Gujarat High Court
Patel Pujabhai Motibhai vs Kotwal Kodarbhai Mathurbhai on 11 July, 2024
NEUTRAL CITATION
C/SA/93/2022 ORDER DATED: 11/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 93 of 2022
With
CIVIL APPLICATION (FOR INJUCTION) NO. 1 of 2021
In R/SECOND APPEAL NO. 93 of 2022
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PATEL PUJABHAI MOTIBHAI
Versus
KOTWAL KODARBHAI MATHURBHAI & ORS.
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Appearance:
MR MAHESH BHAVSAR(1781) for the Appellant(s) No. 1
for the Respondent(s) No. 2.1,2.2,4
MR VA MANSURI(2880) for the Respondent(s) No. 1,3
NOTICE SERVED for the Respondent(s) No. 4.1,4.2,4.3,4.4
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 11/07/2024
ORAL ORDER
1. The instant second appeal u/s 100 of the CPC assails the concurrent findings of the learned Courts below, whereunder the Regular Civil Suit No.15 of 2009 filed by the appellant - original plaintiff for the relief of declaration and permanent injunction was dismissed by judgment and decree dated 1.4.2016, which was confirmed by learned Appellate Court vide judgment and order dated 7.8.2021 passed in Regular Civil Appeal No.8 of 2016.
2. For convenience, parties are referred to as plaintiff and defendant being there original status.
3. Brief facts of the case are as under:-
Page 1 of 14 Downloaded on : Mon Jul 15 21:14:15 IST 2024NEUTRAL CITATION C/SA/93/2022 ORDER DATED: 11/07/2024 undefined 3.1. The respondents No 1 to 4 jointly possesses agricultural lands bearing Survey No. 1098, ad-measuring 02-38-17, situated at outskirt of village Bayad, but two and a quarter of the said land is fall in the share of respondents No 1,2 and ano the remaining lands are in possession and ownership of Patel Ramanbhei Mathurbhai. appellant/plaintiff that further the case of survey No 1098 the was divided in three parts and equally distributed amongst the respondent No.1,2 and 4. That half and quarter of the land fall in the share of the respondent No.1 and the said respondent No.1 had sold the suit land to the appellant/plaintiff on consideration amount of Re.50,000/- by sale deed executed in 30.01.1995 on a paper and signed by respondent No.1 in the presence of the appellant/plaintiff. That accordingly, possession of the said land was handed over to the appellant/plaintiff. Since then, the plaintiff is in possession and cultivating the land. It is further case of the appellant / plaintiff that due rise of the price of the land and running the name of respondents Nos.1,2 and 4 in the revenue record, the respondents/defendants have been harassing the Original Plaintiff with mala fide intention to dispossess from the suit land. Therefore the Original Plaintiff preferred Regular Civil Suit No.15 of 200 for permanent injunction praying the Court to restrain the Original defendants from interfering with the possession of the Plaintiff or obstructing the plaintiffs or its agent from doing work in the suit land and also prayed to declare that the plaintiffs is entitled to execute sale deed.
The aforestated suit was rejected by the learned trial Court.
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4. Being aggrieved by the order rejecting the suit, the plaintiff preferred RCA No.8 of 2016. However, the learned appellate Court dismissed said appeal.
5. Hence, present petition.
6. Heard learned advocate Mr. Mahesh Bhavsar for the plaintiff and learned advocate Mr. VA Mansuri for the respondent Nos.1 and 3 - original defendants.
7. The thrust of the argument of learned advocate Mr. Bhavsar is that the learned Courts below have committed serious error in interpreting Exhs.66, 67, 68 and 69. He would further submit that by virtue of agreement to sell, Exh.67, which is proved accordingly in oral evidence of witnesses, the plaintiff was proved to be in legal possession of the disputed property. He would further submit that the right to property is a constitutional right under Article 300A of the Constitution of India. He would further submit that since 1995, the plaintiff is in possession of the disputed property and he was put in possession by the owner of the property and therefore, his possession is required to be respected and protected by the learned Courts below, but the learned Courts below have committed serious error in not granting relief in favour of the plaintiff. He would further submit that serious error continue to run as learned Trial Court did not believe in proved documents at Exh.66 to 69.
7.1. Learned advocate Mr. Bhavsar would further submit that the oral evidence on the record, more particularly, at Exhs.61, Page 3 of 14 Downloaded on : Mon Jul 15 21:14:15 IST 2024 NEUTRAL CITATION C/SA/93/2022 ORDER DATED: 11/07/2024 undefined 79, 87 and 88 are sufficient to prove that the plaintiff was in legal possession of the disputed land. He would further submit that even the deposition of the defendants' witness at Exh.92 also establishes that the plaintiff is in possession of the disputed land and therefore, possession of the plaintiff was need not to be disturbed without following due process of law.
7.2. Taking this Court to the oral testimony of the witness as well as documentary evidence, more particularly, Exh.66, learned advocate Mr. Bhavsar would submit that Mamlatdar, Bayad while preparing the Panipatrak comes to the conclusion that the plaintiff has purchased the disputed property and as such, the name of the plaintiff was mutated in the Panipatrak of the disputed property which has not been objected by the other side and it is self-indicative that the plaintiff has purchased the disputed property and he is in legal and settled possession.
7.3. Assailing the concurrent findings of fact arrived at by the learned Courts below, learned advocate Mr. Bhavsar would submit that either of the courts below have failed to notice that the plaintiff is in possession of the disputed property and he has been put to possession by the owner of the property under the part performance of the agreement to sell and therefore, that possession is not to be disturbed or taken away by the other side without following due process of law.
7.4. Upon above submission, learned advocate Mr. Bhavsar referring to following substantial questions of law prays to admit this second appeal.
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"(A). Whether the Courts below were justified in dismissing the suit and appeal without considering the clinching documentary evidences produced on record by the Appellant in the form of agreement to sell, Exh. 67, order of the Mamlatdar at Exh. 66, and the receipts at Exhs. 68 and 69?
(B). Whether the Courts below have misinterpreted and not considered the documentary evidences produced on record by the Appellant before it ?
(C). Whether the Courts below are justified in not passing a decree of permanent injunction in respect of the land in question to protect the actual physical possession of the Appellant over the land in question ? (D). Whether the decree of permanent injunction to protect the actual possession of the Appellant over the land in question can be passed by the Courts below even in absence of any title in favour of the Appellant in respect of the land in question?
(E). Whether the Courts below have failed to consider and apply the relevant provisions of Sections - 91 and 92 of the Evidence Act and Whether the Courts below have failed to consider that no contrary oral evidence produced on record by the Respondents can be considered against the documentary evidences produced on record by the Appellant, as per the provisions of Sections - 91 and 92 of the Evidence Act ? (F). Whether the Courts below are justified in considering and emphasising the oral evidences produced on record by the Respondents as against the documentary evidences produced on record by the Appellant?
(G). Whether the Courts below have failed to consider and apply the relevant provisions of the Evidence Act while deciding the matter?"
8. On the other hand, learned advocate Mr. VA Mansuri would submit that the learned Courts below have examined the admissibility and evidentiary value of Exh.67. He would further submit that Exh.67 is agreement to sell on a plain paper, which Page 5 of 14 Downloaded on : Mon Jul 15 21:14:15 IST 2024 NEUTRAL CITATION C/SA/93/2022 ORDER DATED: 11/07/2024 undefined is not recognized by the provisions of law. He would further submit that the plaintiff was failed to even establish his legal or settled possession over the disputed property. He would further submit that the learned trial Court has committed no error in rejecting the suit of the plaintiff.
8.1. Pointing out the aspect, learned advocate Mr. Mansuri would submit that initially the plaintiff has asked the relief for specific performance of the agreement to sell at Exh.67, but later on, by filing purshis at Exh.26, the plaintiff has withdrawn the suit under Order 23 Rule 1 of the CPC qua the relief of the specific performance, which is self-indicative or self-evident that the plaintiff was never ready and willing for specific performance of the agreement to sell at Exh.67 and since he is not ready and willing for the specific performance of the agreement to sell at Exh.67, he cannot continue his possession over the disputed property. Learned advocate Mr.Mansuri thus submits that learned Court below have not committed error of understanding fact and or provision of law.
8.2. Upon such submission, learned advocate Mr. Mansuri prays to dismiss the second appeal.
9. Having heard learned advocates for both the sides, at the outset, it is to be noted that initially, the plaintiff has filed the suit for declaration, permanent injunction and specific performance. The first relief prayed in the suit in the form of para 11(A) was to protect his possession over the land admeasuring 15 guntha being disputed land alleged to have been sold by the defendant No.1 and the second relief in form of Page 6 of 14 Downloaded on : Mon Jul 15 21:14:15 IST 2024 NEUTRAL CITATION C/SA/93/2022 ORDER DATED: 11/07/2024 undefined para 11(B) was about the specific performance of the agreement to sell dated 30.10.1995. Even, the pleading of the plaintiff was based upon the agreement to sell dated 30.10.1995 and claimed his possession over the disputed property on the basis of such agreement to sell dated 30.10.1995. The learned trial Court concluded that the plaintiff has failed to prove execution of the agreement to sell at Exh.67 and therefore, the plaintiff is not entitled to protect his possession. The learned appellate Court taking resort of section 17 of the Registration Act read with section 54 of the Transfer of Property Act reached to the conclusion that Exh.67 is not admissible in evidence as it is not a registered document as the same is executed on plain paper. Hence, it does not convey title to the plaintiff and therefore, dismissed the appeal.
10. In background of above fact position, if we examined Exh.67, undisputedly, it is executed on plain paper by one Mr. Kodarbhai Mathurbhai Kotwal. The tenor of Exh.67 indicates that Kodarbhai Mathurbhai Kotwal has executed agreement to sell for the joint property where other brothers / sisters are co- owners. Nowhere on the record of the suit or appeal, it appears that under which capacity, Kodarbhai Mathurbhai Kotwal has executed Exh,67 for the joint property. Plaintiff has not produced any evidence to establish that despite disputed property was joint property, Kodarbhai Kotwal was authorize to execute agreement to sell. What further appears that it is un- partitioned property and yet, the some share has been sold to the plaintiff by Kodarbhai Mathurbhai Kotwal and that too on a plain paper having no stamp of a single pie. This document is held to be inadmissible document by learned Appellate Court in Page 7 of 14 Downloaded on : Mon Jul 15 21:14:15 IST 2024 NEUTRAL CITATION C/SA/93/2022 ORDER DATED: 11/07/2024 undefined view of section 17 of the Registration Act but even this document was not engross on stamp paper. Moreover, even if execution of Exh.67 is believed to the effect that that some share has been sold to the plaintiff, the plaintiff has to come out with proof that which part of the land of survey No.1098 has been sold to him, which is otherwise a joint property. At the same time, he has to file suit for partition seeking separate possession of the share which is sold by Kodarbhai Mathurbhai Kotwal. Without following this procedure, the plaintiff came out to prove his possession and also with the relief of specific performance, which is later on withdrawn. If we refer the cross-examination of Rameshbhai Mathurbhai at Exh.87, he has admitted that in Exh.67, no quadrilaterals are mentioned; he has also admitted that Exh.67 does not mention that which part of the land has been sold to the plaintiff. Mr. Rameshbhai is the plaintiff's witness. Perusal of plaintiff is also depicting same scenario. No particulars of the land alleged to have sold to the plaintiff is mentioned.
11. Learned advocate Mr. Bhavsar put heavy reliance upon the order passed by the Mamlatdar produced at Exh.66 to indicate that Mamlatdar has believed the agreement to sell and also posted the entry in the Panipatrak. It is settled position of law that the Mamlatdar has no whatsoever authority to decide the title of the immovable property. Whatever the proceedings he has undertaken is limited for the purpose of collecting the land revenue and they are not binding to the civil Court.
12. Another heavy reliance was placed upon Exhs.68 and 69, these are the receipts and these two receipts are pressed to Page 8 of 14 Downloaded on : Mon Jul 15 21:14:15 IST 2024 NEUTRAL CITATION C/SA/93/2022 ORDER DATED: 11/07/2024 undefined argue that they are collateral document of Exh.67 and conjoint reading would prove that the plaintiff has paid total amount of Rs.50,000/- to Kodarbhai Mathurbhai Kotwal and therefore, the possession, which derived after paying full sale consideration could be respected and protected. The question is that whether the plaintiff has any right to continue the possession. He may be in possession, but which part of unpartitioned land is not clear. The averments made in the suit itself is self evident. The suit land was partitioned amongst brothers of Kodarbhai Mathurbhai Kotwal i.e. Kalabhai Mathurbhai, Bhalabhai Kalabhai and Dhulabhai Mathurbhai later on. In the eventuality, the plaintiff has asked the relief in para 11A that his possession fell in the share of the different brothers are to be protected. Three other brothers i.e. Kalabhai Mathurbhai, Bhalabhai Kalabhai and Dhulabhai Mathurbhai have not executed any agreement to sell of their share in favour of plaintiff. Thus aspect on possession is cloudy. Exh.67 admittedly not executed by defendant no.2 to 4, hence, even if it is believed that Exh.67 agreement to sell was executed and has evidentory value, it is not binding to defendant no.2 to 4.
13. In gist, the plaintiff is claiming protection of his possession pursuant to the part performance as defined in section 53A of the Transfer of Property Act. Section 53A reads as under:-
"SECTION 53A : Part performance . Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in Page 9 of 14 Downloaded on : Mon Jul 15 21:14:15 IST 2024 NEUTRAL CITATION C/SA/93/2022 ORDER DATED: 11/07/2024 undefined part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 1 [ * * * *] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights or a transferee for consideration who has no notice of the contract or of the part performance thereof."
14. The phrase "transferee has performed or is willing to perform his part of the contract" is material to read. Relief to protect the possession can be asked by transferee provided that he is willing to perform his part of the contract. In the present case, the plaintiff, who is a transferee, initially asked the relief for specific performance, but then withdrawn that relief by moving a pursis at Exh.26 under Order 23 Rule 1 of the CPC. The suit was filed in the year 2009, where the alleged contract of Exh.67 is of 1995 and between this time period, at no point of time, the plaintiff has shown his ready and willingness. What more also to be observed that section 53A can be relied only as a shield and not as a sword. Another aspect, which could be noticed that the Legislature has used word "reasonable certainty" in section 53A of the Transfer of Property Act.
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Meaning thereby, terms of the written contract must have some reasonable certainty, exact nature of the transaction must be understood as also certainty. At the same time, the term used "willingness" in section 53A of the Transfer of Property Act means 'readiness and willingness' as understood in section 16 of the Specific Performance Act. All these are discussed on the aspect that Exh.67, which was heavily relied upon by the plaintiff does not have any reasonable certainty and at no point of time, the plaintiff has shown readiness and willingness. It could be reiterated that Exh.67 is on plain paper, it resile that earlier mortgage transaction between Kodarbhai Kotwal as also the plaintiff indicates that Kodarbhai Kotwal without having any authorization, promised to sell certain part of land, which is otherwise a joint property to the plaintiff. So, from all corners, Exh.67 is no more than piece of paper. As far as Exhs.68 and 69 are concerned, if any of these are receipt issued by Kodarbhai Kotwal, the plaintiff can sue Kodarbhai Kotwal for recovery of that amount subject to law of limitation. In nutshell, the plaintiff has no right to continue with the possession. Even if he is in possession, his possession is not lawful and not to be respected and protected. It is only legal possession which is required to be protected.
15. In view of above settled legal position of law, the second appeal is one more attempt on the part of the unsuccessful plaintiff to protect his illegal possession. None of the questions framed by the appellant are found to be substantial questions of law.
16. What could be considered as substantial question of law Page 11 of 14 Downloaded on : Mon Jul 15 21:14:15 IST 2024 NEUTRAL CITATION C/SA/93/2022 ORDER DATED: 11/07/2024 undefined has been elaborately discussed by the Hon'ble Apex Court in case of Gurbachan Singh (Dead) Through Lrs Versus Gurcharan Singh (Dead) Through Lrs And Others reported in 2023 (0) INSC
639. The relevant para is para 7, which reads as under:-
"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed v. J. Kamala, (2020) 19 SCC 57 ( 2- Judge Bench), it was observed:-
"27. In HeroVinoth v. Seshammal [ HeroVinoth v. S eshammal, (2006) 5 SCC 545 ] , this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [ Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [ Hero Vinoth v. Seshammal, (2006) 5 SCC 545 ] are set out hereinbelow : (SCC p. 554, para 21) "21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction withtechnical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial Page 12 of 14 Downloaded on : Mon Jul 15 21:14:15 IST 2024 NEUTRAL CITATION C/SA/93/2022 ORDER DATED: 11/07/2024 undefined question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [ Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC 172 ] the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Chunilal case [ Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [ Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969 ] : (Chunilal case [ Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ] , AIR p. 1318, para 5).
5. ... when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law. 28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way."
(Emphasis supplied)"
17. Resultantly, the second appeal fails and stands dismissed at admission stage. Decree to be drawn accordingly. No order Page 13 of 14 Downloaded on : Mon Jul 15 21:14:15 IST 2024 NEUTRAL CITATION C/SA/93/2022 ORDER DATED: 11/07/2024 undefined as to costs. Consequently connected civil application also stands disposed of.
R & P, if any, be sent immediately to the concerned Court.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 14 of 14 Downloaded on : Mon Jul 15 21:14:15 IST 2024