Gujarat High Court
Manishkumar Bhogilal Patel vs Jaydeepsinh Ganpatji Thakor on 16 November, 2022
C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 100 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In
R/APPEAL FROM ORDER NO. 100 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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MANISHKUMAR BHOGILAL PATEL
Versus
JAYDEEPSINH GANPATJI THAKOR
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Appearance:
MR KARTIK V PANDYA(2435) for the Appellant(s) No. 1
for the Respondent(s) No. 3.3
DECEASED LITIGANT for the Respondent(s) No.
3,4,4.4,4.5,4.6,4.7,5,6
DELETED for the Respondent(s) No. 3.1,4.6.1
MR MB PARIKH(576) for the Respondent(s) No. 5.1,5.6,6.1,6.2,6.3
MR RIDDHESH TRIVEDI(6581) for the Respondent(s) No. 1,2
Page 1 of 20
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C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022
RULE SERVED for the Respondent(s) No.
3.2,3.3.1,3.3.2,3.3.3,3.3.4,3.3.5,4.1,4.2,4.3,4.4.1,4.4.2,4.4.3,4.4.
4,4.5.1,4.5.2,4.5.3,4.6.2,4.7.1,5.2,5.3,5.4,5.5,7
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 16/11/2022
CAV JUDGMENT
1. The present Appeal from Order is preferred by the appellant herein - original defendant no.6 under Order 43, Rule 1 r/w. Section 151 of the Civil Procedure Code, 1908 challenging the impugned order dated 26.03.2018 passed by the learned Principal Senior Civil Judge, Gandhinagar below application at Exhibit 5 in Special Civil Suit No. 37 of 2017.
2. Brief facts of the present case are that the original plaintiffs
- respondents no.1 and 2 herein filed Special Civil Suit No.37 of 2017 for specific performance of two agreement to sell executed on 30.07.2007 and 04.08.2007 with respondents no.3 to 7 and on the basis of the said agreement to sell, respondents no.1 and 2 filed the said suit along with ancillary relief of cancellation of registered sale deed executed on 18.06.2016 with respect to the Page 2 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022 C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 agriculture land bearing Block No.176 admeasuring 4728 square meter situated at Village: Randeson, District: Gandhinagar. The plaintiffs have executed one unregistered agreement to sell on 30.07.2007 before the Notary and original defendant no.1 and present respondent no.3 i.e. legal heirs of Juhaji Shivaji Thakor for 1/8th share of agriculture land bearing Block No.176 admeasuring 1176 square meter situated at Village: Randeson, District: Gandhinagar. It is further averred by the original plaintiffs that on the same day, one another agreement to sell executed between the original defendant no.4 - respondent no.6 herein for the agriculture land admeasuring 2352 square meters of the northern side, which is undivided ancestral property. That in both the agreement to sell, no time period of performance was mentioned and as alleged within a period of two months, when the land in question may eligible, to execute the agreement to sell. That the original plaintiffs produced an order on the Gujarat Revenue Tribunal whereby the Tribunal allowed the revision application of the original owner and the dispute with regard to tenancy between original owner came to an end on 23.03.2015 and as per document at Annexure - B, the time period of Page 3 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022 C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 executing the sale deed is commenced but the plaintiffs never did any act of performance within stipulated time period or more over till the date of execution of sale deed dated 11.03.2016.
2.1 The original plaintiffs have filed the aforesaid suit along with the application at Exhibit 5 for interim injunction. The Trial Court allowed the application at Exhibit 5 and directed to maintain status-quo granted earlier with respect to entire land admeasuing 9409 square meter of Block No.176 situated at Village: Randeson and confirmed said order till final disposal of the suit.
3. Feeling aggrieved and dissatisfied with the impugned aforesaid order, the appellant has preferred the present appeal.
4. Heard Mr.Kartik Pandya, learned counsel appearing for the appellant, Mr.M. B. Parikh, learned counsel appearing for respondents no.5.1, 5.6, 6.1, 6.2, 6.3 and Mr.Riddhesh Trivedi, learned counsel appearing for the respondents no.1 and 2.
5. Mr.Pandya, learned counsel appearing for the appellant has Page 4 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022 C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 submitted that the findings given by the Trial Court is against the record of the case, contrary to law and suffers from non-
application of mind. He has submitted that the plaintiffs filed the suit on the basis of an unregistered agreement to sell which is not sustainable in the eyes of law as per the Registration Act and the decisions of the Hon'ble Apex Court. He has submitted that as per the say of the plaintiffs, they have entered into an agreement with regard to the land admeasuring 4728 square meters of Block No.176 admeasuring 9409 square meters, however, the plaintiffs have shown the entire land as a suit property which is void ab-initio and they have no right to file such suit of whole land of Block No.176. He has submitted that the land in question is ancestral land and no right of any of the owners to enter into an agreement for any particular piece of land without making any partition by metes and bounds and alleged two agreement to sell executed between the different co-
owners and different piece of land, in which no boundaries were made and no particular piece of land was identified. He has submitted that when no identity of the land is seen in the agreement to sell and the land in question is ancestral one, no Page 5 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022 C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 agreement to sell can be made. He has also submitted that when the land became executable sale deed, then the sale deed is required to be executed within a period of two months. He has submitted that the Gujarat Revenue Tribunal passed an order on 23.03.2015 and, thereafter, the plaintiffs never tried to perform their part of the agreement to sell. He has submitted that the appellant is a bona fide purchaser of the land and no suit lies against the appellant under Section 19(B) of the Specific Relief Act. He has submitted that no any part of Block No.176 can be sold or made any agreement to sell regarding any piece of land on accountability of amalgamation scheme under Section 36 of the Prevention of Fragmentation and Consolidation of the Holding Act, 1947 and hence, the alleged agreement to sell are not enforceable in the eyes of law, but the said issue is a pure question of law. He has submitted that the appeal deserves to be allowed and the impugned order deserves to be quashed and set aside.
6. Mr.Pandya, learned counsel appearing for the appellant has relied upon the following decisions.
Page 6 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 (1) S. Kaladevi Vs. V. R. Somasundaram and others reported in (2010) 5 SCC 401;
(2) Bharatkumar Ishwarlal Miterani and others Vs. Girishbhai Manubhai and others dated 26.08.2013 rendered in Appeal from Order No.36 of 2012 by this Court;
(3) R. K. Mohammed Ubaidullah and others Vs. Hajee C. Abdul Wahab and others reported in (2000) 6 SCC 402;
(4) Mohd. Mehtab Khan and others Vs. Khushnuma Ibrahim Khan and others reported in (2013) 9 SCC 221;
(5) Balram Singh Vs. Kelo Devi reported in 2022 LawSuit (SC) 1144;
(6) Laxmiben D.O. Nathabha Mafatbhai Patel Vs. Dhawal Amrutbhai Patel reported in 2014 (0) GLHEL-HC 232486 = AIR 2015 Guj 74;
7. Mr.Parikh, learned counsel and Mr.Riddhesh Trivedi, learned counsel appearing for the respective respondents have supported the impugned order and have submitted that the Trial Court has not committed any error of law and facts in passing Page 7 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022 C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 the impugned order. They have submitted that the appeal being meritless deserves to be dismissed. Mr.Trivedi, learned counsel appearing for respondents no.1 and 2 has relied upon the decision of this Court in the case of Suleman Aadamjibhai Nagariya Vs. Legal Heirs of deceased Mohammad Yakubmiya Mohsinmiya reported in (2018) SCC Online Guj 3679;
8. This Court has considered the submissions canvassed by the learned counsel appearing for the respective parties and perused the materials placed on record, as also the decisions cited at the Bar.
9. In the case of S. Kaladevi (supra), the Hon'ble Supreme Court has held and observed in paragraph no.12 as under:-
"12. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by Page 8 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022 C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs. 100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act."
10. In the case of Bharatkumar Ishwarlal Miterani (supra), this Court (Coram: Hon'ble Mr.Justice S. H. Vora) has held and observed in paragraphs no.20, 26, 26 and 27 as under:-
"20. It is evident that the vendors cancelled the suit agreement by issuing notice dated 14.06.2011 on the ground that it is impossible to evict the tenants. Such inability expressed by the vendors is not in good taste or bona fide for the simple reason that it is not the case of the vendors that they have initiated any action against the tenants to evict them in accordance with law. Had it been any action initiated by the vendors to evict the tenants and in such process, if the vendors fail to obtain decree from the competent Court, then the vendors are within their right to raise a plea of impossibility of performance of suit agreement. It is not the case here.
25. Now this takes me to decide whether the subsequent purchasers are bona fide purchasers of the suit land or not. In order to examine this aspect, it is necessary to consider the conduct of the subsequent purchasers before execution of the sale deed. It is well settled principle of law under section 19(b) of the Specific Relief Act that specific performance of contract may be enforced against any other person claiming under him by a title arising subsequently to the contract. No person can convey a better title then what he has, except where the Page 9 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022 C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 statute provides exception to the rule like section 19(b). If a person, as an owner of the property, has entered into an agreement to sell, he cannot, thereafter, convey the same property to any other person, as after prior agreement to sell, he cannot be said to be a free owner of the property. If he subsequently alienates the property, he can alienate it only subject to the rights created under the prior agreement to sell. It is the case of the subsequent purchasers that they have no knowledge about the execution of the sale agreement inter se between the purchasers and the vendors and therefore, they have bona fidely entered into the registered sale deed without notice of prior sale agreement and paid the full value in good faith. As found herein above, the vendors and the subsequent purchasers with unusual haste with which the sale was carried out, shows an extraordinary and carrying through a sale deed involving such huge consideration, where such transactions, as a rule, are carried out with appropriate inquiry and more particularly, after obtaining title clearance certificate and also by publishing notice in newspaper before purchase. Admittedly, no such step has been taken by the subsequent purchasers.
26. The plain language of sub section (b) of section 19 shows that subsequent transferee can retain the benefit of his transfer by purchase, which prima facie, he had no right to get, only after satisfying two conditions i.e. (1) he must have paid the full value for which he purchased the property and (2) he must have paid it in good faith and without notice of prior contract. The burden of proof is upon the subsequent purchasers to establish existence of these two conditions in order to see that his right may prevail over the prior agreement of sale. In order to see whether the said conditions are fully satisfied or not, let us see how the consideration has been paid by the subsequent purchasers to the vendors.
Admittedly, in the instant case, the full amount agreed between the vendors and the subsequent purchasers was not paid when the sale deed was executed on 20.6.2011. As recorded herein above, the subsequent purchasers issued six post dated cheques of Rs.12,50,625/- each payable on every 10th day of month of July, 2011 to December, 2011. What is specified in the provisions is that the amount ought to have been actually paid and that is the reason why sub section (b) of section 19 protects the bona fide purchaser, who had parted with his money and without notice of the prior agreement. Otherwise, the provisions would lead unscrupulous purchaser to exploit the situation. In order to Page 10 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022 C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 invoke provisions under section 19(b), the subsequent purchasers should have entered into transaction bona fidely and that he ought to have paid the entire amount and that he had no notice. These ingredients have to be established by the subsequent purchasers and onus lies on him. In the case on hand, these ingredients, more particularly payment of full value on the date of execution of sale deed, is lacking. It is so because the purchasers have filed suit on 20.6.2011 and the subsequent purchasers have filed their written statement in the trial Court on 7.7.2011. Meaning thereby, when summons/ notices of the suit were served upon the subsequent purchasers, notice as to existence of the suit agreement came to the knowledge of the subsequent purchasers and on such date, the subsequent purchasers have not paid full value, but they have paid only Rs.15 lac. It follows therefore, that unless the subsequent purchasers pays the entire money or its equivalent before the subsequent purchasers had any such notice, the subsequent purchasers will not be entitled to the protection. For the sake of repetition, it requires to be noted that what is specified in the provisions is that the amount has been actually paid and that is the reason why sub section (b) of section 19 protects the bona fide purchaser, who had parted with full money and without notice of the prior agreement. Apart from this, whether the subsequent purchasers have notice of the suit agreement is also a question of fact which needs to be tested at the time of leading evidence. The ratio laid down in the cases of Durga Prasad (supra), Rameshwar Singh (supra), Smt. H.R. Irani (supra), Manjunath Anandappa Urf Shivappa Hansi (supra) and M/s Ciba Geigy Ltd. (supra) cited by learned advocate Mr. Patel is to show that burden to prove that the subsequent purchasers has knowledge of prior contract is on the purchasers since the subsequent purchasers has clearly pleaded want of knowledge about existence of prior contract. There is no disagreement on the proposition of law laid down in the case cited at bar, but the Court cannot held mini trial at this stage to examine whether the subsequent purchasers have notice of the suit agreement or not prior to execution of the registered sale deed. But with unusual rapidity with which the sale deed is carried out is an important circumstances as it shows an extraordinary and unusual carrying through of sale in respect of immovable property involving huge consideration of more than Rs.1 crore. Normal procedure for sale/purchase of immovable property as a rule are not such which is adopted in the present case. Hence, required ingredients of section 19(b) of Specific Relief Act are missing in this case and hence, the protection of section 19(b) is not Page 11 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022 C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 available to the subsequent purchasers.
27. One of the contentions raised by learned advocate for the subsequent purchasers that suit is hit by section 16(c) of the Specific Relief Act is concerned, it requires to be noted that after the conveyance, the only question to be adjudicated is whether the subsequent purchasers are bona fide purchasers for value without notice. The question whether the appellants i.e. purchasers were ready and willing to perform their part of the agreement is really no consequences. Once there is a conveyance, the concept would be different and primary relief could be only cancellation of sale deed executed by vendors in favour of the subsequent purchasers. Hence, there is no substance in the said contention raised by learned advocate Mr. Patel for the subsequent purchasers.
11. In the case of R. K. Mohammed Ubaidullah (supra), the Hon'ble Supreme Court has held and observed in paragraphs no.13 and 15 are as under:-
"13. In paragraph 6 of the written statement defendants 2 to 4 stated that they had purchased the property only after contacting the plaintiff; they sought the permission of the plaintiff to inspect the suit godown informing him of their intention to purchase the same from the first defendant. The trial court did not accept this contention and rightly so in our opinion. In the ordinary course a reasonable prudent person placed in the position of the plaintiff would not have failed to mention about the existence of the prior agreement in his favour particularly when he is using the very same godown as a tenant under the first defendant for the last 20 years prior to the filing of the suit. Similarly the defendants 2 to 4 intending to purchase the property in possession of a tenant would not have failed to make inquiry as to any further interest in relation to possession or title of the plaintiff over the suit property. It is not uncommon that where a tenant is in possession of the property, that too for a long time, using it for business purpose would always like to purchase the property getting all advantages if offered for sale. Normally Page 12 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022 C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 the landlord or owner of the property would also be interested in selling the property to a person in possession if a reasonable price is given to avoid litigation and to have smooth transaction. In certain statutes even provisions are made to give first option to a tenant to purchase the property. In such situation the defendants 2 to 4 would have made inquiry with the plaintiff about the nature of his possession and title under which he is in possession on the date of sale deed (Exhibit B-1) executed in their favour. If they had made inquiry plaintiff would have certainly revealed about Exhibit A- 3 the prior agreement in his favour. If such inquiry was not made it only means that the defendants 2 to 5 willfully abstained from making such inquiry or they grossly neglected to do so. The defence of defendants 2 and 4 is not consistent with regard to contacting the plaintiff and informing of their intention to purchase the property. Once they took a stand that they directly contacted the plaintiff seeking his permission to inspect the suit property and in the evidence of DW-1 it is stated that they sent their clerk to the plaintiff seeking permission to inspect the suit property. Neither the name of that clerk was given nor he was examined nor it is stated about the same in the written statement.
15. Notice is defined in Section 3 of the Transfer of Property Act. It may be actual where the party has actual knowledge of the fact or constructive. "A person is said to have notice" of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation II of said Section 3 reads:
"Explanation II - Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof."
Section 3 was amended by the Amendment Act of 1929 in relation to the definition of 'notice'. The definition has been amended and supplemented by three explanations, which settle the law in several matters of great importance. For the immediate purpose Explanation-II is relevant. It states that actual possession is notice of the title of the person in possession. Prior to the amendment there had been some uncertainty because of divergent views expressed by various Page 13 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022 C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 High Courts in relation to the actual possession as notice of title. A person may enter the property in one capacity and having a kind of interest. But subsequently while continuing in possession of the property his capacity or interest may change. A person entering the property as tenant later may become usufructuary mortgagee or may be agreement holder to purchase the same property or may be some other interest is created in his favour subsequently. Hence with reference to subsequent purchaser it is essential that he should make an inquiry as to title or interest of the person in actual possession as on the date when sale transaction was made in his favour. The actual possession of a person itself is deemed or constructive notice of the title if any, of a person who is for the time being in actual possession thereof. A subsequent purchaser has to make inquiry as to further interest, nature of possession and title under which the person was continuing in possession on the date of purchase of the property. In the case on hand defendants 2 to 4 contended that they were already aware of the nature of possession of the plaintiff over the suit property as a tenant and as such there was no need to make any inquiry. At one stage they also contended that they purchased the property after contacting the plaintiff, of course, which contention was negatived by the learned trial court as well as the High court. Even otherwise the said contention is self- contradictory. In view of Section 19(b) of the Specific Relief Act and definition of 'notice' given in Section 3 of the Transfer of Property Act read along with explanation II, it is rightly held by the trial court as well as by the High Court that the defendants 2 to 5 were not bona fide purchasers in good faith for value without notice of the original contract."
12. In the case of Suleman Aadamjibhai Nagariya (supra), this Court (Coram: Hon'ble Mr.Justice J. B. Pardiwala) has held and observed in paragraphs no.10 and 18 as under:-
"10. Mr.Sevak, the learned counsel appearing for the appellants - original plaintiffs vehemently submitted that the Courts below committed a serious error in passing the impugned judgments. Mr.Sevak would submit that the Courts below committed an error in taking the view that a suit for Page 14 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022 C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 specific performance of contract is not maintainable on the basis of an unregistered agreement of sale. Mr.Sevak further submitted that the Courts below committed an error in taking the view that as the plaintiffs have not been able to establish that they are agriculturists, they could not have entered into an agreement of sale of an agricultural land. According to the learned counsel, the Courts below committed an error in holding that such a transaction would be an invalid transaction as hit by Section 63 of the Tenancy Act. He further submitted that the Courts below committed a serious error in not properly construing the Exhibits 34, 43 and 44 i.e. the three agreements of sale dated 1st October 1981, 24th May 1984 and 30th May 1995 respectively.
18. I am at one with Mr.Sevak, the learned counsel appearing for the appellants so far as the contentions with regard to the maintainability of the suit for specific performance on an unregistered agreement of sale and Section 63 of the Tenancy Act. In my view, both the Courts below committed an error in taking the view that the relief of specific performance cannot be granted if the same is based on an unregistered agreement to sale. It appears that the Courts below have not properly looked into Section 49 of the Registration Act. A suit for specific performance is maintainable even if it is based on an unregistered of sale."
13. In the case of Mohd. Mehtab Khan (supra), the Hon'ble Supreme Court has held and observed in paragraphs no.20 to 22 as under:-
"20. In a situation where the learned Trial Court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, Page 15 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022 C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the view of the Trial Court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd.
21. Para 14 of the aforesaid judgment which is extracted below would amply sum up the situation:
"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will 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. 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 that 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. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (AIR p. 1159, para 9) "9... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton : (AC p. 138) Page 16 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022 C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 '...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'."
The appellate judgment does not seem to defer to this principle."
22. Though the above discussions would lead us to the conclusion that the learned Appellate Bench of the High Court was not correct in interfering with the order passed by the learned Trial Judge we wish to make it clear that our aforesaid conclusion is not an expression of our opinion on the merits of the controversy between the parties. Our disagreement with the view of the Division Bench is purely on the ground that the manner of exercise of the appellate power is not consistent with the law laid down by this Court in the case of Wander Ltd. (supra). Accordingly, we set aside the order dated 09.10.2012 passed by the Appellate Bench of the Bombay High Court and while restoring the order dated 13.04.2012 of the learned Trial Judge we request the learned Trial Judge, or such other court to which the case may, in the mean time, have been transferred to dispose of the main suit as expeditiously as its calendar would permit with the expectation that the same will be possible within a period of six months from the date of receipt of this order. The appeal shall stand disposed of in terms of the above.
14. Having considered the submissions canvassed by the learned counsel appearing for both the sides and considered the facts and circumstances of the case and perused the materials on record and the decisions cited at the Bar, it appears that the suit is filed by the original plaintiffs - respondents no.1 and 2 herein on the basis of the unregistered agreement to sell dated 30.07.2007. So, from the year 2007 till 2017 for more than ten Page 17 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022 C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 years, the original plaintiffs have not conveyed original owner to execute the sale deed in their favour. It appears that the Trial Court has granted interim relief in favour of the original plaintiffs without considering the legal aspects in its true spirit and passed the order which is against the settled principles of law. It also appears that the Trial Court has failed to consider the fact that for more than ten years, the plaintiffs have slep over and not asked the original land owner to execute the sale deed in their favour. It is not the case of the plaintiffs that they have not shown their readiness and willingness prior to the date of institution of the suit for execution of the sale deed and when the original plainitiffs came to know that the original land owner has executed sale deed in favour of the subsequent purchaser, they preferred the suit, which is not tenable in the eyes of law.
Considering the settled legal principles of law and the ratio laid down by the Hon'ble Supreme Court, it appears that the unregistered document i.e. agreement to sell is not admissible in evidence and it can be used for collateral purpose to verify the signature only and, therefore, on the basis of such documents, the plaintiffs have no right to press the original owner/s or the Page 18 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022 C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 subsequent purchaser/s, who purchased the property through the registered sale deed to execute the sale deed. In fact, it is relevant to note that as the plaintiffs are unable to get the relief directly which is otherwise plaintiffs cannot get in a suit for substantive relief, i.e. the relief for specific performance.
Therefore, the plaintiff/s cannot get the relief even for permanent injunction on the basis of the unregistered document i.e. agreement to sell. Therefore, in my view, the Trial Court has committed an error of law and facts in passing the impugned order below Exhibit 5. Considering all these facts, the impugned order passed below Exhibit 5 is erroneous and against the settled principles of law. That when the person who is left over number of years, he/she cannot claim any equitable right after a long slumber as the agreement to sell was entered into in the year 2007 and after more than nine years, the present suit is filed.
15. Considering the averments made in the plaint as well as application at Exhibit 5, it clearly reveals from clever drafting that to bring their suit within limitation period, the original plaintiffs have averred that they have time and again reminder the original owner to execute the sale deed, however, there is no Page 19 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022 C/AO/100/2018 CAV JUDGMENT DATED: 16/11/2022 proof with regard to readiness and willingness on the part of the plaintiffs shown to the Trial Court. However, the Trial Court, while granting interim relief, has not considered all these aspects and passed the impugned order.
16. In view of the above, the present appeal from order is allowed. The impugned order passed by the Trial Court below application at Exhibit 5 is hereby quashed and set aside. It is open for the parties to press for expeditious hearing and disposal of the suit before the Trial Court. It is expected that the Trial Court will decide the suit on its own merits and in accordance with law, after considering oral as well as documentary evidence and hearing the respective parties and uninfluenced by observations made in the earlier order passed below application at Exhibit 5. There shall be no order as to cost.
17. Pending civil application/s shall stands disposed of accordingly.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 20 of 20 Downloaded on : Fri Nov 18 20:56:46 IST 2022