Gujarat High Court
Yakub Jamluddin Kelavala vs Yasufbhai Ibrahim on 5 July, 2013
Author: S.H.Vora
Bench: S.H.Vora
YAKUB JAMLUDDIN KELAVALA....Appellant(s)V/SYASUFBHAI IBRAHIM KHASAJIWALA C/AO/526/2012 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER NO.
526 of 2012 With CIVIL APPLICATION NO.
14181 of 2012 In APPEAL FROM ORDER NO.
526 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.H.VORA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
YES 2 To be referred to the Reporter or not ?
NO 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 ================================================================ YAKUB JAMLUDDIN KELAVALA....Appellant(s) Versus YASUFBHAI IBRAHIM KHASAJIWALA & 6....Respondent(s) ================================================================ Appearance:
MR SUNIT SHAH for MR CHETAN K PANDYA, for the Appellant MR IM PANDYA, ADVOCATE for the Respondent(s) No. 2 - 7 RULE UNSERVED for the Respondent(s) No. 1 ================================================================ CORAM:
HONOURABLE MR.JUSTICE S.H.VORA Date : 05/07/2013 CAV JUDGEMNT
1. The appellant is the original plaintiff, who filed Special Civil Suit No.1263 of 2012 before the City Civil Court, Ahmedabad inter alia praying for specific performance of agreement to sell dated 15.12.1981 executed by the respondent No.1 (original defendant No.1) and further prayed to join the respondent Nos.2 to 7 (original defendant Nos.2 to
7) in the registration of the sale deed on the strength of agreement to sell executed by the respondent Nos.2 to 7 in favour of the respondent No.1 on 14.12.1981, and has prayed for decree for perpetual injunction restraining the respondents from dispossessing the appellant and further interfering with the enjoyment of the suit property and further be pleased to restrain to execute any other instrument/agreement. Pending hearing the suit, the appellant has moved the notice of motion Exh.7/8 restraining the respondents from interfering with the peaceful possession and dispossessing the appellant from the suit property without following due process of law and further executing any agreement/instrument in favour of the third party.
2. The learned trial Judge after hearing both the sides dismissed the said notice of motion vide order dated 3.11.2012. Therefore, being aggrieved by and dissatisfied with said order, the appellant has preferred the present Appeal from Order as provided under Order 43 Rule 1(r) read with section 104 of the Code of Civil Procedure, 1908 (for short the CPC ) on various grounds as stated in the memo of appeal.
3. Brief facts leading to the filing of the present Appeal from order can be stated thus:
3.1 The appellant agreed to purchase suit property on 15.11.1981 from the respondent No.1, who was holding right by virtue of sale agreement dated 14.11.1981 from the respondent Nos.2 to 7. As per say of the appellant, he has paid consideration of Rs.16,198/- and balance was to be paid by the appellant at the time of execution of sale deed.
But, still however, the appellant has paid balance amount to the respondent No.1 in installments by 14.4.1982 and started his business in the suit property. It is the say of the appellant that on 14.11.1981, the respondent Nos.2 to 7 put the respondent No.1 into physical possession of the suit property and out of total consideration, 80% consideration was paid in the year 1980-81 and more particularly, as described in the sale agreement dated 14.12.1981. It is the case of the appellant that as the respondent Nos.2 to 7 received 80% consideration from the respondent No.1, the respondent No.1 was put into physical possession of the suit property. Out of the total land admeasuring 2601 sq yard, the respondent No.1 agreed to sell 1400 sq yard to the plaintiff for total consideration of Rs.19,600/- and on the date of execution of the sale deed on 15.12.1981, the respondent No.1 handed over possession of 1400 sq yard of land to the appellant and since then, the appellant is in possession of the said land, which is now referred to as the suit property .
3.2 As per the say of the appellant, the sale agreement dated 15.11.1981 stipulates that the suit property was under restrictions under the provisions of the ULC Act and therefore, after obtaining necessary permission, sale deed is to be executed and registered. It is the say of the appellant that he is in continuous, settled and legal possession of the suit property and since the execution of sale deed dated 15.11.1981, he has made construction on the suit property, carries on his business and further he pays tax/cess to the AMC and the Government. Not only that the appellant has got converted the suit property into NA and paid requisite premium to the State. Since the price of the suit property has increased and further respondent No.1 failed to get the document registered from the respondent Nos.2 to 7, the respondent Nos.2 to 7 are in process to dispose of the suit property and further the respondents are trying to disturb the possession of the appellant and it is likely that the appellant may be dispossessed without due process of law and therefore, Court's interference is required to protect settled legal possession of the appellant.
4. Learned advocate Mr. Sunit Shah appearing for learned advocate Mr. Chetan Pandya for the appellant relied upon following decisions in support of his submissions.
Maria Margarida Sequeira Fernandes and others Vs. Erasmo Jack De Sequiera (Dead) through Lrs. reported at (2012) 5 SCC 370.
Gunwantbhai Mulchand Shah and others Vs. Anton Elis Farel and others reported at (2006) 3 SCC 634.
Sunkara Venkata Rao Vs. K. Venkata Rao and others reported in (2005) 11 SCC 436.
5. On the basis of proposition of law and settled legal position stated at bar, learned advocate Mr. Shah urged that uninterrupted and continuous possession of the appellant being settled possession needs to be protected by this Court.
6. Per contra, learned advocate Mr. I.M. Pandya for the respondent Nos.2 to 7 urged that there is no privity of contract between the appellant and the respondent Nos.2 to 7 and therefore, the appellant is not entitled to hold the possession and therefore, the learned trial Judge has rightly dismissed the notice of motion taken out by the appellant. It is vehemently urged that the appellant has filed present suit after lapse of 32 years and therefore, as per section 54 of the Limitation Act, the suit is time barred and on that count, the learned trial Judge has rightly refused the notice of motion. It is also urged that the appellate Court has limited power to interfere with the discretionary order passed by the trial Court in view of the scope of provisions contained in Order 43 Rule 1(r) of the CPC. Therefore, on that count also, present Appeal from order is required to be dismissed. It is the say of learned advocate Mr. Pandya appearing for the respondent Nos.2 to 7 that alleged sale agreement executed between the respondent No.1 and the respondent Nos.2 to 7 has been terminated and therefore, the appellant's possession in the suit property being trespasser, the appellant is not entitled to injunction against true owner. In support of his submissions, learned advocate Mr. Pandya for the respondent Nos.2 to 7 has relied upon following decisions.
K.V. Narayan V. S. Sharana Gowda and another reported in AIR 1986 Karnataka 77.
Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra (D) by Lrs. reported in AIR 2004 SC 4342.
Manharlal Nenshi Vs. M/s Meena Agencies, Rajkot reported in 1986(2) GLR 1079.
Ambaben Wd/o Waghubhai Haribhai Desai Vs. Baldevbhai Becharsinh Vaghela and Others reported in 2009(3) GLH 768.
Haji Yusufbhai Siddiqbhai Vs. New Stars Developers Organizer and Others reported in 2010(1) GLH 429.
State of Haryana Vs. Mukesh Kumar and Others reported in 2011(3) GLH
592.
7. Before adverting to the facts of the case, it is worthwhile to make a mention of proposition of law laid down in the decisions sought to be relied upon by both the sides.
7.1. In case of Maria Margarida (supra), while explaining meaning of due process of law , the Hon'ble Apex Court in para Nos.79 and 80 has observed thus:
79.
Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent Court.
80. The High Court of Delhi in a case Thomas Cook (India) Limited v. Hotel Imperial 2006 (88) DRJ 545 held as under:
"28.
The expressions `due process of law', `due course of law' and `recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed `forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing -- ejectment from settled possession can only be had by recourse to a court of law. Clearly, `due process of law' or `due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
Now, this `due process' or `due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the `bare minimum' requirement of `due process' or `due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the `recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law."
7.2 In case of Gunwantbhai Mulchand Shah (supra), the Hon'ble Apex Court while interpreting section 54 of the Limitation Act, held that there are two limbs of stages of proceedings, at which applicability of Article 54 of limitation can be made. In case, the date of performance of contract is not fixed and nor is date of notice of refusal of performance, admitted in the plaint, then question of limitation can be dealt with only after evidence is taken and not as a preliminary issue. It is further held by the Hon'ble Apex Court that the question as to how long a plaintiff, even if he had performed the whole of his obligations under an agreement for sale, in which a time for performance is not fixed, could keep alive his right to specific performance and to come to Court after 29 years seeking to enforce the agreement, may have also to be considered by the Court especially in the context of the fact that the relief of specific performance is discretionary and is governed by the relevant provisions of the Specific Relief Act. It is also observed by the Hon'ble Apex Court that these questions cannot be decided as preliminary issue and they are not questions on the basis of which the suit could be dismissed as barred by limitation.
7.3 In case of Sunkara Venkata Rao (supra), the Hon'ble Apex Court observed that in light of section 53A of the Transfer of Property Act (for short the Act ), if party put in possession of immovable property in part performance of the agreement to sell, then such property could not be dispossessed except in accordance with law.
8. On the other hand, learned advocate Mr. Pandya for the respondent Nos.2 to 7 has cited various cases so as to justify the impugned order.
8.1 The first case relied upon by learned advocate Mr. Pandya is K.V. Narayan (supra), wherein the Hon'ble Karnataka High Court, while interpreting provisions of Order 39 Rule 1(c) of the CPC, held that trespasser in possession is not entitled to injunction against true owner. According to the Hon'ble Karnataka High Court, the Court cannot aid a person who himself is guilty of doing a wrongful thing.
8.2 The second decision relied upon by learned advocate Mr. Pandya is Rambhau Namdeo Gajre (supra) for the proposition of law that protection provided under section 53A of the Act to the proposed transferee is a shield only against the transferor. Such right cannot be availed by third party, who had no privity of contract with the owner. The doctrine of part performance as stated in section 53A of the Act is an equitable doctrine, which creates a bar of estoppel in favour of the transferee against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee.
8.3 The third case relied upon by learned advocate Mr. Pandya is Manharlal Nenshi (supra), wherein the Hon'ble Judge of this Court has observed that Court's power under Order 39 Rule 1 and 2 is to do justice and it must so act as to prevent abuse of the process of the Court and to prevent harassment to an innocent party.
8.4 The fourth decision relied upon by learned Mr. Pandya is Ambaben (supra), wherein the Hon'ble Judge of this Court while interpreting section 53A of the Act, has observed that bar created by virtue of section 53A cannot be imposed against third parties, who are not parties to the agreement to sell. If no suit for specific performance filed against the original owner, benefits of the provision can be used as a shield and not as a sword.
8.5 The fifth decision relied upon by learned advocate Mr. Pandya is Haji Yusufbhai Siddiqbhai (supra), wherein Hon'ble Judge of this Court while interpreting section 15 of the Specific Relief Act has observed that when there is no privity of contract between the parties, no decree for specific performance can be granted and consequently, the Court rightly rejected application for temporary injunction.
8.6 Lastly, learned advocate has relied upon decision in case of Mukesh Kumar (supra), wherein, the Hon'ble Apex Court held that State, which is in charge of protection of life, liberty and property of people cannot be permitted to grab the land and property of its own citizens under the banner of the plea of adverse possession. No government department shall be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens.
9. Now, coming to the facts of the case, it appears that there is no right reserved in any of the sale agreement either to terminate or cancel it. But, it is meant for execution by both the party to the agreement. It also appears from the pleadings that defendant Nos.2 to 7 has not terminated agreement and so bare words in the plaint pleading to say that the agreement is terminated cannot be believed. It also appears that the first agreement, which is executed between the respondent No.1 and respondent Nos.2 to 7, the respondent Nos.2 to 7 after obtaining 80% of the sale consideration handed over the possession of suit land and other additional land to the respondent No.1 and in turn, the respondent No.1 handed over possession of land admeasuring 1400 sq yards to the appellant and also received full consideration. It also appears that the appellant is uninterruptedly in possession of the suit property since 1980 and he obtained NA permission, erected superstructure and runs his business in the suit land. So, there is no hesitation in coming to the conclusion that the appellant is in settled possession though without title, but the concept of settled possession and right of possessor to protect his possession against the true owner has been settled by catena of decisions, more particularly, latest decision of Maria Margarida (supra). The contention of learned advocate Mr. Pandya for the respondent Nos.2 to 7 that the appellant is a trespasser cannot be believed, because since last 32 years, the appellant is in possession of the suit property without any interruption or disturbance. So, the possession of the appellant is not temporary in nature. It also appears that the appellant's possession is open and within the knowledge of the respondent Nos.2 to 7, because the appellant has erected superstructure on the land, converted its use into NA and therefore, it can be said that the appellant is in settled possession of the suit land.
10. The findings of the trial Court to the effect that as the respondent No.1 has not filed suit for specific performance within three years as per Article 54 of the Limitation Act and on the other hand, the sale agreement between the respondent No.1 and the respondent Nos.2 to 7 has been cancelled as per the say of the respondent Nos.2 to 7 and when such fact is not disputed by the respondent No.1, the appellant is not entitled for specific performance of sale agreement cannot be accepted. It is also observed by the learned trial Judge that as there is no privity of contract between the appellant and the respondent Nos.2 to 7, the appellant is not entitled to seek decree for specific performance against the respondent Nos.2 to 7. Now, at this juncture, it is important to note that the appellant has prayed for decree for specific performance and also decree for perpetual injunction protecting settled possession of the appellant in the suit property. So, once settled possession is established, then as per the ratio laid down in case of Maria Margarida (supra), the possession of the appellant cannot be disturbed forcibly by the true owner taking law in his hands. Two reliefs which are prayed by the appellant are different and distinct in its nature and in Court's considered opinion, the learned trial Judge has failed to appreciate this aspect of the case in light of decision cited at bar by learned advocate Mr. Shah appearing for the appellant.
11. Now, so far as the decision cited by learned advocate Mr. Pandya is concerned, it is not applicable to the facts of the present case for the simple reason that the appellant is not claiming possession on the plea of adverse possession and also the appellant cannot be termed as trespasser in the suit land as understood in the legal sense.
12. The contention of learned advocate Mr. Pandya that doctrine of part performance enshrined in section 53A of the Act would not be applicable to the appellant for the reason that there is no privity of contract between the appellant and the respondent Nos.2 to 7 is devoid of merit. The obvious reason is such that the appellant is claiming his right to hold settled possession on the basis of the sale agreement executed between the respondent No.1 and the respondent Nos.2 to 7 on 14.12.1981. Pursuant to the said sale agreement, the respondent No.1 put the appellant into possession of suit land and therefore, doctrine of part performance as contemplated under section 53A can be availed by the transferee i.e. the respondent No.1 or any person claiming under him i.e. the appellant herein. So, in Court's considered opinion, the appellant is a transferee within the meaning of section 53A of the Act and therefore, the appellant can claim the equitable doctrine of part performance to protect his possession against the respondent Nos.2 to 7 i.e. owner. Such principle has been laid down by the Hon'ble Apex Court in case of Rambhau Gajre (supra) though it is relied upon by learned advocate Mr. Pandya for the respondent Nos.2 to 7, but it is helpful to the appellant herein.
13. Lastly, the case of Haji Yusufbhai (supra) relied upon by learned advocate Mr. Pandya is not helpful to the respondent Nos.2 to 7 because of peculiar facts and circumstances of the case on hand. In the case of Haji Yusufbhai, there was no privity of contract between the appellant and the respondent No.2 and further, earlier agreement between them was not placed on record and therefore, in the said case, injunction was refused in favour of the appellant there.
14. In the case on hand, the appellant has filed suit for specific performance of sale agreement and with a further relief to direct the respondent Nos.2 to 7 to join in the sale deed and also for the decree for permanent injunction for protection of possession based on settled possession. The Court is required to consider appellant's case, which cannot be confused with the prima facie title as sought to be canvassed by learned advocate Mr. Pandya for the respondent Nos.2 to 7. The learned trial Judge fell into error inasmuch as it overlooked the settled possession of the appellant and therefore, the order under appeal is against the settled principles of law and therefore, while exercising power under Order 43 Rule 1(r) of the CPC, the appellate Court is well within its right to interfere with such order and therefore, the appeal preferred by the appellant is required to be accepted.
15. Accordingly, present Appeal from Order is hereby allowed. The impugned order dated 3.11.2012 passed by the City Civil Court, Ahmedabad below application Exh-7 in Civil Suit No.1263 of 2012 is hereby quashed and set aside and relief in terms of para 7(a) of the injunction application is granted till final disposal of Civil Suit No.1263 of 2012. In the facts and circumstances of the case, there shall be no order as to costs.
16. The learned trial Judge shall not be influenced by the observations made in this order while trying the suit finally and the learned trial Judge shall decide the case on its own merit and in accordance with law. If any party applies for expeditious hearing of the suit, the learned trial Judge shall consider the same without effecting the suits previously instituted and pending/waiting for trial.
17. In view of disposal of main Appeal from Order, civil application does not survive and the same is disposed of accordingly.
(S.H.VORA, J.) shekhar Page 13 of 13