Gujarat High Court
Savitaben Wd/O Somabhai Hathibhai ... vs Virendra Ramchandra Gandhi on 6 May, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 79 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/APPEAL FROM ORDER NO. 79 of 2021
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2021
In R/APPEAL FROM ORDER NO. 79 of 2021
With
R/CIVIL REVISION APPLICATION NO. 173 of 2021
With
R/CIVIL REVISION APPLICATION NO. 172 of 2021
With
R/CIVIL REVISION APPLICATION NO. 169 of 2021
With
R/CIVIL REVISION APPLICATION NO. 170 of 2021
With
R/APPEAL FROM ORDER NO. 76 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/APPEAL FROM ORDER NO. 76 of 2021
With
R/APPEAL FROM ORDER NO. 72 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/APPEAL FROM ORDER NO. 72 of 2021
With
R/APPEAL FROM ORDER NO. 74 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/APPEAL FROM ORDER NO. 74 of 2021
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2021
In R/APPEAL FROM ORDER NO. 74 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
Page 1 of 58
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4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
SAVITABEN WD/O SOMABHAI HATHIBHAI PATEL
Versus
VIRENDRA RAMCHANDRA GANDHI
==========================================================
Appearance:
MR. Y.N.RAVANI, ADVOCATE WITH A A DAUDIVHORA(7516) for the
Appellant(s) No. 1,2,3,4
MR. MIHIR THAKOR, SR. ADVOCATE WITH MR ASHISH H SHAH(2142) for
the Respondent(s) No. 1,2,3
MR. RAJAN J PATEL(6775) for the Respondent(s) No. 4,5,6,7,8,9
==========================================================
CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 06/05/2022
CAV JUDGMENT
1. This group of Appeal from Orders and Civil Revision Applications have been arisen from the Order passed below Exh-5 and Exh-23 & Exh-26 in the Special Civil Suit No. 225 of 2020 and Special Civil Suit No. 226 of 2020 by the learned 5th Additional Senior Civil Judge, Ahmedabad (Rural) whereby the applications preferred by the plaintiff for interim injunction came to be allowed and applications filed by the appellants for rejection of Plaint came to be dismissed.
1.1 The Appeal from Order No. 72 of 2021 is preferred by defendant Nos. 5 to 10 and Appeal from Order No. 79 of 2021 is preferred by defendant Nos. 1 to 4 against the order below Exh-5 in Special Civil Suit No. 225 of 2020 whereas, Appeal from Order No. 74 of 2021 is preferred by Page 2 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 defendant Nos. 5 to 10 and Appeal from Order No. 76 of 2020 is preferred by defendant Nos. 1 to 4 against the order passed below Exh-5 in Special Civil Suit No. 226 of 2020.
1.2 The Civil Revision Application No. 169 of 2021 is preferred by defendant Nos. 1 to 4 against order below Exh-26 and Civil Revision Application No. 172 of 2021 is preferred by original defendant Nos. 5 to 10 against the order below Exh-23 in Special Civil Suit No. 225 of 2020 whereas Civil Revision Application No. 170 of 2021 is preferred by defendant Nos. 1 to 4 against order below Exh-26 and Civil Revision Application No. 173 of 2021 is preferred by the original defendant Nos. 5 to 10 against order below Exh-23 passed in Special Civil Suit No. 226 of 2020.
1.3 The facts of the Appeal from Order 79 of 2021 has been taken as a lead matter for the purpose of disposal of all the Appeal from Orders and Civil Revision Applications. The Appellants are original defendants No. 1 to 4 whereas respondent Nos. 1 to 3 are the original plaintiffs and respondent Nos. 4 to 9 are the original defendant Nos. 5 to 10 before the trial Court.
2. Respondents Nos. 1 to 3, who are the original plaintiffs had preferred Civil Suit No. 225 of 2020 claiming and seeking declaration that the land bearing Survey No. 124/2/1 (New Survey No. 124/5) admeasuring 2327 sq. Mtrs of agricultural land situated at village: Gota, Taluka: Daskroi, Page 3 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 District and Sub-District: Ahmedabad, which was belonging to one Somabhai Hathibhai Patel, has become the land of the ownership of the plaintiff in view of the registered Will dated 16.4.2004 of Somabhai Hathibhai Patel. Alternatively, it is claimed by the plaintiff that for the land in question, an agreement to sell dated 18.3.1995 was executed by the deceased Somabhai Hathibhai Patel, which may be specifically performed and for that purpose, Plaintiff has sought for relief of specific performance and has also sought for declaration that by revenue entry No. 8010, the claim of ownership of original defendant Nos. 5 to 10 may not be granted and may not be permitted to develop and they may not be declared as owners of the land. Along with the plaint, the plaintiff has also filed an application for interim injunction vide Exh-5, which came to be allowed by the trial Court.
3. In the aforesaid suit, the present Appellants i.e. defendant Nos. 1 to 4 preferred application under Order 7 Rule 11 of the Civil Procedure Code vide Exh-26 and defendant nos. 5 to 10 have also preferred an application below Exh-23 under Order 7 Rule 11 of the Civil Procedure Code by common order dated 10.3.2021. The trial Court has rejected both these application. Being aggrieved by the said order, the defendant Nos. 1 to 4 have preferred Civil Revision Application No. 169/2021 and defendant Nos. 5 to 10 have preferred Civil Revision Application No. 170/2021.
4. Heard Mr. Y.N. Ravani, learned advocate with Mr. Page 4 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 Daudhivhora, learned advocate for the appellants, learned advocate Mr. Ranjan Patel for respondent Nos. 4, 8 and 9 and Mr. Mihir Thakor, learned Senior Counsel with Mr. Ashish Shah, learned advocate for respondent Nos. 1, 2 and 3 at length. Perused the material and decisions cited at bar.
5. Mr. Ravani, learned advocate for the appellant has made the following submissions:
1. That the trial Court failed to appreciate the provisions of Order 39 Rule 1 & 2 as well as the principles settled by High Courts and the Apex Court while passing impugned order and has wrongly exercised jurisdiction vested in it.
2. That the trial Court has failed to appreciate the fact that the suit property is prohibited land under the provisions of the Gujarat Tenancy Act. Therefore, the agreement to sell in question dated 18.3.1995 itself is void. That the respondent Nos. 1 to 3 are well aware about this relevant fact and, therefore, injunction cannot be granted on the void contract.
3. That the agreement to sell is absolutely barred by law of limitation as it is dated 18.3.1995 and the respondent Nos.1 to 3 have instituted the Suit for specific performance of agreement to sell in the year 2020.Page 5 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022
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4. That the trial Court has failed to consider the fact that the plaintiffs are not ready and willing to execute the registered sale deed in presence of the deceased Somabhai Hathidas, who has expired on 9.5.2010. That the plaintiffs failed to provide reasonable justification for delay of more than 24 years.
5. That the trial Court failed to consider the fact that the appellants are jointly holding, enjoying ownership and possession and title rights upon the suit property without any kind of interruption thereto and at no point of time, the possession of the suit property was handed over to the plaintiff - respondent Nos. 1 to 3. That the contention about handing over the possession, as alleged by the plaintiffs, is false.
6. That the trial Court has not properly considered the documents produced i.e. Kabjaa- Karaar dated 18.6.1995. That there are many blanks in the said Kabjaa-Karaar, which reveals that it is nothing but after-thought document. The said Kabja-Karaar is also barred by Section 49 read with Sectin17 of the Registration Act, 1908.
7. That the trial Court ought to have considered the provisions of Section 43 of the Gujarat Tenancy act, which clearly prohibits occupation of land without prior permission of the authority.
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8. That the trial Court failed to appreciate the documents produced by the appellants with reply in MoU dated 16.12.1986, which is before the execution of the agreement to sell dated 18.3.1995 in question. The said MoU is between the fore-father of the original defendants deceased Somabhai Hathidas and deceased Ambalal Hathidas in the land situated in Mouje Jagatpur as well as Mouje Gota having different Survey Numbers including the Suit property which are co-owned property being an ancestral property as well as property derived out of income of the ancestral property. Therefore, both the brothers are equally entitled in the said property, including the Suit property.
9. That the trial Court has failed to consider that there is no any kind of contract between present appellants nor with respondent Nos. 4 to 5 and injunction cannot be granted only on the basis of the agreement.
10. That the trail Court has failed to consider the conduct of the plaintiffs who have ill-intention since beginning. That the temporary injunction is being a equitable relief, ought not to have been granted to the plaintiffs, who himself was at fault.
11. That the alternative claim of the Plaintiffs of the ownership on the basis of the Will executed by Somabhai Patel is also not properly considered by the Page 7 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 trial Court. That no probate proceedings is taken about the alleged Will dated 16.4.2004 of Somabhai Hathidas Patel after his passing away on 9.5.2010. Therefore, in absence of probate, any claim based on that alleged Will before the Civil Court is bad under the provisions of law.
12. That alternatively even aspect of seeking declaration of ownership on the basis of Will is also barred by limitation. Any prayer, for declaration of ownership is required to be made within prescribed period of limitation and Somabhai Patel had passed away on 9.5.2010 whereas Suit is filed in the year 2020.
13. That the trial Court has failed to consider the fact that the agreement to sell dated 18.3.1995 is void as per various provisions of Indian Contract Act read with Transfer of Property Act and, therefore, specific relief cannot be granted in respect to the said alleged agreement to sell.
14. That the trial Court failed to consider important three ingredients of granting temporary injunction and has made serious error in dismissing the applications filed under Order 7 Rule 11 of CPC.
6. Mr. Ranjan Patel, learned advocate for defendant Nos. 5 to 10 has adopted the submissions of Mr. Ravani and has further stated that all the defendants are legal heirs of two Page 8 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 brothers. He has also submitted that many other lands are also equally transferred to the defendant Nos. 1 to 4. He has also submitted that in all properties of two brothers, names of all the heirs are mutated vide Mutation Entry No. 8010. He has also submitted that there is no privity of contract with the plaintiffs by the defendant Nos. 5 to 10. He has submitted that there is another MoU alleged to be executed by Somabhai dated 18.12.1986. He has further submitted that there is also deed executed between the two brothers. He has submitted to allow the present Appeal from Orders as well as Civil Revision Applications filed by the defendants.
7. Mr. Mihir Thakor, learned Senior Counsel assisted by Mr. Ashish Shah, learned advocate for the respondent Nos. 1 to 3 has made the following submissions, regarding Civil Revision Applications:
1. The relief sought for by the plaintiffs in the Suit is regarding declaration of ownership as well as for cancellation of deed. He has also submitted that the cause of action are joint cause of action and it is not barred under Order 2 Rule 3 of CPC.
2. That the suit is for declaration of ownership and Will is only basis.
3. That when anybody challenges the title of any person, such person can file a Suit from the date of such Page 9 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 challenge to his right over the property. That the point of limitation starts only when title is challenged.
4. That the declaration is right in personam.
5. That revenue entry was mutated in the name of defendant Nos. 5 to 10 on 16.7.2019 thereby they have challenged the right of the plaintiffs against the property and, therefore, in view of Article 58 right accrued for the plaintiff to challenged the same.
6. Alternative relief has been sought in the plaint. Each and every relief is distinct and on such consideration, suit is within period of limitation.
7. That the suit cannot be rejected under Order 7 Rule 11 only on the basis of one relief in case there are more than one relief sought for.
8. That the plaintiff is not challenging the mutation entry. Section 135(L) and (J) of the Land Revenue Code will not be applicable in the factual situation of this case.
9. The cause of action against defendant Nos. 5 to 10 arise only on the basis of the revenue entry and, therefore, permanent injunction is sought for against them.
10. The provision of Order 2 Rule 4 is not applicable in the Page 10 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 facts of the present case as it is not a Suit for recovery of immovable property.
11. That under Order 7 Rule 11, which pertains to rejection of Plaint, mis-joinder of causes of action is not a ground for rejection of the Plaint. Prayer B, C and D are not under the Tenancy Act and prayer in Clause A, B, C and D are not barred under any Law.
12. That the object of the probate is to prove the Will and it is an action in rem. There is no need to prove Will by Probate in Gujarat in view of provisions of Section 57A and B ready with Section 217 of the Indian Succession Act.
13. That the agreement to sell was executed in the year 1983 and all the conditions enumerated there in, needs to be read together and there is no inconsistency in the said agreement so sell. That as per Clause 18 only on conversion of the new land tenure to old tenure land, time will start running of 3 months as enumerated in earlier condition, showing the period of agreement of 3 months.
14. That condition No.18 does not speak about right to terminate. That the land is yet not converted into new land to old tenure land and, therefore, there is no question of agreement to sell being came to an end due to afflux of time.Page 11 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022
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15. That full consideration was paid.
16. The Power of Attorney given by deceased Somabhai Patel in favour of Ramchandra Gandhi and other are for the purpose of getting conversion of land. That the supplementary agreement as to handing over of the possession was also made.
17. That there are signatures of defendants on various documents. That there is agreement by defendant Nos. 1 to 4 which is registered in favour of wife of the plaintiff.
18. That the possession of the land is with plaintiff.
19. Section 43 of the Tenancy Act does not make the agreement void ab-initio and it is the only way to be declared invalid. Even Section 54 of the Transfer of Property Act, has no application to agreement to sell has agreement to sell does not create title or authority over the property.
20. The invalidity is to be declared by Section 84(C) of the Tenancy Act by the competent authority. That the agreement to sell can never be invalid, only sale can be declared as invalid.
21. That the Specific Performance can be ordered even if Page 12 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 there is barred under Section 63 of the Tenancy Act. That the conditional decree for specific performance can be granted.
22. That the judgment cited by other side are no factually applicable to the present case.
23. That the trial Court has properly granted interim injunction in favour of the plaintiff and has rightly rejected the application filed by the defendant under Order 7 Rule 11. Both orders may be confirmed.
Learned Senior Counsel has also relied upon certain decisions which will be referred to hereinbelow.
8. In rejoinder, Mr. Ravani, learned advocate for the appellants-defendants has submitted the following points:
1. All the reliefs clauses in the Plaint are not independent and are inter-connected. Therefore, the suit is time barred.
2. The illusive cause of action is shown and no legal cause of action exist. If A cannot be granted consequential reliefs B, C and D cannot be granted. All the three reliefs in Clauses B, C and D are consequential reliefs depending upon relief Clause A. That Clause A is not available to the plaintiff.Page 13 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022
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3. That the revenue entry could not be the basis for cause of action.
4. The provisions of Section 43, 63 of the Bombay Tenancy Act are applicable and, therefore, the transaction is hit by the said Act and, therefore, the alleged agreement to sell is not enforceable.
5. That the entire plaint is liable to be dismissed. The Court should not exercise discretion in case of illegality.
6. There is no findings of the trial Court regarding Section 43 of the Tenancy Act. No title is vested in the Plaintiff before any authority.
7. That Article 113 of the Limitation Act will be applicable. Power of Attorney was granted in June, 1995 and, therefore, limitation will start from that date. Articles 54 and 58 of the Limitation Act are not applicable.
8. That the judgment relied upon by the other side are not applicable to the facts of the present case.
9. Mr. Ravani, learned advocate has relied upon the following cases:
1. In the case of Kishoresinh Ratansinh v. Maruti Page 14 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 Corporation & Ors, reported in AIR 2009 SC 2882, wherein it is observed in Para-22 as under:
"22. It is well established, that while passing an interim order of injunction under Order XXXIX Rules 1 and 2 CPC, the Court is required to consider three basic principles, namely,
(i) prima facie case;
(ii) balance of convenience and inconvenience; and
(iii) irreparable loss and injury.
2. In the case of M/s Gujarat Bottling Co. Ltd v. Coca Cola Company & Ors, reported in AIR 1995 SC 2372, wherein Para 50 reads as under:
"50. In this context, it would be relevant to mention that in the instant case GBCX had approached the High Court for the injuction order, granted earlier, to be vacanted. Under order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injuction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relkief is sholly equitable in nature, the party invoking the jurisdictionb of the court has tro show that he himselff was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the partyh against whom he was seeking Page 15 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injuction under order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vocating the ad- interim or temporary injuction order already granted in the pending suit or proceedings.
3. In the case of Arvindbhai D. Patel & Anr. v. Krishnakant J. Shah, reported in AIR 2007 Gujarat 104 wherein in Para-15, it is observed as under:
"15) Even otherwise, when, prima facie, it is found that the plaintiff has interpolated the document, no discretionary relief can be granted in favour of such a plaintiff. While granting injunction under Order 39 of Civil Procedure Code, the Court is required to see the conduct of the parties and the plaintiff, who is found to have committed forgery as well as purgery, cannot get any assistance from the Court in the matter of getting discretionary order. Not only that the trial Court has found that the plaintiff has tempered with the document and even though the agreement was in connection with development of Survey No.384 only, subsequently, certain other survey numbers were added by the plaintiff fraudulently. In my view, when the trial Court has found, prima facie, that the plaintiff has committed forgery, the trial Court should have rejected the injunction application in toto instead of granting status-quo in connection with Survey No.384. As per the say of the plaintiff, for putting an end to the so-called development agreement, defendants had agreed to pay Rs.90 Lacs for which a cheque was given, however, the defendant has denied Page 16 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 issuance of any such cheque. If the defendant had issued any cheque and if it had bounced, after giving notice the plaintiff has not taken any steps to file criminal proceedings in connection with bouncing of cheque.
4. In the case of Best Sellers Retail (India) Pvt. Ltd. v.
Aditya Birla Nuvo Ltd., reported in AIR SC 2012 2448, the said decision pertains to governing the granting of injunction under Order 39 Rule 2 of CPC.
5. In the case of Ambalal Sarabhai Enterprise Limited v.
KS Infra Space LLP, reported in AIR 2020 SC 307, wherein Paras 19, 22 and 23 read as under:
"19. In a matter concerning grant of injunction, apart from the existence of a prima facie case, balance of convenience, irreparable injury, the conduct of the party seeking the equitable relief of injunction is also very essential to be considered as observed in Motilal Jain (supra) holding as follows :
"6. The first ground which the High Court took note of is the delay in filing the suit. It may be apt to bear in mind the following aspects of delay which are relevant in a case of specific performance of contract for sale of immovable property:
(i) delay running beyond the period prescribed under the Limitation Act;
(ii) delay in cases where though the suit is within the period of limitation, yet:Page 17 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022
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(a) due to delay the third parties have acquired rights in the subject-matter of the suit;
(b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief."
"22. ........The court has to ascertain whether there exists an element of mutuality in the contract. If there is absence of mutuality the court will not exercise discretion in favour of the plaintiffs. Even if, want of mutuality is regarded as discretionary and not as an absolute bar to specific performance, the court has to consider the entire conduct of the parties in relation to the subject-matter and in case of any disqualifying circumstances the court will not grant the relief prayed for".
"23. 23. Wander Ltd. (supra) prescribes a rule of prudence only. Much will depend on the facts of a case. It fell for consideration again in Gujarat Bottling Co. Ltd. vs. Coca Cola Co., (1995) 5 SCC 545, observing as follows :
"47....Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for Page 18 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest...."
6. In the case of Jehal Tanti v. Nageshwar Singh, reported in AIR 2013 SC 2235,wherein it is observed in Para-13 as under:
"13. We may also notice Section 23 of the Indian Contract Act, 1872, which lays down that the consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is unlawful and every agreement executed with such an object or consideration which is unlawful is void.
7. In the case of Radha Sundar Dutta v. Mohd. Jahadur Rahim & Ors, reported in AIR 1959 SC 24, wherein it is observed that, " if there is conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa.
8. In the case of Sahezada Mohammad Kamgarh Shah v.
Page 19 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 Jagdish Chandra Deo & Ors, reported in AIR 1960 SC 953, the Para-13 reads as under: (To be relied during discussion) "13. The correctness of these principles is too well established by authorities to justify any detailed discussion. The task being to ascertain the intention of the parties, the cases have laid down that that intention has to be gathered by the words used by the parties themselves. In doing so the parties must be presumed to have used the words in their strict grammatical sense. If and when the parties have first expressed themselves in one way and then go on saying something, which is irreconcilable with what has gone before, the courts have evolved the principle on the theory that what once had been granted cannot next be taken away, that the clear disposition by an earlier clause will not be allowed to be out down by later clause. Where there is ambiguity it is the duty of the Court to look at all the parts of the document to ascertain what was really intended by the parties. But even here the rule has to be borne in mind that the document being the grantor's document it has to be interpreted strictly against him and in favour of the grantee".
9. In the case of N.V. Srinivasa Murthy v. Mariyamma, reported in (2005) 5 SCC 548, the fact was that foundation of the Suit was based on the registered sale-deed dated 5.5.1953 which was, in fact, only a loan transaction executed to secure the amount borrowed by the plaintiff purchaser. The plaintiff, without asking for declaration that the registered sale Page 20 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 deed dated 5.5.1953 was a loan transaction and was not a real sale, only sought for declaration that absolute owners of the land and for the permanent injunction restraining defendant from wrongfully entering scheduled property. In view of these facts, the suit of the plaintiff came to be rejected under Order 7 Rule 11 and the order of the trial Court and the High Court was confirmed by Supreme Court by imposing costs upon the plaintiff.
10. In the case of Bhogidhola Tea v. Hiralal, reported in 2008 (1) GLH 735, wherein considering the matrix, it was observed that if the suit is barred by law, the Court has no jurisdiction to pass a decree and, therefore, the Court has to consider the provision of Order 7 Rule 11 in such case.
11. In case of Kachhi Properties v. Ganpatrao Shankarao, reported in AIR BOM 2010 0 353, the learned advocate has also relied upon the following decisions under Order 39 Rule 11.
12. In the case of Smt. Narayanamma v. Govindappa, reported in AIR 2019 SUPREME COURT 4654, where Para-20 reads as under:
"20. It could thus be seen that, although illegality is not pleaded by the defendant nor is relied upon by him by way of defence, yet the court itself, upon the illegality appearing upon the evidence, will take notice of it, and Page 21 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 will dismiss the action ex turpi causa non oritur actio. It has been held, that no polluted hand shall touch the pure fountain of justice. It has further been held, that where parties are concerned in illegal agreements or other transactions, courts of equity following the rule of law as to participators in common crime will not interpose to grant any relief, acting upon the maxim in pari delicto potior est conditio defendetis et possidentis".
13. The decision of the Division Bench of this Court dated 2.8.2019 in First Appeal No. 4979 of 2018, in case of Ganpatlal Manjibhai Khatri v. Manguben Babaji Thakor, wherein Paras-14, 25, 27 to 31 read as under:
"14. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the plaint is liable to be rejected on the ground that the suit for specific performance of contract based on an illegal or invalid agreement to sell hit by Section 43 of the Act, 1948 is not maintainable?".
"25. One pertinent feature of Section 43 of the Act, 1948 applicable for Bombay area of the State of Gujarat is the amendment by which even an agreement by an instrument in writing to be transferred came to be prohibited. Such restriction is not to be found in Section 43 applicable for the Bombay area of the State of Maharashtra. Section 43(2) for the Bombay area of the State of Gujarat reads as under;
"Any transfer or partition, or any agreement of transfer, or any land or any interest therein in contravention of sub-section (1) or sub-section (2) Page 22 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 shall be invalid."
27. This decision, in our opinion, has no application to the facts of the instant case because in our opinion, under Section 43 of the Act, 1948 applicable to the Bombay area of the State of Gujarat, there is a total prohibition of even entering into an agreement in writing for the purpose of sale. Section 43 of the Act applicable for Bombay area of the State of Gujarat makes it very clear that any transfer or partition or any agreement of transfer or any land or any interest therein in contravention of sub-section (1) or subsection (1)(c) shall be invalid. Thus, the decision of the Supreme Court in the case of Nathulal (supra) has no application in the present case. If that be so, the decision in Hasvantbhai (supra) cannot be termed as per incurium.
28. It is not in dispute that the agreement to sell dated 27th January, 2010 could be termed as invalid or void as the same was entered into without the prior permission or sanction of the Collector. The suit for specific performance of contract based on an invalid agreement to sell hit by Section 43 of the Tenancy Act, 1948 applicable for the Bombay area of the State of Gujarat is not maintainable in law. If the agreement is rendered invalid under Section 43 of the Act, 1948, such agreement is incapable of being specifically enforced. If the agreement to sell itself is invalid, no decree for specific performance can be passed by the Trial Court.
29. It is well settled that the jurisdiction to order specific performance of contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the Court will not make a contract for them. Specific performance will Page 23 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the Court will not be there even though the contract is otherwise valid and enforceable. (See Satish Kumar vs. Karan Singh & Anr., Civil Application No.7385 of 2013, decided on 21st January, 2016).
30. The Supreme Court in Mayawanti vs. Kaushalya Devi, (1990) 3 SCC 1 held thus: "8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation."
31. We shall now deal with the second contention of Mr. Joshi as regards Sections 85 and 85A of the Act. Section 85 of the Act reads as follows:-
Page 24 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 "Section 85 Bar of jurisdiction (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question [(including a question whether a person is or was at any time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord the land held by him) which is by or under this Act required to be settled, decide or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the [Maharashtra Revenue Tribunal] in appeal or revision or the [State] Government in exercise of their powers of control. (2) No order of the Mamlatdar, the Tribunal, the Collector or the [Maharashtra Revenue Tribunal] or the [State] Government made under this Act shall be questioned in any Civil or Criminal Court.
Explanation:- For the purposes of this section a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdar's Courts Act, 1906."
14. Decision of the Apex Court dated 18.1.2022 passed in Civil Appeal No. 380 of 2022 in the case of G.T. Girish v. Y. Subba Raju (D) by Lrs and Another, wherein Paras 55, 78, 79, 80, 81 82 and 107 read as under:
"55. In other words, in an agreement wherein the vendor agrees to convey property, which is permissible only with the permission of some Authority, the Court can, in appropriate cases, grant relief. We need only notice two recent Judgments which have reiterated the principle, the first of which is reported in Vishwa Nath Sharma v. Shyam Shanker Goela and another, which is relied upon, in fact, by the respondents. The decision of this Court, again relied Page 25 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 upon by the respondents in Ferrodous Estates (Pvt.) Limited v. Gopiratnam (Dead) and others7 also reiterates the said view. In Ferrodous Estates (supra), the matter arose under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. The High Court, in the impugned Judgment, had dismissed the Suit for Specific Performance, taking the view that till 1999, when the Tamil Nadu Urban Ceiling Act was repealed, the agreement was not enforceable. That apart, under the agreement of sale, vacant land, in the aggregate, exceeding the ceiling limit of the plaintiff, would have to be conveyed to him, attracting the VETO contained in Section 5(3) read with Section 6 of the State Act. It was this view, which was reversed by this 6 (2007) 10 SCC 595 7 AIR 2020 SC 5041 Court, following the Judgments, which we have referred to which relate to conditional decrees. This result was arrived at by this Court, after finding that agreement to sell contemplated transfer of the land only after getting exemption. Clause (4) of the Agreement contemplated that the vendor was to obtain permission from the Competent Authority under the Urban Land Ceiling Act. We need not multiply authorities. All that is necessary to notice and find is that when an agreement to sell is entered into, whereunder to complete the title of the vendor and for a sale to take place and the sale is not absolutely prohibited but a permission or approval from an Authority, is required, then, such a contract is, indeed, enforceable and would not attract the shadow of Section 23 of the Indian Contract Act, 1872.
"78. Going by the recital in the agreement entered into between the plaintiff and the first defendant, possession is handed over by the first defendant to the plaintiff. The original Possession Certificate is also said to be handed Page 26 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 over to the plaintiff. The agreement, even according to the plaintiff, contemplated that within three months of conveyance of the site in favour of the first defendant, the first defendant was to convey her rights in the site to the plaintiff. It is quite clear that the parties contemplated a state of affairs which is completely inconsistent with and in clear collision with the mandate of the law. On its term, it stands out as an affront to the mandate of the law.
79. The illegality goes to the root of the matter. It is quite clear that the plaintiff must rely upon the illegal transaction and indeed relied upon the same in filing the suit for specific performance. The illegality is not trivial or venial. The illegality cannot be skirted nor got around. The plaintiff is confronted with it and he must face its consequences. The matter is clear. We do not require to rely upon any parliamentary debate or search for the purpose beyond the plain meaning of the law. The object of the law is set out in unambiguous term. If every allottee chosen after a process of selection under the rules with reference to certain objective criteria were to enter into bargains of this nature, it will undoubtedly make the law a hanging stock.
80. To elucidate the matter a little further, let us take another example. If the agreement was entered into by the first defendant, under which, the first defendant would abide by her obligations, both under the lease-cum- sale agreement and, more importantly, the Rules and were to put up a building and the agreement contemplated, conveying the site along with the building, to a buyer after the expiry of ten years and upon getting the conveyance from the BDA, such an agreement, perhaps, being not an alienation in itself, may have passed muster.Page 27 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022
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81. At this juncture, we must also deal with the argument of the plaintiff that the agreement to sell is not a sale and, what is prohibited under the Rules and lease-cum-sale agreement, was only alienation. There can be no quarrel with the proposition that no interest in property could be conveyed by a mere agreement to sell. But the question is, whether the agreement to sell in this case is in the teeth of Section 23 of the Contract Act. For reasons, which we have indicated, on a conspectus of the scheme of the Rules, we have no hesitation in holding that the contract was unenforceable for reason that it clearly, both expressly and impliedly, would defeat the object of the Rules, which are statutory in nature. The contract was patently illegal for reasons already indicated.
82. Now, let us look at it from a different perspective. The agreement is dated 17.11.1982. We have noticed the correspondence by the plaintiff. We have also noticed the terms of the agreement between the plaintiff and the first defendant. In the first letter sent by the plaintiff which incidentally was within four months of the date of agreement, the plaintiff called upon the first defendant to execute the sale deed. There is no mention about the first defendant attempting to sell the property to anybody. It is noteworthy that the plaintiff has stated that he intends to sell the property to his nominee. This further indicates that he was not a person who was in need of this site for the purposes of putting up of residential building unlike even the plaintiff in the case considered by the High Court of Karnataka and relied upon by the plaintiff, namely, T. Dase Gowda v. D. Srinivasaiah (supra). We have already noticed the command of the law as contained in Rule 18(3) of the Rules read with Rule 17. If an allottee who is treated as a lessee for reasons which are indicated in Rule Page 28 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 18(3) wishes to sell the site (which is applicable in this case as no building has been put up) then he can sell the site only as was provided in Rule 18(3), that is to say, if going by the correspondence by the plaintiff wherein the first defendant was called upon to execute the sale deed of the site, this would be clearly in the teeth of Rule 18(3), the scope of which has already explained. The plaintiff could not have asked for decree commanding the first defendant to sell the site in terms of the correspondence with which he began communicating with the first defendant. In other words, a sale of a site to any other person clearly stood prohibited and unless the allottee/lessee is compelled to sell in the circumstances mentioned in Rule 18(3) the law permitted the sale of the site only to the authority itself. Therefore, if the plaintiff wanted to enforce the agreement for the sale of the site on an immediate basis it would clearly attract the embargo that it was completely prohibited".
107. We have already found that the agreement to sell dated 17.11.1982, is to be painted with the brush of illegality and pronounced unenforceable. It is undisputed that the plaintiff has paid Rs.50,000/- on the strength of the said agreement. It would appear to be true that a part of this amount was received on the date of the agreement. It may be true that further amount were received by defendant 1(a), the husband of the first defendant. The first defendant died pending the Suit. It is while the Suit was pending that defendant 1(b), the son of the first defendant, had executed the sale deed on 16.09.1996 in favour of the second defendant. It is again undisputed that at the time when the sale deed was executed, both the second defendant and his vendor, defendant 1(b), were not parties in the Suit. We have already found that the Page 29 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 sale deed in favour of the second defendant, cannot be treated as a sham transaction and the finding, in fact, on point No.2 by the High Court, also that the second defendant is not a bonafide purchaser. Once we come to the conclusion that the agreement, relied upon by the plaintiff, cannot be enforced, as to whether, even proceeding on the basis that the sale in favour of the second defendant was made, not in circumstances which would entitle the second defendant to set up the case that he is a bonafide purchaser, the question of granting relief to the plaintiff must first be decided. In other words, in view of the illegality involved in enforcing the agreement dated 17.11.1982, the question would arise, whether, on principles, which have been settled by this Court, the Court should assist the plaintiff or the defendant. We have noted the state of the evidence, in particular, as it is revealed from the deposition of PW2. We have found that the agreement, relied upon by the plaintiff, cannot be acted upon. In such circumstances, we would think that, even if we do not reverse the finding of the High Court that the second defendant is not a bonafide purchaser, it will not itself advance the case of the plaintiff. This is for the reason that his case is in the teeth of the law, as found by us, making it an unenforceable contract. The plaintiff is seeking the assistance of the Court which must be refused."
10. Mr. Ravani, learned advocate has also relied upon the following decisions 1) I.T.C. Ltd. v. Recovery Appellate Tribunal, reported in (1998) 2 SCC 70; (2) Ram Niwas v. Bano & Ans, reported in (2000) 6 SCC 685; (3) Hardesh Ores Ltd. v. Hede & Company, reported in (2007) 5 SCC 614; (4) The Church Society v. Ponniamman Edu. Trust, reported in Page 30 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 AIR 2012 SC 3912; (5) Chandrakant Kantilal Patel v. Madhuriben Gautambhai, reported in LAWS (GJH) 2010 10 3; (6) Khatri Hotels Pvt. Ltd. v. Union of India, reported in (2011) 9 SCC 126; (7) T.Arvindam v. T.V. Satyapal, reported in 1977 4 SCC 467; (8) Kanjibhai B. Patel v. Nanduben, reported in 2013 (1) GLR 51; (9) Hasvantbhai Chhanabhai Dalal v. Adesinh M. Raval, reported in 2019 O AIJEL HC 240427; (10) Keshavlal Lallubhai Patel v. Lalbhai Trikamlal Mill, reported in AIR (SC) 1958 512; (11) Raghawendra Sharan Singh v. Ram Prasanna Singh, reported in AIR 2019 SC 1430; (12) Dahiben V. Arvindbhai K. Bhanushali, reported in (2020) 7 SCC 366; (13) Urvashi Agarwal v. Kusarg Ansal, reported in AIR 2019 SC 1280; (14) Vinodchandra Sakarlal Kapadia v. State of Gujarat, reported in (2020) SCC OnLine 545 and (15) Agricultural Produce Committee v. Girdharbhai Ramibhai, reported in AIR 1997 SC 2674 . All the aforementioned decisions are on the same line as the earlier decisions.
11. Mr. Mihir Thakor, learned Senior Counsel has relied upon the following decisions:
1. In the case of Navnithbhai Harmanbhai Patel v.
Ambalal Kalidas Patel, reported in 2018 JX (Guj) 383, Paras-5.30, 5.31, 5.32, 7.21 and 28 read as under:
"5.30 Next, it was submitted that the trial court while deciding issue No.6, namely, whether the suit agreement is void, has held that the agreement is void on account of breach of the provisions of section 63 of the Bombay Page 31 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 Tenancy and Agricultural Lands Act, 1949 (hereinafter referred to as "the Tenancy Act"). It was submitted that that a decree of specific performance cannot be refused by placing reliance on section 63 of the Tenancy Act as the same would not make the suit agreement void".
5.31 Referring to the suit agreement, it was pointed out that what was agreed between the parties was that the defendant would get the land converted into non- agricultural land and thereafter, execute the sale deed in favour of the plaintiffs or their nominees. It was submitted that the plaintiffs have not called upon the defendant to straightway execute the sale deed but to act in accordance with the suit agreement and enforce the suit agreement, which would mean that the defendant vendor would have to obtain the necessary non- agricultural permission and only thereafter the sale deed would be executed. It was submitted that the suit agreement not being an agreement to purchase agricultural land, the provisions of section 63 of the Tenancy Act would not be attracted. The trial court was, therefore, not justified in refusing to grant a decree on the ground that the plaintiffs were not agriculturists. It was contended that the trial court could either have granted a conditional decree or the matter could have been referred to the authorities under the Gujarat Tenancy and Agricultural Lands Act for deciding the question as to whether the plaintiffs were agriculturists or not, however, the trial court had no jurisdiction to decide as to whether or not the plaintiffs were agriculturists.
5.32 In support of his submission, Mr. Vakil placed reliance upon the decision of a Full Bench of this court in the case ofShah Jitendra Nanalal v. Patel Lallubhai Page 32 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 Ishverbhai, AIR 1984 Guj. 145, wherein the court held that so long as the provision declaring transfer of vacant land in excess of ceiling limit under section 5(3)of the Urban Land (Ceiling and Regulation) Act, 1976 as void is subject to the right to move for exemption, obtain exemption and transfer the property, the power of an owner of vacant land in excess of the ceiling limit to 'alienate' such land is dormant in him and such power could be exercised by him in case he seeks exemption, satisfies the Government that the grounds for exemption exist and obtains such exemption. That being the case, a decree cannot be defeated on the ground that 'transfer' inter parties would not be possible. The court, accordingly, held that a conditional decree for specific performance subject to exemption being obtained under section 20 of the Urban Land Ceiling and Regulation Act, 1976 is permissible.
7.21 As regards applicability of section 63 of the Tenancy Act, it was submitted that the language employed therein is that sale or agreement to sell of agricultural land in favour of a non-agriculturist shall not be valid, the provision nowhere says that such transfer is void. Therefore, the question of holding that the suit agreement was void as being in breach of the provisions of section 63 of the Tenancy Act did not arise. It was contended that the suit agreement was not an agreement to purchase agricultural land as is evident from the recitals contained therein, namely that the defendant was first required to obtain non-agricultural permission and thereafter execute the sale deed, and the trial court has, therefore, erred in entering into the merits of the question as to whether the agreement was in breach of section 63 of the Tenancy Act. Lastly it was submitted that the impugned judgment is Page 33 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 required to be reversed and the decree as prayed for deserves to be granted and that all factors in totality would require the discretion to be exercised in favour of the plaintiffs and against the defendant and in case it is not possible to grant specific performance of the agreement, the alternative prayer may be accepted and damages as prayed for may be granted.
28. Whether the trial court was justified in holding that the suit agreement is void?
28.1 The trial court, in the impugned judgment, has held that the plaintiffs not being agriculturists were not entitled to purchase agricultural land and, therefore, the suit agreement is violative of the provisions of section 63 of the Tenancy Act. In this regard it may be pertinent to refer to the relevant provisions of the Tenancy Act. Section 63 of the Tenancy Act bars transfers to non-agriculturists and inter alia provides that save as provided in the Act no agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or any interest therein shall be valid in favour of a person who is not an agriculturist or who being an agriculturist cultivates personally land not less than the ceiling area whether as an owner or tenant or partly as owner and partly as tenant or who is not agricultural labourer. Clearly, therefore,section 63 bars even agreements of sale in favour of non-agriculturists.
28.2. Section 85 of the Tenancy Act which bears the heading "Bar of jurisdiction". Sub-section (1) thereof provides that no civil court shall have jurisdiction to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector, the Page 34 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 Gujarat Revenue Tribunal or the State Government in appeal or revision or the State Government in exercise of their powers of control.
28.3 Section 70 of the Tenancy Act provides for the duties and functions to be performed by the Mamlatdar. Clause
(a) thereof reads thus: "to decide whether a person is an agriculturist". Therefore, the question as to whether the plaintiffs are agriculturists within the meaning of such expression as contemplated in the Tenancy Act falls within the ambit of the duties of the Mamlatdar under section 70 of the Tenancy Act and, therefore, the jurisdiction of the civil court to decide such question is ousted. The trial court, therefore, had no jurisdiction to decide as to whether the plaintiffs who were residing at a distance of more than eight kilometres from the suit land were agriculturists or not.
Besides, section 63 of the Tenancy Act inter alia provides that no sale shall be valid in favour of a person who is not an agriculturist except in the circumstances provided there under. Section 84C of the Tenancy Act provides that wherein respect of the transfer or acquisition of any land the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any provisions of the Act, the Mamlatdar shall issue notice and hold inquiry as provided for insection 84B and decide whether the transfer or acquisition is or is not valid. Sub- section (2) thereof inter alia provides that if after holding inquiry, the Mamlatdar comes to the conclusion that the transfer or acquisition of land to be invalid, he shall make an order declaring the transfer or acquisition to be invalid. Therefore, the jurisdiction to decide question as regards the validity of a transfer or acquisition of land is vested in Page 35 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 the Mamlatdar under section 84C of the Tenancy Act and consequently, the jurisdiction of the trial court to decide such question is barred. The trial court, therefore, had no jurisdiction to determine as to whether the suit agreement was in breach of the provisions of section 63 of the Tenancy Act and decide on the validity thereof.
28.4 Moreover, on a plain reading of the recitals contained in the suit agreement, it is evident that there was no agreement to sell agricultural lands but that the agreement was to sell non-agricultural land as the defendant was first required to obtain N.A permission and get such entry made in the revenue record and after obtaining the title clearance certificate, to execute the sale deed in favour of the plaintiffs or their nominees. The trial court, however, has totally ignored this part of the suit agreement and embarked upon an unnecessary inquiry as to whether the plaintiffs were agriculturist and were competent to purchase the suit lands.
28.5 In the light of the fact that the suit agreement is an agreement to sell non-agricultural land, apart from the fact that the trial court had no jurisdiction to pronounce on the validity of the suit agreement on the ground of breach of the provisions of the Tenancy Act, even otherwise, the provisions of section 63 of the Tenancy Act would not be attracted to the transaction in question. The trial court was, therefore, not justified in holding that the suit agreement was void. Point No.3 stands answered accordingly.
2. In the case of Mavji Dhorji and others v. State of Gujarat and Another, reported in 1994 (1) G.L.H 20, it is observed in Para-10 as under:
"10. It may be mentioned at this stage that any Page 36 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 transaction in contravention of Section 63 or 64 of the Act is made invalid and not void. This becomes clear from the language of Se tion 63 and the provisions contained in Section 64(8) thereof. Shri D.N. Patel for the contesting respondents has however urged that there is no much distinction between the terms "invalid" and 'void".
3. In the case of Roop Lal Sathi v. Nachhattar Singh Gill, reported in (1982) 3 SCC 487, the Hon'ble Apex Court has observed in paras-20 and 21 as under:
"20. The order passed by the High Court directing the striking out of paragraphs 4 to 18 of the election petition can hardly be supported. It is not clear from the order that the High Court proceeded to act under Order VII, r. II (a) or under Order VI, r. 16 of the Code in passing the order that it did. It is rightly conceded that the High Court could not have acted under Order VII, r. II (a) of the Code. Where the plaint discloses no cause of action it is obligatory upon the Court to reject the plaint as a whole under Order VII, r. II
(a) of the Code, but the rule does not justify the rejection of any particular portion of a plaint: Mulla's Civil Procedure Code, 13th Edn., Vol. 1, p. 755. It is therefore necessary to consider whether the order passed by the High Court could be justified under order VI, r. 16 of the Code, which reads as follows:
"16.Striking out pleadings-The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or Page 37 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022
(c) which is otherwise an abuse of the process of the Court."
21. The order passed by the High Court directing that paragraphs 4 to 18 of the election petition be struck out cannot be sustained on the terms of Order VI, r. 16 of the Code. There is no finding reached by the High Court that the averments in paragraphs 4 to 18 of the election petition are either unnecessary, frivolous or vexatious, or that they are such as may tend to prejudice, embarrass or delay the fair trial of the election, nor is there any finding that the averments therein are such as to constitute an abuse of the process of the court. That being so, the High Court had no power to direct the striking out of paragraphs 4 to 18 of the election petition".
4. In the case of D. Ramachandran v. R.V. Janakiraman and Others, reported in (1999) 3 SCC 267, wherein the para-10 read as under:
"10. On the other hand, Rule 11 of Order VII enjoins the Court to reject the plaint where it does not disclose a cause of action. There is no question of striking out any portion of the pleading under this rule. The application filed by the first respondent in O.A. No. 36/97 is on the footing that the averments in the election petition did not contain the material facts giving rise to a triable issue or disclosing a cause of action. Laying stress upon the provisions of Order VII, Rule 11 (a), learned senior counsel for the first respondent took us through the entire election petition and submitted that the averments therein do not disclose a cause of action. On a reading of the petition, we do not find it possible to agree with him. The election petition as such does disclose a cause of action which if Page 38 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 unrebutted could void the election and the provisions of O.VII R.11(a) C.P.C. can not therefore be invoked in this case. There is no merit in the contention that some of the allegations are bereft of material facts and as such do not disclose a cause of action. It is elementary that under O.VII R.11 (a) C.P.C., the Court can not dissect the pleading into several parts and consider whether each one of them discloses a cause of action. Under the rule, there can not be a partial rejection of the plaint or petition. See Roop Lal Sathi Versus Nachhattar Singh Gill (1982) 3 S.C.C. 487. We are satisfied that the election petition in this case could not have been rejected in limine without a trial."
5. In case of Sopan Sukhdeo Sable and others v.
Assistant Charity Commissioner and Others, reported in (2004) 3 SCC 137, the Apex Court has held in Paras- 7, 13, 14, 15, 16, 18 and 20 as under:
"7. Order VII Rule 11 of the Code reads as follows:
"11: Rejection of plaint - The plaint shall be rejected in the following cases :-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claims is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;Page 39 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022
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(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9.
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp- paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
13. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill (1982 (3) SCC 487), only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
14. In Raptakos Brett & Co.Ltd. v. Ganesh Property (1998 (7) SCC 184) it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order VII was applicable.
15.There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the Page 40 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair- splitting technicalities.
16. Submission of learned counsel for respondent No.2- trust was that requirement of law being reading the plaint in its totality, the appellants cannot take the plea that they would give up or relinquish some of the reliefs sought for. That would not be permissible. The plea clearly overlooks the basic distinction between statements of the facts disclosing cause of action and the reliefs sought for. The reliefs claimed do not constitute the cause of action. On the contrary, they constitute the entitlement, if any, on the basis of pleaded facts. As indicated above, Order VI Rule 2 requires that pleadings shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim. If the plea of Mr. Savant, learned counsel for the respondent-trust is accepted the distinction between the statement of material facts and the reliance on them for the claim shall be obliterated. What is required in law is not the piecemeal reading of the plaint but in its entirety. Whether the reliefs would be granted on the pleaded facts and the evidence adduced is totally different from the relief claimed. All the reliefs claimed may not be allowed to a party on the pleadings and the evidence adduced. Whether part of the relief cannot be granted by the Civil Court is a different matter from saying that because of a combined claim of reliefs the jurisdiction is ousted or no Page 41 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 cause of action is disclosed. Considering the reliefs claimed vis-a- vis the pleadings would not mean compartmentalization or segregation, in that sense. The plea raised by the respondent-trust is therefore clearly unacceptable.
18. As noted supra, the Order VII Rule 11 does not justify rejection of any particular portion of the plaint. Order VI Rule 16 of the Code is relevant in this regard. It deals with 'striking out pleadings'. It has three clauses permitting the Court at any stage of the proceeding to strike out or amend any matter in any pleading i.e. (a) which may be unnecessary, scandalous, frivolous or vexatious, or, (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or, (c) which is otherwise an abuse of the process of the Court.
20. ......Rule 11 of Order VII lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word 'shall' is used clearly implying thereby that it casts a duty on the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13."
6. In case of Rojasara Ramjibhai Dahyabhai v. Jani Narottamdas Lallubhai, reported in AIR 1986 SC 1912, wherein the Suit was filed for specific performance of Page 42 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 agreement to sell of land wherein there was a condition for obtaining necessary permission of authorities to use it as village site. Thus, condition was condition precedent. The Suit was filed within 3 years of taking such permission. It was held that the Suit was within the limitation period and the agreement to sell was not contingent contract.
7. In the case of Shah Jitendra Nanalal, Ahmedabad v.
Patel Lallubhai Ishverbhai, Ahmedabad, reported in 1985 G.L.H. 53, wherein Para-11 reads as under:
"11. So long as the provision declaring the transfer under S. 5(3)as void is subject to the right to move for exemption, obtain exemption and transfer the property, the power of an owner of vacant land in excess of the ceiling limit to 'alienate' such land is dormant in him and such power could be exercised by him in case he seeks exemption, satistias the Government that the grounds for exemption exist and obtains such excynption. That being the case, a decree cannot be defeated on the ground that 'transfer' inter partes would not be possible. The possibility of obtaining exemption survived till the notification under Section 10(3) of the Act is issued. That being the situation, until then, a plaintiff seeking specific performance cannot be told that the terms of the contract cannot be fulfilled. Once it is said so, the plaintiff loses his right to get a decree for specific performance, though, invoking the provisions of the very Act, based ,on which the plaintiff was told that he could not get conveyance of the property agreed to be sold to him, the owner of excess land obtained exemption and continues in possession of Page 43 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 property and perhaps even alienates it later. We see no reason either in law or in logic to countenance such a situation. There is nothina prohibiting a decree being passed for specific performance, with, of course, such alternative remedies as may be called for in a situation where that decree may become inoperative. The decree for specific performance may be made conditional on the exemption under S. 20 M (a) or (b) operating. Of course, it is not for us in this reference to envisage how safeguards should be built in, in such a decree. Resourcefulness, of course, must necessariy find answer to possible situations".
8. In the case of Sejal Glass Limited v. Navilan Merchants Private Limited, reported in (2018) 11 SCC 780, the paras- 3 and 4 read as under:
"3. In our view, the impugned judgment is wrong on principle. Order 7 Rule 11 of the Code of Civil Procedure, 1908 which reads as follows:
"11. Rejection of plaint.- The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Page 44 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp- paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
What is important to remember is that the provision refers to the "plaint" which necessarily means the plaint as a whole. It is only where the plaint as a whole does not disclose a cause of action that Order VII Rule 11 springs into being and interdicts a suit from proceeding.
4) It is settled law that the plaint as a whole alone can be rejected under Order VII Rule 11. In Maqsud Ahmad v.
Mathra Datt & Co., A.I.R. 1936 Lahore 1021 at 1022, the High Court held that a note recorded by the trial Court did not amount to a rejection of the plaint as a whole, as contemplated by the CPC, and, therefore, rejected a revision petition in the following terms:-
Page 45 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 "4.....There is no provision in the Civil Procedure Code for the rejection of a plaint in part, and the note recorded by the trial Court does not, therefore, amount to the rejection of the plaint as contemplated in the Civil Procedure Code."
9. In the case of Ferrodous Estates (Pvt) Ltd. v. P. Gopirathnam (Dead), reported in AIR 2020 SC 5041, paras- 14, 17, 19 and 21 read as under:
"14. Having heard learned counsel for the parties, it is first important to deal with Shri Giri's basic contention that the Full Bench judgment stands as a roadblock to the decreeing of a suit for specific performance in the present case. Shri Giri is right in arguing that it is not open to the appellant to go behind the Full Bench judgment as it is inter-parties, as a result of which the law laid down by the Full Bench judgment must apply to the parties, res judicata clearly attaching even to issues of law based on the same cause of action - see Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, (1970) 3 SCR 830 at p. 836. This being the case, it is important now to analyse what was held by the Full Bench.
17. When these portions of the Full Bench judgment are applied to the agreement in question, it is clear that the agreement itself contains a specific clause, namely, clause 4, in which it is for the vendor to obtain permission from the competent authority under the Tamil Nadu Urban Land Ceiling Act. This agreement, therefore, cannot be said to be hit by the decision of the Full Bench judgment as the Full Bench itself recognises that there may be agreements with such clauses, in which case it is the Page 46 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 Court's duty to enforce such clause. That is all that the learned Single Judge has done in the facts of this case - he has correctly held that it was for the defendants to obtain exemption from the authorities under the Tamil Nadu Urban Land Ceiling Act which they did not, as a result of which they were in breach of the agreement.
19. It is clear, therefore, that the agreement to sell cannot be said to be void ab initio, as a result of which the basis of the Division Bench judgment under appeal goes. Resultantly, the judgments in Jacques v. Withy, 1 H.Bl. 65, Hitchcock v. Way, (1837) 6 A & E 943 : 112 ER 360, andRam Kristo Mandal v. Dhankisto Mandal, (1969) 1 SCR 342 (at p. 349) cited by Shri Giri in support of the proposition that the repeal of a statute which makes void an agreement cannot revive such void agreement have no application on the facts of this case. In view of this, it is unnecessary to go into whether section 5(3) of the Tamil Nadu Urban Land Ceiling Act, together with its proviso, applies to the facts of this case.
20. However, the other contention on behalf of the respondents is that even if this were so, the appellant was not entitled to more than 500 sq. metres, which was the ceiling limit so far as the appellant was concerned. This being the case, no decree for specific performance could be made in favour of the appellant.
21. That conditional decrees for specific performance have been passed and upheld by this Court cannot be denied. Thus, inVishwa Nath Sharma v. Shyam Shanker Goela, (2007) 10 SCC 595 ["Vishwa Nath Sharma"], this Court held:
"12. The Privy Council in Motilal v. Nanhelal [(1929-
30) 57 IA 333 : AIR 1930 PC 287] laid down that if Page 47 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 the vendor had agreed to sell the property which can be transferred only with the sanction of some government authority, the court has jurisdiction to order the vendor to apply to the authority within a specified period, and if the sanction is forthcoming, to convey to the purchaser within a certain time.
This proposition of law was followed in Chandnee Widya Vati Madden v. Dr. C.L. Katial[AIR 1964 SC 978] andR.C. Chandiok v. Chuni Lal Sabharwal[(1970) 3 SCC 140 : AIR 1971 SC 1238]. The Privy Council in Motilal case [(1929-30) 57 IA 333 : AIR 1930 PC 287] also laid down that there is always an implied covenant on the part of the vendor to do all things necessary to effect transfer of the property regarding which he has agreed to sell the same to the vendee. Permission from the Land and Development Officer is not a condition precedent for grant of decree for specific performance. The High Court relied upon the decisions inChandnee Widya Vati Madden v. Dr. C.L. Katial[AIR 1964 SC 978] andBhim Singhji v. Union of India[(1981) 1 SCC 166 : AIR 1981 SC 234] to substantiate the conclusion. In Chandnee Widya [AIR 1964 SC 978] this Court confirmed the decision of the Punjab and Haryana High Court holding that if the Chief Commissioner ultimately refused to grant the sanction to the sale, the plaintiff may not be able to enforce the decree for specific performance of the contract but that was not a bar to the court passing a decree for that relief. The same is the position in the recent case. If after the grant of the decree of specific performance of the contract, the Land and Development Officer refused to grant permission for sale, the decree-
Page 48 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 holder may not be in a position to enforce the decree but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of the contract.
13.In R.C. Chandiok v. Chuni Lal Sabharwal[(1970) 3 SCC 140 : AIR 1971 SC 1238] it was held that proper form of decree in a case like the instant one would be to direct specific performance of the contract between the defendant and the plaintiff and to direct the subsequent transferee to join in the conveyance so as to pass on the title residing in him. This is because Defendant 2, son of Defendant 1 cannot take the stand that he was a transferee without notice. Admittedly, he is the son of Defendant 1. The view in R.C. Chandiok [(1970) 3 SCC 140 : AIR 1971 SC 1238] was a reiteration of earlier view in Durga Prasad v. Deep Chand [AIR 1954 SC 75] . This Court has repeatedly held that the decree can be passed and the sanction can be obtained for transfer of immovable property and the decree in such a case would be in the way the High Court has directed. (See Motilal Jain v. Ramdasi Devi[(2000) 6 SCC 420],Nirmala Anand v. Advent Corpn. (P) Ltd. [(2002) 5 SCC 481],HPA International v. Bhagwandas Fateh Chand Daswani[(2004) 6 SCC 537] andAniglase Yohannan v. Ramlatha[(2005) 7 SCC 534].)"
In Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit v. Ramesh Chander, (2010) 14 SCC 596 ["Van Vibhag"], this Court referred to a suit in which specific performance was not claimed on the ground that in view of the Urban Land (Ceiling &Regulation) Act, 1976, the Page 49 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 appellant could not have made such claim. This was turned down specifically by this Court, stating:
"26. The appellant, on noticing the same, filed a suit on 11-2-1991 but he did not include the plea of specific performance. The appellant wanted to defend this action by referring to two facts (i) there was an acquisition proceeding over the said land under theLand Acquisition Act, and (ii) in view of the provisions of the Ceiling Act, the appellant could not have made the prayer for specific performance.
27. The aforesaid purported justification of the appellant is not tenable in law. If the alleged statutory bar referred to by the appellant stood in its way to file a suit for specific performance, the same would also be a bar to the suit which it had filed claiming declaration of title and injunction. In fact, a suit for specific performance could have been easily filed subject to the provision of section 20 of the Ceiling Act.
28. Similar questions came up for consideration before a Full Bench of the Gujarat High Court inShah Jitendra Nanalal v. Patel Lallubhai Ishverbhai[AIR 1984 Guj 145]. The Full Bench held that a suit for specific performance could be filed despite the provisions of the Ceiling Act. A suit for specific performance in respect of vacant land in excess of ceiling limit can be filed and a conditional decree can be passed for specific performance, subject to exemption being obtained undersection 20of the Act (AIR paras 11-13).Page 50 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022
C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022
29. We are in respectful agreement with the views of the Full Bench in the abovementioned decision and the principles decided therein are attracted here." The judgments ofImmani Appa Rao v. Gollapalli Ramalingamurthi, (1962) 3 SCR 739 and Narayanamma v. Govindappa, 2019 SCC OnLine SC 1260 cited by Shri Giri in support of the proposition that no court will lend its aid to a man who founds his cause of action upon an illegal act has no application in a situation covered by the judgments contained in Vishwa Nath Sharma (supra) and Van Vibhag (supra)".
12. Having considered the submissions made on behalf of both sides, coupled with the material placed on record and various decisions, as referred to hereinabove, it emerges that the plaintiff has filed the suit for specific performance of contract as well as declaration and injunction against the defendants on the ground that there was agreement to sell entered into between them and deceased Somabhai Hathidas Patel for the land of old tenure. It emerges that the main ground raised by the defendants is that Suit itself is barred by law of limitation as well as barred by provisions of Tenancy Act and it is not maintainable. The defence raised by the defendants is regarding the period of contract and has submitted that in view of the condition in the alleged agreement to sell, time has already been elapsed and on that ground, the Suit is time barred. Against this, the stand of the plaintiff is that as per conditions enumerated in the agreement to sell, time was to start after obtaining all necessary permission for conversion of the land from Page 51 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 new tenure to old tenure land and, therefore, limitation has not started.
13. On perusal of the alleged agreement to sell dated 18.3.1995 entered into between the deceased Somabhai Hathidas Patel and present Plaintiffs, it appears that the sale consideration was fixed at Rs. 8,25,000/-as per clause-4 of the agreement to sell. Out of which, as per clause-5, Rs. 4,00,000/- was paid by Cheque. It is also agreed between the parties as per Clause-6 thereof that remaining amount of Rs. 4,25,000/- was to be paid in installment to the effect that Rs. 2,60,000/- was to be paid within 3 months from the date of agreement to sell, Rs. 82,500/- was to be paid after 15 days of the order passed by the competent authority converting land from new tenure to old tenure, and remaining amount of Rs.82,500/- was to be paid at the time of registered sale-deed. There are other conditions mentioned in the agreement to sell. The condition No.1 stipulates that the period of agreement was 3 months subject to other conditions enumerated in the agreement to sell. The other conditions includes burden upon the seller to get appropriate permission from all the authorities, to provide title clearance Certificate, etc. It is also provided in condition No.12 that it was agreed that seller shall get appropriate permission under the Bombay Prevention of Fragmentation Act and/ or Tenancy Act. As per condition No.17, it was agreed that in case there is a failure on the part of the seller, to provide the title clearance Certificate or to execute sale execute sale-deed Page 52 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 within time limit, then the purchaser will be entitled to treat the agreement to sell as cancelled and would be entitled to get the refund of earnest money and any other amount paid as a sale transaction. As per condition No.18, it was agreed that in case of non-fulfillment of the agreement in a specific period, the time of agreement for execution will be automatically get extended and seller will not be entitled to treat the agreement to sell as come to end and he will not be entitled to forfeit the earnest money and any other amount paid subsequently as a sale transaction. The agreement to sell also contains usual terms and conditions.
14. Now it is the contention of the defendants that condition No.1 will prevail as to the period of 3 months of execution of the deed and has relied upon the decision in case of Radha Sundar v. Radha Sundar Dutta v. Mohd. Jahadur Rahim & Ors (Supra). In this case, the three Judges Bench, in Para-11, has held as under:
"11.Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim " ut res magis valeat quam per-eat ". What has to be considered therefore is whether it is possible to give effect to the clause in question, which can only be by construing Exhibit B as creating a separate Patni, and at the same time reconcile the last two clauses with that construction. Taking first the provision that if there be Page 53 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 other persons entitled to the Patni of lot Ahiyapur they are to have the same rights in the land comprised in Exhibit B, that no doubt posits the continuance in those persons of the title under the original Patni. But the true purpose of this clause is, in our opinion, not so much to declare the rights of those other persons which rest on statutory recognition, but to provide that the grantees tinder the document should take subject to those rights. That that is the purpose of the clause is clear from the provision for indemnity which is contained therein. Moreover, if on an interpretation of the other clauses in the grant, the correct conclusion to come to is that it creates a new Patni in favour of the grantees thereunder, it is difficult to see how the reservation of the rights of the other Patnidars of lot Ahiyapur, should such there be, affects that conclusion. We are unable to see anything in the clause under discussion, which militates against the conclusion that Exhibit B creates a new Patni".
15. Thus, it clearly reveals that the entire agreement to sell has to be read and on conjoint reading of all the conditions referred to hereinabove, it clearly transpires that the period of 3 months as enumerated in condition No.1, is subject to other conditions of the documents and when there is specific condition in the agreement that Rs. 82,500/- was to be paid after 15 days of the order of necessary permission passed by the competent authority converting land from new tenure to old tenure land, it goes to say that the period of 3 months in condition No.1 would start only after the order of the competent authority converting the land from new tenure to old tenure land.
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16. It also appears from the record that the agreement specifically provides that registered sale deed was to be executed after appropriate order passed by the competent authority converting the new tenure land into old tenure land. Thus, this is an agreement to sell of old tenure land and not new tenure land and, therefore, prima-facie it appears that the transaction will not be hit by Section 43 of the Tenancy Act, as held by Apex Court and our own High Court in Division Bench that partial decree can be passed under such circumstances, and therefore, the defence of the defendants at this juncture is not acceptable.
17. Further, so far as objection regarding Section 63 of the Tenancy Act is concerned, the plaintiff has filed appropriate documentary evidence at Mark - 35/1 showing that they are holding agricultural land in another vicinity and, therefore, prima-facie they can be considered as agriculturists and, therefore, the transaction will not be prima-facie hit by Section 63 of the Tenancy Act.
18. So far as the question of applicability of Articles 54, 58 of the Limitation Act is concerned, as observed hereinabove, the alleged agreement to sell was not for the period of just 3 months, but, it is also depending upon the order passed by the competent authority of granting conversion of the new tenure land to old tenure land. The cause of action would start running from the date of such order of the competent authority, if no sale-deed is executed as per the Page 55 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 agreement to sell. Moreover, considering the fact that by mutating the names of other defendants in revenue record, it shows the intention of the defendants not to execute agreement to sell and, therefore, prima-facie the cause of action for the filing of the Suit for declaration and for specific performance would also be started on such action of the defendants. Of course, not on the basis of the entry made in the revenue record but upon the action of application for making of entry and thereby indirectly taking opposite action against the agreement to sell, right accrues in favour of the plaintif to file a suit. Now, considering the facts and circumstances of the case, the reliefs as claimed by the plaintiff, are not such that the plaint needs to be rejected under Order 7 Rule 11 of the CPC. It is well settled that the Suit cannot be partly dismissed under Order 7 Rule 11 of CPC. Even if one prayer is not permissible under the Law of Limitation Act or hit by any other law, but if other reliefs are not so hit by any legal provisions, then the plaint cannot partly be rejected under Order 7 Rule 11.
19. Now, it appears from the record that the Plaintiff has also paid the entire amount of sale transaction by various receipts which are produced in the record. It also appears that right has already been accrued in favour of the plaintiff for land in question. Therefore, even if certain documents are unregistered, makes no difference, as a suit for specific performance of contract can be based upon unregistered document which can be used as collateral Page 56 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 purpose.
20. Now, considering the impugned order of the trial Court passed below Exh-5 as well as rejecting the applications of the defendants filed under Order 7 Rule 11, it appears that trial Court has considered the facts and circumstance of the case as well as the well settled principles of law. It is also settled law that the Appellate Court may not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. The Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by the court was reasonably possible on the material. The appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion.
21. Therefore, considering the facts and circumstances of the case, coupled with the material placed on record and the impugned order of the trial Court, it appears that the trial Court has not committed any error of facts and law in passing impugned orders and impugned orders of the trial Page 57 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022 C/AO/79/2021 CAV JUDGMENT DATED: 06/05/2022 Court are reasonable and plausible one. Therefore, this Court does not find any need to interfere with the orders passed below Exh-5 granting interim injunction in favour of the plaintiff and rejecting the applications of the defendants under Order 7 Rule 11.
22. In view of the above, all the Appeal from Orders and Civil Revision Applications as filed by the defendants deserve to be rejected. Accordingly, the Appeal from Orders and Civil Revision Applications stands dismissed. No order as to costs.
All the Civil Applications in aforesaid matters stand disposed of accordingly.
(DR. A. P. THAKER, J) SAJ GEORGE Page 58 of 58 Downloaded on : Fri May 06 20:58:45 IST 2022