Dismissed

Dilipkumar Himmatlal Shah v. Thakorbhai Nanabhai Patel

Gujarat HC22 Jan 2019SA/300/2017

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Gujarat dismissed the appeal, upholding the trial court's dismissal of a suit for perpetual injunction. The Court held that the plaintiff failed to satisfy the conditions of Section 53-A of the Transfer of Property Act due to lack of registered sale deed, absence of proof of full consideration payment, and failure to seek specific performance.

What did the court decide?

Notice discharged; Judgment and decree confirmed; Appeal dismissed.

Dilipkumar Himmatlal Shah Vs Thakorbhai Nanabhai Patel — Property and Title | Gujarat HC (2019)

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C/SA/300/2017 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SECOND APPEAL NO. 300 of 2017

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE B.N. KARIA

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========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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DILIPKUMAR HIMMATLAL SHAH

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Versus

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THAKORBHAI NANABHAI PATEL

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

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Appearance:

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MR SAVAN N PANDYA(5600) for the PETITIONER(s) No. 1 MR YASH H JOSHI(6495) for the PETITIONER(s) No. 1

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MR. MAULIK SONI FOR MR NK MAJMUDAR(430) for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA

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Date : 22/01/2019 ORAL JUDGMENT

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Admit.

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Learned Counsel Mr.Maulik Soni for learned Advocate

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Mr.N.K. Majmudar waives service of Notice of admission for the respondents.

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C/SA/300/2017 JUDGMENT

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As the issue involved in the present appeal appears to be very narrow as the prayer was made by the plaintiff in the suit to protect the possession on the basis of Agreement to Sell executed in 1972. The learned trial Judge as well as the learned First Appellate Court disbelieved the contention of the original plaintiff-appellant and dismissed the Suit as well as First Appeal preferred by the present appellant.

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With the consent of the learned Counsels appearing on behalf of the respective parties, this Appeal is taken up for final hearing.

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The appellant, who was the original plaintiff before the learned trial Court, has challenged the judgment and decree dated 30^th September, 2016 passed in Regular Civil Appeal No.43 of 1986 by the learned Principal District Judge, Vadodara confirming the judgment and decree dated 05^th May, 1984 passed in Regular Civil Suit No.972 of 1977 by the learned 3^rd Joint Civil Judge (J.D.) at Baroda.

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Short facts of the present case may be referred as under:

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6.1 That, the plaintiff filed the suit for perpetual injunction restraining the defendant from interfering with the possession and title of the plaintiff over the suit land being Revenue

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C/SA/300/2017 JUDGMENT

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Survey No.201 ad-measuring 26.8 Acre – 2.50.91 Hector situated at Mouje Kandkoi, Vadodara as well as restraining from dispossessing the plaintiff permanently.

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6.2 As per the averments made by the plaintiff, land bearing Revenue Survey No.201 ad-measuring 26.8 Acre (hereinafter referred to as “the suit land”) was originally belonged to the defendant. That, one decree was passed in favour of the mother of the plaintiff for an amount of Rs.4,000/- by the competent court and as such, the charge of that decree was put over the suit land by the mother of the plaintiff. That, entry in Village Form No.6 vide entry No.336 was made later on. That, mother of the plaintiff, namely Shardaben sold the suit land to the defendant on 17^th February, 1979, and thereafter, the defendant agreed to sell back the suit land along with other lands bearing Revenue Survey No.154 to the deceased Shardaben – mother of the plaintiff on such a consideration of Rs.4,000/- only. That, an agreement to sale was executed, which was also entered in the Revenue Record vide entry No.509 and name of the plaintiff was entered. Then a Banakhat containing sale consideration of Rs.10,000/- was executed in favour of the plaintiff and after giving a set of earlier payments and giving Rs.6,300/-, the plaintiff was required to pay rest of the amount of Rs.10,000/-, which was

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C/SA/300/2017 JUDGMENT

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also paid by the plaintiff to the defendant. As such, a new Agreement to Sell was executed for sale consideration of Rs.10,000/-, which was fully paid by the plaintiff to the defendant. The defendant was obliged to execute Sale Deed in favour of the plaintiff after receiving the consideration, but however, it was not executed. That, the possession of the suit land was handed over to the plaintiff by the defendant on 24^th May, 1975 with a title and since then plaintiff was in possession as settled owner and occupier. That, the defendant tried to impinged upon the possession of the plaintiff on 22^nd May 1977, and therefore, a Criminal Complaint No.1813 of 1977 was filed before the Judicial Magistrate, First Class, Vadodara, which was later on dismissed for want of prosecution. Thereafter, the defendant continued to interfere with the possession of the plaintiff on the suit land, and therefore, he was constrained to file the Regular Civil Suit No.972 of 1977 for permanent injunction simplicitor and claimed relief as stated in the plaint. That, on issuance of the summons by the Court, the defendant appeared before the trial Court and filed reply vide Exhibit 14 mainly denying all the facts of the plaintiff's case. It was contended that the plaintiff was not in a possession of the suit land on the date of filing of the suit, and therefore, he cannot legally file the suit

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C/SA/300/2017 JUDGMENT

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to claim the possession over the suit land. It was further contended that as per the averments made in Criminal Complaint No.1813 of 1977, the defendant has interfered with the possession of the plaintiff over the suit land and taken over it, which may be rightly or wrongly. But, on the date of the filing of the suit, the plaintiff was not in possession of the suit land; and therefore, the plaintiff cannot file the suit for injunction simplicitor. It was further contended that the mother of the plaintiff – Shardaben had executed a sale deed in favour of the defendant for consideration of Rs.4,000/- for the land bearing Revenue Survey No.201 and also handed over the possession of the suit land to the defendant and since then the defendant was in settled and having legal possession, which cannot be snatched away by filing a frivolous and vexatious suit. It was further contended that Revenue Entry No.448 in Village Form No.6 was also entered in respect of the suit land, which was wrongly cancelled by the concerned Mamlatdar and against which, RTS Appeal is pending before the Deputy Collector. As per the contention of the defendant, the suit land was owned and possessed by the defendant and plaintiff was never in possession of the suit land; and so, he has no locus standi to file the suit. The learned trial Court had framed the issues at Exhibit 17 and after recording the

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C/SA/300/2017 JUDGMENT

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evidence, was pleased to dismiss the suit by the judgment and decree dated 05^th May, 1984. That, being aggrieved by the said judgment and decree, the plaintiff preferred Regular Civil Appeal No.43 of 1986 before the Principal District Judge, Vadodara, which also came to be dismissed by judgment and decree dated 30^th September, 2016.

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Heard learned Counsel Mr.Savan N. Pandya for the appellant – plaintiff and learned Counsel Mr.Maulik Soni for Mr.N.K.Majmudar for the respondent – defendant.

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It was vehemently argued by the learned Counsel for the appellant – plaintiff that the judgment and decree passed against the present appellant is contrary to law and evidence as both the trial Courts have not considered the documentary evidence and the recital made in the Banakhat produced vide Exhibit 93. It was further contended that oral evidence led by the plaintiff-appellant and Revenue Records was not properly considered by the trial Courts. That, interpretation of Section 53-A of the Transfer of Property Act was not considered by the trial Courts in a proper way. That, sufficient evidence was produced by the plaintiff of making payment of full consideration to the original defendant. However, promissory note for making payment of amount of Rs.10,000/- was

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C/SA/300/2017 JUDGMENT

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produced on record as well as the possession of the suit land was handed over to the plaintiff, both the trial Courts have committed grave error in not considering the promissory note showing of making payment of Rs.10,000/- to the defendant and handing over the possession of the suit land to the plaintiff. That, the observations of the trial Courts of making specific prayer of specific performance and not granting injunction was erroneous. That, possession of the suit land was clearly established by the plaintiff. It was requested by the learned Counsel for the appellant/plaintiff to quash and set aside the judgment and decree passed by the courts below by allowing this appeal.

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From the other-side, learned Counsel for the respondent submitted that the judgment and decree passed against the present plaintiff is quite legal and proper and no error was committed by the learned trial Courts in dismissing the suit as well as First Appeal. That, there was no legal possession with the plaintiff at the time of filing of the suit. That, plaintiff had no right over the suit land without any title or execution of sale deed in favour of the plaintiff. That, trial Court as well as the Appellate Court both have examined the provisions of law as well as factual aspects properly and validity and crux of such examination being judgment and decree was passed

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C/SA/300/2017 JUDGMENT

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against the present plaintiff. It was further submitted that the plaintiff was clearly failed to observe all the conditions of Section 53 of the Transfer of Property Act; and therefore, he is not entitled to protect his so-called possession over the suit land. That, the defendant was the owner and was in possession of the suit land. That, the registered sale deed of the suit land was executed by the mother of the plaintiff in favour of the defendant; and therefore, the possession was lying with the defendant. It was further submitted that the plaintiff was never in possession of the suit land. That, no relief for specific performance was sought by the plaintiff. That, only relief of perpetual injunction restraining the defendant from interfering the possession could not be granted by the Court and both the Courts have rightly discussed this fact. That, the plaintiff had no title over the suit property or possession. Both the trial Courts have rightly dismissed the Suit as well as First Appeal preferred by the present appellant. It was requested by him to dismiss the present appeal having no substance.

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Having considered the facts of the case; the submissions made by the learned Counsels for the respective parties and perused the record produced. The appellant has suggested of framing certain questions of law to decide the present appeal.

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Page 8 of 14

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C/SA/300/2017 JUDGMENT

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From the records produced by the appellant before the trial Court as well as the arguments advanced by the learned Counsels of the respective parties, this Court is of the view that there is no substance to consider the prayer made by the appellant to interfere with the judgment and decree passed by the learned trial Courts for the following reasons: -

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11.1 As per the Judgment reported in AIR 2015 SCC (SUPP.) 1303 (Gujarat Maritime Board V/s. G.C.Pandya, no substantial questions of law would require to be framed in this appeal, as no substance is found in the appeal, as it was pending since 2017 at the admission stage.

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11.2 It appears from the records and the averments made by the plaintiff that the suit of the plaintiff was based on Agreement to Sell produced vide Exhibit 93. As per the averments made by the plaintiff, this document was executed in favour of the plaintiff by the forefather of the defendant; and later on, after receiving the entire amount of consideration, the possession of the suit land was handed over to him. It is undisputedly admitted fact that registered sale deed of the suit land after execution of the agreement Exhibit 93 was never executed by the defendant and no steps were taken by the plaintiff to execute the sale deed in his favour. It

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C/SA/300/2017 JUDGMENT

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is the case of the plaintiff that possession of the suit land was handed over to the plaintiff and he was in occupation as well as in possession of the suit land like owner of it, after receipt of the entire sale consideration of Rs.10,000/-. He was in settled and legal possession of the suit land and defendant has no right or locus standi to disturb the possession of the plaintiff.

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11.3 It appears that before the trial Court Shardaben – mother of the plaintiff was examined and she supported the case of the plaintiff in her chief examination. If we refer the cross examination of this witness, she has admitted that she does not know anything about the transactions and execution of the Banakhat Exhibit 93 and whether possession of the suit land was handed over in pursuance of the execution of Banakhat (Exhibit 93) or otherwise. It has also come on record from her deposition that, her husband was doing small business of money lending and he used to lend money to different needy persons in the name of plaintiff or Shardaben and got executed various kinds of documents. Prior to execution of document Exhibit 93, sale deed was executed by Shardaben in favour of forefather of the defendant which was produced vide Exhibit 102 in respect of the suit land. It is pertinent to note that the mother of the plaintiff was silent in

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Page 10 of 14

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C/SA/300/2017 JUDGMENT

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respect of the previous sale deed executed by her in favour of the forefather of the defendant produced vide Exhibit 102. Learned First Appellate Court has referred Section 53-A of the Transfer of Property Act, which is reproduced as under: -

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“[ 53A. Part performance.- Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainly.

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and the transferee has, in part performance of the contract, taken possession of the property or nay 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,

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and the transferee has performed or is willing to perfom his part of the contract,

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then, notwithstanding that (***) where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore 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 has taken or continued any 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:

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Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.]”

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The crux of Section 53-A of the Transfer of Property Act is reproduced as under: -

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“(1) Contract in writing for transfer for consideration; (2) transferee taken possession or continues in possession; (3) transferee done some act in furtherance of contract; and (4) transferee has performed or willing to perform his part of contract.”

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If a person who claim the protection under Section 53, the conditions imposed under the Section was required to be

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C/SA/300/2017 JUDGMENT

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fulfilled by a person. Here also, the plaintiff was claiming the possession of the suit property and to protect the possession from the defendant on the basis of alleged Agreement to Sell Exhibit 93. Undisputedly, the document was never registered under the Registration Act and the time period of calling of relief of specific performance was also expired. It also appears that however the document Exhibit 93 was produced, no evidence was led by the plaintiff to consider the payment of consideration as averred by the plaintiff. The document Exhibit 93 itself would never prove that full consideration was paid by the plaintiff to the defendant. Shardaben – mother of the plaintiff examined before the trial Court was never in a position to prove that sale consideration was paid to the defendant. There was no source of income which would discern that at the time of execution of the document Exhibit 93, the plaintiff was financially sound to make the payment as agreed. While executing the document Exhibit 93, the plaintiff was a minor. From the Criminal Case filed by the plaintiff, it appears that the plaintiff was not continued with the possession of the suit land at the time of filing of the suit. It is pertinent to note that no prayer for specific performance was made by the plaintiff in the suit. Only simple relief of protection of the possession was sought by the plaintiff in the

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C/SA/300/2017 JUDGMENT

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suit. If we consider the document at Exhibit 102, which is a registered sale deed executed by Shardaben – mother of the plaintiff in favour of the forefather of the defendant in respect of the suit land. If we consider the contents of this document, it transpires that the defendant was in possession of the suit land with title. It also appears that during the proceedings of the suit, Court Commissioner was appointed to draw the Panchnama of the suit land, and accordingly, Panchnama was prepared, which discerns that the defendant was in legal and settled possession of the suit land as the land was cultivated and crops were collected from the suit land.

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That, from the documents as well as oral evidence, it appears that defendant was found in legal and settled possession of the suit land at the time of filing of the suit. Hence, from the evidence and reasons arrived at by both the courts below, this Court would not like to interfere with the findings arrived at by both the Courts below. There is no substance in the present appeal, which clearly require dismissal of the present appeal. Accordingly, present appeal is ordered to be dismissed.

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The judgment and decree dated 30^th September, 2016 passed in Regular Civil Appeal No.43 of 1986 by the learned

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C/SA/300/2017 JUDGMENT

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Principal District Judge, Vadodara confirming the judgment and decree dated 05^th May, 1984 passed in Regular Civil Suit No.972 of 1977 by the learned 3^rd Joint Civil Judge (J.D.) at Baroda are hereby confirmed.

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15. Notice is discharged.

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(B.N. KARIA, J)

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RAVI PATEL

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Dilipkumar Himmatlal Shah v. Thakorbhai Nanabhai Patel

Case brief

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Dilipkumar Himmatlal Shah v. Thakorbhai Nanabhai Patel

Case brief

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