[Cites 20, Cited by 0]
Gujarat High Court
Heirs Of Deceased Ramshakti Jivandas vs Heirs Of Deceased Bhalabhai Dahyabhai on 6 May, 2026
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
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Reserved On : 24/03/2026
Pronounced On : 06/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1485 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/FIRST APPEAL NO. 1485 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
✓
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HEIRS OF DECEASED RAMSHAKTI JIVANDAS & ORS.
Versus
HEIRS OF DECEASED BHALABHAI DAHYABHAI & ORS.
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Appearance:
MR DC DAVE, SENIOR ADVOCATE WITH MR JIGAR P RAVAL(2008) for
the Appellant(s) No. 1.1,1.2
MR MAYUR RAJGURU(1198) for the Appellant(s) No. 1.1,1.2
VEDANT J RAJGURU(9375) for the Appellant(s) No. 1.1,1.2
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESENTATIVES for
the Defendant(s) No. 1.1
MR MEHUL SURESH SHAH, SENIOR ADVOCATE WITH MR MR VISHAL C
MEHTA(6152) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1.2,2.1,2.2
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
CAV JUDGMENT
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(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1.Heard learned Senior Advocate Mr. Dhaval C.
Dave with learned advocate Mr. Jigar P. Raval
for the appellants and learned Senior
Advocate Mr. Mehul Suresh Shah with learned
advocate Mr. Vishal C. Mehta for the
respondent no.3.
2.This appeal is filed by the original
plaintiffs being aggrieved by judgment and
order dated 22.03.2018 passed below Exhs.47
and 48 in Civil Suit No.1197 of 2017 by Court
No.17, City Civil Court, Ahmedabad allowing
the application under Order VII Rule 11 of
the Code of Civil Procedure, 1908 (For short
"the Code") for rejection of the plaint and
as a consequence thereof the decree is passed
below Exh.1 rejecting the suit.
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3. The appellants are referred to as the
plaintiffs and the respondents are referred
to as the defendants for the sake of
convenience.
Facts:
4.Brief facts of the case are that the
plaintiffs who are the legal heirs of late
Ramshakti Jivandas Sheth, instituted Regular
Civil Suit No.1197/2017 for declaration that
sale deed dated 29.12.2010 registered at
Serial No.13982 with the office of Sub-
Registrar, Ahmedabad-5, Narol is illegal.
5.It is the case of the plaintiffs that land
admeasuring 17300 sq. mtrs. of Survey No.111
and Survey No.111A situated at Village Narol,
District Sub-District Ahmedabad along with
land admeasuring 405 sq. mtrs of Pot Kharaba,
total land admeasuring 17705 sq. mtrs was of
the ownership of defendant no.1 late
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Bhalabhai Dahyabhai and thereafter of his
legal heirs defendant nos. 1/1 and defendant
no. 1/2, defendant no.2 - late Bimani, widow
of Ravjibhai and thereafter her legal heirs
defendant no. 2/1 and defendant no.2/2.
6.During the pendency of the appeal, defendant
no.1/1- Bhupendrabhai Bhalabhai Patel expired
and therefore, his legal heirs being
defendant nos. 1.1.1 to 1.1.4 were brought on
record. Defendant no.1.1.3-Nimesh
Bhupendrabhai Patel also expired during the
pendency of the appeal and therefore, his
legal heirs being 1.1.3/1 and 1.1.3/2 are
also brought on record.
7.It is the case of the plaintiffs that entire
land was purchased by the predecessor of the
defendants by registered sale deed dated
15.05.1959.
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8.It is the case of the plaintiffs that late
father of the plaintiffs- Sheth Ramshakti
Jivandas along with the plaintiffs purchased
the land admeasuring 10346 sq. mtrs out of
the entire land (here-in-after referred to as
"the suit land") along with right of passage
by registered agreement to sale dated
14.05.1984 at the rate of Rs.16/- per sq mtr.
for total consideration of Rs.1,65,536/- and
had also paid 80% of the sale consideration
amounting to Rs.1,32,430/- by cheque to
defendant nos. 1/1, 1/2, 2/1 and 2/2 and
their predecessor and defendants had executed
irrevocable Power of Attorney, supplementary
agreement and affidavit to the effect that
vacant possession of the suit land was handed
over to the plaintiffs as owners. It is the
case of the plaintiffs that since 1984, the
plaintiffs are de facto owners of the suit
land. It is the case of the plaintiffs that
in the suit land, the plaintiffs had made
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construction and started a company named
"Subhang Process Mill Pvt. Ltd." registered
under the provisions of the Companies Act and
the name of the company of the plaintiffs is
shown in the Municipal records as an occupier
since 1986 and name of the plaintiffs are
shown as the owner in the Municipal records
for the taxation purpose.
9.It is also the case of the plaintiffs that
the plaintiffs are enjoying the possession of
the suit land for more than three decades
without any hindrance. It is the case of the
plaintiffs that formal registered sale deed
could not be executed due to some legal and
technical obstacles for a long time in spite
of repeated requests being made to the
defendants and their predecessors by the
plaintiffs for getting NA permission.
However, assurance was given by the
defendants that ownership rights were already
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with the plaintiffs and therefore, there was
no need to worry in spite of the fact that
after the death of defendant nos. 1 and 2,
names of the legal heirs were mutated in
record of rights. It is, therefore, the case
of the plaintiffs that as per section 53A of
the Transfer of Property Act, 1882 only the
sale deed was required to be executed by the
defendants, and the plaintiffs were ready and
willing to pay 20% balance amount of sale
consideration.
10. It is the case of the plaintiffs that
when defendant no.3 published the notice in
the newspaper "Gujarat Samachar" Daily on
24.06.2017 for obtaining a title clearance
certificate, it came to their knowledge that
the defendants in defiance of the registered
agreement to sale dated 14.05.1984 executed
two registered sale deeds on 29.12.2010 in
favour of defendant no.3 - Amrutbhai
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Prabhudas Patel.
11. The plaintiffs, therefore, filed their
objection for issuance of title clearance on
27.06.2017 and 01.07.2017 by publishing a
public notice/clarification in newspaper
"Gujarat Samachar" daily describing their
ownership right over the suit land.
12. The plaintiffs thereafter filed Regular
Civil Suit No.1197/2017 before City Civil
Court, Ahmedabad on 28.07.2017 for
declaration that the plaintiffs be declared
as owners of the suit land and further prayed
to set aside the sale deed dated 29.12.2010.
It is also prayed that permanent injunction
be granted against the defendants and their
servants, agents restraining them from
transferring the ownership right of the suit
land in favour of any third party.
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13. Defendant no.3 - Amrutbhai Prabhubhai
Patel filed application Exh.48 under Order
VII Rule 11 of the Code for rejection of the
plaint on the ground of limitation as the
suit was filed on the basis of agreement to
sale dated 14.05.1984 in the year 2017 i.e.
almost after 30 years.
14. Learned City Civil Court, Ahmedabad by
Judgment and Order dated 22.03.2018 allowed
the application Exh. 48 under Order VII Rule
11 of the Code. It was observed by the
learned Judge that there is contradiction in
the averments made in the plaint and
registered agreement to sale at Mark 4/1
wherein it is stated that possession was not
handed over to the plaintiffs and only at the
time of execution of the sale deed,
possession was to be handed over. It was
further observed that entire document i.e.
agreement to sale at Mark-4/1 appears to be
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very suspicious as on the last page of the
same, many signatures appear to have been
erased and that the possession of the suit
land is claimed by the plaintiffs on the
basis of supplementary agreement for
possession which is executed on stamp paper
of Rs. 10/- on 09.05.1984.
15. Learned Judge has also referred to the
Court Commissioner's report wherein the
possession of the defendant no.3 was found at
the suit land. It was observed that even
otherwise the plaintiffs have challenged
registered sale deed dated 29.12.2010 in the
year 2017 and therefore, the suit is time
barred and beyond the period of limitation.
Learned Judge as a consequence dismissed the
suit. Being aggrieved, the appellants-
plaintiffs have preferred this appeal.
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Submissions of the appellants-plaintiffs:
16. Learned Senior Advocate Mr. Dhaval C.
Dave with learned advocate Mr. Jigar P. Raval
for the appellants-plaintiffs submitted that
judgement and order dated 22.03.2018 passed
by the learned Court in Regular Civil Suit
no. 1197 of 2017, whereby the learned Judge
has dismissed the suit preferred by the
appellants-plaintiffs while allowing the
application filed by the original defendant
no. 3 under Order VII Rule 11 of the Code, is
a non-speaking order. It was submitted that
the learned trial Court has held that the
suit is barred by the provisions of Section
34 of the Specific Relief Act, 1963 and
Section 63 of the Bombay Tenancy and
Agricultural Lands Act, 1948. However, no
reasons or grounds are provided by the
learned Trial Court for arriving at such
decision.
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17. Learned Senior Advocate Mr. Dave for the
appellants-plaintiffs submitted that the
defendants have in collusion with each other
defrauded the plaintiffs and after concealing
relevant facts have got registered the sale
deed in 2010 and had the entries entered in
the revenue record after a considerably long
time for which no notice was served up on the
plaintiffs. However, upon publication of
public notice for title clearance by the
defendants in 2017, the plaintiffs came to
know about the sale deed executed in the year
2010. It was therefore submitted that, the
limitation period starts only upon the
knowledge of publication of notice in 2017
and not from date of registration of
agreement to sale in 1984. It was therefore,
submitted that the learned trial court has
committed an error in rejecting the plaint
under order VII Rule 11 of the Code.
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18. It was submitted that no specific time
to perform the agreement was agreed between
the parties as the land was an agricultural
land and when the agreement to sale was
signed in 1984, NA Certificate was required
in order to get the registered sale deed and
to use the suit land for non-agricultural
purpose. It was submitted that the
predecessor of defendants signed the General
Power of Attorney in favour of the plaintiffs
on 14.05.1984 and also supplementary
agreement for possession was executed on the
same day in favour of the plaintiffs and as
such, the plaintiffs paid the 80% amount of
sale consideration as agreed and got peaceful
and actual possession by the supplementary
agreement and also got receipt thereof. It
was further submitted that the power of
attorney and other documents of possession,
etc. are supported with affidavit signed by
late Bhalabhai Dahyabhai in favour of the
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plaintiffs, whereby the plaintiffs were
absolute owner as per the provisions of the
Transfer of Property Act, 1882 and the
defendants have neither right to possession
nor right to transfer or assign the suit land
in any manner.
19. It was submitted that since 1984 i.e.
since registration of Agreement to Sale, the
appellants-plaintiffs were in possession of
the suit land and therefore, did not prefer
any litigation for execution of sale deed as
the respondents-defendants continued to give
oral assurances to the plaintiffs-appellants
that the sale deed would be executed soon on
receipt of NA order.
20. It was submitted that, the rights of the
plaintiffs-appellants or the reliefs as
claimed in the prayers of the plaint with
regards to declaration, possession, ownership
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etc. are nowhere related to any of the
clauses of Order VII Rule 11 of the Code and
the case of the plaintiffs-appellants could
not have been rejected under Order VII Rule
11 of the Code without going into the merits
of the matter and without appreciating
evidence which are subject of trial and
cannot be decided at the stage of considering
application under Order VII Rule 11 of the
Code.
21. It was submitted that section 34 of the
Specific Relief Act, 1963 would not bar the
suit as section 34 would only apply when the
plaintiffs-appellants would have claimed
specific performance of agreement to sale,
whereas in the facts of the case, section
53A of the Transfer of Property Act, 1882
would be applicable as the plaintiffs-
appellants were already in possession of the
suit land since 1984. It was submitted that,
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as per section 53A, where any person
contracts to transfer for consideration any
immoveable property by writing signed by him
or on his behalf from which the terms
necessary to constitute the transfer can be
ascertained with reasonable certainty, and
the transferee has in part performance of the
contract, taken possession of the property or
any part thereof, or the transferee, being
already in possession, continues in
possession in part performance of the
contract and has done some act in furtherance
of the contract, and the transferee has
performed or is willing to perform his part
of the contract, or, where there is an
instrument of transfer, but the transfer has
not been completed in the manner prescribed
by the law for the time being in force, the
transferor or any person claiming under him
shall be debarred from enforcing against the
transferee and persons claiming under him any
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right in respect of the property of which the
transferee has taken or continued in
possession, other than a right expressly
provided by the terms of the contract.
Therefore, the appellants-plaintiffs are
entitled to have decree for ownership as
prayed in the plaint.
22. Learned Senior Advocate Mr. Dave for the
appellants-plaintiffs in support of his
submissions placed reliance on the judgement
in case of Daliben Valjibhai and Others
Versus Prajapati Kodarbhai Kachrabhai and
Another reported in 2024 SCC OnLine SC 4105,
wherein the Hon'ble Apex Court has held that
while rejecting the plaint, when the question
arises whether the plaintiffs had the
knowledge of the execution of the sale deed,
it could not be expected that the plaintiffs
must have given meticulous details of the
fraud perpetuated in the plaint itself.
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However, the Hon'ble Court further held in
the facts of the said case that the findings
of the High Court are primarily factual and
the High Court while rejecting the plaint,
seems to have got carried away by the fact
that the suit was filed by the plaintiff 13
years after the execution of the sale deed.
It was further held that there was no
justification for the High Court in allowing
the application under Order VII Rule 11, on
issues that were not evident from the
averments in the plaint itself. The High
Court was also not justified in holding that
the limitation period commences from the date
of registration of the agreement of sale and
the judgment of the High Court was held to be
unsustainable. The Hon'ble Supreme court also
considered the decision in case of P.V. Guru
Raj Reddy v. P. Neeradha Reddy reported in
(2015) 8 SCC 331 wherein, Hon'ble Apex court
held that it is only if the averments in the
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plaint ex facie do not disclose a cause of
action or on a reading thereof, the suit
appears to be barred under any law, the
plaint can be rejected and in all other
situations, the claims will have to be
adjudicated during the course of the trial.
It was further held that the claim of the
plaintiffs with regard to the knowledge of
the essential facts giving rise to the cause
of action as pleaded in the plaint will have
to be accepted as correct at the stage of
consideration of the application under Order
VII Rule 11 of the Code,and the stand of the
defendants in the written statement would be
altogether irrelevant.
23. It was submitted that the Hon'ble Apex
Court in case of Daliben Valjibhai and Others
(supra) also dealt with the decision in case
of Chhotanben v. Kirtibhai Jalkrushnabhai
Thakkar reported in (2018) 6 SCC 422 wherein
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Hon'ble Apex Court held that when the
appellants-plaintiffs have asserted that the
suit was filed immediately after getting
knowledge about the fraudulent sale deed
executed by the defendants, by keeping them
in the dark about such execution, the issue
regarding the suit being barred by limitation
in the facts of the case, is a triable issue
and for which reason the plaint cannot be
rejected at the threshold in exercise of the
power under Order VII Rule 11(d) of the Code.
24. Reliance was also placed on the
judgment of Hon'ble Apex Court in case of
Urvashiben & Anr. V/S. Krishnakant Manuprasad
Trivedi reported in (2019) 13 SCC 372.
25. Reliance was placed on the judgment of
Apex Court in case of Sucha Singh Sodhi (D)
thr. L.Rs. Vs. Baldev Raj Walia and Ors.
reported in AIR 2018 SC 2241, to submit that
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as per Order II Rule 2 of the Code, every
suit shall include the whole of the claim
which the Plaintiff is entitled to make in
respect of the cause of action, but a
Plaintiff may relinquish any portion of his
claim in order to bring the suit within the
jurisdiction of any Court. It was therefore,
submitted in the facts of the present case
that the plaintiffs have relinquished his
claim with regards to the specific
performance of agreement to sale, which as
per learned Senior Advocate Mr. Dave can be
made in a subsequent suit or even in the
present suit by way of an amendment. It was
therefore, prayed that the impugned Judgement
and orders are liable to be set aside and
trial court may continue with the trial.
Submissions of the Respondents:
26. learned Senior Advocate Mr. Mehul Suresh
Shah with learned advocate Mr. Vishal C.
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Mehta for the respondents-defendants
submitted that the suit filed by appellants-
plaintiffs was filed after 33 years from the
execution of registered Agreement to sale
dated 14.05.1984 and therefore, the suit is
suffering from limitation and is hopelessly
time barred. It was submitted that nothing is
placed on record by the appellants-plaintiffs
to show reasonable grounds for delay from
1984 till 2017 when civil suit was filed. It
was submitted that the averments made in the
plaint are absolutely vague with regards to
what happened after 1984 till 2017 as no
documents or prima facie evidences are
produced on record or no specific averments
of dates have been mentioned by the
plaintiffs as to what notices were issued or
follow-ups have been made by the plaintiffs
after agreement to sale in 1984 or as to when
the defendants have given oral assurances. It
was further submitted that if it is assumed
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that appellants-plaintiffs made regular
requests to the defendants for execution of
sale deed, it becomes obvious that the
appellants were in knowledge of the alleged
breach of agreement to sale and therefore,
the period of limitation would start from the
date when the appellants first came to know
about the said alleged breach or when the
first request for execution sale deed was
made and therefore as per section 9 of the
Limitation Act, 1963 limitation period that
has once begun to run, cannot stop due to
subsequent disability or inability and legal
actions cannot be delayed indefinitely due to
obstacles.
27. It was submitted that the plaint does
not disclose any cause of action as the only
basis for declaration of title rights as
prayed by the appellants-plaintiffs in the
plaint is agreement to sale of 1984 coupled
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with the claim of having continuous
possession of the suit land, however, it is
an accepted principle that merely being party
to agreement to sale would not confer
ownership rights.
28. It was further submitted that the
plaintiffs have disputed the registered sale
deed of the defendants and have asked for
declaration and injunction. However, no
specific performance of agreement to sale is
prayed for the by the plaintiffs in the
plaint. It was submitted that section 34 of
the Specific Relief Act,1963 provides for
discretion of the Court as to declaration of
status or right of any person entitled to any
legal character, or to any right as to any
property, who may institute a suit against
any person denying, or interested to deny,
his title to such character or right, and the
Court may in its discretion make therein a
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declaration that he is so entitled, and the
plaintiffs need not in such suit ask for any
further relief. However, proviso to section
34 provides that no Court shall make any such
declaration where the plaintiffs, being able
to seek further relief than a mere
declaration of title, omits to do so.
Therefore, as per Section 34 of the Specific
Relief Act,1963 in the present case as the
plaintiffs, being able to seek further relief
than a mere declaration of title, has omitted
to do so, the suit was rightly dismissed
under Order VII Rule 11(d) of Code.
29. Reliance was placed on the decision of
Hon'ble Apex Court in case of Vasantha (Dead)
Thr. LR. V/s. Rajalakshmi @ Rajam thr. LRs in
Civil Appeal No. 3854 of 2014 wherein it is
held that the purpose behind the inclusion of
the proviso to section 34 was to prevent
multiplicity of the proceedings. It was
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further expounded that a mere declaratory
decree remains non-executable in most cases
and if suit does not pray for specific
performance/consequential relief, the suit
cannot be maintainable and therefore being
barred by law liable to be dismissed.
30. Reliance was also placed on the
decision of Hon'ble Apex Court in the case of
Umadevi v/s. Anand Kumar reported in 2025 (0)
AIJEL SC 75007, wherein order passed by the
Trial court rejecting plaint under Order VII
Rule 11 of the Code was upheld by the Apex
Court when no cause of action for filing suit
was disclosed by the plaintiffs in the plaint
as the plaintiffs failed to address the
crucial question of when they became aware of
the registered sale deeds of suit property
and whether if they had prior knowledge of
the sale deeds, they failed to specify the
exact date of such knowledge.
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31. Reliance was also placed upon the
decision of Apex Court in case of Shri Mukund
Bhavan Trust & Ors. v. Shrimant Chhatrapati
Udayan Raje Pratapsinh Maharaj Bhonsle & Anr.
reported in 2024 SCC OnLine SC 3844 to
substantiate the contention that the suit was
barred by limitation.
32. Learned Senior Advocate Mr. Shah
further contended that, as held by Apex Court
in case of Khatri Hotels Pvt. Ltd. vs. Union
of India reported in (2011) 9 SCC 12, the use
of the word 'first' between the words 'sue'
and 'accrues' in Article 58 of the Limitation
Act,163 would mean that if a suit is based on
multiple causes of action, the period of
limitation will begin to run from the date
when the right to sue first accrue. That is,
if there are successive violations of the
right, it would not give rise to a fresh
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cause action, and the suit will be liable to
be dismissed, if it is beyond the period of
limitation counted from the date when the
right to sue first accrued. It was therefore,
submitted that in the facts of the case,
first right to sue would arise after
completion to three years in 1987 from the
dated of agreement to sale dated 14.05.1984.
33. Reliance was also placed upon the
decision of Apex Court in case of Padhiyar
Prahladji Chenaji (Deceased) Through L.R.S
Versus Maniben Jagmalbhai (Deceased) Through
LRS reported in 2022 (0) AIJEL-SC 68485
wherein it was held that when the main
reliefs sought by the plaintiffs in the suit
were cancellation of the sale deed and
declaration, the prayer of permanent
injunction restraining defendant No.1 from
disturbing possession can be said to be a
consequential relief. Therefore, the title to
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the property was the basis of the relief of
possession, if that be so, the relief for
permanent injunction can be said to be a
consequential relief and not a substantive
relief. Therefore, once the plaintiffs have
failed to get any substantive relief of
cancellation of the sale deed and failed to
get any declaratory relief, relief of
injunction can be said to be a consequential
relief and therefore, the prayer for
permanent injunction must fail and the
plaintiffs cannot be said to be in lawful
possession of the suit land, i.e. the
possession of the plaintiffs would be "not
legal or authorised by the law", the
plaintiffs would not be entitled to any
relief of permanent injunction.
Analysis:
34. Heard the learned advocates for the
parties and perused the plaint and the
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documents annexed with the plaint. On perusal
of the plaint, following points for
determination are formulated for
consideration:
1) Whether the learned trial Judge has
erred in law in allowing the application
under Order VII Rule 11 of the Code without
assigning any reason for holding that the
suit is barred by the provisions of section
34 of the Specific Relief Act,1963 and
section 63 of the Bombay Tenancy and
Agricultural Lands Act, 1948?
2) Whether the plaintiffs can be said to have
knowledge only on publication of the public
notice by the defendants in the year 2017
about the sale deed executed in the year 2010
and limitation period would start only on
publication of notice in 2017?
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3) Whether the plaintiffs prove that full
amount as agreed was paid and peaceful actual
possession by the supplementary possession
agreement was handed over along with General
Power of Attorney dated 14.05.1984 as per the
affidavit of late Bhalabhai Dahyabhai in
favour of the plaintiffs?
4) Whether the provisions of section 53A of
the Transfer of Property Act, 1882 is
applicable in facts of the case and not
section 34 of the Specific Relief Act, 1963?
5) Whether agreement to sale is barred by
section 63 of the Bombay Tenancy and
Agricultural Lands Act, 1948 as no permission
was obtained for the purchase of agricultural
land by the plaintiffs who are non
agriculturists?
6) Whether there is any cause of action to
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file a suit in the year 2017 for declaration
and permanent injunction without prayer for
specific performance of the agreement to sale
dated 14.05.1984?
7) Whether the plaintiffs were entitled to
raise the claim of specific performance of
agreement to sale by way of amendment or not?
35. Considering the facts of the case which
are not in dispute between the parties, the
suit was filed after more than 33 years from
the execution of the agreement to sale dated
14.05.1984. Therefore, prima facie the suit
is barred by law of limitation being time
barred.
36. The contention raised on behalf of the
appellants-plaintiffs is that the claim of
the plaintiffs for specific performance of
the agreement to sale can be relinquished as
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the plaintiffs have also invoked the
provisions of section 53A of the Transfer of
Property Act, 1882 as there is part
performance of the contract of agreement to
sale and supplementary agreement for
possession entered into in the year 1984 and
only sale deed was to be executed. However,
the averments made in the plaint in this
respect are absolutely vague as nothing is
disclosed as to what happened between 1984
and 2017 and no documents are also placed on
record with the plaint in that regard.
37. There are no specific averments of any
date mentioned by the plaintiffs as to what
follow up actions had been taken after
execution of the agreement to sale in the
year 1984.
38. On perusal of the documents placed along
with the plaint, it also emerges that the
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averments made in the plaint regarding the
possession of the plaintiffs is also not
corroborated by any document.
39. It also appears that the averments
regarding oral assurance given by the
defendants are also only in the nature of
clever drafting as even if it is assumed that
the appellants-plaintiffs had made regular
requests to the defendants for execution of
the sale deed, it becomes obvious that the
appellants-plaintiffs were in knowledge of
alleged breach of agreement to sale in the
year 2010 and therefore, the period of
limitation would start when the plaintiffs
first came to know about the alleged breach
when they requested for execution of
agreement to sale.
40. On perusal of cause of action narrated
in the plaint, same does not disclose any
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cause as only basis for declaration of
ownership rights as prayed by the plaintiffs
in the plaint is agreement to sale of 1984
coupled with the assertion of having been in
continuous possession of the suit land.
However, it is a trite law that merely being
party to the agreement to sale would not
confer ownership rights upon the plaintiffs.
41. Provisions of section 34 of the Specific
Relief Act, 1963 provides for discretion of
the Court as to declaration of status or
right of any person entitled to any legal
character, or to any right as to any
property, who may institute a suit against
any person denying, or interested to deny,
his title to such character or right.
However, there is no prayer for specific
performance of the agreement to sale by the
plaintiffs in the plaint. In absence of such
prayer, as per proviso to section 34, no
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Court shall make any such declaration of
title of the plaintiffs and the plaintiffs
have failed to seek declaration of title and
in the facts of the case the plaintiffs have
failed to seek further relief except mere
declaration of title and therefore, the suit
was rightly dismissed under Order VII Rule
11(d) of the Code by the trial Court.
42. The Hon'ble Apex Court in case of
Vasantha (Dead) Thr. LR. V/s. Rajalakshmi @
Rajam thr. LRs (supra), has held that the
purpose behind the inclusion of the proviso
to section 34 was to prevent multiplicity of
proceedings and mere declaratory decree
remains non-executable in most cases if no
prayer is made for specific performance or
consequential relief and such suit is not
maintainable being barred by law.
43. The Hon'ble Apex Court in case of
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Umadevi v/s. Anand Kumar(supra), after
considering the decision in case of Suraj
Lamp Industries Pvt. Ltd v. State of Haryana
and another reported in (2012) 1 SCC 656 and
decision in case of Shri Mukund Bhavan Trust
and ors. v. Shrimant Chhatrapati Udayan Raje
Pratapsinh Maharaj Bhonsle & Anr. reported in
2024 0 SCC OnLine SC 3844 and decision in
case of Madanuri Sri Rama Chandra Murthy v.
Syed Jalal reported in (2017) 13 SCC 174 as
well as decision in case of Dahiben v.
Arvindbhai Kalyanji Bhanusali reported in
(2020) 7 SCC 366, has held that considering
the ratios of such decisions when the trial
Court has come to the conclusion that the
suit filed by the plaintiffs was a
meaningless litigation as it did not disclose
a proper cause of action and the suit would
be barred by limitation.
44. In the facts of the case also, no cause
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of action for filing the suit is disclosed by
the plaintiffs as the plaintiffs have failed
to address the crucial question as to when
they became aware of the registered sale deed
executed in the year 2010 of the suit land
and whether they had prior knowledge of the
sale deeds as the exact date of such
knowledge is not disclosed and only reliance
is placed on public notice issued in the year
2017 to bring the suit within the limitation.
45. The Hon'be Apex Court in case of Shri
Mukund Bhavan Trust & Ors. v. Shrimant
Chhatrapati Udayan Raje Pratapsinh Maharaj
Bhonsle & Anr.(supra) in facts of the said
case has held that the reliefs sought in the
suit were barred by limitation as per
Articles 58 and 59 of the Limitation Act,
1963 and upon meaningful reading of the
plaint, it was evident that the suit was
hopelessly barred by limitation. It was
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clarified by the Hon'ble Apex Court that
Article 58 provides a three year limitation
period from when right to sue first accrues
whereas Article 59 similarly prescribes three
years for cancellation or setting aside an
instrument. It was also held that as per
section 3 of the Transfer of Property Act,
1882 the registered documents provide
constructive notice and therefore, in the
facts of the present case, the sale deed
executed in the year 2010 has remained
unchallenged by the plaintiffs and therefore,
action of challenging the same in the year
2017 has become untenable due to lack of
timely action and failure to assert right
within the prescribed period.
46. The Hon'be Apex Court in case of
Padhiyar Prahladji Chenaji (Deceased) Through
L.R.S Versus Maniben Jagmalbhai (Deceased)
Through LRS(supra) has held as under:
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"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 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."
47. Applying the above ratio in facts of
the present case, title to the suit land was
made the basis of the relief of possession
and if that be so, in facts of the case,
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relief for permanent injunction can be said
to be consequential relief and not a
substantive relief. Therefore, prayers made
in the plaint cannot be granted regarding
permanent injunction as the main relief
sought by the plaintiffs in the suit were for
cancellation of the sale deed and declaration
of title and the title of ownership of the
plaintiffs qua the suit land would depend
upon the cancellation of the sale deed
executed in favour of the defendant no.3 and
therefore, the plaintiffs cannot be said to
be in lawful possession of the suit land as
the possession of the plaintiffs would not be
legal or authorised by law.
48. The provision of section 53A of the
Transfer of Property Act, 1882 would not be
applicable in the facts of the case as it
appears from the record that the plaintiffs
have sought protection of the possession of
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the suit land on the ground that possession
was handed over pursuant to the supplementary
agreement dated 14.05.1984 and therefore,
their continued possession deserves
protection. However, section 53A of the
Transfer of Property Act, 1882 does not
confer ownership or any enforceable title but
only protects the possession of a transferee
who has acted in part performance of the
contract.
49. It is by now well settled that the
provision of section 53A operates only as a
shield and not as a sword which can be used
as a defense to resist dispossession but
cannot be invoked as a basis to assert
ownership or to seek affirmative relief such
as specific performance or declaration of
title. The plaintiffs, therefore, cannot rely
upon section 53A in support of cause of
action for enforcement of any contractual
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right as per the settled legal position.
Reliance placed on behalf of plaintiffs on
section 53A of the Transfer of Property Act,
1882 to sustain the claim or protect the
possession is legally untenable once the
primary claim for specific performance is
barred by limitation, therefore, plea for
protection of possession under section 53A
would not be available.
50. Reliance placed by the learned advocate
for the plaintiffs on the decision of Hon'ble
Apex Court in case of Daliben Valjibhai and
Others Versus Prajapati Kodarbhai Kachrabhai
and Another (supra) would be of no help in
view of the findings of fact recorded by the
trial Court coupled with the averments made
in the plaint and the documents placed on
record in support of such averments, more
particularly in absence of date of actual
knowledge of the execution of the sale deed
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in 2010 not being disclosed by the plaintiffs
and only averments are made in respect of
acquiring the date of knowledge on
publication of notice in the year 2017 which
is nothing but clever drafting of the plaint.
51. In the present case, reading the plaint
as a whole and the proceedings on the basis
of averments made therein as correct, the
trial Court has rightly come to the
conclusion that suit is barred by limitation
considering the averments made in the plaint
which ex-facie do not disclose a cause of
action and reading thereof, the suit appears
to be barred under law of limitation.
52. Reliance placed on decision in case of
Urvashiben & Anr. V/S. Krishnakant Manuprasad
Trivedi(supra) is also not applicable in
facts of the case as Hon'ble Apex Court has
held that for deciding whether the plaint
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deserves to be rejected only averments stated
in the plaint have to be considered.
Referring to Article 54 of the Limitation
Act,1963, the Hon'ble Apex Court has held
that when the date is fixed for performance,
limitation is three years from such date. If
no such date is fixed, the period of three
years is to be computed from the date when
the plaintiff has notice of refusal. In the
facts of the present case merely because the
plaintiffs have made averments that he came
to know about execution of the sale deed of
2010 in the year 2017 in the plaint from the
date of publishing the public notice would
not be applicable as it is nothing but a
clever drafting in view of the averments made
in the agreement for sale executed on
14.05.1984 wherein it is stipulated that it
is for the plaintiffs to obtain the requisite
NA permission for transfer of land.
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53. It is also pertinent to note that
supplementary agreement for possession was
executed on 09.05.1984 whereas agreement for
sale was executed on 14.05.1984 and
thereafter no averments are made by the
plaintiffs of any efforts being made for
execution of the sale deed for more than
three decades.
54. Similarly, decision in case of Sucha
Singh Sodhi (D) thr. L.Rs. Vs. Baldev Raj
Walia and Ors.(supra) would also be not
applicable in the facts of the present case
as the issue of applicability of Order II
Rule 2 of the Code regarding the claim made
by the plaintiffs and right of plaintiffs to
relinquish any portion of the claim to bring
the suit within the jurisdiction of the Court
would not be applicable in absence of the
averments made in the plaint bringing the
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suit within the period of limitation.
55. The contention raised on behalf of the
plaintiffs that suit can be filed subject to
obtaining permission under section 63 of the
Bombay Tenancy and Agricultural Lands Act,
1948 is not required to be considered at this
stage in view of the fact that the suit is
barred by limitation.
Conclusion:
56. Having considered the pleadings,
documents and reliefs sought in the plaint,
we are of the opinion that the trial Court
has not committed any error as no cause of
action has been stated by the plaintiffs as
the suit is based on agreement to sale dated
14.05.1984 whereas the suit is filed in the
year 2017, therefore, the suit is time-barred
by limitation under Article 54 of the
Limitation Act as the right to seek specific
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performance accrued in the year 1984 when the
agreement was executed or at least in 2013 as
the sale deed in favour of the defendant was
executed in the year 2010.
57. As the sale deed executed in 2010 was a
registered public document, the plaintiffs
are deemed to have had the constructive
notice of the execution of such sale deed,
hence the trial Court has rightly not
considered the plea of lack of knowledge or
date of knowledge in the year 2017 when the
public notice for title clearance was
issued.
58. The cause of action as pleaded is in the
nature of clever drafting being artificial
and illusionary inasmuch as vague averments
are made and allowing such suit to proceed
would amount to permitting the abuse of the
judicial process. The trial Court has
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therefore, rightly rejected the plaint under
Order VII Rule 11 of the Code of Civil
Procedure, 1908. Appeal is accordingly
dismissed. No order as to cost. Civil
Application also stands disposed of
accordingly.
(BHARGAV D. KARIA, J)
(L. S. PIRZADA, J)
RAGHUNATH R NAIR
