Gujarat High Court
Vinubhai Virajibhai Togadiya vs Nileshbhai Vallabhbhai Patel on 22 September, 2023
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 133 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/APPEAL FROM ORDER NO. 133 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VINUBHAI VIRAJIBHAI TOGADIYA
Versus
NILESHBHAI VALLABHBHAI PATEL
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Appearance:
MR HARSHADRAY A DAVE(3461) for the Appellant(s) No. 1
VINAY B VISHEN(7425) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 22/09/2023
CAV JUDGMENT
1. Heard learned advocate Mr.Harshadray Dave for the appellant and learned advocate Page 1 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined Mr.Vinay B. Vishen for the respondent.
2. By this Appeal, the appellant has challenged the order dated 15th June, 2022 passed below Exh.5 by the Civil Court, Surat in Special Civil Suit No.85 of 2020 whereby, the application Exh.5 was partly allowed directing the appellant-original defendant not to create any third party right and to maintain status-quo during the pendency of the Suit.
3. The brief facts of the case are as under :
3.1. The Suit property being land situated at Survey No./Block No.483 admeasuring 2,277 Sq.Mtrs at Village:Dumas, Taluka:Majura, District:Surat was of the ownership of the appellant. The Suit property was later on given Final Plot No.58 admeasuring 1,400 Sq.Mtrs when the Town Planning Scheme No.77 Page 2 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined was implemented. The said land was converted into non-agricultural land as per the order passed by the competent authority in the year 2019.
3.2. The respondent-original plaintiff filed Civil Suit No.85 of 2020 in the Civil Court, Surat seeking specific performance of agreement to sale dated 11th March, 2013 and prayed for declaration and permanent injunction against the appellant-respondent along with application Exh.5 seeking injunction.
3.3. The appellant upon receipt of the summons from the Court filed written statement contesting the Suit filed by the respondent and denied all the contentions raised therein pointing out correct facts. The appellant also raised an issue of maintainability of the Page 3 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined Suit.
3.4. The learned 3rd Additional Senior Civil Judge, Surat by the impugned judgment and order dated 15th June, 2022 partly allowed the application Exh.5 directing the appellant-
original respondent not to create any third party right or to execute any document in writting to maintain status-quo with regard to the Suit property till final disposal of the Suit.
3.5. It is the case of the respondent-
plaintiff that agreement to sale dated 11.03.2013 was notarised for sale consideration of Rs.25 Lacks and Rs.10 Lacks was paid in cash by the respondent-plaintiff to the appellant-defendant and remaining Rs.15 Lacks was agreed to be paid on clearance of title by the land owner. The appellant also Page 4 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined executed a possession receipt on the same date and now NA permission is also obtained and therefore there is no impediment for execution of the sale deed.
3.6. The learned Judge after hearing both the sides by the impugned order dated 15th June, 2022 directed the appellant-defendant to maintain the status-quo with regard to the land in question during the pendency of the Suit as it was found by the learned Judge that there is prima-facie case in favour of the plaintiff and balance of convenience is also found in favour of the plaintiff in view of the fact that out of agreed sale-consideration of Rs.25 Lacks, an amount of Rs.10 Lacks was paid by the plaintiff and agreement for sale was also notarised. The learned Judge also considered that the appellant has not denied the signature on the agreement for sale and Page 5 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined defence taken with regard to denial of such agreement is a subject matter of trial. The issue of limitation was also considered as a mixed question of fact and law in view of the condition of obtaining the title clearance in the agreement for sale. Learned Judge has also considered that the appellant has not filed any application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (for short 'the Code').
3.7. Learned Judge has placed reliance upon the possession receipt produced on record and the denial made by the appellant-defendant with such facts is held to be the matter required to be examined during the course of trial.
4.1. Learned advocate Mr.Harshadray Dave for the appellant-defendant submitted that the Page 6 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined learned Judge has committed an error in directing the appellant to maintain the status-quo contrary to the settled legal position with regard to the issue of jurisdiction of the Court to entertain the Suit which was not considered by the Trial Court and it proceeded further to decide the stay application. It was submitted that the Trial Court has no jurisdiction in absence of any registered agreement for sale. However, such issue was not at all considered by the Trial Court though the issue of jurisdiction was raised by the appellant and, more particularly, when the plaintiff did not file the Suit within three years from the date of agreement of sale executed on 11.03.2013.
4.2. It was further submitted that there was breach of Article 20 read with Section 34 of the Bombay Stamp Act as no stamp duty was paid Page 7 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined upon the agreement for sale with possession as the same was not registered under Section 17 of the Registration Act.
4.3. Learned advocate Mr.Harshadray Dave would submit that the Court below has also not considered that the Suit was not maintainable in view of Sections 16 and 20 of the Specific Relief Act as well as Section 54 of the Transfer of Property Act as the plaintiff did not have any right, title or interest in the Suit property and there was no prima-facie case in favour of the plaintiff.
4.4. It was further submitted that there is no detail with regard to payment of Rs.10 Lakhs by the plaintiff as it is stated that the amount is paid in piecemeal over a period of time without any details. It was therefore submitted that the averments made in the Page 8 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined plaint are vague with regard to the payment of part consideration by the plaintiff which is ignored by the learned Judge.
4.5. It was further submitted that only because the application under Order 7 Rule 11 of the Code for rejection of the Suit on the ground of limitation was not filed, the learned Judge could not have drawn an adverse inference. It was submitted that the Suit of the respondent is barred by limitation and is not maintainable as the respondent is seeking specific performance of the agreement dated 11th March, 2013 in the year 2020 creating a myth that the cause has arisen in the year 2020 when some notice was issued by the appellant though no such notice is issued. It was submitted that the respondent plaintiff has never shown any willingness to execute sale-deed or to pay any sale consideration at Page 9 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined any point of time for performance of the alleged agreement for sale.
4.6. It was also submitted that the Court below has ignored the fact that the land in question was agricultural land when the alleged agreement for sale was executed and the respondent was not an agriculturist and therefore no agreement for sale could have been entered into by an agriculturist with a non-agriculturist and accordingly, Suit is not maintainable.
4.7. Learned advocate Mr. Harshadray Dave in support of his submissions referred to and relied upon the following decisions:
(i) Khimjibhai Harjibhai Patadia Versus Patel Govindbhai Bhagvanbhai and Others reported in 2006 (4) GLR 3058 :Page 10 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023
NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined "8. I have heard both the learned advocates in detail and I have gone through the documentary evidence on record. I have also considered the written submissions of the parties. In my view, the suit filed by the plaintiff is prima facie not sustainable and with some ulterior motive or object the suit is filed. It is required to be noted that as per the agreement dated 23-2-1992 (on which the plaintiff has placed reliance) original defendant No. 1 has agreed to sell 7 acres and 9 gunthas of land and on the date of executing the said document, the plaintiff had paid Rs. 50,000/- to defendant No. 1. As per the recital of said agreement, the plaintiff was required to take care of the ULC proceedings and the original owner defendant No. 1 was to take appropriate proceedings for cancelling earlier transaction, which he had undertaken in connection with the land in question.
As per the recital of the said agreement, the plaintiff was required to pay Rs. 5 Lacs to defendant No. 1 between 24-2-1992 to 20-3-1992. It is provided in the said agreement that after the land is released by ULC authority, amount of Rs. 25 Lacs was to be paid immediately and, thereafter, Page 11 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined Rs. 21 Lacs was required to be paid within a period of four months after the land is released from ULC. In view of the same, it is clear that Rs. 20 lakhs was required to be paid immediately on the land being released from ULC and the remaining amount of Rs. 21 lakhs was to be paid within 4 months thereafter. It is, therefore, clear that as per the agreement in question, Rs. 46 lakhs were required to be paid by the plaintiff to the defendant No. 1 within 4 months after the land is released from ULC.
9. As per the receipt, on which the reliance is placed by the plaintiff, Rs. 25 Lacs were paid by the plaintiff to defendant No. 1- Govindbhai Bhagvanbhai Sakhia, however, said receipt is seriously disputed. It is an admitted fact that the ULC proceedings were terminated on 18-7-1992, thereafter, the plaintiff has never tried to pursue defendant No. 1 to act further in accordance with agreement to sell nor he has even tried to pay the remaining amount of Rs. 21 Lacs, even if it is presumed that he had paid Rs. 25 Lacs (as is claimed by the plaintiff, by relying upon a disputed receipt given by defendant No. 1). It Page 12 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined is also interesting to note that even some suits, which were pending in connection with the land in question about which reference is also made in the aforesaid agreement dated 23-2- 1992, such suits have also been disposed of in December, 2004. Even, thereafter, the plaintiff has never tried to pursue his agreement, not only that till he filed the suit in question, he has never asked defendant No. 1 to execute the sale deed by accepting the remaining part consideration. It is only after the public notice issued by the purchaser that the plaintiff was prompted to file the present suit, and prior to filing of the said suit, the plaintiff entered into correspondence by exchanging notices in connection with the land in question. It is required to be noted that immediately after entering into agreement dated 23-2-1992, the plaintiff had signed another agreement with original land owner where the original owner wanted to sell away land to defendant No. 22 and, therefore, even if it is held that it may not amount to novatio or new contract, at least, it can safely be presumed that the plaintiff has given up his right in the land in question. Not only that the Page 13 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined subsequent conduct of the plaintiff by which he has not even written a single letter for all these years would clearly indicate that no right is available in his favour in the disputed land.
10. Mr. Kavina is also not in a position to point out that till the public notice was issued, whether his client had ever tried to enter into any correspondence with defendant No. 1 or has ever tried to pursue his contractual rights in any manner. Even when the factum about payment of Rs. 25 Lacs is seriously disputed by defendant No. 1 on the ground that a forged thumb impression is taken on a stamp paper, the plaintiff has not even produced prima facie evidence to show as to in which manner he has paid Rs. 25 Lacs. The plaintiff has not produced anything to show that whether he has withdrawn said amount from any bank account or he has borrowed money from anyone. Mr. Kavina is also not in a position to point out as to in which manner, his client has paid the aforesaid amount and even if it is paid by cash, no corresponding documentary evidence in the form of income tax return is finding place on record in connection Page 14 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined with such payment. Therefore, it can safely be presumed that the theory of so-called payment is not at all believable."
(ii) Mehul Shantilal Patel versus Samatbhai Nanubhai Varu reported in 2022 (0) AIJEL-HC 244339 :
"8.1. Thus, in light of the above provisions of Registration Act, Section 17 (1) (b) mandates that any agreement to sell, which has the effect of creating and taking away the rights in respect of an immovable property, having value more than Rs. 100, is required to be registered. At the same time though Section 49 of the Act imposed a bar on the admissibility of an unregistered agreement to sell required to be registered under section 17 of the Act, however, the proviso permits such unregistered agreement to be considered in a suit seeking specific performance.
8.2. The Apex Court and even the proviso to section 49 of the Act, itself making it evident that an unregistered document affecting Page 15 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined immovable property though required to be registered, but if unregistered, may still be received as an evidence to the contract in a suit for specific performance. Thus, in light of the aforesaid legal position the Court finds that though the disputed agreement to sell as per the case of the plaintiffs created right, though being unregistered document but considering proviso to section 49 of the Registration Act, the suit for specific performance is maintainable in the eyes of law.
8.3. In light of the above legal position this Court is called upon to examine the case of the original Plaintiffs - respondents herein that the disputed agreement to sell itself was an acknowledgment of amount of Rs. 5.0 crores cash. At this stage it would be apt to refer to the case of Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015) 16 SCC 787, wherein the Apex Court has held that in the suit for declaration of title, an unregistered document can be relied upon for collateral purposes i.e. to prove possession, payment of sale consideration and nature of possession; but not for primary purpose i.e. sale Page 16 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined between the plaintiff and defendant or its terms.
'Collateral Purpose' under Sec. 49 Registration Act expressly states admissibility of unregistered documents in evidence for collateral purposes. The word 'collateral' signifies something beyond or parallel. According to the Law of Lexicon it means "that which is by the side, and not the direct line; that which is additional to or beyond a thing". Thus, even the said disputed agreement to sell, though being unregistered document, the same can be looked into for collateral purpose ie.
acknowledgment of the part sale consideration. Considering proviso to section 49, even to read for collateral purpose the same can only be read as evidence unless sufficiently stamped.
8.4. On examining the record of the present appeal, the Court finds that upon reading of the para-11 of the contents of the reply cum notice, prima facie goes to suggest that though the defendant has not disputed his signature but then has categorically Page 17 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined disputed the contents of the agreement. However, the plaintiff cannot be permitted to rely upon a part of the document as perceived by it to be in his favour and leave out what is apparently against him. The Court is expected to construe a document as a whole and one or two lines out of context cannot be accepted. In peculiar facts of the case, where the original plaintiffs claimed to have made payment of a huge amount of Rs. 5.0 crores in cash, the Court before considering equitable relief of grant of injunction would like to examine such claim of payment of cash amount of Rs. 5.0 crores being prima facie established based on the sole document of unregistered document ie. disputed agreement to sell.
8.5. At this stage, the moot question which arises for consideration is whether the admission of the appellant's signature on the disputed agreement to sell amounts to an admission of its execution? A similar question arose before the Apex Court in the case of Veena Singh (dead) through LR Vs. The District Registrar/ Additional Collector (F/R) and another, reported in 2022 LiveLaw (SC) 462, Page 18 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined wherein the Supreme Court after careful consideration of various provisions of Registration Act and various authorities, has analyzed the word "execution". The term "execution" in Section 35(1)(a) Registration Act means that a person has signed a document after having fully understood it and consented to. Thus, the Apex Court observed :
"57. The word "execution" of a document does not stand admitted merely because a person admits to having signed the document. Such an interpretation accounts for circumstances where an individual signs a blank paper and it is later converted into a different document, or when an individual is made to sign a document without fully understanding its contents. Adopting a contrary interpretation would unfairly put the burden upon the person denying execution to challenge the registration before a civil court or a writ court, since registration will have to be allowed once signature has been admitted."
The Apex Court while giving purposive interpretation of word Page 19 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined "execute" has also taken into consideration the decision of the Apex Court in the case of Suraj Lamps and Industries Pvt. Ltd. vs. State of Haryana & Another ,reported in (2009) 7 SCC 363, to highlight the purpose of registration as a form of public policy. Thus, the Supreme Court observed that the execution of a document/deed does not stand admitted merely because a person admits to having signed the document/deed.
8.6. Now, the scope of power of the High Court, while dealing with impugned order passed by the trial Court, in an appeal from order arising under order 43 rule 1 read with section 104 of the Code of Civil Procedure is concerned, it is a settled position of law. The proposition propounded by the Apex Court while exercising appellate jurisdiction has indicated that unless and until there is any material irregularity or perversity is reflecting and the view taken by the learned trial Judge is reasonably probable on the basis of documents then such view is not to be substituted and as such the said proposition of law, has been consistently observed by the Page 20 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined Courts. Some observations contained in a decision in the case of Wander Ltd. and another versus Antox India P.Ltd. reported in 1990 (Supp) SCC 727 requires to be referred hereinafter. The relevant observations contained in paragraph No.14 as such reproduced hereinafter:
"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. The 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 the court was reasonably possible on the material.Page 21 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023
NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined 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. Vs. Pothan Joseph :
... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston 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."Page 22 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023
NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined Thus, the Hon'ble Supreme Court in the case of Wander Ltd. (supra) has specifically observed that the Appellate Court can interfere with the order of the trial court when it is found that discretion has been exercised by the trial Court arbitrarily or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunction.
8.7. In light of the above legal position, the Court finds that the unregistered agreement to sell can be looked into for collateral purposes to examine the fact of payment and acknowledgment of cash amount, however, when it involves transaction of payment of cash of Rs. 5.0 crores, then even for collateral purpose, it ought to have been sufficiently stamped. At the same time, when the appellant - original defendant has though admitted signature but has categorically disputed execution of such agreement, then a heavy burden lies on the original plaintiff to fortify such claim of payment of cash by supporting documents or explaining its source. In absence of any supporting material or Page 23 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined source of such cash amount being placed on record by the original plaintiffs, there are all more reasons to accept the case of the defendant that no such agreement to sell of suit land was ever executed. The Court prima facie finds force in the submissions of Mr. Trivedi that prima facie the terms and conditions, if closely examined, relates more to amount being advanced as loan failing which it was to be treated as agreement to sell. As observed herein above, in the considered opinion of this court, the terms and conditions essentially are to be read, rather than the title of the document is to be taken into consideration while deciding the nature of transaction entered upon. Considering the amount of cash involved, the Court finds that these are unaccounted transactions and the Court may not come to the aid of the party in an illegal transaction. In the opinion of this Court, there exist no prima facie case in favour of plaintiff as the very existence of agreement to sell itself has become triable, which can be gone into at the stage of evidence. In the present case while granting the status quo, the learned trial Judge has ignored above settled Page 24 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined principles of law."
(iii) Mrugen Atulkumar Trivedi Versus Abhijat Parashar Mehd reported in 2020 (2) GLR 1379 :
"[11] First of all, it appears that the exercise of discretion by the learned Chamber Judge appearing to be on close perusal of documents on record and after dealing with the respective stand of the parties, the order is backed by reasons. So prima facie, there appears to be no irregularity of any nature visibly from the tenor of order impugned. Further, if the documents which are attached with the paper-book compilation and the pleadings of appellant to be seen, it appears that the base of the suit is an agreement to sell dated 23.04.2015 which document is undisputedly not a registered document. Further, a consideration in part which has stated to have been paid of Rs. 11 lakhs is the cash payment to respondent No.1, and for which, the source of such amount has also not been substantiated, as found from the record. Additionally, it is found that for claiming right and for enforcement and the incidental reliefs are against and based upon unregistered agreement to sell of the Page 25 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined year 2015 only, and a challenge to the registered transaction of June 2016 for which the suit appears to have been filed in July 2018. So, there is a considerable time consumed by appellant for attempting to seek a relief of injunction, which is equitable in nature.
[16] On the basis of this scenario of factual details, a perusal of the order in question is indicating that the learned Judge has also taken note of the aforesaid circumstances at length and has clearly observed that in support of the story of payment of cash amount of Rs.11 lakhs, no much details are provided by the appellant which onus is lying upon him only. Further, the learned trial Judge has clearly taken note of after examining all these issues that looking to the record the appellant - original plaintiff was in knowledge of the property, being a property of HUF of P.P. Mehd and was also aware about the fact that the property in question was undivided for which he entered into transaction. Learned trial Judge has also examined the effect of relinquishment of his right of defendant No.1 from the property and has also taken note of Page 26 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined certain admissions of defendant No.1 i.e. respondent No.1 herein about the property being of HUF and the factum of oral partition and the family arrangement. Learned trial Judge has also found rightly that the aforesaid documents generate an impression that defendant No.1 has throughout participated in the process of deletion of his name from the record of disputed property. The affidavits which have been executed by defendant No.1 has given an impression that originally defendant No.1 has supported the other defendants and thereby allowed the transaction to carry out. With respect to possession, it has been clearly found by the learned trial Judge that not a single document is shown to the Court that even at the time of transaction with appellant and even at this juncture to indicate that defendant No.1 was in possession as a joint owner of disputed property, and therefore, to claim possesory right even remotely is not found in favour of appellant. So far as amount of Rs.11 lakhs is concerned, the learned trial Judge has also believed the version of defendant, since there is no source of such payment is declared by the appellant - original plaintiff and it Page 27 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined has also been found that handing over joint possession to the plaintiff on the basis of only Rs.11 lakhs which comes to only 6.5% is not a believable plea, as a result of which also, such circumstances examined by the trial Court at length. By way of deed, even defendant No.1, his wife and son as well as defendant Nos. 6 and 7 have also admitted that defendant Nos. 2 to 4 have sold the whole disputed properties to defendant No.5 and defendant No.1 has never objected, and therefore, conduct of defendant No.1 is visualized by the learned trial Judge of now supporting the plea of plaintiff is found to be creating a hurdle in right of defendant No.5. It has also been observed by the Court below that more than Rs.4 crores have been paid to the Ahmedabad Municipal Corporation for purchasing of F.S.I. fees etc., and the Municipal Cooperation has sanctioned the plan and had given commencement certificate in addition to total sale consideration of Rs.4,60,00,000/- given by him by virtue of registered sale documents, and thereby has erected a residential complex. Learned Judge has further found that these are the undisputed circumstances and now defendant No.1 taking plea that he was Page 28 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined forced to put the signature, he was unaware about the proceedings, signatures have been forged and thereby to file civil as well as criminal proceedings are the issues to be examined at length not at this stage. But when prima facie bunch of circumstances are learning in favour of bona fide purchaser i.e. defendant No.5, the learned trial Judge appears to have rightly exercised the discretion, and therefore, the order in question is not possible to be interfered with."
(iv) Harshadkumar Kantilal Bhalodwala and Another versus Ishwarbhai Chandubhai Patel and Others reported in 2010 (2) GLR 1041 :
"6. Heard the learned Advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the respondent No. 1-original plaintiff has instituted the suit for cancellation of registered sale-deed dated 15-5-2007 executed by the original defendant Nos. 1 and 2 (original owners) in favour of the original defendant Nos. 3 and 4 (appellants herein). He has also filed Page 29 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined suit for specific performance of the agreement to sell dated 16-1-2006 (20- 1-2006) alleged to have been executed by the original defendant Nos. 1 and 2. It is the contention on behalf of the appellants that he has paid Rs. 4,50,000/- by way of part sale consideration to the defendant Nos. 1 and 2 at the time of execution of alleged agreement to sell dated 16-1- 2006. It is to be noted that the original defendant Nos. 1 and 2 have specifically disputed the execution of the agreement to sell dated 16-1-2006 as well as receipt of Rs. 4,50,000/- alleged to have been paid by cash. Therefore, once the execution of the agreement to sell is disputed and even the receipt of the part sale consideration which is alleged to have been paid by cash is disputed, in that case, initial burden to prima facie prove such payment which is alleged to have been paid by cash is upon the plaintiff who asserts that the said amount is paid by him. As held by the learned Single Judge in the case of Khimjibhai Harjivanbhai Patadia (supra) when the factum of payment of part sale consideration which has been alleged to have been paid by cash is seriously disputed in that case, the plaintiff is Page 30 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined required to produce some evidence to show that whether he has withdrawn the said amount from any Bank account or he has borrowed from any one. In the present case, the plaintiff has not produced anything to show that while making the payment of Rs. 4,50,000/- as alleged, he has withdrawn the said amount from any Bank account or he has borrowed the money from any one. Learned Advocate for the original plaintiff is not in a position to point out any corresponding documentary evidence in the form of income tax return or the Bank passbook etc. Therefore, the original plaintiffs has prima facie failed to prove and/or establish the payment of Rs. 4,50,000/- by way of part sale consideration.
7. On considering the impugned order passed by the learned trial Court allowing application Exh. 5, it appears that solely relying upon the alleged agreement to sell dated 16-1-2006/20-1- 2006, which is specifically disputed by the executant, learned Judge has held that there is a prima facie case in favour of the plaintiffs, and accordingly, observed that the balance of convenience as well as irreparable loss would be in favour of the original Page 31 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined plaintiffs. It is to be noted that original defendant Nos. 3 and 4 have purchased the property by registered sale-deed after the original land- owners gave public notice in the local newspaper intending to sell the land in question and when no objections were submitted by anybody inclusive of the plaintiffs, the original defendant Nos. 3 and 4 have purchased the property on payment of full sale consideration. Under the circumstances, it can be said that the original defendant Nos. 3 and 4 are the bona fide purchasers of the land in question on payment of full sale consideration. In view of such a situation, the balance of convenience can be said to be in favour of bona fide purchaser i.e. defendant Nos. 3 and 4. Nothing is on record that original plaintiffs had submitted any objection pursuant to the public notice/advertisement in the local newspaper given by the original land- owners intending to sell the land in question. Under the circumstances, the learned trial Court has materially erred in holding the prima facie case as well as the balance of convenience in favour of the original plaintiffs. As such on considering the entire order passed by the learned trial Court, the Page 32 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined learned Judge has not assigned any reason how the balance of convenience would be in favour of the original plaintiffs. As stated above, solely relying upon the alleged agreement to sell dated 16-1-2006 (20-1-2006), which has been seriously disputed, the learned Judge has observed that there is a prima facie case and balance of convenience in favour of the plaintiffs. It cannot be disputed that while considering the application for injunction under Order 39, Rules 1 and 2 Code of Civil Procedure, Court is required to consider the three aspects i.e. (i) prima facie case, (ii) balance of convenience (iii) irreparable loss in terms money if the injunction as prayed for is not granted. While granting the injunction all the three aforesaid conditions are to be satisfied. Even if there is prima facie case in favour of the plaintiffs but the balance of convenience is not in favour of plaintiffs and/or if it is found that the plaintiff can be compensated in terms of money even if the injunction is not granted, the Court may not grant even interim injunction. In the present case, the learned Judge has not considered the aforesaid aspects more particularly, Page 33 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined with respect to balance of convenience and the irreparable loss in terms of money if the interim injunction as prayed is not granted.
8. It is to be noted that in the alternative the prayer of the plaintiffs is against the defendant Nos. 1 and 2 for return of Rs.
4,50,000/- with interest. Thus, it appears that if the interim injunction as prayed for is not granted in that case, alternative prayer of the plaintiffs for a decree of Rs. 4,50,000/- with interest can be considered at the time of trial. Under the circumstances, the learned Judge has not considered the relevant aspect while granting injunction."
5.1. On the other hand, learned advocate Mr.Vinay Vishen for the respondent submitted that the learned Judge has passed the impugned order after taking into consideration the averments made in the plaint, the documents produced with the plaint, the averments made in the agreement for sale dated 11.03.2013, extracts of Village Form Nos.7 and 12, NA Page 34 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined order passed in respect of the subject land, communication dated 21.02.2020 on behalf of the respondent and copy of possession receipt dated 11.03.2013 and thereafter, has passed the impugned order to maintain the status-quo by the appellant with regard to the subject land. It was therefore submitted that no interference may be made as the Court below has rightly arrived at a conclusion that there is prima-facie case in favour of the respondent-plaintiff together with balance of convenience as well as irreparable injury would be caused to the plaintiff if the Suit land is transferred in the name of any third party during the pendency of the Suit. It was submitted that there are very good chances of success that the Suit may be allowed in favour of the plaintiff and therefore, the learned Judge has rightly exercised his discretion Page 35 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined under Order 39 Rules 1 and 2 of the Code.
5.2. It was submitted that the appellant-
defendant has not denied the signature on the agreement for sale. Moreover, the plaintiff was always ready and willing to perform their part of the contract and attempt on part of the appellant-defendant to sale the subject land is apparent as per the public notice issued in the year 2020 in spite of the fact that there is an agreement for sale in favour of the plaintiff after taking a part consideration.
5.3. It was also pointed out by learned advocate Mr.Vinay Vishen that along with agreement for sale, possession receipt is also executed in favour of the plaintiff which is not in dispute.
5.4. In support of his submission, learned Page 36 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined advocate Mr.Vinay Vishen referred to and relied upon the following decisions :
(i) Mohd. Mehtab Khan and Others Versus Kushnuma Ibrahim Khan and Others reported in (2013) 9 Supreme Court Cases 221 :
"10. Both the learned Trial Judge as well as the Appellate Court considered the very same documents brought on record by the contesting parties to arrive at their respective conclusions with regard to the entitlement of the plaintiffs. Specifically, the learned Trial Judge had discussed the narration of the events of dispossession pleaded by the plaintiffs and held the same to be somewhat unreliable and inconsistent in view of the fact that the defendant No. 1 (son of the deceased Ibrahim Khan) who is alleged to have been instrumental in dispossessing the plaintiffs was at the relevant point of time in Bhagalpur in connection with the cremation of the deceased, Ibrahim Khan. In this regard the claim of defendants 2 to 4 that they were also in Bhagalpur at the relevant time was considered by the learned Trial Judge.Page 37 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023
NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined The versions of the occurrence allegedly narrated to the plaintiff No. 1 by her neighbours and her domestic aid were also found to be somewhat contradictory.
11. The learned Trial Judge took into account the fact that the plaintiffs' version with regard to prosecution of studies by the second plaintiff in the school at Mira Road and his residing with the parents of the plaintiff No. 1 at Mira Road was brought on record in the rejoinder and did not constitute the part of the plaint case. In coming to his conclusions in the matter the learned Trial Judge also took into account the fact that the visiting card of the plaintiff No. 1 showed an address other than of the suit office and also the fact that the communication conveying the temporary membership of the plaintiff No. 1 in the Bombay Bar Association sent to the suit flat address was returned with the remarks "shifted". The fact that the visiting card of the plaintiff showing the office address at Ashoka Centre contained the same telephone numbers of the plaintiff that were mentioned in certain communications of the bank were duly taken note of by the learned Trial Page 38 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined Judge. In the above context the claim of the plaintiff No.1 that the said visiting card is a forged and fabricated document was held to be an issue fit for decision in the trial of the suit.
12. The learned Trial Judge took into account the passports of both the plaintiffs issued in the year 2009 showing the address of the suit premises as well as the vouchers/memos showing payment by the plaintiff No.1 for the household and electronic goods which were found in the suit flat. On an overall consideration of the aforesaid facts and the documents laid in support thereof, the learned Trial Judge was of the view that there were inconsistencies and improbabilities in the case of the plaintiffs which needed to be established in the trial of the suit. Accordingly, the interim relief of direction to be put back in possession, as claimed by the plaintiffs, was declined.
13. The Appellate Court understood the very same documents considered by the learned Trial Judge in a wholly different manner. Specifically, it was held that the various household and Page 39 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined electronic goods found in the suit flat during the inspection carried out by the Receiver on 16.12.2011 were proved to have been purchased by the plaintiffs on the basis of a invoice/voucher dated 22.8.2008 and the said fact pointed to the possession of the suit flat by the plaintiffs and, in fact, demolished the case of the defendants that the first plaintiff and the deceased had separated some time in the middle of the calendar year 2009. The passports issued to the plaintiffs in 2009 recording the address of the suit flat; the HDFC bank statement of plaintiff No. 1; the ICICI bank Credit Card Statement of plaintiff No. 1 during the relevant time, all indicating the address of the suit flat were duly relied upon by the Appellate Court in coming to its conclusion.
14. The Appellate Court also relied on an application form submitted (before the Appellate Court) by the second plaintiff on 11.8.2011 for admission in the 11th standard in H.R. College of Commerce and Economics at Dinshaw Vachcha Road, Church Gate, Mumbai which was signed by the deceased Ibrahim Khan himself giving the address of the suit office and the suit flat. The version Page 40 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined of the plaintiffs that the visiting card showing her office at Ashoka Centre was a forged document and also the claim that the plaintiff had used the said premises temporarily as the suit office was under renovation was accepted by the learned Appellate Court as sufficient explanation to counter the stand taken by the defendants. On the aforesaid basis the order of the learned Trial Judge was found fit for reversal and refusal of interim relief to the plaintiffs was held to be unjustified. Accordingly, interim relief(s) was granted in the appeal.
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.
Page 41 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined The Appellate Court, 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 Page 42 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined 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 Page 43 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined Joseph:
"... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton '...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 Page 44 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined 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."
(ii) Urvashiben and Another Versus Krishnakant Manuprasad Trivedi reported in (2019) 13 Supreme Court Cases 372 :
"16. As averred in the plaint, it is the case of the plaintiff that even after payment of the entire consideration amount registration of the document was not made and prolonged on some grounds and ultimately when he had visited the site on 25-5-2017 he had come to know that the same land was sold to third Page 45 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined Parties and the appellants have refused performance of contract. In such event,it is a matter for trial to record correctness or otherwise of such allegation made in the plaint. In the suits for specific performance falling in the second limb of the Article, period of three years is to be counted from the date when ithad a come to the notice of the plaintiff that performance is refused by the defendants. For the purpose of cause of action and limitation when it is pleaded that when he had visited the site on 25-5-2017 he had come to know that the sale was made in favour of third parties and the appellants have refused to execute the sale deed in which event same is a case for adjudication after trial but not a case for rejection of plaint under Order 7 Rule 11(d) CPC.
19. In the judgment in the case of Rathnavathi (supra) in paragraphs 42 and 43 it was clearly held that when the time is not fixed in the agreement, the limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that defendant has refused the performance of the agreement. In the judgment in the case of Ahmadsahab Abdul Mulla(2)(Dead) Page 46 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined by Proposed LRs. v. C.A.@ SLP(C)Nos.23062-63/18 Bibijan & Ors.14 while interpreting Article 54 of the Limitation Act, it is held that words "date fixed for the performance" is a crystallised notion. The second part "time from which period begins to run"
refers to a case where no such date is fixed. In the case of Balsaria Construction (P) Ltd. v. Hanuman Seva Trust & Ors.15 and Chhotanben (supra) this Court clearly held that issue of limitation, being a mixed question of fact and law, is to be decided only after evidence is adduced."
(iii) Maharwal Khewaji Trust (Regd.), Faridkot versus Baldev Dass reported in (2004) 8 Supreme Court Cases 488.
"7. Mr. R.S. Sachhar, learned senior counsel appearing for the appellant, contended that generally during the pendency of litigation courts protect the status quo existing on the date of the suit and it is only in exceptional circumstances where irreparable damage is feared, the courts permit change of status quo. His further contention was that in the present case no such case is Page 47 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined made out by the respondent and the trial court was justified in protecting the status quo as on the date of the suit.
10. Be that as it may, Mr. Sachhar is right in contending that unless and untill a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open Page 48 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored. "
(iv) Taufik Idrishbhai Patel (Ghanchi) Versus Nurabhai Alibhai Momin (Bhagat) reported in 2021 (0) AIJEL-HC 242661 :
"3.1 It is the case of the appellant - plaintiff in the suit that the respondent - defendant had executed an agreement to sell in favour of the plaintiff for the land bearing revenue survey Nos. 10/1 and 17/1 paiki 6565 sq. mtr. of land for a consideration of Rs.90 lakh on 09.10.2006 in presence of some witnesses. It is further the case of the appellant - plaintiff that out of total sale consideration of Rs.90 lakh, the appellant - plaintiff has Page 49 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined already paid an amount of Rs.65 lakh in cash to the respondent - defendant, which was accepted by the respondent - defendant. It is further the case of the appellant - plaintiff that a stamp paper for such an agreement to sell was also purchased by the respondent - defendant, wherein, his status is reflected as seller. That, it was agreed that the respondent - defendant shall divide his share of land and after getting done necessary mutation entry in 7/12 extracts as well as taking necessary permissions, and after completing necessary formalities and fulfilling the conditions of the agreement to sell, execute the sale deed in favour of the present appellant within a period of three years from getting the Title Clearance Certificate. However, since the respondent - defendant did not act upon the said agreement to sell, eventually, the appellant - plaintiff constrained to file the suit in question with aforesaid prayers. In the said suit, the appellant - plaintiff filed an application for interim injunction vide exh. 5, which came to be rejected by impugned order and hence, this appeal.
4.1 The learned advocate for the Page 50 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined appellant - plaintiff has vehemently and fervently argued that in the present case, the issue is in very narrow compass i.e. with regard to rejection of interim injunction application, exh. 5 mainly on the ground of non-registration of the agreement to sell, which has driven the equity Court not to exercise discretion, which is unjust and not proper and against the settled principles of law. It is submitted that the learned trial Judge has erred in observing that in view of alternate prayer to refund the amount of Rs.65 lakh with interest, there is no need to grant interim injunction application under O.39 R. 1 and 2 of the CPC, which is contrary to the settled legal position as well as against the tenor of Section 21 of the Specific Relief Act, 1963.
4.2 The learned advocate for the appellant - plaintiff, with all vehemence at his command, submitted that even an unregistered agreement to sell is admissible in evidence and specific performance thereof can be granted in view of sections 17 and 49 of the Registration Act, 1908 and only on that ground, the appellant cannot be Page 51 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined non-suited.
7. Having heard the arguments advanced by the learned advocates for the respective parties so also perusing the impugned order below exh. 5 dated 26.02.2020, it appears that the learned trial Judge has arrived at a conclusion in paragraph 8 of the impugned order to the effect that since the so-called agreement to sell is unregistered one and when the same is not even notarized, prima facie, the same cannot be considered as a legal and valid document vis-a-vis the fact that, there is alternative prayer made by the plaintiff - appellant herein to refund the amount of Rs.65 lakh with interest, no irreparable loss would cause to the plaintiff - appellant and hence, the application exh. 5 is not required to be entertained.
7.1 In the case on hand, it is an undisputed fact that the so- called agreement to sell is a non-registered document and as referred to herein above, the learned trial Judge has rejected the application exh. 5 on that count. In this regard, section 49 of the Registration Act, 1908 is relevant, which speaks thus:Page 52 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023
NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined "49. Effect of non-registration of documents required to be registered.--No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.] "Page 53 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023
NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined emphasis supplied 7.2 A bare perusal of section 49 of the Registration Act reveals that discretion is vested in the Court to receive an unregistered document as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument.
7.3 In this regard, it would be apt to refer the to decision of this Court in Kaushik Rajendra Thakore (supra), as relied by the learned advocate for the appellant, more particularly, Head Note 'B' of the same, which reads as under:
"(B) Registration Act, 1908 - S. 17 as amended by Gujarat Act 7 of 1982
- S. 49 - As laid down in proviso to S. 49 of the Act, the suit of the plaintiff would not fail on the ground of compulsory registration introduced by amendment to S. 17 by Gujarat Act, 7 of 1982.
A new contention is advanced by the learned advocate for the appellant Page 54 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined that Section 17 of the Registration Act, 1908, is amended by Gujarat Act 7 of 1982, which makes the instruments which purport or operate to effect any contract for transfer of immovable property compulsorily registrable by adding Clause (aa) therein. The learned advocate for the appellant submitted that in view of the amendment introduced by Gujarat Act 7 of 1982, the amendment is given retrospective effect by Section (1A) of the Gujarat Act 7 of 1982, the result of which is that the agreement to sell in question (Exhibit 29) must be de-exhibited, with the further result that it would be devoid of any legal effect and the plaintiff would be de-barred from basing any cause of action on such an agreement to sell. However, the answer to this contention is found in Section 49 of the Registration Act, 1908, which we reproduce below to appreciate its full effect:
"49. No document required by section 17 (or by any provision of the Transfer of Property Act, 1882 (4 of 1882) to be registered shall--Page 55 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023
NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1982, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1977 (3 of 1977) or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.) "
The proviso to Section 49 of the Registration Act makes it abundantly clear that the suit of the plaintiff Page 56 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined would not fail on the ground of compulsory registration introduced by amendment to Section 17 by Gujarat Act 7 of 1982. This contention was not originally raised in the trial proceedings, but we permitted the learned advocate for the appellant to argue on this contention, as it is purely a question of law. We reject the same contention, however, by relying on the proviso to Section 49 of the Registration Act, 1908."
(v) Gitaben Govindbhai Patel Versus Rameshbhai Hirabhai Patel in Appeal From Order No.35 of 2021 dated 15.03.2022.
6. Having heard the learned advocates for the respective parties, considering the facts emerging from the record on the basis of the averments in the plaint as well as the documents annexed with the plaint and the written statement filed by the appellant, it appears that the agreement for sale dated 11.03.2013 was executed between the parties on Page 57 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined payment of Rs.10 Lacks by cash together with possession receipt of the same date and transaction between the parties with regard to the subject land.
7. The factum of the averments with regard to the possession and payment of part consideration in cash is subject matter of leading evidence by the parties in the trial.
8. In case of agreement of sale relating to immovable property, time is not the essence of contract unless specifically provided to that effect. Therefore, it is provided in the agreement for sale in the facts of the case that upon obtaining the title clearance the sale-deed would be executed, the period of three years as per Article 54 of the Limitation Act prima-facie would not be applicable subject to leading of evidence Page 58 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined during the course of trial.
9. Similarly, the issue with regard to payment of cash by the plaintiff and source thereof is concerned, the same is also matter of leading evidence before the Court below in the course of trial.
10. On perusal of the impugned order of the Trial Court, it appears that the Trial Court has found prima-facie case in favour of the plaintiff while deciding the application Exh.5 after considering the fact that the appellant-
plaintiff has not denied its signature on the agreement for sale sought to be relied upon by the plaintiff. The Trial Court considering the documents produced on record, thereafter has recorded finding in respect of prima-facie case, balance of convenience and irreparable injury as per the provisions of Order 39 Rules Page 59 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined 1 and 2 of the Code.
11. The Apex Court in case of Maharwal Khewaji Trust (Supra) observed that generally during the pendency of the litigation, Courts protects the status-quo existing on the date of the Suit and it is only in exceptional circumstances, where irreparable damage is feared, the Courts permit change of status-
quo. Therefore, the reliance placed by the appellant in the decision of Harshadkumar Kantilal Bhalodwala (Supra) as well as Mrugen Atulkumar Trivedi would not be of any help on specific issue of payment of cash or denial by the appellant-defendant with regard to execution of the agreement to sale and dispute with regard to the status of the plaintiff as agriculturist which are subject matter of the trial by leading oral and documentary evidence by both the sides.
Page 60 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined
12. The Apex Court in case of Taufik Idrishbhai Patel in similar facts held that the registration of the document is not sine qua non for receiving the same as evidence of a contract in a Suit for specific performance as evidence of part performance of a contract or any collateral transactions and in a Suit for specific performance based upon such agreement for sale which is not registered, temporary injunction is not barred under the law in a fit case.
13. Considering the facts of the case, the discretion exercise by the Trail Court cannot be said to be perverse or contrary to the records and therefore, no interference is called for in the impugned order passed by the Trial Court directing the appellant to maintain status-quo with regard to the subject Page 61 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023 NEUTRAL CITATION C/AO/133/2022 CAV JUDGMENT DATED: 22/09/2023 undefined land. The Appeal therefore being devoid of any merit, is ordered to be dismissed. The Civil Application also stands disposed of accordingly.
(BHARGAV D. KARIA, J) PALAK Page 62 of 62 Downloaded on : Fri Sep 22 20:46:43 IST 2023