Gujarat High Court
Haribhai Govindbhai Rathod vs Nilesh Harilal Joshi on 12 March, 2026
NEUTRAL CITATION
C/SA/165/2026 JUDGMENT DATED: 12/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 165 of 2026
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
In R/SECOND APPEAL NO. 165 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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HARIBHAI GOVINDBHAI RATHOD
Versus
NILESH HARILAL JOSHI & ORS.
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Appearance:
MR RC KAKKAD(389) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 12/03/2026
JUDGMENT
1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (hereinafter, referred to as "the Code") by the appellant - original plaintiff assailing the judgment and decree dated 13.11.2025 passed by the learned Principal District Judge, Khambhaliya in Regular Civil Appeal No. 15 of 2023 upholding the judgment and decree dated 12.05.2023 passed by the learned Principal Senior Civil Judge, Khambhaliya in Regular Civil Suit No. 74 of 2009.
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2. Heard learned advocate Mr. R.C. Kakkad for the appellant. Perused the paper-book.
For the sake of convenience, parties are referred to as per their original status in the suit. Appellant herein is original plaintiff and respondent Nos. 1 to 9 herein are original defendant Nos. 1 to 9 in the suit.
3. The brief facts of the case are as follows:
3.1 The plaintiff had filed a suit for declaration, cancellation of a registered sale deed dated 28.02.2007 and a relief of permanent injunction with regard to an agricultural land bearing Revenue Survey No. 288 / P - 1 admeasuring about Acre 2 - 39 Gunthas i.e. Hectre-Are 1-20-39 sq. mtrs., more particularly, situated at Village - Bharana, Taluka -
Khambhaliya, District - Jamnagar. According to the plaintiff, defendant Nos. 3 and 4 executed an agreement to sell with possession of the suit land on 31.05.2005. The total sale consideration was agreed at Rs.1,15,281/-. The plaintiff paid an amount of Rs.15,281/- in cash to defendant Nos. 3 and 4 who, handed over the peaceful and vacant possession of suit land to plaintiff on the date of execution of agreement to sell. Page 2 of 19 Uploaded by MUSKAN AJAY MENON(HC02359) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:28:48 IST 2026
NEUTRAL CITATION C/SA/165/2026 JUDGMENT DATED: 12/03/2026 undefined The plaintiff requested defendant Nos. 3 and 4 to get the sale deed executed after accepting remaining amount of consideration, but defendant Nos. 3 and 4, under one pretext or another, did not execute the registered sale deed. Defendant No. 1 on 11.11.2008 visited the suit land and informed the plaintiff that he has purchased the suit property vide a registered sale deed dated 28.02.2007 through power of attorney holder of original land owners, who are defendant Nos. 2 to 9. The plaintiff, therefore, filed the present suit. Summons of the suit were served upon the defendants. Defendant No. 1 filed written statement at Exhibit - 15. Defendant No. 2 filed written statement at Exhibit - 19. Rest of the defendants, though served, did not file any written statements. On the basis of the pleadings, the learned Trial Court framed the following issues at Exhibit - 53:
"(1) Whether plaintiff proves that, plaintiff has purchased disputed property from the defendant no. 3 and 4 against the consideration of Rs.30281/-? (2) Whether plaintiff proves that, defendant no. 2 to 9 has made wrongful transfer to defendant no. 1 by way of registered sale deed no. 457 dt. 28/2/2009? (3) Whether defendant proves that, plaintiff has no right or interest over the disputed property? (4) Whether plaintiff is entitled to any relief as prayed for?
(5) What order and decree?"Page 3 of 19 Uploaded by MUSKAN AJAY MENON(HC02359) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:28:48 IST 2026
NEUTRAL CITATION C/SA/165/2026 JUDGMENT DATED: 12/03/2026 undefined The plaintiff examined himself at Exhibit - 57 and three more witnesses, namely Subhash Govindbhai Rathod, Gordhanbhai Ramjibhai Parmar and Vijay Mansukhlal Khetiya at Exhibits - 75, 76 and 79, respectively. Plaintiff also produced documentary evidence such as the agreement to sell dated 31.05.2005 at Exhibit - 60, the registered sale deed dated 28.02.2007, Exhibit - 61, Public notice issued in Daily Newspaper, Exhibit - 62. Defendant No. 1 examined himself at Exhibit - 85. Defendant No. 2 examined himself at Exhibit - 93. Defendants also produced extract of Village Form No. 7, Village Form No. 6 in support of their contentions. After considering the evidence on record, the learned Principal Senior Civil Judge, Devbhoomi Dwarka at Khambhaliya, on 12.05.2023 rejected the suit. Being aggrieved and dissatisfied with the impugned judgment and decree, the plaintiff filed Regular Civil Appeal No. 15 of 2023 before the learned District Judge, Devbhoomi Dwarka at Khambhaliya. The learned District Judge on 13.11.2025, after hearing the parties, dismissed the appeal and affirmed the judgment and decree passed in Regular Civil Suit No. 74 of 2009.
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NEUTRAL CITATION C/SA/165/2026 JUDGMENT DATED: 12/03/2026 undefined 3.2 Being aggrieved and dissatisfied with the judgment and decree of rejection of the Regular Civil Appeal, the appellant
- plaintiff is before this Court by way of the present Second Appeal.
4. Learned advocate for the plaintiff has proposed the following substantial questions of law:
"(i) Whether on the facts and in the circumstances of the case, the Courts below were justified in dismissing the suit for injunction by ignoring the statutory protection available to the Plaintiff under Section 53A of the Transfer of Property Act, 1882?
(ii) Whether the lower courts erred in law by failing to consider the equitable rights of the Plaintiff, who transformed the nature of the land (from non-irrigated to irrigated), thereby creating an estoppel against the vendor's right to evict or alienate?
(iii) Whether a suit for "permanent injunction" based on settled possession can be dismissed solely on the grounds that the plaintiff did not seek "specific performance," especially when the defendant's title is clouded by allegations of fraud and collusion?
(iv) Whether the Court below committed a jurisdictional error by rejecting the amendment for Specific Performance under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC), failing to recognize that the "basic structure" of a suit for injunction based on an Agreement to Sell is fundamentally rooted in the right to seek title?
(v) Whether the rejection of the amendment violates the settled principle that all disputes arising from the same cause of action should be decided in a single litigation to avoid conflicting decrees?
(vi) Whether the amendment ought to have been allowed since the Plaintiff was already in possession Page 5 of 19 Uploaded by MUSKAN AJAY MENON(HC02359) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:28:48 IST 2026 NEUTRAL CITATION C/SA/165/2026 JUDGMENT DATED: 12/03/2026 undefined under Section 53A Transfer of Property Act, 1882 and the prayer for Specific Performance was merely a consequential relief to the existing claim of rights under the same agreement?
(vii) Whether the physical possession of the Plaintiff served as constructive notice to the subsequent purchasers (relatives) under Section 3 of the Transfer of Property Act, thereby stripping them of the status of "bona fide purchasers"?"
Except above, no other substantial questions of law were proposed by the appellant - plaintiff.
5. Learned advocate for the plaintiff submitted that defendant Nos. 3 and 4 executed an agreement to sell with possession on 31.05.2005 with regard to the suit land for a total consideration of Rs.1,15,281/-. At the time of the execution of agreement to sell, plaintiff had paid Rs.15,281/- in cash and receipt to accepting part of consideration is mentioned below the agreement to sell. The plaintiff further paid an amount of Rs.15,000/- to defendant Nos. 3 and 4 on 26.06.2005. It was agreed between the parties that the remaining amount of consideration shall be paid after defendant Nos. 3 and 4 get the title clearance certificate and power of attorney of sisters. On 11.11.2008, defendant No. 1 came at the suit land and informed the plaintiff that defendant Nos. 3 to 9 have sold the land in question in favour of defendant No. 1 through their Page 6 of 19 Uploaded by MUSKAN AJAY MENON(HC02359) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:28:48 IST 2026 NEUTRAL CITATION C/SA/165/2026 JUDGMENT DATED: 12/03/2026 undefined power of attorney i.e. defendant No. 2 vide a registered sale deed dated 28.02.2007. It is contended that the plaintiff is in possession of the suit land even today and doing agricultural activities in the suit land. In the report of the Court Commissioner, Exhibit - 63, the plaintiff is found cultivating vegetables in the suit land. The plaintiff being in possession of the suit land pursuant to agreement to sell, has a right over the suit land and therefore prayed for a relief of declaration that plaintiff has a preemption right over defendant No. 1 and further prayed for a relief of declaration that defendant Nos. 2 to 9 have no right to sell out the suit land to defendant No. 1. It is further submitted that under the principles of part performance as contemplated under Section 53A of the Transfer of Property Act, 1882 (hereinafter, referred to as "the Act"), the plaintiff has a right to retain the possession of the suit land and the plaintiff's rights are required to be protected under Section 53A of the Act.
6. Learned advocate has placed reliance upon the decision in the case of "Nathulal vs. Phoolchand" reported in 1969 SCC OnLine SC 409. It is submitted that the conditions enumerated in Section 53A of the Act have been duly satisfied. So far as the fact of possession is concerned, plaintiff's witnesses have also Page 7 of 19 Uploaded by MUSKAN AJAY MENON(HC02359) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:28:48 IST 2026 NEUTRAL CITATION C/SA/165/2026 JUDGMENT DATED: 12/03/2026 undefined deposed that plaintiff is in possession of the suit land and plaintiff has been cultivating the land for more than 13 years.
7. It is submitted that the learned Trial Court has committed an error by holding that since the plaintiff has not sought for a relief of specific performance of the agreement to sell dated 31.05.2005, the suit of declaration and cancellation of the registered sale deed in favour of defendant No. 1 is not maintainable. It is further contended that the plaintiff being in settled possession, defendant No. 1 cannot evict plaintiff except by following the due process of law. It is further contended that the law permits a person who is in settled possession to seek a protection from the Court by praying for a relief of injunction against the transferors or any other person claiming under them which includes subsequent purchasers. The learned Appellate Court erred in altering the nature of suit property from non-irrigated land to irrigated land by dismissing the appeal, the learned Appellate Court has brushed aside the possessory right of plaintiff qua the suit land.
8. It is also contended by learned advocate for the plaintiff that against the mutation of entry of sale deed, defendant Nos. 3 and 4 Page 8 of 19 Uploaded by MUSKAN AJAY MENON(HC02359) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:28:48 IST 2026 NEUTRAL CITATION C/SA/165/2026 JUDGMENT DATED: 12/03/2026 undefined raised objections against the execution of a registered sale deed. Therefore, defendant Nos. 3 and 4 have also questioned the legality of sale deed executed in favour of defendant No. 1.
9. It is further submitted by learned advocate for the appellant that during the pendency of the suit, an application under Order VI Rule 17 of the Code for amendment of plaint was given which was rejected by the learned Court below. The proposed amendment was with regard to adding a prayer of specific performance of agreement to sell dated 31.05.2005.
10. It is, therefore, contended by learned advocate for the plaintiff that the absence of prayer for a relief of specific performance would not disentitle a person who is in settled possession pursuant to an agreement to sell with possession and who has been cultivating the land since 2005. Learned advocate for the plaintiff has further prayed for setting aside the judgment and decree passed by the learned Trial Court as well as the judgment and decree passed by the learned Appellate Court. Except above, no other submissions were made by learned advocate for the plaintiff.
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11. I have heard learned advocate for the plaintiff and perused the paper-book. Upon perusal of the documents including the plaint and written statement, the plaintiff has ascertained his right over the suit land pursuant to an agreement to sell with possession executed by defendant Nos. 3 and 4 on 31.05.2005. The agreement to sell stipulates conditions agreed between the plaintiff and defendant Nos. 3 and 4. The sale consideration is agreed at Rs.1,15,281/- and plaintiff had paid an amount of Rs.15,281/- by way of cash to defendant Nos. 3 and 4. One of the stipulations of agreement to sell (Exhibit - 60) is the time limit. The plaintiff was required to pay the remaining amount of Rs.1,00,000/- within 6 months from 31.05.2005. The reciprocal promise given by defendant Nos. 3 and 4 to plaintiff is the mutation of name of the sisters of defendant Nos. 3 and 4 in the Revenue Record and to make the title clear and marketable in favour of the plaintiff. An averment is made by plaintiff in the plaint that the specific performance was, by one reason or another, delayed by defendant Nos. 3 and 4 by showing a reason of non-clearance of title. There is no evidence led by the plaintiff as to what steps did he take for getting the registered sale deed executed in his favour during the period of subsistence of agreement to sell. Defendant No. 1 Page 10 of 19 Uploaded by MUSKAN AJAY MENON(HC02359) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:28:48 IST 2026 NEUTRAL CITATION C/SA/165/2026 JUDGMENT DATED: 12/03/2026 undefined purchased the suit land from defendant No. 2 who, happens to be the power of attorney holder of defendant Nos. 3 to 9 on 28.02.2007. Defendant No. 1, in his written statement at Exhibit - 15, has specifically raised a contention that he is the owner and in possession of the suit land pursuant to the registered sale deed. Defendant No. 2, in his written statement, has also stated that defendant No. 1 is in possession of the suit land pursuant to the registered sale deed dated 28.02.2007. The learned Trial Court, while addressing the controversy has come to a conclusion that the suit is not filed for a relief of specific performance and, therefore, in absence of the main prayer of specific performance of the agreement, the suit for declaration, cancellation of the registered sale deed in favour of a third person, is not maintainable. The learned Appellate Court also upheld the said finding. Both the Courts below have appreciated the evidence on record and have concurrently found that the suit of the plaintiff is not maintainable and, therefore, dismissed the same. So far as the relief of cancellation of sale deed is concerned, both the Courts below did not find any cogent evidence whereby the sale deed in favour of defendant No. 1 can be cancelled. Even, at this stage, learned advocate for the plaintiff could not point out any cogent Page 11 of 19 Uploaded by MUSKAN AJAY MENON(HC02359) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:28:48 IST 2026 NEUTRAL CITATION C/SA/165/2026 JUDGMENT DATED: 12/03/2026 undefined evidence from the record which entitles the plaintiff for cancelling the sale deed.
12. Reliance has been placed upon Section 53A of the Act which is reproduced hereunder:
"53A. Part performance.--Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
Section 53A embodies doctrine of part performance, safeguarding the interests of a transferee in possession of immovable property pursuant to a written, signed contract for Page 12 of 19 Uploaded by MUSKAN AJAY MENON(HC02359) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:28:48 IST 2026 NEUTRAL CITATION C/SA/165/2026 JUDGMENT DATED: 12/03/2026 undefined transfer. This provision estops transferor and those claiming through him from ascertaining rights against transferee, who acted in part performance with notice of the contract. Section 53A of the Act does not contemplate any creation of active title or ownership in favour of the transferee, but gives him an ultimate right to protect the possession in case any claim or right is enforced against the transferee. This acts as a tool of defence. The transferee must be in settled legal possession and willing to perform his part of contract. In the present case, suit is filed on the basis of agreement to sell without seeking any prayer for specific performance. An 'agreement to sell' holder has no better title than a person who is holding valid and legal registered sale deed.
13. In the present case, the plaintiff had filed a suit for declaration of his preemption right over the sale deed executed in favour of defendant No. 1, coupled with a relief of cancellation of the registered sale deed. It is not the case of the plaintiff that he is asserting his right under Section 53A of the Act. In the case of Nathulal (Supra), the plaintiff had filed a suit for possession of the property which was handed over to the transferee in response to an agreement to sell. The contract was rescinded by the owner. Page 13 of 19 Uploaded by MUSKAN AJAY MENON(HC02359) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:28:48 IST 2026
NEUTRAL CITATION C/SA/165/2026 JUDGMENT DATED: 12/03/2026 undefined The learned District Court decreed the suit of possession. The High Court of Madhya Pradesh reversed the decree and the transferee was allowed to retain the possession of the property. In paragraph No. 9, the Hon'ble Apex Court has laid down conditions necessary for making out the defence of part performance to an action in ejectment upon owner which is reproduced hereunder:
"9. The conditions necessary for making out the defence of part performance to an action in ejectment by the owner are:
(1) that the transferor has contracted to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; (2) that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract;
(3) that the transferee has done some act in furtherance of the contract; and (4) that the transferee has performed or is willing to perform his part of the contract.
If these conditions are fulfilled then notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing against the transferee any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract."
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NEUTRAL CITATION C/SA/165/2026 JUDGMENT DATED: 12/03/2026 undefined In the case of Nathulal (Supra), the Hon'ble Apex Court has laid down conditions necessary for making out the defence of part performance to an action in ejectment by the owner. That, the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. That, the transferee has in part performance of contract taken possession of the property or any part thereof or the transferee being already in possession continues in possession in part performance of the contract. That, the transferee has done some act in furtherance of the contract and fourth, that the transferee has performed or is willing to perform his part of the contract. If these conditions are fulfilled, then notwithstanding that the contract, though required to be registered, has not been registered, or where there is an instrument of transfer that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing against the transferee any right in respect of the property of which the transferee has taken or continued in possession other than a right expressly provided by the terms of the contract.
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14. Therefore, the provisions of Section 53A of the Act would be available to a transferee as a defence against the assertion of any right by transferor or any person claiming under him. As discussed above, the case of part performance, as contemplated under Section 53A of the Act, was never raised before the learned Trial Court as well as before the learned Appellate Court. The question of part performance is not a prior question of law. It is a question of fact, when the plaintiff has not based his case upon Section 53A of the Act, at the stage of Second Appeal, the plaintiff is estopped from raising the contention of part performance under the umbrella of substantial question of law.
15. Moreover, it is an undisputed fact that comes out from the record that the plaintiff had made an application for amendment in the plaint by seeking a prayer of specific performance to be inserted in the prayer clause. The said application for amendment came to be rejected by the learned Trial Court in the year 2011 and the order of rejection of amendment application attained finality as plaintiff did not assail the order of rejection of amendment in the plaint.
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16. In the case of "Jaichand (Dead) through Lrs. And Others vs. Sahnulal and Another" reported in 2024, SCC OnLine SC 3864, in paragraph Nos. 27, 28 and 29, the Hon'ble Apex Court has observed as under:
"27. This Court in Kondira Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722: AIR 1999 SC 2213 held:-
"The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence."
"28. It is thus clear that under Section 100, CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence"
"29. The High Court in the Second Appeal can interfere with the findings of the trial Court on the ground of failure on the part of the trial as well as the first appellate Court, as the case may be, when such findings are either recorded without proper construction of the documents or failure to follow the decisions of this Court and acted on assumption not supported by evidence. Under Section 103, C.P.C, the High Court has got power to determine the issue of fact. The Section lays down:-Page 17 of 19 Uploaded by MUSKAN AJAY MENON(HC02359) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:28:48 IST 2026
NEUTRAL CITATION C/SA/165/2026 JUDGMENT DATED: 12/03/2026 undefined "Power of High Court to determine issue of fact : In any Second Appeal, the High Court may, if the evidence on the record is sufficient to determine any issue necessary for the disposal of the appeal,-
(a) Which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or
(b) Which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section
100."
In the said case, the Hon'ble Apex Court has referred the decision in the case of Navaneethammal Vs. Arjuna Shetty reported in 1996 (6) SCC 166, wherein it was held that the High Court, should not reappreciate the evidence to reach another possible view in order to set aside the findings of fact arrived at by the First Appellate court. Further, it was made clear by Hon'ble Apex Court that under Section 100 of the Code, the High Court cannot interfere with the findings of fact arrived at by the First Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to mandatory provisions of law or its settled position on the basis of the pronouncement made by the Hon'ble Apex Court or based upon inadmissible evidence or without evidence. It was further held by the Hon'ble Apex Court that the High Court in the Second Appeal can interfere with the findings of the Trial Court on the Page 18 of 19 Uploaded by MUSKAN AJAY MENON(HC02359) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:28:48 IST 2026 NEUTRAL CITATION C/SA/165/2026 JUDGMENT DATED: 12/03/2026 undefined ground of failure on the part of Trial as well as the First Appellate Court, as the case may be, when such findings are either recorded without proper construction of the documents or failure to follow the decisions of this Court and acted on assumption not supported by evidence.
17. A suit for a relief of declaration in the form of preemption right over the sale deed of defendant No. 1, cancellation of a registered sale deed in absence of the prayer for specific performance of an agreement to sell, such suit is not maintainable. A legal presumption would be that the person having a title is in possession of the open land has against a person who is only holding an unregistered agreement to sell.
18. In the background of the above facts, the Second Appeal and the substantial questions of law involved therein, lack merit and. Therefore, the present Appeal is dismissed. No order as to costs.
19. In view of the disposal of the main matter, the connected Civil Application does not survive and the same is disposed of accordingly.
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