observed that in other
cases, say for example a case where the exclusive
possession of the suit property is with the
contracting party, a decree for specific
performance of the contract of sale simpliciter,
without specifically providing for delivery of
possession, may give complete relief to the decree-
holder. This, the Court observed, was the mandate
flowing from Section 55 of the Transfer of
Property Act. [...]" (Emphasis supplied)
65. Thus, as in the present case, both the
courts below have arrived at the conclusion
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that the exclusive possession of the suit
property could be said to be with the original
defendant when the suit was decreed, the
relief of transfer of possession is implicit in
the decree for specific performance directing
the original defendant to execute a sale deed
in the favour of the original plaintiff. For the
same reason, the decision of this Court in
Birma Devi (supra) is of no avail to the
appellant."
18. In the case of Jaichand (Dead) through Lrs and Other v.
Sahnulal and Another reported in 2024 SCC OnLine SC
3864, the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100
CPC, the High Court cannot interfere with the
findings of fact arrived at by the first Appellate
Court which is the final Court of facts except in
such cases where such findings were erroneous
being contrary to the mandatory provisions of
law, or its settled position on the basis of the
pronouncement made by the Apex Court or
based upon inadmissible evidence or without
evidence."
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19. Therefore, in view of the law laid down by the Appellate Court
in the suit for specific performance even if the relief of transfer
of possession is not sought, it becomes implicit in the decree
of specific performance directing the defendant to execute the
sale deed.
20. In that view of the matter, no interference is required to be
made in the present second appeal and the same is required to
be dismissed.
21. Under the circumstances, this Second Appeal is devoid of any
substantial question of law. The First Appellate Court has
rightly decided the issue between the parties in the right
perspective and as stated above no substantial question of law
arises in the present appeal. The appellant has failed to prove
his case before the First Appellate Court. This Court does not
find any substance in the present Second Appeal as the same is
devoid of any merit both on facts and law and the same is
dismissed at admission stage.
Sd/-
(SANJEEV J.THAKER,J)
URIL RANA
