Gujarat High Court
Suleman Aadamjibhai Nagariya vs Legal Heirs Of Decd. Mohammad Yakubmiya ... on 12 July, 2018
Author: J.B. Pardiwala
Bench: J.B.Pardiwala
C/SA/166/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 166 of 2018
With
CIVIL APPLICATION NO. 2 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order
NO
made thereunder ?
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SULEMAN AADAMJIBHAI NAGARIYA & 1... Appellants
Versus
LEGAL HEIRS OF DECD. MOHAMMAD YAKUBMIYA MOHSINMIYA...
Respondent
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Appearance:
MR H N SEVAK(7580) for the PETITIONER(s) No. 1,2
MR PREMAL S RACHH(3297) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 12/07/2018
ORAL JUDGMENT
1 This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 is at the instance of the original plaintiffs and is directed against the judgment and order dated 12th June 2017 passed by Page 1 of 16 C/SA/166/2018 JUDGMENT the 5th Additional District Judge, Rajkot at Dhoraji in Regular Civil Appeal No.86 of 2012 (old Regular Civil Appeal No.46 of 2007) arising from the judgment and order passed by the Joint Civil Judge, Dhoraji dated 30th September 2004 in Regular Civil Suit No.150 of 1997.
2 For the sake of convenience, the appellants herein shall be referred to as the plaintiffs and the respondent herein shall be referred to as the defendant. The plaintiffs preferred a Regular Civil Suit No.150 of 1997 for specific performance of contract and in the alternative, for damages. It appears from the materials on record that the defendant executed an agreement of sale dated 1st October 1981 in favour of the plaintiffs with respect to agricultural land bearing survey No.32/2 admeasuring 1 Acre 35 Gunthas situated at village : Umarkot Taluka:
Dhoraji. The agreement of 1st October 1981 was an unregistered agreement of sale. The total sale consideration fixed in the agreement of sale was Rs.5,000/. In the agreement of sale dated 1st October 1981 Exhibit : 34, it has been stated that the entire amount of sale consideration has been paid on the date of execution of the unregistered agreement of sale. However, according to the plaintiffs, a second agreement came to be executed dated 24th May 1984. The explanation put forth for the second agreement of sale is that the balance amount the towards sale consideration was paid on that date and by virtue of the said agreement dated 24th May 1984, the receipt of the balance amount towards the sale consideration was acknowledged by the defendant.
3 It is the case of the plaintiffs that by virtue of the agreement dated 24th May 1984, they were put in possession of the suit property. Later, a third agreement came to be executed dated 30th May 1995. In the third agreement dated 30th May 1995, once again it was reiterated that the plaintiffs had been put in possession of the suit property and the plaintiffs having paid the entire sale consideration came to be Page 2 of 16 C/SA/166/2018 JUDGMENT acknowledged by the defendant. Thereafter, the plaintiffs are said to have issued a notice in writing to the defendant calling upon him to execute the registered sale deed of the suit property. According to the plaintiffs, the defendant refused to accept the said notice. In such circumstances, in the year 1997, the suit came to be filed for specific performance. The defendant appeared before the Trial Court and filed his written statement. He admitted the execution of the first agreement of sale dated 1st October 1981 Exhibit : 34 with an explanation that he had no intention to sell the land, but as he had borrowed some money from the plaintiffs, the plaintiffs insisted to execute such an agreement by way of a security. So far as the other two agreements are concerned Exhibits : 43 and 44 respectively, the defendant declined having executed any such agreement. The defendant also denied having put the plaintiffs in possession of the suit property.
4 Having regard to the pleadings of the parties, the Trial Court framed the following issues:
"1 Whether the plaintiff proves that the defendant executed agreement on 30.5.95 regarding the sale of land owned by him located in the sim of Umarkot village of Dhoraji Taluka bearing Survey no. 32/2 admeasuring 1 acre 35 guntha?
2 Whether the plaintiff proves that as per the agreement executed on 30.5.1995 by the defendant, he is entitled to obtain the ownership rights of the property by executing the registered sale deed of the transfer of the suit property?
3 Whether the plaintiff proves that as the defendant has committed breach of agreement, he is entitled to get compensation of Rs. 5000/ for Page 3 of 16 C/SA/166/2018 JUDGMENT loss of sale price and breach of agreement?
4 Whether the plaintiff is entitled to receive interest as prayed for?
5 Whether the defendant proves that the suit is barred by limitation?
6 What order and decree?"
5 The issues framed by the Trial Court referred to above came to be answered as under:
"Issue No.1 : In the Negative.
Issue No.2 : In the Negative.
Issue No.3 : In the Negative.
Issue No.4 : In the Negative.
Issue No.5 : In the affirmative.
Issue No.6 : As per final order and decree."
6 Thus, it appears that the plaintiffs were not able to prove the agreement dated 30th May 1995 Exhibit : 44. The Trial Court recorded a finding that the plaintiffs were not entitled to seek specific performance on the basis of the three agreements of sale. In such circumstances, the Trial Court, by judgment and order dated 30th September 2004, dismissed the suit.
7 The plaintiffs, being dissatisfied with the judgment and order
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C/SA/166/2018 JUDGMENT
passed by the Trial Court dismissing the Regular Civil Suit, preferred a First Appeal in the District Court at Dhoraji being Regular Civil Appeal No.86 of 2012. The lower Appellate Court, after reappreciation of the entire oral as well as documentary evidence on record, dismissed the appeal, and thereby affirmed the judgment and decree passed by the Trial Court.
8 Being dissatisfied with the judgment and order of the lower Appellate Court dismissing the appeal, the plaintiffs are here before this Court with the present Second Appeal under Section 100 of the C.P.C.
9 The following questions have been formulated as the substantial questions of law in the memo of the Second Appeal:
"(i) Whether the ld. Judge erred in holding that the Exh. 34, Exh. 43 and Exh. 44 are not inter relevant?
(ii) Whether the Hon'ble Civil Court has power to decide whether a person is an agriculturist or not?
(iii) Whether both the Courts below erred in arriving at a conclusion that the plaintiff has not produced any documentary evidence to show that he was an agriculture land account holder which is barred by Section 85 of the Gujarat Tenancy and Agricultural Lands Act, 1948?
(iv) Whether 7/12 Form maintained by the Revenue Authorities maintain under the Bombay Land Revenue Code, 1879 decide the right, title and interest of the parties?
(v) Whether with regard to the proviso given in Section 49 of the Page 5 of 16 C/SA/166/2018 JUDGMENT Registration Act, 1908 an unregistered Deed or document is admissible in evidence in a suit for specific performance of the contract?
(vi) Whether in the facts and circumstances of the facts of the case, both the courts below erred in arriving at conclusion that the unregistered agreement to sale dated 01/10/1981 is not admissible in evidence as it is barred by Section 17 of the Registration Act, 1908?
(vii) Whether in the fact and circumstances of the facts of the case, both the Courts below erred in not taken into consider the amendment in Registration Act, 1908 in the year 2001 came into force w.e.f. 24.09.2001 and the same is not retrospective in nature?"
10 Mr. Sevak, the learned counsel appearing for the appellants - original plaintiffs vehemently submitted that the Courts below committed a serious error in passing the impugned judgments. Mr. Sevak would submit that the Courts below committed an error in taking the view that a suit for specific performance of contract is not maintainable on the basis of an unregistered agreement of sale. Mr. Sevak further submitted that the Courts below committed an error in taking the view that as the plaintiffs have not been able to establish that they are agriculturists, they could not have entered into an agreement of sale of an agricultural land. According to the learned counsel, the Courts below committed an error in holding that such a transaction would be an invalid transaction as hit by Section 63 of the Tenancy Act. He further submitted that the Courts below committed a serious error in not properly construing the Exhibits : 34, 43 and 44 i.e. the three agreements of sale dated 1st October 1981, 24th May 1984 and 30th May 1995 respectively.
Page 6 of 16C/SA/166/2018 JUDGMENT 11 In the last, Mr. Sevak submitted that the judgment of the lower
Appellate Court is vulnerable because of noncompliance of the provisions of Order 41 Rule 31 of the C.P.C. According to the learned counsel, the lower Appellate Court failed to frame proper points for determination in accordance with the provisions of Order 41 Rule 31 of the C.P.C.
12 In such circumstances referred to above, Mr. Sevak prays that there being merit in this Second Appeal, the same may be admitted on the substantial questions of law formulated in the memo of Second Appeal.
13 On the other hand, Mr. Rachh, the learned counsel appearing for the respondent - original defendant on caveat has vehemently opposed this Second Appeal. According to Mr. Rachh, no error, not to speak of any error of law could be said to have been committed by the two Courts below. None of the questions formulated in the memo of the Second Appeal could be termed as substantial questions of law. He would submit that the grant of relief of specific performance is discretionary in nature and it is not necessary that the Court should grant the relief of specific performance only because it is lawful for the Court to do so. He would submit that both the Courts below have disbelieved the entire case put up by the plaintiffs, more particularly, the two agreements of sale Exhibits : 43 and 44 respectively dated 24th May 1984 and 30th May 1995 respectively. He submitted that there being no merit in this Second Appeal, the same be dismissed.
14 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether this Second Appeal involves any Page 7 of 16 C/SA/166/2018 JUDGMENT substantial question of law.
15 The Trial Court, while dismissing the suit, observed as under:
"(8) For the sake of convenience and to avoid repetition, all the above mentioned four issues have been discussed jointly.
As per the suit filed by the plaintiff, the plaintiff first entered into agreement with the defendant on 1.10.1981 for absolute purchase of the sim land and at that time he had paid Rs. 3,500/ to the defendant as earnest money and thereafter, paid Rs. 1500/ as consideration. This agreement has been produced vide Exh - 34. Thereafter, the agreement of Exh 43 as stated by the plaintiff was executed on 24.5.1984. It was also agreed in this agreement to sell this land for Rs. 5000/. On reading this agreement of Exh - 43, it is found that the agreement of Exh - 34 is not mentioned in this agreement and also it is not mentioned that as per the agreement of Exh - 34, earnest money was paid. Looking to the agreement of Exh - 44, it is found that this agreement was executed on 30.5.1995. This agreement was also executed with respect to the land of sim mentioned in the agreement of Exh - 81. It is mentioned in this agreement that total Rs. 5000/ has been received on 9.12.81. However, the agreement of Exh - 43 is not mentioned in this agreement also. Thus, looking to the agreements of Exh - 34, 43 and 44, it is found that these agreements are not corroborating one another. Moreover, it is written that as per this agreement, possession of the sim has been handed over to the plaintiff. Looking to all the above three agreements produced by the plaintiff, it is found that none of the agreement is registered as per law and no documentary evidence is produced in this case that as to whether the plaintiff is entitled to enter into this agreement that means whether the plaintiff is a farmer and he is capable to buy agricultural land. The plaintiff has deposed on oath vide Exh - 33 and it is admitted in the cross examination therein that he has not produced any evidence in this case Page 8 of 16 C/SA/166/2018 JUDGMENT that he is a tenure holding farmer. Now, if we peruse the deposition at Exh - 59 of Mr. Gajeshbhai Bhikhabhai Dungar - Talati cum Mantri of Bhutvad Umarkot village, he has stated that he has to make entry in the revenue record of form no. 7/12 as to who is cultivating the land, who is the occupant and owner of the land and he had brought this original entry with him. As per this entry, Revenue Record of Revenue Survey No. 32(2) is in the name of Mohammad Yakubmiya Mohsinmiya and an entry in this regard has been made in Form No. 6 vide Entry No. 216. Moreover, this witness clearly states that no entry of the document produced by the Plaintiff vide Mark 36/1 has been made in the Revenue Records. Record of rights of Revenue Record has been produced by this witness vide Exhibit
61. Taking the same into consideration, name of the present defendant has been shown at Entry No. 216. Thus, in view of the entire evidence which has been produced, the agreement produced vide Exhibit44 is unregistered and deposition vide Exhibit60 and the Revenue Record vide Exhibit61 are not credible. Plaintiff has failed to prove that the defendant has handed over the possession of the land mentioned in this agreement to the Plaintiff.
(9) If we peruse this agreement vide Exhibit44, it is mentioned therein that the amount as per the agreement vide Exhibit34 has been paid, but the agreement vide Exhibit33 has not been mentioned. If the Plaintiff has paid the total amount of consideration as per the agreement produced in the year 1981, the execution of agreement cannot be waited till the year 1997 and he could have initiated the procedure to transfer this land in suit in his name in the Revenue Record till the year 1997. Moreover, when it is stated that the possession has been handed over to himself, then he could have produced an evidence of any type of plantation of crop on this land in his possession in so many years. But no evidence has been produced by the Plaintiff to prove such facts. In view of that, this unregistered agreement vide Exhibit44 itself becomes doubtful. Therefore, I believe that on the basis of this agreement, the Plaintiff has failed to Page 9 of 16 C/SA/166/2018 JUDGMENT prove that he is entitled to get the sale deed executed from the defendant or to get ownership rights of the property. As discussed above, as the facts of the agreement produced are doubtful, it cannot be believed that the defendant has committed breach of the agreement. Therefore, it cannot be believed that the Plaintiff is entitled to get indemnity for any breach of agreement.
(10) While considering the evidence produced by the plaintiff, agreements at Exh.34, 43 and 44 are unregistered and facts thereof are not proved. Therefore, as the plaintiff is not entitled to get any compensation for breach of agreement, replies of issue nos. 1 to 4 are given in negative."
16 So far as the issue No.5 is concerned, the findings recorded by the Trial Court is as under:
"(11) Looking to the agreement at Exh.44, it has been admitted on page no. 3 that out of total sell amount, total amount of Rs.5000/ was received on 09121981 in part payment i.e. Rs. 3500/ on 0110 1981, Rs. 500/ on 19111981 and Rs.1000/ on 09121981. Looking to the suit of plaintiff, first agreement executed in the year 1981 is the base of entire suit. It is produced vide Exh.34. Looking to the prayer sought in para 8(2), plaintiff has prayed compensation from 09121981 for breach of the agreement. Thus, as per the statement made by the plaintiff, land agreement was executed in the year 1981 and consideration amount was also paid in the year 1981. The plaintiff has claimed that on the basis of this agreement, defendant is liable to comply with the agreement. While considering the provisions of Limitation Act, in order to get back immovable property, for specific performance of agreement and to get compensation amount, present suit is clearly barred by limitation.
Therefore, reply of point no.5 is given in affirmation."
Page 10 of 16C/SA/166/2018 JUDGMENT 17 The Appellate Court, while dismissing the first appeal and
affirming the judgment and decree of the Trial Court, observed as under:
"[7] I have heard the argument of learned advocate Mr. S. H. Munshi appeared on behalf of the appellants. He argued at length on the point of performance of the contract. Learned advocate Mr. S.H. Munshi argued that both the parties agreed to sell the suit property for a consideration of Rs,5,000/. Out of which at the time of making the contract, the respondent had accepted Rs.3,500/ as earnest money and remaining amount is required to be accepted and after receiving the contractual amount, the respondent ought to have register the sell deed as provided in the contract between them, but he fails to do so after the payment of remaining amount of Rs.1,500/, but the possession of the land was handed over to them at the time of giving the remaining amount. He further argued that the possession of the suit land was handed over and another agreement was executed by accepting the possession of the defendant on Dtd. 24/05/1989. Thereafter, the defendant has not executed the sale deed and accepted that he got the whole amount of consideration by executing written agreement on Dtd. 30/05/1995 and all these three agreement are presented on record at Exh. 34, Exh. 43 and Exh. 44. Learned advocate Mr. S.H. Munshi lastly argued the he is ready and willing to perform his part of contract and after performance on his side the defendant ought to have register the sell deed as provided in the contract. Mr. S.H. Munshi further argued that the learned lower court has wrongly held that the suit is time barred and even the appellants are not agriculture land account holders and the agreements to sell are not registered. On support of his argument he relied upon on GLR 1996(1) 560, Nitinkumar Laxmidas and others v/s. Smt. Savitaben Pranshankar and others. In the reported decision it was held that "Registration Act, 1908 as amended by Gujarat Act No.7 of 1982 - Sec. 17, 49 - Though Sec. 17 as amended in Gujarat requires compulsory registration of an agreement to sell land since a corresponding amendment is not made in Sec. 49, such an agreement can be relied upon." Further in case law of AIR 2010 SC 1654, S. Kaladevi v/s. V.R. Somasundaram and others, wherein it is held that "Registration Act (16 of 1908), S. 49, proviso 49, proviso - Unregistered Sale Deed - Admissible in evidence as evidence of contract in suit for specific performance of contract - Also admissible as evidence of any collateral transaction not required to be effected transaction not required to be effected by registered document."
[8] Thereafter, at learned advocate Mr. K.M. Parekh has appeared on behalf of the respondent side and argued that the judgment and decree passed by the lower court is just and proper and does not required any interference.
Page 11 of 16C/SA/166/2018 JUDGMENT [9] Now, the case on hand is concerned, I have gone through the
judgment of the lower court, where in the judgment of lower court it is held that in document Exh. 34, it was not mentioned at any part that that the amount of Rs.3,500/ is earnest money amount. Further in document Exh. 44, no where mentioned about earlier agreements. Therefore, all three agreements of Exh. 34,m Exh. 43 and Exh. 44 are not interrelevant. Further it is held that all the agreements are not duly registered as per law. Further the plaintiff has not produced any documentary evidence to show that he was an agriculture land account holder. It is also observed that the defendant has failed to prove the possession over the land. Further no any proof of cultivation was also not produced by the plaintiff. So commonly the learned lower court has denied to believe the unregistered agreements produced at Exh. 34, 43, and 44. Further he has stated that as per limitation act as the agreement was made in the year 1981 and the suit is filed in the year 1987. Accordingly, the case on hand is concerned the fact is total different.
Now I have given my thoughtful consideration to dispose of the present appeal. The lower court has mentioned in its judgment that the first agreement for sale was executed on Dtd. 01/10/1981 and at that amount of Rs.3,500/ was given as earnest money and thereafter Rs.1,500/ was paid and the agreement was presented vide Exh. 34. Therefore another agreement was executed on Dtd. 24/05/1984 and it was decided to sell the land for the consideration amount of Rs.5,000/, which was presented at Exh. 43. Thereafter, another agreement was executed on Dtd. 30/05/1995, which was presented vide Exh. 44. Further considering all three agreements, there was no corelation as to not mentioned in Exh. 43 about Exh. 34 or in Exh. 44 about earlier agreements. Further considering all the agreements, no one is registered. Further no Agriculture land account holder certificate was presented. Further, perusing the documentary evidences such as village Form No.7/12 and 6, the name of defendant is mentioned.
[10] As per the provisions section 16 of Specific Performance of Contract, which provides that the contract cannot be enforced in favour of the person who has become incapable of performing or violate any essential terms of contract to succeed, he must aware & prove that he has performed and was always ready and willing to perform his part of the contract. The principle is that, if a party to the contract refuses to discharge his obligation, he cannot take any objection to the other party failing his obligation which is merely the result of the conduct of the first party. As reading of Sec. 16 reveals that, as per the requirements of Sec. 16(c), the plaintiff has to aver, i.e. plead in the plaint, and prove (i) that he has already performed the essential terms of the contract which he had to performed the essential terms of the contract which he had to performed or (ii) in the alternative he has to plead in the plait, and is also to prove that he is from the date of the contract till up to date, always been ready Page 12 of 16 C/SA/166/2018 JUDGMENT and willing to perform his part of the contract. The plaintiff must plead performance or, readiness and willingness to perform, the contract according to its true construction. The continuous readiness and willingness at all stages from the date of agreement, till the date of hearing of the suit need to be proved. The words ready and willing are simple words and all that they mean is that a plaintiff, in order to succeed in a suit for specific performance must plead & prove that he has performed or has throughout been prepared to do this part under the contract, that preparedness may not however, be mere verbal show, it should be backed by means to perform his part of the contract. It is also necessary that the plaintiff not only to make pleading but also essentially required to prove by leading evidence.
The lower court has pointed out in its judgment as under in Gujarati language:
*** *** *** So, it is crystal clear from the finding made by learned lower court in its judgment that the suit is time barred and further stated that all the documents being agreements are unregistered one and even the matters written on the agreements are not interrelevant. Therefore, the documents produced are not duly proved. As such it is pertinent to note that the discretionary powers under Specific Performance Act lies with the court. Which cannot be utilized randomly. Before exercising this power the court ought to have satisfied that there is a genuine contract between the parties. The persons who have make the contract for transfer the property it should be legally and lawful. The lower court has rightly pointed out in its judgment that the contracts produced at Exh. 34, 43 and 44 are unregistered one and cannot believable. So the lower court has rightly not allowed the suit in toto, which is just and proper. As such the lower court has exercised its judicial power with true spirit and this order is balancing order which does not require any interference."
18 I am at one with Mr. Sevak, the learned counsel appearing for the appellants so far as the contentions with regard to the maintainability of the suit for specific performance on an unregistered agreement of sale and Section 63 of the Tenancy Act. In my view, both the Courts below committed an error in taking the view that the relief of specific performance cannot be granted if the same is based on an unregistered agreement of sale. It appears that the Courts below have not properly looked into Section 49 of the Registration Act. A suit for specific Page 13 of 16 C/SA/166/2018 JUDGMENT performance is maintainable even if it is based on an unregistered of sale.
19 I may refer to a Division Bench decision of this Court in the case of Kaushik Rajendra Thakore vs. Allied Land Corporation and others [1987(1) GLH (U.J.) 22] wherein, this Court has observed as under:
"A new contention is advanced by the learned advocate for the appellant 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 deexhibited, with the further result that it would be devoid of any legal effect and the plaintiff would be debarred 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,] 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, 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, 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 would not fail on the ground of compulsory registration introduced by amendment to Section 17 by Gujarat Act 7 of 1982"Page 14 of 16
C/SA/166/2018 JUDGMENT 20 Even on the second point with regard to whether the appellants
are agriculturists or not, in my view, there was no good reason for the Courts below to take the view that the decree for specific performance cannot be granted if the plaintiffs are not agriculturists and the suit property is an agricultural land. An ex post facto sanction can be granted by the Collector in this regard and there can be a conditional decree. However, so far as the other aspects are concerned, both the Courts below have concurrently held that the case put up by the appellants - original plaintiffs as regards the agreements of sale dated 24th May 1985 Exhibit: 43 and 30th May 1995 Exhibit : 44 is not believable.
21 It appears from the reading of the two judgments of the Courts below that the appellants created the documents Exhibits : 43 and 44. Apart from the same, the concurrent finding recorded by the Courts below is that all the three agreements Exhibits: 33, 43 and 44 are inconsistent. They do not relate to each other. The two Courts below have recorded a finding that there was no reason for the defendant to execute Exhibits : 43 and 44. Both the Courts below have recording a concurrent finding that the appellants - original plaintiffs are not in possession of the suit property. In fact, the plaintiffs have not been able to adduce an iota of evidence to show or establish that they were put in possession of the suit property way back in the year 1984. Prima facie, it appears that only view to bring the suit within the period of limitation, the two agreements Exhibits : 43 and 44 came to be created. Even otherwise, in my view, no case is made out for grant of relief of specific performance of the contract. The relief of specific performance is discretionary in nature and it need not be granted only because it is lawful for the Court to grant. In substance, it can be said that the appellants are seeking relief of specific performance on the basis of an Page 15 of 16 C/SA/166/2018 JUDGMENT agreement of the year 1981. It has been almost 47 years from the date of agreement Exhibit : 34. So far as the contention as regards non compliance of Order 41 Rule 31 of the C.P.C. is concerned, I may only say that if otherwise the lower Appellate Court has dealt with all the relevant aspects of the matter, then mere omission to frame the points for determination, by itself will not render the judgment of the lower Appellate Court vulnerable. It it too technical and feeble a plea to be considered in this Second Appeal, and more so, when the appellants have no case otherwise on merits.
22 There is one another unusual feature in the matter. In the plaint, the prayer is for enforcement of agreement of sale dated 30th May 1995 Exhibit : 44.
23 In the result, this Second Appeal fails and is hereby dismissed.
24 As the Second Appeal has been dismissed, the connected Civil Application would not survive and the same is disposed of.
(J.B. PARDIWALA, J.) CHANDRESH Page 16 of 16