Madhya Pradesh High Court
Nehal Shah vs Jameet Signh Kachhwahe on 1 July, 2024
Author: Pranay Verma
Bench: Pranay Verma
Page 1 of 8
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
MISC. PETITION No. 1771 of 2024
BETWEEN:-
NEHAL SHAH S/O SHRI KIRIT BHAI SHAH, AGED
ABOUT 53 YEARS, OCCUPATION: BUSINESS R/O
314 STAR LIGHT TOWER 29/1 Y.N. ROAD INDORE
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI MAQBOOL AHMED MANSOORI - ADVOCATE)
AND
1. JAMEET SINGH KACHHWAHE S/O SHRI
ONKAR SINGH KACHHWAHE, AGED
ABOUT 73 YEARS, OCCUPATION: DOCTOR
AND AGRICULTURE R/O: VILLAGE DABAL
CHOUKI DISTT. DEWAS (MADHYA
PRADESH)
2. SUSHEELABAI D/O SHRI RAMCHANDRA
KUMAWAT (W/O LATE SHRI KAILASH
DUNGARWAL) OCCUPATION: HOUSEWIFE
R/O: 13, VILLAGE ARANDIYA, TALAWALI
CHANDA INDORE DIST. INDORE (MADHYA
PRADESH)
3. ASHABAI D/O SHRI RAMCHANDRA
KUMAWAT (W/O LATE SHRI SANTOSH
KUMAWAT) OCCUPATION: HOUSEWIFE
R/O: 401, ANKPAT MARG, UJJAIN DIST.
UJJAIN (MADHYA PRADESH)
4. ANNAPURNA D/O SHRI RAMCHANDRA
KUMAWAT (W/O SHRI GANESH
KUMAWAT) OCCUPATION: HOUSEWIFE
R/O: ARIHANT COLONY, GOMAT GIRI,
INDORE DIST. INDORE (MADHYA
PRADESH)
5. STATE OF MADHYA PRADESH, THROUGH
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 02-07-2024
15:23:57
Page 2 of 8
COLLECTOR DEWAS (MADHYA PRADESH)
6. GANI PATEL S/O SHRI KALU PATEL
OCCUPATION: AGRICULTURIST R/O: 517,
BADLA COLONY, GALI NO. 1, KHAJRANA
INDORE DIST. INDORE (MADHYA
PRADESH)
7. LALIT SHARMA S/O KAILASH NARAYAN
SHARMA OCCUPATION: BUSINESS R/O: 129,
GANESHPURI KHAJRANA, INDORE DIST.
INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI YOGESH HEMNANI - ADVOCATE FOR RESPONDENT NO.1
SHRI MUKESH PARWAL - GOVERNMENT ADVOCATE FOR
RESPONDENT NO.5 / STATE)
Reserved on :- 22.04.2024
Pronounced on :- 01.07.2024
___________________________________________________________
This petition having been heard and reserved for orders coming on
for pronouncement this day, the court passed the following:
ORDER
This petition under Article 227 of the Constitution of India has been preferred by defendant No.7/petitioner against the order dated 20.02.2024 passed in M.C.A. No.42/2023 by the Principal District Judge, District Dewas setting aside the order dated 13.05.2023 passed in Civil Suit No.54-A/2022 by the IIIrd Civil Judge, Senior Division, District Dewas and allowing an application under Order 39 Rule 1 and 2 of the CPC preferred by plaintiff/respondent No.1.
2. The contention of the plaintiff is that on 20.03.1994 Ramchandra, predecessor in interest of defendant Nos.1 to 3, had entered into an agreement to sale with him with respect to the suit land for a total consideration of Rs.72,000/- upon receiving earnest money of Rs.5001/-. A written agreement to sale was also executed between them on that day Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 02-07-2024 15:23:57 Page 3 of 8 and it was agreed that the requisite sale-deed would be executed by 15.07.1994 upon payment of the balance sale consideration. On 10.06.1994 plaintiff made over the remaining amount of sale consideration of Rs.67,000/- to Ramchandra which was also evidenced by a written document followed by delivery of possession of the suit land in his favour. Thereafter, plaintiff requested Ramchandra for execution of the sale-deed in his favour but he did not do so and expired in the year 1997. His heirs, defendant Nos.1 to 3, however executed sale-deed with respect to the suit land on 01.02.2022 in favour of defendant Nos. 5 and 6 who have sold the same in favour of defendant No.7 by a registered sale- deed dated 01.07.2022.
3. Contending aforesaid, the plaintiff has instituted an action for declaration of his title to the suit land by virtue of agreement to sale dated 10.06.1994 executed in his favour by Ramchandra, for declaration that the sale-deed executed by defendant Nos.1 to 3 in favour of defendant Nos.5 and 6 and by them in favour of defendant No.7 are null and void and for permanent injunction restraining the defendants from interfering with his possession over the suit land.
4. Along with the plaint, the plaintiff also filed an application Under Order 39 rule 1 and 2 of the CPC for issuance of temporary injunction restraining the defendants from interfering with his possession over the suit land. Defendant Nos.1 to 6 did not file any reply to the said application. Defendant No.7 contested the same by filing his reply submitting that the suit has been instituted 28 years after the date of agreement to sale hence is barred by time, that no agreement to sale was executed between the plaintiff and Ramchandra which is a forged and fabricated document, that plaintiff is neither the owner nor in possession of the suit land, that defendant No.7 is a bona fide purchaser of the suit Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 02-07-2024 15:23:57 Page 4 of 8 land upon payment of adequate consideration to the ostensible owners and that he is in possession of the suit land.
5. The trial Court rejected plaintiff's application for issuance of temporary injunction by holding that he has not shown that he has taken any steps since 1994 for execution of the sale-deed in his favour pursuant to the agreement to sale and that the suit has been instituted by him with extreme delay which disentitles him from grant of relief of temporary injunction. The said order has been set aside by the Appellate Court in appeal having been preferred by the plaintiff primarily on the ground that he is in possession of the suit land.
6. Learned counsel for defendant No.7 has submitted that the impugned order is illegal and contrary to law. The suit has been instituted by plaintiff more than 28 years after execution of the agreement to sale. It has not even been pleaded by him that during all these years he had made any effort for execution of the sale-deed in his favour. The suit is apparently barred by time. The plaintiff has only sought relief of declaration of title and permanent injunction but has not sought relief of specific performance of contract in view of which the suit itself is not maintainable. There is nothing to show that plaintiff is in possession of the suit land whereas defendant No.7 is in such possession by virtue of a registered sale-deed executed in his favour. The trial Court had passed a reasoned order which has illegally been set aside by the Appellate Court which hence deserves to be quashed. Reliance has been placed by him on the decision of the Apex Court in Mandali Ranganna and Others Vs. T. Ramchandra 2008 (11) SCC 1, Vasanthi Vs. Venugopal 2017 (4) SCC 723, Wander Limited Vs. Antox India Private Limited 1990 (Supp) SCC 727, Skyline Education Institute Vs. S.L. Vaswani 2010 (2) SCC 142 and of this Court in Vindhya Telelinks Limited Vs. State Bank of India Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 02-07-2024 15:23:57 Page 5 of 8 1995 MPLJ 575 and Ajay Narang Vs. M/s. Ram Enterprises ILR 2011 MP 2162.
7. Per contra, learned counsel for plaintiff/respondent No.1 has submitted that plaintiff is in possession of the suit land ever since the date of execution of the agreement to sale in his favour by Ramchandra. Defendant Nos.1 to 3 have never after his death bothered to look into the suit land and to take care of it and have not claimed any title over the same. They have not even contested the application for issuance of temporary injunction. If possession of plaintiff is not protected during pendency of the suit it would cause irreparable injury to him which hence deserves to be protected. Defendant No.7 is a purchaser from defendant Nos.5 and 6 who themselves had no right to purchase the suit land from defendant Nos.1 to 3. The plaintiff is the owner of the suit land by virtue of the agreement to sale dated 20.03.1994 executed in his favour by Ramchandra hence is entitled for protection of his possession. A well justified order has been passed by the Appellate Court which ought not to be interfered with in exercise of jurisdiction under Article 227 of the Constitution of India. Reliance has been placed by him on the decision of the Apex Court in Mohammad Yunus Vs. Mohammad Mustakeem and Others 1983 (4) SCC 566 and Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil 2010 (8) SCC 329 and of this Court in Babulal Sharma Vs. Ramesh Sharma, M.P. No. 1120 of 2017 decided by order dated 24.11.2017.
8. I have considered the submissions of learned counsel for the parties and have perused the record.
9. For the purpose of considering as to whether plaintiff has prima facie case in his favour, it would firstly be necessary to consider whether the suit instituted by him is legally maintainable. From a reading of the Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 02-07-2024 15:23:57 Page 6 of 8 prayer clause of the plaint, it is seen that plaintiff has claimed declaration of his title to the suit land under the agreement to sale dated 20.03.1994 and has further sought permanent injunction. He has not sought for the relief of specific performance of contract dated 20.03.1994. It is well settled in law that a mere agreement to sale by itself is wholly incapable of conferring title in the land and that such title can be conferred only by way of execution of a registered document. Since there is only an agreement to sale in favour of plaintiff, prima facie he does not have any title to the suit land. His relief of declaration of title to the suit land hence has to be excluded from consideration. Consequently, his suit has to be considered as one wherein relief of permanent injunction alone has been claimed.
10. Plaintiff is claiming under the agreement to sale dated 20.03.1994 but has not claimed relief of specific performance of contract. This is a relief which he could have and ought to have claimed but has omitted to do so and has sought relief of permanent injunction alone which would be a negative injunction since the same has been sought for without claiming specific performance of the contract. In this regard, reliance may profitably be placed on the decision of this Court in Ajay Narang (supra) in which it has been held that a suit for mere negative injunction without claiming specific performance is not maintainable. Thus, apparently, the suit of plaintiff itself is not maintainable hence it cannot be held that he is having any prima facie case in his favour.
11. Even if the case of plaintiff is considered in light of provisions of Section 53-A of the Transfer of Property Act whereunder he could claim protection of his possession under the doctrine of part performance of contract, then also it is evident from the plaint itself that there is no pleading whatsoever that subsequent to death of Ramchandra in the year Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 02-07-2024 15:23:57 Page 7 of 8 1997 any steps were ever taken by the plaintiff for getting the sale-deed with respect to the suit land executed in his favour. There is no averment that he ever approached his legal representatives, defendant Nos.1 to 3, for execution of the sale-deed in his favour. There is no pleading in the plaint that the plaintiff has always been and is still ready and willing to perform his part of the contract. Nowhere in the plaint has it been shown that plaintiff has ever done any act in furtherance of the agreement to sale dated 20.03.1994. The protection under Section 53-A of the Transfer of Property Act is hence not available to the plaintiff. In this regard, the principles as laid down in the case of Vasanthi (supra) are squarely attracted to the facts of the present case.
12. In the registered sale-deed executed in favour of defendant Nos.5 and 6 and by them in favour of defendant No.7 there is a specific recital of delivery of possession of the suit land in favour of the purchaser. This recital is under registered documents hence carries with it a prima facie presumption of correctness. On the other hand, the document relied upon by the plaintiff for claiming possession over the suit land is of the year 1994 and is an unregistered document hence has to give way to the registered document executed in favour of defendant No.7. Even otherwise no document has been produced by plaintiff ever since the date of execution of the agreement to sale up to 2021-2022 for demonstrating his possession over the suit land. In any case since it has already been held that plaintiff is not having any prima facie case in his favour having instituted the suit for permanent injunction without claiming relief of specific performance of contract and not having acquired any title by virtue of the agreement to sale executed in his favour, he has no legal right or authority to claim possession over the suit land. The Appellate Court has merely recorded that plaintiff is in Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 02-07-2024 15:23:57 Page 8 of 8 possession of the suit land but has not referred to any document in arriving at such a finding nor has any document showing his possession been produced by the plaintiff in this petition or before the Courts below. The finding of the Appellate Court is hence apparently illegal. In such circumstances, the judgments relied upon by the learned counsel for the plaintiff do not help him in any manner.
13. In view of the aforesaid discussion, I am of the opinion that the Appellate Court has illegally set aside the order passed by the trial Court. Since there is a patent illegality and perversity in the order passed by the Appellate Court the same can very well be and ought to be set aside in exercise of power under Article 227 of the Constitution of India as has been held by the Apex Court in the case of Wander Limited (supra).
14. Consequently, the petition deserves to be and is accordingly allowed. The impugned order dated 20.02.2024 passed by the Appellate Court is set aside and the order dated 13.05.2023 passed by the trial Court is hereby restored. There shall be no order as to costs.
(PRANAY VERMA) JUDGE Shilpa Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 02-07-2024 15:23:57