Gujarat High Court

Kshama Infrabuild Pvt. Ltd. Through Its ... vs Govindbhai Laxmanbhai Makwana on 30 June, 2025

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                           C/CRA/452/2024                                       JUDGMENT DATED: 30/06/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


                                     R/CIVIL REVISION APPLICATION NO. 452 of 2024


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                      ==========================================================

                                   Approved for Reporting                       Yes           No


                      ==========================================================

                         KSHAMA INFRABUILD PVT. LTD. THROUGH ITS DIRECTOR KSHAMA
                                         RAJESHBHAI SHAH & ANR.

                                                                  Versus

                                            GOVINDBHAI LAXMANBHAI MAKWANA

                      ==========================================================

                      Appearance:
                      MR APURVA R KAPADIA(5012) for the Applicant(s) No. 1,2
                      MR SP MAJMUDAR(3456) for the Opponent(s) No. 1
                      MR V Z BHARDA(12667) for the Opponent(s) No. 1

                      ==========================================================

                         CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER


                                                          Date : 30/06/2025


                                                          ORAL JUDGMENT

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TABLE OF CONTENTS

SYNOPSIS OF THE DISPUTE................................................................................................. 3

CASE PLEADED IN THE PLAINT..........................................................................................3

CASE OF THE PETITIONER - DEFENDANT.......................................................................6

CASE OF THE RESPONDENT - PLAINTIFF........................................................................8

REPLY BY THE PETITIONER.............................................................................................. 11

ANALYSIS AND FINDINGS................................................................................................. 14

UNDISPUTED FACTS.............................................................................................................. 14

UNPAID SELLER CANNOT CHALLENGE THE SALE DEED ON GROUND OF NON-PAYMENT OF

SALE CONSIDERATION...........................................................................................................16

Dahiben v. Arvindbhai Kalyanji Bhanushali, (2020) 7 SCC 366....................................17

Key Pee Buildtech Pvt. Ltd. vs. Shahjahan Begum MANU/RH/0432/2015...................19

Bhimabhai Mansibhai Karia v. General Manager, RSPL Ltd., 2021 (0) AIJEL HC

245699..............................................................................................................................20

Harish Purshottam Chandwani v. Janak Chandiram Sukhwani, Second Appeal 6 of 2025

..........................................................................................................................................21

RECITALS IN THE PLAINT...................................................................................................... 23

RE: CONTENTION OF OTHER RELIEFS AND PART REJECTION...............................................30

RE: LIMITATION.................................................................................................................... 33

Article 59 of the Limitation Act.......................................................................................34

NON-MAINTAINABILITY OF ANCILLARY RELIEFS WHEN MAIN RELIEF IS BARRED................36

CONCLUSION........................................................................................................................37

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SYNOPSIS OF THE DISPUTE

1. Rule returnable forthwith. Learned advocate Mr.S.P.Majmudar

waives service of notice of rule on behalf of respondent.

2. With the consent of learned advocates appearing for the

respective parties the matters is taken up for hearing.

3. The present Revision has been filed challenging the order dated

02.05.2024 passed below exhibit 9 by Second Additional Senior

Civil Judge (Dholka) in Special Civil Suit No. 4 of 2022, whereby

the application filed by the original Defendants under the provisions

of Order VII Rule 11 (d) of the Code of Civil Procedure (1908) has

been rejected. For the sake of convenience, the parties are referred to

by their status in the suit.

4. The Plaintiff, claiming to be an unpaid seller, has prayed for

cancellation of the sale deed of the Defendant No. 1 and subsequent

sale deed and further consequential reliefs. Whereas, the Defendant

filed an Application under Order VII Rule 11, which has been

rejected. Hence, the present Revision.

CASE PLEADED IN THE PLAINT

5. The brief facts arising in the present Civil Revision Application

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are as follows:

6. The Plaintiff filed Special Civil Suit No. 4 of 2022 on the

ground that Defendant No.1 wanted to purchase the suit property

and thereafter, after negotiations, it was agreed that the Defendant

No. 1 shall purchase the suit property for a sale consideration of Rs.

29.80 lakhs (Rupees Twenty Nine Lacs Eighty Thousand) and

pursuant to the said negotiation, the Plaintiff executed a sale deed in

favour of Defendant No.1 on 31.08.2016, which was registered

before the Sub-Registrar's Office at Sr. No. 2756.

7. It has also been stated in the Plaint that while executing the sale

deed, the Defendant No.1 had agreed to pay the sale consideration as

and when the name of Defendant No.1 is entered in the revenue

record.

8. It has been pleaded in the Plaint that thereafter Plaintiff tried to

approach Defendant No.1 for the sale consideration, but the

Defendant No. 1 informed the Plaintiff that as Defendant No. 1 was

in certain financial difficulty, the Defendant No.1 shall not get his

name entered in the revenue record and shall not transfer assign the

suit property to anybody else, unless and until the amount of sale

consideration is paid to the Plaintiff.

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9. It is the case of the Plaintiff that the Plaintiff relied on the

promises given by Defendant and it is also the case of the Plaintiff

that at the time of execution of sale deed and thereafter, the Plaintiff

has not received any amount of sale consideration and neither any

cheque has been issued by the Defendant no.1 with respect to the

sale deed executed on 31.08.2016.

10. Suddenly on 25.12.2021, three or four unknown persons came

to the suit property and informed the Plaintiff that their names are

muted in the revenue record and that they have purchased the suit

property. It is the case of the Plaintiff that at that time, the Plaintiff

informed the said persons that as the name of the Plaintiff was there

in the revenue record and since the Plaintiff has not received any

sale consideration with respect to the sale deed executed on

31.08.2016, no other person has any right, title or interest over the

suit property.

11. Moreover, the possession of the suit property is also with the

Plaintiff and it is the case of the Plaintiff in the Plaint that the

unknown persons came to the property and threatened the Plaintiffs

to handover the peaceful possession of the property within seven

days failing which, the Plaintiff will have to face dire consequences.

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12. The Plaintiffs have then stated that they inspected the revenue

records and found that the Defendant No.1 has executed a sale deed

in favour of Defendant No. 2 on 01.07.2017, which is registered at

serial no. 2208 and the said fact was never in knowledge of the

Plaintiffs. It is the case of the Plaintiffs that the Plaintiff is in

possession of the property and the revenue tax is also paid by the

Plaintiff.

13. Since the sale consideration has not been paid by the Defendant

No.1, the Plaintiff has filed a the present suit to declare the sale deed

executed by the Plaintiff in favour of Defendant No. 1, which is

registered on 31.08.2016 to be false, illegal, without consideration

and by committing fraud and to declare the same as cancelled and

also to declare that any sale deed that have been executed by virtue

of the said sale deed dated 31.08.2016 to be declared cancelled and

to declare the Plaintiffs to be the rightful owner of the suit property

and for injunction restraining the Defendants from transferring,

assigning, selling the suit property and disturbing the Plaintiff's

peaceful possession of the suit property.

CASE OF THE PETITIONER - DEFENDANT

14. The case of the Defendant is as follows.

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15. Firstly, that the Plaintiff executed registered sale deed for the

suit property in favour of the Applicant-Defendant No.1 on

31.08.2016. The Defendant No.1 further transferred the suit property

by executing registered sale deed in favour of Defendant No. 2 on

01.07.2017. The Special Civil Suit is filed on 28.01.2022

challenging the registered sale deed after period of 5 years and 4

months and therefore, the same is clearly barred by law of limitation

under Article 59 of the Limitation Act.

16. The Plaint narrates that the sale deed is executed by Plaintiff in

favour of Defendant no 1 without receiving of any sale

consideration. To put it in other words Plaintiff claims himself to be

an unpaid seller for which suit is preferred seeking cancellation of

the registered sale deed.

17. It is submitted that even if the Plaintiff remained unpaid seller,

the suit praying for cancellation of sale deed after delay of 5 years

and 4 months is clearly barred by law of limitation.

18. Reliance is placed on the following judgements:

i. Dahiben v. Arvindbhai Kalyanji Bhanushali, (2020) 7 SCC 366

[Para Nos. 5,6,7,15]

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ii. Harish Purshottam Chandwani v. Janak Chandiram Sukhwani,

Second Appeal 6 of 2025 [Gujarat High Court] [Para Nos.

23,24,25,26,28,31,32,34]

19. It is further submitted that the contention taken by the Plaintiff

that there is also a prayer of possession and hence, the suit must go

to trial is completely meritless. The relief of possession in the suit

praying for cancellation of Registered Sale Deed is always a

consequential relief. Moreover, in the Registered Sale Deed itself,

the Plaintiff has admitted that the possession has been handed over

to the Defendant No. 1. The assertion of the Plaintiff in the Plaint

that he is in possession is contrary to the registered document

executed by him cannot not be accepted.

CASE OF THE RESPONDENT - PLAINTIFF

20. Against the aforesaid contentions, the original Plaintiff has

argued that the Plaintiff has not received a penny out of the entire

sale consideration therefore, this itself would become mix question

of law and fact and hence, the plaint cannot be rejected.

21. It is also sought to be contended by the Plaintiff that in the

present suit, an independent relief for protection of possession is

prayed and for that suit is required to be tried as it being an

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independent relief and once one out of the multiple reliefs falls

within the limitation, partial rejection of Plaint is impermissible.

22. The Plaintiff has also raised a contention that since his name is

appearing in the revenue record, he can be said to be in possession

of the suit property. It is also contented that since the Defendant

No.1 has not applied for mutation of his name in the revenue record

pursuant to the registered sale deed, the Plaintiff must be presumed

to have been in possession. It is the Plaintiff's case that the sale

consideration was to be paid as and when the name of Defendant

no.1 is muted in the revenue record and therefore the same cannot be

decided under the provisions of Order VII Rule 11 of the Code of

Civil Procedure, 1908, as the same requires a trial.

23. Last contention raised by the Plaintiff that since he was sought

to be evicted from the suit property on 25.12.2021 by unknown

persons his suit is within the limitation since his cause to file the

present suit arose only at that juncture. Therefore, the Ld. Advocate

for the Respondent - Plaintiff has argued that in an Application

under Order VII Rule 11, only the documents with the Plaint have to

be seen and therefore upon a perusal of the documents, the suit is not

barred by any law and hence must go to trial. It is the submission of

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the Ld. Advocate for the Plaintiff that there cannot be a mini trial at

the stage of Order VII Rule 11, and therefore, whenever mixed

question of fact and lower rises, the said provision of law will have

no Application and the suit as a whole must go to trial

24. The Plaintiffs on the other hand has relied on the following

judgments:

(i) Kewal Krishan v. Rajesh Kumar, 2021 (0) AIJEL - SC

68030.

(ii) Yerraguntala Ramireddi vs RatchepalliAtchamma & Anr.,

(1953) 2 SCC 21.

(iii) Janak Dulari Devi & Anr. Vs KapildeoRai & Anr. Civil

Appeal No. 4422 of 2002.

(iv) Managing Director (MIG) Hindustan Reronautics Ltd &

Anr vs Ajit Prasad Tarway. (1972) 3 SCcc 195.

(v) Kiritsinh Dharamvirsinh vs Kalubhai Shardtlbhai . 2006 (0)

AIJEL - HC 217054.

(vi) Shaukathussain Mohammed Patel Vs. Khatunben

Mohmmedbhai Polara. (2019) 10 SCC 226

(vii) Alpesh & Ors. vs Krishan Kumar & Ors. 2014 SCC

OnLine P&H 387.

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(viii) Bardoli Shreerang Exhibitors Private Limited Vs.

Maheshbhai Babubhai Hirpara. 2021 (0) ATJEL -- HC 243278.

(ix) Central Bank of India and Anr. v. Smt. Prabha Jain and ors.,

Civil Appeal No. 1876 of 2016

(x) Capt. (Retd.) Inderbir Singh Uppal v. Manu Nayyar, 2023

(0) Supreme (Del) 1686

(xi) PV Gururaj Reddy v. P. Neeradha Reddy and Ors. (2015) 8

SCC 331

(xii) Parmar Narmada ben v. Amratlal Motibhai Prajapati, 2016

(0) AIJEL - HC 236074

(xiii) Daliben Valjibhai and Ors. v. Prajapati Kodarbhai and

Anr., SLP 23625 of 2024

(xiv) Kaliaperumal v. Rajagopal and Anr., (2009) 4 SCC 193

(xv) Keshav Sood v. Kirti Pradeep Sood, 2023 (0) AIJEL SC

72791

(xvi) Navnitlal Maneklal Shah v. Induben Thakorelal Shah,

SCA 15293 of 2017"

REPLY BY THE PETITIONER

25. In rejoinder, the Ld. Advocate for the Defendant submits that

the contentions raised by the Plaintiff are baseless. As regards the

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argument that since name of the Defendant is not mutated, the

Plaintiff must be presumed to be in possession, the Ld. Advocate for

the Petitioner - Defendant has relied on Section 135C proviso of the

Bombay Land Revenue Code, which reads as under:

'provided further that any person acquiring the right

by virtue of a registered document shall be

exempted from the obligation to report to the

designated officer'.

26. Therefore, when the Defendant was a Registered Sale Deed

holder, there was no obligation of the Defendant to report to the

designated officer for mutation of the revenue entries in his favour.

Merely name of the Plaintiff being reflected in the revenue records

will not create any right title or interest in favour of the Plaintiff.

27. It has also been argued that once the principal relief of

challenge to the sale deed is barred by law of limitation the

consequential relief seeking protection of possession automatically

becomes time barred and therefore, the suit in its entirety is required

to be rejected. Reliance is placed in case of Padhiyar Prahladji v.

Maniben, 2022 (4) SCALE 352; more particularly Paragraph Nos.

8.1, 8.2, 8.3, 9, 11 and 11.1

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28. As regards the cause of action having arisen only in the year

2021, the advocate for the Defendant submits that the narration of

the incident of in the Plaint is clever drafting to bring the suit within

limitation. The illusory and fictitious cause of action requires to be

nipped in bud. The right to sue first accrued in favour of the Plaintiff

was within three years from execution of registered sale deed dated

31.08.2016. The right to sue and the starting period of limitation for

right to sue has already been discussed by this Hon'ble Court in

Whiteswan build Con LLP v. Thakor Pravinji, 2022 (4) GLH 390

more particularly Para No. 13 wherein after considering several

decision of Hon'ble Supreme Court, this Hon'ble Court has held that

if the suit is based upon multiple cause of action the period of

limitation would began to run from the date when the rights to sue

first accrues.

29. It has also been argued that the Hon'ble Supreme Court in case

of Dilboo Vs Dhanraji, (2000) 7 SCC 702 has laid down the ratio

that whenever a document is registered, the date of registration

becomes the date of deemed knowledge to the whole world. In the

present case when Plaintiff himself is the signatory to the registered

sale deed of the year 2016 and then challenging the registered sale

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deed by the way of present suit in the year of 2022, the suit clearly

filed beyond the period of limitation is barred by law of limitation

and therefore the Plaint is required to be rejected by allowing the

present Revision Application.

ANALYSIS AND FINDINGS

Undisputed Facts

30. Having heard the Ld. Advocates for the respective parties, the

following facts emerge:

i. Plaintiff does not deny the execution of the Registered Sale

Deed dated 31.08.2016.

ii. In fact, the only case of the Plaintiff in the plaint is that the

Plaintiff is an unpaid seller and has not received the sale

consideration.

iii. The Defendant No. 1 (original purchaser) has further thereafter

sold the suit property to the Defendant No. 2.

31. A bare reading of the Registered Sale Deed dated 31.08.2016

demonstrates the following aspects (as recorded in the registered

sale deed):

i. Plaintiff admits that he has executed the registered sale deed in

favour of Defendant

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ii. The Plaintiff has voluntarily executed a sale deed in favour of

the Defendant No.1 by accepting the entire sale consideration

iii. The most important aspect that the Plaintiff has handed over the

possession to the Defendant No.1.

32. Therefore, the Plaintiff clearly admits execution of the

Registered Sale Deed and the fact of the possession having handed

over to the Defendant No.1 upon execution of the sale deed. In fact,

the deed also acknowledges receipt of the sale consideration.

33. In other words, the suit has been filed by the Plaintiff putting up

a case that the Plaintiff is an unpaid seller for the Registered Sale

Deed which has been executed in the year 2016. It is nowhere the

case of the Plaintiff that no sale deed has been registered at all. It is

also pertinent to note at this juncture that the Plaintiff has not even

alleged any fraud while executing the present sale deed, except for

stating that the money which was promised by the Defendant has not

been paid to the Plaintiff.

34. Therefore, in the present case, it cannot be said that there is any

mixed question of law and facts. Hon'ble Supreme Court in case of

Dahiben (Supra) has in fact held [in view of Section 54 of the

Transfer of Property Act, 1882] that even if entire sale consideration

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had not been paid to the seller, it cannot be a ground same could not

be a ground for cancellation of a sale deed. The Plaintiff may have

other remedies in law for recovery of balance consideration but

could not be granted the relief of cancellation of the registered Sale

deed and therefore, the suit filed by the Plaintiff is vexatious,

meritless, and does not disclose a right to sue much or less a mix

question of law and facts as sought to be canvased before the

Hon'ble court.

Unpaid seller cannot challenge the sale deed on ground of non-

payment of sale consideration

35. From the undisputed position on record as noted above, it is

clear that the Plaintiff has filed the present suit with the sole case

that the Plaintiff has not been paid the sale consideration for

execution of the present sale deed. Therefore, except for the right of

an unpaid seller, there is no other right which has been claimed by

the Plaintiff in the present suit. Any relief sought for possession is

only consequential and naturally flowing from the primary relief of

cancellation of the sale deed.

36. Therefore, the present case will have to be examined only from

the view whether or not the Plaintiff had any right to challenge the

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sale deed executed and registered in the year 2016 after a period of

almost 5 years on the ground that the sale consideration for this sale

was not received by the Plaintiff.

Dahiben v. Arvindbhai Kalyanji Bhanushali, (2020) 7 SCC 366

37. Hon'ble Supreme Court in the case of Dahiben v. Arvindbhai

Kalyanji Bhanushali, (2020) 7 SCC 366 after having gone through

the provisions of section 54 of the transfer of property act has

unequivocally laid down that an unpaid seller at best, can sue for the

remainder consideration. However, this cannot entitle the said

unpaid seller to seek cancellation of a Registered Sale Deed, which

has been executed by the said seller itself. This is more in view of

the fact that the definition of sale under section 54 includes a sale

which is "paid, promised, partly paid, or partly promised."

38. Therefore, when the law does not permit challenge of a sale

deed on the ground that a seller has not been paid sale consideration,

there can be no cause of action for challenging the sale deed on the

said ground. In other words, assuming everything that is said in the

Plaint to be true, even then, the Plaintiff cannot have a right in the

law to sue the Defendant seeking cancellation of the sale deed.

Hence, the Plaintiff cannot be said to have any cause of action for

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filing the present suit.

39. The Plaintiff may have other remedies in law for recovery of the

balance consideration. However, it cannot sue the Defendant for

cancellation of the sale deed, which has been admittedly executed by

the Plaintiff itself. Relevant portion of Dahiben (supra) is

reproduced hereinunder:

"29.9 In view of the law laid down by this Court, even if the averments of the plaintiffs are taken to be true, that the entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the sale deed. The plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered sale deed. We find that the suit filed by the plaintiffs is vexatious, meritless, and does not disclose a right to sue. The plaint is liable to be rejected under Order 7 Rule 11(a)."

(emphasis supplied).

40. This finding is further fortified from the recitals of the

Registered Sale Deed, which has been entered into between the

parties. A bare perusal of the said sale deed would show that the

Plaintiff has in fact acknowledged in the sale deed that the sale

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consideration has been received. Having said so, the Plaintiff cannot

now resile in the Plaint to say or otherwise, without any

documentary proof thereof.

41. This view of the sole right of an unpaid seller has been laid

down by several courts of this country, including this Court.

Key Pee Buildtech Pvt. Ltd. vs. Shahjahan Begum

MANU/RH/0432/2015

42. In Key Pee Buildtech Pvt. Ltd. vs. Shahjahan Begum

MANU/RH/0432/2015, the Rajasthan High Court held as follows:

"14. Looked from another angle, this Court is of the further view that the plaint also does not disclose cause of action and is liable to be rejected on this count also. It is settled law that where a document is sued upon and its terms are not set out in the plaint but referred to in the plaint, the said document gets incorporated by reference in the plaint (Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust:

MANU/SC/0515/2012 : 2012(8) SCC 706). The sale deed executed by the plaintiff does not incorporate any recital that title shall not vest in the buyer until and unless sale price is paid. In view of Section 54 of the Transfer of Property Act, coupled with the fact of

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absence of any such recital, as mentioned hereinabove, the title passed on to the buyer on the execution and registration of the sale deed. In such fact and situation, the plaintiff has no legal right to get the sale deed annulled, even if it is presumed that the contracted sale price was not paid to her. The suit, as instituted is not for recovery of any unpaid sale price but for annulment of a registered sale deed on the averment that the agreed sale price was not paid. Even if the plaint averments are taken on its face value and presumed to be true and correct, the plaintiff is not vested with any legal right to claim cancellation of the sale deed. The term "cause of action" not only incorporates infringement of legal right but the legal right itself. Thus, the plaintiff being devoid of any legal right to claim annulment of sale deed and on the basis of such plaint averments, it can safely be held that the plaint does not disclose any cause of action." (emphasis supplied). Bhimabhai Mansibhai Karia v. General Manager, RSPL Ltd., 2021

(0) AIJEL HC 245699

43. Hon'ble Division Bench of this Court in Bhimabhai Mansibhai

Karia v. General Manager, RSPL Ltd., 2021 (0) AIJEL HC 245699

has held as follows:

"The suit in substance is for recovery of the so-called

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unpaid sale consideration. Let us proceed on the footing for the time being that the plaintiffs have to recover some unpaid sale consideration. The Supreme Court, in the case of Dahiben (supra), has categorically held that non- payment of a part of the sale consideration does not make the registered sale- deed 'void' nor does it constitute a valid ground for its cancellation. The Supreme Court held thus:

...

In view of the law laid down by this Court, even if the averments of the plaintiffs are taken to be true, that the entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the Sale Deed. The plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered Sale Deed."

Harish Purshottam Chandwani v. Janak Chandiram Sukhwani,

Second Appeal 6 of 2025

44. Even this Court in Harish Purshottam Chandwani v. Janak

Chandiram Sukhwani, Second Appeal 6 of 2025, has held as

follows:

"The law is well settled that the plaintiff cannot claim that even if the entire sale consideration has not in fact been paid, the same could not be a ground for

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cancellation of the sale deed. The law is also very clear that the definition of sale indicates that there must be a transfer of ownership from one person to another, which includes transfer of all rights and interest in the property which was possessed by the transferer to the transferee and that the transferer cannot retain any part of interest or right in the property and the definition of sale as per provisions of Section 54 of the Transfer of Property Act, 1882 indicates that the transfer of the ownership has to be made for a price paid or premised or part paid and part promised, therefore the price thus constitutes an essential ingredient of transaction of sale and therefore the actual payment of the whole of the price at the time of execution of sale deed is not a sine qua non for completion of sale. In the present case, the sale consideration as mentioned in the sale deed has been stated to have been received by the Plaintiff and in the sale deed itself the plaintiff has given acknowledgment of the receipt of the said amount but even otherwise, even if the whole of the price is not paid but the sale deed is executed, the sale would be complete and the title would pass on the defendant under the transaction, and even if the version of the plaintiff is to believed, the non-payment of a part of the sale price would not affect the validity of the sale as the title in the property having already been passed

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and even if the balance sale consideration is not paid, the said sale deed could not be invalidated on this ground. In order to constitute a sale the plaintiff must intent to transfer the ownership of the property on the agreement to pay the price either in the present time or in future and from the recital of the sale deed, it is very clear that the plaintiff has transferred all his right title interest in the suite property by executing Registered Sale Deed."

45. Therefore, the law is well settled that the Plaintiff cannot

challenge a sale deed on the ground that it has not been paid sale

consideration for which transaction a Registered Sale Deed has

already been entered into. In the present case also, the Plaintiff has

not averred in the sale deed that transfer of title upon the Defendant

would be contingent upon payment of the sale consideration. In such

a case, even if the entire consideration is not paid, the Plaintiff

cannot challenge the sale deed on this count.

Recitals in the Plaint

46. On the contrary, in the present deed, the Plaintiff has

unequivocally acknowledged as follows:

"10) I, the seller, have received from you, the purchaser, the full sale consideration amount of Rs.29,80,000/- (Rupees twenty nine lakhs eighty thousand) as per the details given below and have signed this sale deed as acknowledgement for the same.

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Details of the amount received by the seller Amount Detail (1) 9,00,000/- Has been received through cheque No.16904 of Dena Bank, Navrangpura Branch.

(2) 4,50,000/- Has been received through cheque No.16905 of Dena Bank, Navrangpura Branch.

(3) 4,50,000/- Has been received through cheque No.16906 of Dena Bank, Navrangpura Branch.

(4) 4,50,000/- Has been received through cheque No.16907 of Dena Bank, Navrangpura Branch.

(5) 4,50,000/- Has been received through cheque No.16908 of Dena Bank, Navrangpura Branch.

(6) 2,80,000/- Has been received through cheque No.16909 of Dena Bank, Navrangpura Branch.

29,80,000/- Total Rupees Rupees twenty nine lakhs eighty thousand.

"

47. Therefore, the amount and the factum of receipt of the amount

is unequivocal and clear, unlike any of the judgments cited by the

present Petitioner as discussed hereinbelow.

48. Hence, there was no cause of action in the present case for the

Plaintiff to sue the Defendant seeking cancellation of the sale deed,

which has been executed by the Plaintiff itself on the ground of non-

payment of sale consideration.

49. As regards the judgment cited by the Plaintiffs, the same are not

applicable to the facts of the present case in the following manner.

50. In Kewal Krishan v. Rajesh Kumar, 2021 (0) AIJEL - SC

68030, the Hon'ble Court specifically states that a sale shall be void

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when the sale consideration is neither paid nor promised nor partly

paid and partly promised. Therefore, clearly, the said case will not

apply to the present case at hand where the sale deed itself evidences

a payment or at in the least, puts the consideration as promised.

51. Even in Yerraguntala Ramireddi v. Ratchepalli Atchamma and

Anr., (1953) 2 SCC 21 the Hon'ble Court had held that the sale deed

was without any consideration and there were no recitals to indicate

otherwise. More so, in the said case, the sale deed was not acted

upon and hence also, the said judgment was passed.

52. Further in Janak Dulari Devi and Anr. v. Kapildeo Rai and

Anr., (2011) 6 SCC 555 the Hon'ble Court was dealing with a

situation where the intention of the parties as seen from the sale deed

was completely different from the case on hand. However, the Court

held that this is not an invariable rule, as the true test of passing of

property is the intention of parties. Though registration is prima

facie proof of an intention to transfer the property, it is not proof of

operative transfer if payment of consideration (price) is a condition

precedent for passing of the property. However, in the present case,

the sale consideration is already acknowledged to have been

received. Moreover, in that case, there was a clear admission from

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the purchaser that sale consideration was in fact, not paid.

53. In Managing Director (MIG) Hindustan Aeronautics Ltd. and

Anr. v. Ajit Prasad Tarway, (1972) 3 SCC 195, the Hon'ble Court

while laying down the extent of permissible interference under

Section 115 of the CPC has laid down that only jurisdictional errors

are permitted to be cured. However, since the Ld. Trial Court does

not reject the Application, the jurisdiction of which ought to be

exercised had not been so exercised and hence, the present case is a

valid exercise of jurisdiction under Section 115 of the CPC.

54. In Kiritsinh Dharamvirsinh v. Kalubhai Shardubhai, 2006 (0)

AIJEL - HC 217054 this Court has laid down the limited scope of

exercise of power under Section 115 of the CPC. However, as stated

above in the present case, this Court deems it fit to exercise its

jurisdiction as the Ld. Trial Court has committed jurisdictional error.

55. In Shaukathussain Mohammed Patel v. Khatunben

Mohammedbhai Polara, (2009) 10 SCC 226 the Court was

concerned with a case where a fraud had been pleaded in execution

of the Sale deed and where the sale deed was said to have been

executed without knowledge of the Plaintiff in collusion with other

persons. However, there is no such fraud or allegations of forgery in

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the present case and in fact, the Registered Sale Deed had been

admitted.

56. In Alpesh and Ors. v. Krishan Kumar and Ors., there is a plea of

fraud. However, such plea is for execution of the agreement. In the

present case, the only allegation is that there is non-payment after

the execution of the agreement and hence, the said case cannot have

any Application to the present case.

57. In Bardoli Shreerang Exhibitors Pvt. Ltd. v. Maheshbhai

Babubhai Hirapara, 2021 (0) AIJEL - HC 243278, a Division Bench

of this Court in context of a partnership dispute in facts of the case

had held that limitation was a mixed question of law and fact.

However, in the present case, the Plaint clearly does not disclose a

cause of action since there cannot be a suit seeking cancellation of

sale deed on non-payment of sale consideration. Moreover, in the

said judgment itself, Hon'ble Division Bench held that in case that

Plaint must be rejected when the suit appears to be barred by law

from a statement made in the Plaint upon its whole reading. Hence,

in the present case, the suit discloses no cause of action.

58. The Judgment in the case of Central Bank of India and Anr. v.

Smt. Prabha Jain and ors., Civil Appeal No. 1876 of 2016 pertained

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to a suit where the Order VII Rule 11 Application was given in the

context that the suit is barred under SARFAESI Act. However, the

Court specifically held that certain prayers were not covered by

operation of the said Act and hence, there was no bar in law against

the Plaint per se. Hence, the suit naturally were restored. The said

case therefore, factually, can have no application in the present one.

59. In Capt. (Retd.) Inderbir Singh Uppal v. Manu Nayyar, 2023 (0)

Supreme (Del) 1686, the Delhi High Court having held that the

Plaintiff pleaded - fraud in execution of the deed and further pleaded

that the Plaintiff was not aware of the contents of the deed. There is

no such pleading in the present case that the Plaintiff was not aware

of the recitals. Therefore, the said case will have no persuasive value

in the present case.

60. In PV Gururaj Reddy v. P. Neeradha Reddy and Ors . (2015) 8

SCC 331, the Hon'ble Apex Court has held that power under Order

7 Rule 11 is a drastic one and cannot be exercised lightly. That is an

undisputed position of law which binds this Court. However, in the

facts of the present case, when no cause of action has been

disclosed, it becomes imperative for the Court to reject the Plaint in

accordance with mandate of the provision.

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61. In Parmar Narmada ben v. Amratlal Motibhai Prajapati, 2016

(0) AIJEL - HC 236074, this Court held that there was no

Application of order 7 rule 11 (a) even when the sale deed states that

the sale consideration has been paid. However, in the respectful

opinion of this Court, the position of law has now been crystallised

in Dahiben (supra) and hence, the said case will not have a bearing

on the present case.

62. In Daliben Valjibhai and Ors. v. Prajapati Kodarbhai and Anr.,

SLP 23625 of 2024, the Hon'ble Court held that when from the

Plaint the suit does not seem to be barred by law (limitation in that

case) it cannot be rejected under Order VII Rule 11. However, in the

present case, there is no dispute that the Plaintiff itself has executed

the sale deed. Moreover, there is also non-disclosure of cause of

action. Therefore, the said case will not apply to the present facts.

63. In Kaliaperumal v. Rajagopal and Anr., (2009) 4 SCC 193 the

facts were such where the payment was to be taken as a condition

precedent for passing of the title and the same was not recorded as

received in the sale deed. However, in the present case, the sale

consideration is received in the sale deed as it has been recorded in

the recitals. Therefore, the said case will have no Application in the

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present case.

64. In Keshav Sood v. Kirti Pradeep Sood, 2023 (0) AIJEL SC

72791 the Hon'ble Court has laid down that the defence of the

Defendants or the documents produced by them cannot be looked

into at the stage of Order 7 Rule 11. However, in the present case

even from a holistic and bare reading of the Plaint, it does not

disclose a cause of action and is barred by law.

Re: Contention of other Reliefs and Part Rejection

65. The Plaintiff however, has tried to come out of the rigours of

section 54 of the Transfer of Property Act, by stating that since there

are other reliefs regarding protection possession of the suit property.

However, when the main relief of declaration and cancellation of the

sale deed itself is not maintainable, it cannot be said that the Plaintiff

had any cause of action for seeking other reliefs namely, injunction.

66. It is pertinent to note that when the main relief of cancellation is

not available to the Plaintiff on account of non-disclosure and non-

existence of cause of action, for the same, the consequential relief of

injunction cannot be said to be available to the Plaintiff on similar

count. Therefore, when the relief of injunction is not an independent

relief, there is no question of rejection of the Plaint, since the main

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relief itself is not maintainable in the present case.

67. Therefore, when the main relief in a suit is not maintainable, the

consequential relief for injunction also must fail. Hon'ble Apex

Court in the case of Padhiyar Prahladji Chenaji (Deceased) through

L.Rs. vs. Maniben Jagmalbhai (Deceased) through L.Rs. and Ors.

MANU/SC/0272/2022 held as follows:

11. From the impugned judgment and order passed by the High Court, it appears that the High Court has not properly appreciated the distinction between a substantive relief and a consequential relief. The High Court has observed that in the instant case the relief of permanent injunction can be said to be a substantive relief, which is clearly an erroneous view.

It is to be noted that the main reliefs sought by the Plaintiff in the suit were cancellation of the sale deed and declaration and the prayer of permanent injunction restraining Defendant No. 1 from disturbing her possession can be said to be a consequential relief. Therefore, the title to the property was the basis of the relief of possession. If that be so, in the present case, the relief for permanent injunction can be said to be a consequential relief and not a substantive relief as observed and held by the High Court. Therefore, once the Plaintiff has failed to get any substantive relief of cancellation of the sale

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deed and failed to get any declaratory relief, and as observed hereinabove, relief of injunction can be said to be a consequential relief. Therefore, the prayer for permanent injunction must fail. In the instant case as the Plaintiff cannot be said to be in lawful possession of the suit land, i.e., the possession of the Plaintiff is "not legal or authorised by the law", the Plaintiff shall not be entitled to any permanent injunction. 11.1 An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law.

68. Therefore, it is clear that the Plaintiff has sought relief of

injunction as a mere consequential relief, which cannot sustain once

the main relief of cancellation of sale deed has been held to be not

maintainable. Therefore, there is no question of the suit being sent

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for trial when there was no cause of action to seek the main relief of

cancellation of the sale deed.

Re: Limitation

69. It is pertinent to be noted that the Registered Sale Deed was

entered into in the year 2016. It is not even the Plaintiff case that the

Plaintiff was not aware of registration of the sale deed. In fact, such

a case could not have been pleaded because the Plaintiff has

admitted execution of the Registered Sale Deed and has not denied

the same. Therefore, if the Plaintiff desired to challenge the

Registered Sale Deed, it could have done so within three years from

the said execution as provided under Article 59 of the Limitation

Act, 1963.

70. On a reading of the Plaint, it is clear that according to the

Plaintiff, the cause of action, if at all, arose upon non-payment of

sale consideration by the Defendant No. 1. However, the Plaintiff

has tried to overcome, by astute and clever drafting of the Plaint,

that limitation period. Filing of the present suit after a period of

more than four years would show that the Plaintiff in fact had no

complain for all these years the present suit is a mere afterthought.

71. Upon a full reading of the Plaint, it is clear that the cause of

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action for the present suit, even according to the Plaintiff, arose

when the sale consideration remained unpaid. This event occurred in

the year 2016. Therefore, it cannot be said that the present suit is

within limitation by any stretch of imagination.

Article 59 of the Limitation Act

72. Article 59 of the Limitation Act reads as under:

To cancel or set aside an Three Years. When the facts entitling the instrument or decree or for plaintiff to have the the rescission of a contract. instrument or decree cancelled or set aside or the contract rescinded first become known to him.

73. Therefore, even according to the Plaintiff, the facts which

entitled the Plaintiff to have the present Registered Sale Deed

cancelled was the unpaid sale consideration. The Plaintiff was aware

that the sale consideration remains unpaid right since the year 2016.

Therefore, even if the Plaint is taken on a demurrer, the cause of

action for seeking cancellation of the Registered Sale Deed arose in

the year 2016. Hence, the present suit filed in the year 2021 is

grossly barred by limitation.

74. Hon'ble Apex Court in Dahiben (Supra) was dealing with a

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similar situation. While holding that the Plaint was barred by

limitation, the Hon'ble Court held as under:

"29.12 On a reading of the plaint, it is clear that the cause of action arose on the non-payment of the bulk of the sale consideration, which event occurred in the year 2009. The plea taken by the plaintiffs is to create an illusory cause of action, so as to overcome the period of limitation. The plea raised is rejected as being meritless and devoid of any truth.

29.13 The conduct of the plaintiffs in not taking recourse to legal action for over a period of 5 and V2 years from the execution of the sale deed in 2009, for payment of the balance sale consideration, also reflects that the institution of the present suit is an afterthought. The plaintiffs apparently filed the suit after the property was further sold by Respondent 1 to Respondents 2 and 3, to cast a doubt on the title of Respondent 1 to the suit property.

...

29.18 The delay of over 5 and 1/2 years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. The suit was instituted on 15-12-2014, even though the alleged cause of action arose in 2009, when the last cheque was

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delivered to the plaintiffs. The plaintiffs have failed to discharge the onus of proof that the suit was filed within the period of limitation. The plaint is therefore, liable to be rejected under Order 7 Rule 11(d) CPC."

75. Therefore, it is clear that, even in the present suit, the Plaintiff

has approached the trial Court after a gross delay and hence the

present Plaint is barred by the law of limitation as applicable. Hence,

the presence Plaint is also liable to be rejected under Order VII Rule

11(d).

Non-maintainability of ancillary reliefs when main relief is barred

76. Since the main relief of cancellation of the Registered Sale

Deed is barred by limitation, the consequential relief is also are

barred. Hon'ble. Supreme Court has recently while rejecting a Plaint

under Order VII Rule 11, in the judgment of Nikhila Divyang Mehta

v. Hitesh P. Sanghvi and ors., 2025 SCC Online SC 779 held as

follows:

"29. ... It is apparent that the primary relief claimed therein is to declare the Will and the Codicil to be null and void and also all subsequent proceedings thereto. In addition to it, the plaintiff has claimed permanent injunction. The other reliefs are dependent upon the first relief and cannot be granted until and

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unless the plaintiff succeeds in the first relief. Therefore, once the Plaint or the suit in respect of the main relief stands barred by time, the other ancillary relief claimed therein also falls down."

77. Therefore, when the main relief seeking cancellation of the Sale

deed is itself not available to the Plaintiff, there is no question of its

ancillary reliefs surviving since the same are merely consequential.

There is no question of granting the ancillary relief in absence of the

main relief.

CONCLUSION

78. Consequently, the present Plaint deserves to be rejected under

Order VII Rule 11(a) for not disclosing a cause of action and under

Order VII Rule 11(d) as being barred by limitation. Accordingly, the

Plaint is hereby rejected.

79. In result, present Civil revision Application accordingly stands

allowed. Rule is made absolute.