Gujarat High Court
Rajeshbhai Muljibhai Patel vs Yogeshbhai Muljibhai Patel Through ... on 9 February, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/1157/2017 ORDER DATED: 09/02/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1157 of 2017
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 1157 of 2017
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RAJESHBHAI MULJIBHAI PATEL
Versus
YOGESHBHAI MULJIBHAI PATEL THROUGH P.O.A. & 2 other(s)
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Appearance:
MR DHARMENDRA PARIKH(2389) for the Petitioner(s) No. 1
JIGAR J PATEL(7971) for the Respondent(s) No. 2,3
MR RUTUL P DESAI(6498) for the Respondent(s) No. 2,3
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 09/02/2023
ORAL ORDER
1. Leave to amend forthwith.
2. By way of present petition, the petitioner herein has challenged the order passed below Exh.14 dated 02.12.2016 in Regular Civil Suit No.264 of 2016 whereby, the application preferred by the petitioner for joining respondent Nos.2 and 3 as party defendants in Regular Civil Suit No.264 of 2016, is rejected by the trial Court. The said order passed below Exh.14 is duly produced at page 126 of the petition.
3. The brief facts leading to the filing of the present petition are as under:
3.1 The petitioner and the respondent No.1 are real brothers and residing in UK. The father and mother of the petitioner were residing in Vadodara and had purchased a House No.97/B Page 1 of 7 Downloaded on : Sun Sep 17 21:39:28 IST 2023 NEUTRAL CITATION C/SCA/1157/2017 ORDER DATED: 09/02/2023 undefined in Rajlaxmi Society, Old Padra Road, Vadodara and had constructed first floor on the house. Later on after the death of both father and mother, the ground floor was possessed by the petitioner and the first floor was in possession of the respondent No.1. The movable properties of the petitioner like bed, cupboards, steel cup boards containing clothes and other movable kitchen utensils, jewelry, sofa set, dining table, fix furniture etc. was laying on the ground floor.
3.2 It is stated that on 19.10.2015, wife of the petitioner came to Vadodara and resided on ground floor of the house till 23.10.2015 and she returned to London. It is further stated that the petitioner came to Vadodara on 16.12.2015 and came to know that somebody has taken the possession of the subject property, all the movables had been removed and some repairing work was going on in the subject property. The petitioner tried to find out the ownership from the City Survey Office whereby, the petitioner came to know that the respondent No.1 has used a forged will through his POA -
Mahendrabhai J. Patel and has transferred the house in his name vide entry No.11720. The petitioner got details of entry No.11720 from City Survey Office whereby, the petitioner came to know that after the death of his mother i.e. on 05.09.2013, a forged will was fabricated of previous date i.e. 17.06.2013 and was used to transfer the house vide entry No.11720.
3.3 It is stated that it came to the knowledge of the petitioner that there was no probate. The respondent No.1's POA transferred the house in the name of respondent No.1 in Page 2 of 7 Downloaded on : Sun Sep 17 21:39:28 IST 2023 NEUTRAL CITATION C/SCA/1157/2017 ORDER DATED: 09/02/2023 undefined connivance with the City Survey Office and dispossessed the petitioner on 16.12.2015 without following the due process of law. As per the mandatory requirement of Section 6(ii) of the Specific Relief Act, the petitioner filed Regular Civil Suit No.264 of 2016 for getting possession of the ground floor from the respondent No.1 and also prayed for injunction below Exh.5. The respondent No.1 appeared through his advocate in Regular Civil Suit No.264 of 2016 and filed the written statement. From the written statement and the list of documents, the petitioner came to know that the respondent No.1 has sold the house to respondent No.2 and 3 vide sale deed No.13708 dated 16.10.2015. The petitioner got a certified copy of the said sale deed from the office of the Sub-Registrar. The said sale deed is duly produced at Annexure - C. After going through the sale deed, the petitioner filed an application under Order I Rule 10 and Section 151 of the Code below Exh.14 for joining the respondent Nos.2 and 3 as party defendants in Regular Civil Suit No.264 of 2016. The said application below Exh.14, seeking permission to join respondents as party defendants in the suit proceedings, came to be dismissed by order dated 02.12.2016, which is duly produced at page 126 of the petition. The Court below while rejecting the said application below Exh.14 held as under:
"4. Now, considering the arguments of both sides and documents produced on records, it transpires that, the present suit is filed against defendants to get back property under Section 6 of the Specific Relief Act. It is allegation of plaintiff that, present defendants have illegally and forcefully dispossessed him from suit property. It is also pertinent to note that, on 16/10/2015 a registered Sale Deed of suit property is executed in favour of proposed parties. But this is not subsequent event after filing of this suit. Moreover they are not necessary and proper parties to this suit because in absence of them, the issues involved between the Page 3 of 7 Downloaded on : Sun Sep 17 21:39:28 IST 2023 NEUTRAL CITATION C/SCA/1157/2017 ORDER DATED: 09/02/2023 undefined plaintiff and the present defendants can be determine by leading evidence. The proposed parties are not required to be joined as parties to this suit, hence, I pass the following order.
ORDER The present application is filed below Exh.14 is hereby rejected. No order as to cost."
4. The court below rejected the application below Exh.14 only on the ground that the registered sale deed dated 16.10.2015 is executed in favour of the proposed parties and it is not a subsequent event after filing of the suit and held that the parties are not necessary and proper parties to the suit and in their absence, the issue involved can be determined by leading evidence.
5. This Court has gone through the documents placed on record and the submissions advanced by the learned advocate appearing for the respective parties. Undisputedly, the sale deed-in-question, which is duly produced at Annexure - C, is a registered sale deed No.13708 dated 16.10.2015, which is prior to filing of the suit in the year 2016. The sale deed-in- question came to be entered into between the defendant No.1 and the defendant Nos.2 and 3 prior to the filing of the suit and therefore, the application of lis pendens under Specific Relief Act would not come into force. On being asked Mr. Rutul Desai, learned advocate appearing for the proposed respondent Nos.2 and 3, submitted that the respondent Nos.2 and 3 are in possession of the suit property. The suit-in-question is filed for possession of the suit property. The prayers as prayed for in the suit are duly produced at page 19 of the petition. The same reads thus: (true translation) Page 4 of 7 Downloaded on : Sun Sep 17 21:39:28 IST 2023 NEUTRAL CITATION C/SCA/1157/2017 ORDER DATED: 09/02/2023 undefined "1. You are requested to pass order to assign the possession of the ground floor of the property vide house no.97 of B type Co. operative service society limited in Rajlaxmi society, constructed at Moje Jetalpur village survey no.86 paiki (87, 88/1, 88, 89, 90, 91, 92, 93, 94, 135, 136, 141) city survey no.812/A Vadodara city R.S. no.128, from the respondent to the plaintiff at the earliest and to pass order to provide all the articles from the respondent as stated in the suit.
2. You are requested to pass permanent injunction order to prevent the respondent from transferring the possession of the disputed property mentioned at para no.1 of the aforesaid prayer, in favor of anyone, through lease, mortgage, gift or sell by the respondent himself or through his friend, accomplices, servants, power of attorney holders or any other third party, person or organization.
4. Be pleased to award the cost of the suit from the respondent.
5. Kindly grant other relief as found appropriate by the Hon'ble Court."
6. Considering the facts of the present case, the prayers as prayed for in the suit being Regular Civil Suit No.264 of 2016 and considering the fact that the respondent Nos.2 and 3, as stated by Mr. Dharmendra Parikh, learned advocate appearing for the proposed respondents Nos.2 and 3, are in possession of the disputed premises, the sale deed qua the said suit land, which came to be executed being Sale deed No.13708 dated 16.10.2015, was prior to filing of the suit. In opinion of this Court, the respondent Nos.2 and 3 are necessary parties for the adjudication of the suit.
7. At this stage, it is apposite to refer to the ratio laid down by the Hon'ble Supreme Court in the case of Thomson Press (India) Ltd. vs Nanak Builders & Investors P. Ltd. & Ors., reported in (2013) 5 SCC 397.
"43. This Court again in the case of Dwarka Prasad Singh and others vs. Harikant Prasad Singh and others (1973) SC 655 subscribed its earlier view and held that in a suit for specific Page 5 of 7 Downloaded on : Sun Sep 17 21:39:28 IST 2023 NEUTRAL CITATION C/SCA/1157/2017 ORDER DATED: 09/02/2023 undefined performance against a person with notice of a prior agreement of sale is a necessary party."
8. At this stage, it is also apposite to refer to the ratio laid down by the Hon'ble Supreme Court in the case of Dwarka Prasad Singh and others vs. Harikant Prasad Singh and others reported in (1973) SC 655, wherein it held that:
"6. Counsel for the appellants has relied on two points in sup- port of the argument that the appeal cannot fail because of the non-impleadment of the legal representatives of Guha deceased. The first is that he was not a necessary party being the vendor and the second is that the case would be covered by the provisions of O.41, R.4 of the Civil Procedure Code. There appears to be some divergence between the High Courts on the question whether in a suit for specific performance against a purchaser with notice of a prior agreement of sale the vendor is a necessary party or not. In other words the conflict has arisen on the question whether the decree in a suit for specific performance when the property in dispute has been sold to a third party should be to only direct the subsequent purchaser to execute a conveyance or whether the subsequent purchaser and the vendor should both execute a conveyance in favour of the plaintiff. This Court has, however, held in Lala Durga Prasad & Another v. Lala Deep Chand & Others that in a suit instituted by a purchaser against the vendor and a subsequent purchaser for specific performance of the contract of sale the proper form of the decree is to direct specific performance of the contract between the vendor and the plaintiff and further direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. This was the course followed by the Calcutta High Court in the above case and it appears that the English practice was the same. Thus according to this decision, the conveyance has to be executed by the vendor in favour of' the plaintiff who seeks specific performance of the contract in his favour and the subsequent transferee has to join in the conveyance only to pass his title- which resides in him. It has been made quite clear that he does not join in any special covenants made between the plaintiff and his vendor.All that he does is to pass on his title to the plaintiff. In a recent decision of this Court in R. C. Chandiok & Another v. Chunni Lal Sabharwal & Others, while passing a decree for specific performance of a contract a direction was made that the decree should be in the same form as in Lala Durga Prasad's case. It is thus difficult to sustain the argument that the vendor is not a necessary party when, according to the view accepted by this Court, the conveyance has to be executed by him although the subsequent purchaser has also to join so as to pass on the title which resides in him to the plaintiff. It must be remembered that if there are any special covenants and conditions agreed upon in the contract for sale between the original purchaser and the vendor those have to be incorporated in the sale deed although it is only the vendor who will enter into them and the subsequent purchaser will not join in Page 6 of 7 Downloaded on : Sun Sep 17 21:39:28 IST 2023 NEUTRAL CITATION C/SCA/1157/2017 ORDER DATED: 09/02/2023 undefined those special covenants. But without the vendor joining in the execution of the sale deed special covenants, if any, between him and the original pur- chaser cannot be incorporated in the sale deed. The whole idea and the purpose underlying a decree for specific performance is that if a decree for, such a relief is granted the person who has agreed to purchase the property should be put in the same position which would have obtained in case the contracting parties, i.e., vendor and the purchaser had, pursuant to the agreement, executed a deed of sale and completed it in every way. Therefore, it is essential that the vendor 'Must join in the execution of the sale deed. If that be so, it is not possible to comprehend how he is not a necessary party. At any rate, in the presence of the relief for a decree for refund of the amount paid by way of part consideration the vendor would be a necessary party. No such relief could be granted in his absence nor can it be granted now even if the appeal succeeds and the decree for specific performance is set aside."
9. In view of this Court, considering the settled position of law that the sale deed No.13708 dated 16.10.2015, as referred above, was entered into prior to the filing of the suit and also considering the fact that the respondent Nos.2 and 3 are necessary parties for the adjudication of the dispute-in- question, the application below Exh.14 is required to be allowed. Accordingly, the application below Exh.14 is allowed and the order passed below Exh.14 dated 02.12.2016 in Regular Civil Suit No.264 of 2016 is hereby quashed and set aside. The respondent Nos.2 and 3 are permitted to file written statement before the Court below accordingly.
10. The present petition stands allowed accordingly. Since the main petition is allowed, the civil application stands disposed of.
(VAIBHAVI D. NANAVATI,J) NEHA Page 7 of 7 Downloaded on : Sun Sep 17 21:39:28 IST 2023