Gujarat High Court
Kishorebhai vs Manubhai on 12 March, 2010
Author: Bhagwati Prasad
Bench: Bhagwati Prasad
Gujarat High Court Case Information System
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FA/81/2010 17/ 17 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 81 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ?
NO
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KISHOREBHAI
KHANCHAND GOHIL & 1 - Appellant(s)
Versus
MANUBHAI
PRABHUDAS PATEL & 9 - Defendant(s)
=========================================================
Appearance
:
MR
D.D. VYAS, LD. SR. ADVOCATE ASSISTED BY MR. DHAVAL D VYAS
for
Appellants
MR TATTVAM
K PATEL for Defendant(s) : 1,
None for Defendant(s) : 2 - 4,4.2.1
- 7,9 - 10, 10.2.1,10.2.2
MR. MIHIR THAKORE, LD. SR. ADVOCATE
ASSISTED BY MS TRUSHA K PATEL for Defendant(s) :
8,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 23/03/2010
CAV
ORDER
(Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present First Appeal is filed against the decision of learned 4th Additional Senior Civil Judge, Ahmedabad (Rural) at Mirzapur dated 31.1.2009 by the appellants who were original plaintiff Nos. 1 and 2.
2. The original plaintiffs filed the Suit, inter alia, on the allegation that there was an agreement executed in their favour by defendant Nos. 1 to 4 on 11.9.1997 whereby they had agreed to sell to the appellants the holdings situated in Survey Nos. 376/2, 384 part, 385, 386 and 387 of village Gota, Sub-District and District Ahmedabad. This agreement was a registered one. At the time of agreement Rs. 2,55,000/- was paid as part consideration.
3. It has been further alleged that in relation to the same holding a registered agreement to sell was also executed by the original owners in favour of the promoters of proposed Society I.e. Vikram Park (Gota) Co-operative Housing Society, on 17.5.1995.
4. The plaintiffs claim that on 2.3.1998 the original owners have conveyed possession in the part performance of the agreement entered into between them and the plaintiffs. This part was performed by plaintiff No. 2. This has been further averred in the plaint that by an agreement dated 12.1.1998, a declaration was made by the land owners in favour of the proposed society of handing over the possession of the land in question.
5. This is the further case of the plaintiffs that a Special Civil Suit came to be filed being Special Civil Suit No. 93 of 1999 which was filed by original owners defendant Nos. 1 to 4 and defendant No. 9 in whose favour there was a Power of Attorney executed by defendant Nos. 1 and 4. The Court seized of the Suit passed an injunction on 19.5.1999 whereby status quo was ordered to be maintained in relation to the Suits. Further in the Suit after bi-parte hearing it was ordered on 16.12.2000 that defendant Nos. 6 and 7 would not sell the Suit property without prior written permission of the Court. The present Suit is still pending. It is averred that by a registered Sale Deed dated 3.9.2002 to 7.2.2003, Power of Attorney of defendant Nos. 6 and 7 have sold away the suit properties to defendant No. 8.
6. It is further alleged that by a unilateral declaration of defendant Nos. 1 to 4, the registered document in favour of the plaintiffs dated 11.9.1997 was designed to be cancelled by a registered document on 24.2.2003.
7. On 19.8.2003, Special Civil Suit No. 216 of 2003 was filed by the appellants for specific performance, declaration and permanent injunction against the defendants. This is the Suit which is decided by the judgement impugned and in the subject matter of this appeal. In this Suit the prayers made by the plaintiffs are to the following effect:
`(i) The lands in respect of which defendant Nos. 1 to 4 have executed registered banakhat on 11.9.1997 in favour of plaintiffs, be pleased to order the specific performance of the same and the registered Sale Deed be executed and the defendant No. 6 and 7 sign in the same as confirming party and execute the Sale Deed in respect of above suit lands, be pleased to pass such orders, alternatively be pleased to order that if the defendants fail to do so then the Court Commissioner be appointed by this Court and through the Commissioner the said document be executed in favour of the plaintiffs, be pleased to pass such orders.
(ii) Be pleased to hold that the so-called power of attorney holder defendant No. 5 for the defendant Nos. 1 to 4 has executed the Sale Deed in favour of defendant Nos. 6 and 7 which is nullity and void in law and the dealing entered into by the defendant Nos. 6 and 7 with the defendant No. 7 is also void dealing because the dealing by defendant No. 8 is also void and due to such dealings the defendant Nos. 5 to 8 do not acquire any right, authority, title or possession, be pleased to declare this;
(iii) Be pleased to restrain the defendant Nos. 1 to 8 jointly and severally in any manner from entering into any kinds of dealings, Sale Deed or transfer or possession and not to execute any document in favour of anyone in respect to the land property situated in the District, Sub-District - Ahmedabad, Daskroi Taluka at mauje Gota having Survey No. 376/2, 384, 385, 386 and 387, be pleased to order such injunction;
(iv) Be pleased to award the entire costs of this Suit and any other related relief.'
8. The plaintiffs have based their Suit on the ground that the transfer in favour of defendant Nos. 6 and 7 on 10.5.1999 is subject matter of Special Civil Suit No. 93 of 1999 filed by the original owners which is still pending. The Sale Deed in favour of defendant Nos. 6 and 7 was executed through defendant No. 5 Power of Attorney holder of defendant Nos. 1 to 4 and in turn defendant Nos. 6 and 7 have sold away the property to defendant No. 8 at the time ranging between 3.9.2002 and 7.2.2003. This is sought to be made by the plaintiffs in the Suit that cancellation of the document in their favour was made on 24.2.2003 by defendant Nos. 1 to 4. The Suit was claimed to be in time because the plaintiffs' right got affected by the act of the original owners dated 24.2.2003 whereby the registered agreement to sell dated 11.9.1997 stood cancelled.
9. It has been claimed by the plaintiffs that the original owners have in part performance, conveyed the possession by an agreement dated 2.3.1998. Therefore, the plaintiffs got a cause to file the Suit for declaration and also for injunction to protect their possession, which is threatened to be disturbed.
10. The Suit was contested. Ultimately, learned trial Judge dismissed the Suit. One of the issues which has been decided against the appellants relate to limitation being issue No. 12. When the appeal came up before this Court and it was observed that the Suit has been dismissed on the ground of limitation, it was deemed proper that since the question of limitation is involved, before admitting the appeal the question of limitation should be gone into and to decide this question, record and proceedings were called for and after record and proceedings were received, arguments on the issue of limitation were heard. Respondent No. 8 had entered caveat and therefore on this question, assistance of learned counsel for respondent No. 8 was also taken by the Court to arrive at a just conclusion in relation to the point of limitation.
11. While arguing the question of limitation, learned counsel for the appellants has raised question that the appellants have got in their favour a registered document executed by defendant Nos. 1 and 4 on 17.5.1995 and part consideration of Rs. 2,55,000/- was paid. Further the possession of the land was conveyed to the brother of the plaintiffs with their consent on 2.3.1998 and therefore they have a right to maintain the Suit and the Suit is within limitation because the agreement in their favour was cancelled in the year 2003 and they were in possession pursuant to the agreement and handed over possession in pursuance of that agreement possession was handed over to their brother.
12. It has been further alleged that agreement in favour of a registered Co-operative Society which is alleged to have entered on 16.5.1995, 17.5.1995 by Power of Attorney of defendant Nos. 1 to 4 is void ab initio because on that day the Co-operative Housing Society was only proposed and not in existence. The basic document of transfer in favour of defendant No. 8 by defendant Nos. 6 and 7 being void and non-est and the further conveyance of purported title in favour of defendant No. 8 by defendant Nos. 6 and 7 cannot be sustained and deserves to be set aside. The appellants have relied on a decision of the Hon'ble Supreme Court in the case of MANEKLAL MANSUKHBHAI CO-OP. HOUSING SOCIETY LTD. VS. RAJENDRAKUMAR MANEKLAL SHAH & ANR. reported in 2002(1) GLH 290 and the decision of this Court in the matter of RAMJI MANDIR VS. NARSINH NAGAR reported in 1979 GLR 801. The appellants have further relied on the findings of the Hon'ble Supreme Court on a case decided in the matter of PREM SINGH AND OTEHRS VS. BIRBAL AND OTHERS reported in (2006) 5 SCC 353 and have contended that there is no question of limitation when the document is nullity and void ab-initio. The appellants further claimed that they are entitled to claim protection of their possession and in this regard have placed reliance on decisions in the matters of RAMESH CHAND ARDAWATIYA VS. ANIL PANJWANI reported in (2003) 7 SCC 350; SADASHIV CHANDER BHAMGARE VS. EKNATH PANDHARINATH NANGUDE reported in 2004 Law Suit (Bom.) 433; SADASHIV CHANDER BHAMGARE VS. EKNATH PANDHARINATH NANGUDE reported in 2004 Law Suit (Bom) 1677 and therefore the question of limitation cannot be pressed against them. The appellants have further claimed that their possessive rights are the rights which have accrued to them and they have the right to protect the same against the threat and in this regard have placed reliance on a case in the matter of DAYA SINGH & ANR. VS. GURDEV SINGH THROUGH L.Rs. Reported in 2010 AIR SCW 689. The appellants have further claimed that a contract which has been performed in part cannot be said to be barred by limitation and the possession having been handed over, it cannot be said that there had been a bar of limitation attracted in the matter.
13. Per contra: learned counsel for respondent No. 8 contended that the suit is for the specific performance of agreement dated 11.9.1997. It has been filed on 19.8.2003. Before filing of the Suit on 10.5.1999 Sale Deed came to be executed by the Power of Attorney of the original owner in favour of defendant Nos. 6 and 7. Registration of such Deed of conveyance in favour of defendant Nos. 6 and 7 constitutes a notice to any concerned party and would amount to refusal of performance in favour of the appellants and therefore limitation started running against the plaintiffs with effect from 10.5.1999 and thus the Suit is clearly barred by limitation in view of the law laid down by Hon'ble Supreme Court in the matter of JANARDHANAM PRASAD VS. RAMDAS (2007) LAWSUIT (SC 101). It has also been claimed by defendant No. 8 that not only the plaintiffs have legal notice of refusal by defendant Nos. 1 to 4 to perform the contract to defendant No. 9 who was the Power of Attorney of respondent No. 1 to 4, had filed Civil Suit No. 93 of 1999 and this Suit was filed at the behest of the plaintiffs. Such an act of defendant No. 9 filing the Civil Suit at the behest of the plaintiffs is admitted by the plaintiffs themselves in their cross-examination. Relevant part of their evidence in cross-examination is quoted hereinbelow:
"Ae vat qrI 0e ke, me> Aevu> lQyu 0e ke, p/itvadI n>9 j>yitlalnu> kulmuqTyarnam p/itvadI n> 14I4 Ae rd krvanI nae3Is AapI 0e Ane Aena ma3e sIvIl dava n>.93/2009 nae davae 4yae AenI Aaspas jyitlale Aa hkIkt mne khI htI. Ae vatnI mne qbr n4I ke mU5 jmIn mailkae Ane jy>itlal Aa hkIkt mne khI htI. Ae vatnI mne qbr n4I ke mU5 jmIn mailkae Ane jy>itlal vCce kea[ Vyvhar 4ya hta ke kem? Aaje p` mne qbr n4I. Ane jy>itlal Aajsu6I mara ivru^6ma> n4I. me> jyare Aa saedae kyaeR Tyare jmIn rIzveRxnma> htI ke kem? tenI mne qbr n4I. JmIn rIzveRxn haey Ane te mare dUr kravvanu> haey Aevu n htu. JmIn rIzveRxn dUr kravva me> kae[ qcR kyaeR n4I. Ae vat qrI 0e ke, davava5I jmIn qrIdnar pase4I pEsa pDavva ma3e me Vyvharae kyaRE Ane davae kyeRa .
jy>itwa[ vI. Xah Ae3le ke, p/itvadI n>.9 nI trfe`ma> jmIn mailkaen>u muqTyarnamu> Ae hetu4I lI6el ke,Amara ma`s trIke p/itvadI n>.9 jmIn mailkae vtI je k>[ kayeaR krva haey te sr5ata4I krI xke. ta. 3/12/1999 na raej je.vI.xah marft Spe. id.mu> n>.93/99nae Ae ma3e kravel ke, mU5 jmIn mailke AmarI trfe`ma> krel Vyvhar Saaca haevanu> #ravva t4a myurwa[ m>g5das te ivk/mpakR kea.Aae.ha. Saea.na p/yaejk t4a jnkkumar ivr+wa[ te ivk/mpak kae.Aae.ha.sae.na p/yaejk t4a rmexwa[ vLlwwa[ t4a p/ag+wa[ gaebrwa[nI trfe`na lqa`ae qae3a #ravva Ane subahu m>g5dasnI trfe`ma> mU5 jmIn mailke krelae pavr Aaef Ae3nIR rd kravva kravel.
14. Defendant No. 8's counsel further urged that the plaintiffs have not styled their Suit and it has not been pleaded that part performance is claimed by them in the Suit. They are claiming protection on the basis of part performance only in arguments without there being a basis in plaint. What has been stated in the Suit is that possession was claimed in the name of one Shailesh Nanchand Shah who was not even party to the present Suit. Thus it cannot be said that possession was ever conveyed to the plaintiffs. There is no claim of Shailesh Nanchand Shah to protect his possession. It is further claimed by defendant No. 8 that the Suit is not designed to protect the possession given in part performance. It is plain and simple suit for specific performance and consequently injunction and there is neither pleadings nor a relief claimed in relation to part performance of the contract.
15. Parties were heard. Written submissions were considered by the Court and the record was perused. The most important aspect is whether the possession was conveyed to the plaintiff Nos. 1 and 2. It was a serious question regarding which learned counsel for the appellants made strenuous effort. The Court asked learned counsel for the appellants to refer to the agreement of conveying the possession. It was answered by learned counsel for the appellants that in this document, there is no reference to the effect that possession is conveyed pursuant to the agreement to sell in their favour. Thus, there being no possession communicated to the plaintiffs pursuant to that agreement as claimed. It made us to read the document. Having read the document Exh. 140 what was evident was that it was an independent sale agreement coupled with handing over of possession to Shailesh Nanchand Shah. This agreement is made in between Shailesh Nanchand Shah as first party and Manubhai Prabhudas Patel as second party. A reference may be made to paragraph No. 18 of the agreement which reads as under:
"The said land or any part thereof is not put by us in mortgage or in any encumbrances previously or the same is not handed over to the possession or occupation of anybody and for that if any person, institution, bank, firm, institution, etc. have no any right, title, interest, debt, encumbrances, etc. even though if anybody comes claiming any type or right, title, interest, debt, claim, encumbrances etc., then we are bound to remove the same at our cost and consequences and necessary confession and confirmation of such person in your favour and interest will be got obtained and as per this agreement, by implementing the same, the said land and all the rights in it are to be sold to you the executants and all other right of its ownership, possession and occupation will be given to you for which we are binding."
16. This sale agreement makes no mention of the plaintiffs or handing over possession to them. Therefore, the argument of the learned counsel for the appellants that they are entitled to protection of their possession is an argument which has been raised without there being any basis. Exh. 140 and 141 which are the agreements to handover the possession to Shailesh Nanchand Shah are without reference to plaintiffs.
17. A reference in this regard also may be made to the averment in plaint. It clearly shows that correct detailed averment regarding the fact of handing over possession to plaintiffs has not been made in the Suit. What is stated in the Suit is to the following effect:
"As per the advice of the plaintiffs the consideration was obtained from the brother of the plaintiff No. 2 and executed the possession agreement since then."
18. Thus, it is difficult to conclude that the plaintiffs were ever put in possession independently or pursuant to the agreement to sell in their favour executed on 11.9.1997. It is also worthwhile to note that the frame of the Suit is not for the part performance. The prayers quoted hereinabove and reading of the plaint do not show that the plaintiffs ever designed the Suit for part performance. Therefore, that part of the argument of learned counsel for the appellants fails wherein it is claimed that they had acquired the possession in part performance and they are entitled to protect their possession. Therefore, the possession having not been communicated to the plaintiffs there arises no question of any protection in that regard. Reference in this regard may be made to the following observations of the Hon'ble Supreme Court in the case of RAJGOPAL VS. KISHAN GOPAL reported in (2003) 10 SCC 653 at paragraph No. 9:
"Thus, we proceed to consider the question whether the finding recorded by the first appellate Court that Goverdhan Das was given in adoption by his natural father Moti Lal suffered from any legal infirmity. At this stage, it may be relevant to state that as Goverdhan Das was given in adoption much before the coming into force of the Hindu Adoptions and Maintenance Act, 1956, the parties will be governed by the law which was in force at the time of adoption. According to paragraph 474 of Mulla's Hindu Law, 18th Edn., "the only persons who can lawfully give a boy in adoption are his father and his mother". This shows that Goverdhan Das could have been given in adoption by his father Moti Lal and not his brother Kishan Lal. From the pleadings, it becomes clear that the plaintiffs had nowhere averred in the plaint that Goverdhan Das was not given in adoption by his father Moti Lal but by his brother Kishan Lal. It was simply pleaded that the adoption was in "dwyamushyayana"
.
As such a case was never pleaded in the plaint, there was no occasion for the defendants to plead in the written statement as to who gave Goverdhan Das in adoption and accordingly, the defendants in the written statement only denied that adoption was in "dwyamushyayana" form and according to them, the same was in ordinary form. In the absence of any pleading whatsoever on the question as to whether Goverdhan Das was given in adoption by his father Moti Lal or brother Kishan Lal, there was no lis between the parties on this question, as such Courts could not have gone into the same even if some evidence was adduced and the lower appellate Court rightly decided this question against the plaintiffs. Reference in this connection may be made to a decision of the Privy Council in the case of Siddik Mahomed Shah V. Mt. Saran (AIR 1930 PC 57(1) ) in which it was held (AIR p. 57) that "where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward". The said case has been referred to by this Court with approval in the case of Bhagat Singh V. Jaswant Singh (AIR 1966 SC 1861). In that case, some evidence was led but the High Court refused to go into the question observing that where no plea was taken, it cannot be said that there was any lis between the parties thereon. This Court upheld the decision of the High Court observing that the same was supported by a decision of the Judicial Committee in the case of Siddik Mahomed Shah. Thus we do not find any error in the findings recorded by the first appellate Court on this point".
19. The next question which comes before us is that Sale Deeds in favour of defendant Nos. 6 and 7 were executed on 11.9.1997 and were registered. The registration itself is a deemed notice of refusal of performance by the original owners - defendant Nos. 1 to 4 to the plaintiffs. Not only this, their own admission in their evidence that the Suit was filed by defendant No. 9 being Civil Suit No. 93 of 1999 was at the behest of the plaintiffs. Thus, this is more than a notice to the defendants. They admit that in 1999 when they got the Suit filed, they had known of the sale in favour of defendant Nos. 6 and 7. It cannot, there, be said that they had no notice of the impugned Sale Deeds which are sought to be cancelled in the year 1999. In that background the Suit would be barred by limitation. A reference in this regard may be made to the following observations of the Hon'ble Supreme Court in the case of PANCHANAN DHARA VS. MONMATHA NATH MAITY reported in (2006) 5 SCC 340 at paragraph No. 20:
"Contention of Mr. Mishra as regards the applicability of the first or the second part of Article 54 of the Limitation Act will have to be judged having regard to the aforementioned findings of fact. A plea of limitation is a mixed question of law and fact. The question as to whether a suit for specific performance of contract will be barred by limitation or not would not only depend upon the nature of the agreement but also on the conduct of the parties and also as to how they understood the terms and conditions of the agreement. It is not in dispute that the suit for specific performance of contract would be governed by Article 54 of the Limitation Act, 1963. While determining the applicability of the first or the second part of the said provision, the Court will firstly see as to whether any time was fixed for performance of the agreement of sale and if it was so fixed, whether the suit was filed beyond the prescribed period unless any case of extension of time for performance was pleaded and established. When, however, no time is fixed for performance of contract, the Court may determine the date on which the plaintiff had notice of refusal on the part of the defendant to perform the contract and in that event the suit is required to be filed within a period of three years therefrom."
A reference may also be made to the following observations of the Hon'ble Supreme Court in the case of PREM SINGH VS. BIRBAL reported in (2006) 5 SCC 353 at para 20:
"If the plaintiff is in possession of a property, he may file a suit for declaration that the deed is not binding upon him but if he is not in possession thereof, even under a void transaction, the right by way of adverse possession may be claimed. Thus, it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void."
20. The averments of the suit have been read by us. The Suit has not been framed as per the provisions of the Code of Civil Procedure which requires statement of facts, any claim in right earnestness and therefore is defective where statement of facts, claim of right cause of action, limitation have not been stated precisely and clearly.
21. In the aforesaid circumstances, we are of the considered opinion that the Suit is not of a part performance. It is plain and simple suit for specific performance of a contract which has been held by the trial Court to be barred by limitation and in our considered opinion rightly so. In that view of the matter, the appeal has no merit and is liable to be dismissed on the preliminary ground of limitation. Since the Suit has been held to be barred by limitation, the other questions in appeal are not required to be gone into and the same is therefore dismissed.
(BHAGWATI PRASAD, J) (J.C. UPADHYAYA, J) (pkn) Top