Pujabhai vs Jitendra on 18 January, 2010

[Cites 10, Cited by 0]

Gujarat High Court

Pujabhai vs Jitendra on 18 January, 2010

Mr.Jitendra Malkan, learned advocate, waives service of notice of Rule for respondent No.1. Respondent No.2 has been duly served but none appears on his behalf. With the consent of the learned counsel for the respective parties, the petition is being heard and finally decided today.

2. Before proceeding with the order, certain clarifications are necessary. By order dated 07.08.2009 of this Court, Notice was issued and leave to amend the cause-title of the petition was granted to the petitioner. The amendment has been carried out by the learned counsel for the petitioner in red ink showing the respondent No.1 as being the original defendant No.2 and the respondent No.2 as being the original plaintiff, whereas, reverse is the situation, as per record. Respondent No.1 Jitendra Keshubhai Sutreja is the original plaintiff and respondent No.2 Maldevbhai Vajsibhai Dirvaniya is the original defendant No.2.

3. This petition has been filed under Articles 226 and 227 of the Constitution of India with a prayer to quash and set aside order dated 09.04.2009 passed by the lower Appellate Court whereby, order dated 08.12.2008 below Exhibit 5 passed by the Trial Court has been set aside and status-quo has been ordered to be maintained qua the suit property till the final disposal of the suit, and directions have been issued to the Trial Court to decide the suit as expeditiously as possible.

4. The relevant facts of the case are that the respondent No.1 (original plaintiff) filed a suit being Regular Civil Suit No.126 of 2008 before the Trial Court, for implementation and execution of an Agreement to Sell dated 08.09.2006 (mark 4/1). The respondent No.1 also filed an application at Ex.5 for grant of temporary injunction, which has been rejected by order dated 08.12.2008 by the Trial Court. Being aggrieved thereby, the respondent No.1 approached the lower Appellate Court by filing an appeal against the said order. The lower Appellate Court has set aside the order of the Trial Court below Ex.5 and has directed the maintenance of status-quo qua the suit property till the final decision of the suit. Directions have also been issued to the Trial Court, to decide the suit as expeditiously as possible. Aggrieved by this order, the petitioner has approached this Court, by filing the petition.

5. Mr.Hardik Soni, learned counsel for the petitioner, has submitted that the Agreement to Sell dated 8.9.2006 sought to be enforced by the respondent No.1, by filing the suit for specific performance is a false, bogus, and concocted one. The petitioner has not entered into any such Agreement to Sell and the thumb impression on the said document is not the thumb impression of the petitioner. Moreover, no notice has been received from the respondent No.1 for performance of the contract and straightaway, the suit has been filed in October 2008 for specific performance, although the possession of the suit land is with the petitioner.

It is further submitted that the said Agreement to Sell is not registered and the sale consideration is highly under-valued, being only Rs.61,000/-. The petitioner has genuinely entered into another subsequent Agreement to Sell, dated 15.7.2008, with the respondent No.2, for an amount of rupees four lakhs, out of which rupees one lakh have been received in cash. It is further contended by the learned counsel for the petitioner that the respondent No.1 and his team are land-grabbers and are systematically grabbing land of poor farmers who are in distress and want to sell their property, in order to pressurize them into selling the property at a cheaper rate to them.

It is submitted by the learned counsel for the petitioner that, as no payment by cheque or Demand Draft has been made in pursuance of the Agreement to Sell sought to be enforced by respondent No.1, the provisions of Section 53(2) of the Transfer of Property Act, 1882, regarding fraudulent transfer would apply.

That there is no proof regarding payment of Rs.21,000/- pursuant to the said Agreement to Sell purported to have been executed between the petitioner and the respondent No.1, hence, it cannot be believed that any consideration has changed hands.

The learned counsel for the petitioner has further submitted that registration of documents is necessary as per the provisions of Section 17 of the Registration Act, 1908. Taking the Court through the provisions of Section 49, it is submitted that no document which is required to be registered as per Section 17 shall affect any immovable property comprised therein or be received as evidence of any transfer affecting such property, therefore, the Trial Court has rightly rejected the application at Exhibit 5 filed by the respondent No.1 on the ground that the Agreement to Sell is not a registered one.

It is further contended that in case of conflict between documents regarding the same property, the one which is registered has more evidentiary value and shall prevail.

Supporting the order of the Trial Court passed below Ex.5, it is further contended that the Trial Court has not found a prima-facie case in favour of the respondent No.1, nor is the balance of convenience in his favour, therefore, grant of status-quo by the Appellate Court after setting aside the well-reasoned order of the Trial Court is not sustainable in law.

On the basis of the above submissions, it is prayed that the impugned order passed by the lower Appellate Court be quashed and set aside and the petition allowed.

The learned counsel for the petitioner has placed reliance upon the following judgments:

Vishnu Ramtaji Thakore & Ors. v. Amit Pransukhlal Patel 2007(4) GLR 2811 Khimjibhai Harjivanbhai Patadia v. Patel Govindbhai Bhagvanbhai & Ors. - 2006(4) GLR 3059 State of Gujarat v. Narges K.Panthaky 1996(3) GLR 517

6. The petition has been strongly contested by Mr.Jitendra Malkan, who is appearing for respondent No.1 original plaintiff. It is submitted by Mr.Malkan that the impugned order is a perfectly legal and valid one and has been passed after taking into consideration the facts of the case and evidence on record. The same is also supported by cogent reasons and has been passed in accordance with law. In fact, the lower Appellate Court has only directed that status-quo be maintained till the final decision of the suit and the Trial Court has been directed to decide the suit as expeditiously as possible. Such a direction does not prejudice the petitioner in any manner, especially as he is claiming to be in possession of the suit property, which aspect is disputed by the respondent No.1.

Adverting to the proviso to Section 49 of the Registration Act, 1908, the learned counsel for the respondent No.1 has submitted that the said proviso makes it clear that an unregistered document regarding immovable property and which is required 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, or as evidence of any collateral transaction not required to be effected by a registered instrument. In the present case, the Agreement to Sell at mark 4/1 is being relied upon for collateral purposes as evidence of the transaction and the approach of the Trial Court in rejecting the application at Ex.5 on the ground that the Agreement to Sell is an unregistered one cannot be said to be in accordance with law. That the Agreement to Sell itself stipulates that the possession of the property has been handed over to the respondent No.1 which can be taken to be part-performance of the said agreement.

According to the learned counsel for respondent No.1, the other reason for rejection of the application at Ex.5 by the Trial Court is that the name of the respondent No.1 has not been entered in the revenue records, but the said reason cannot be upheld as per settled law that mutation entries are made for fiscal purposes, and are not evidence of title, or possession.

It is contended that the Trial Court has failed to appreciate that there are affidavits filed by certain witnesses in support of possession being handed over to the respondent No.1.

Rebutting the contentions made by the learned counsel for the petitioner regarding the value of the property, it is submitted by Mr.Jitendra Malkan that the Agreement to Sell was entered into in the year 2006 and the amount of consideration agreed upon was Rs.61,000/- out of which a small sum of Rs.21,000/- has been paid to the petitioner in cash, therefore, no inference can be drawn that payment was not made merely because the transaction was not made by cheque or Demand Draft.

The learned counsel for the respondent No.1has urged that after entering into the Agreement to Sell with the respondent No.1 on 08.09.2006, the petitioner has executed a second Agreement to Sell with respondent No.1 on 15.07.2008, qua the same property, which is the reason why the respondent No.1 was constrained to institute the suit for specific performance. The prices of land may have escalated in the meantime and the aspect that the sale consideration purportedly mentioned in the second Agreement to Sell is Rs.4 lakhs, does not lead to an inference that an earlier agreement in favour of respondent No.1 is undervalued, and, therefore, not a genuine one.

It is further submitted by the learned counsel for the respondent No.1 that the arguments of the learned counsel for the petitioner to the effect that the Agreement to Sell executed in favour of respondent No.1 is concocted and the thumb impression thereupon is not that of the petitioner, is a matter of evidence which cannot be gone into at this stage. The Trial Court has also observed in the order below Ex.5 that there are disputed facts which can only be decided only after leading evidence but, having observed thus, it has rejected the application of the respondent No.1. It is contended that the impugned order passed by the lower Appellate Court is a well-balanced and reasonable one, based upon a correct appreciation of facts and law, and does not deserve to be interfered with.

Distinguishing the judgments cited by the learned counsel for the petitioner, it has been submitted by the learned counsel for the respondent No.1 that in Vishnu Ramtaji Thakore & Ors. v. Amit Pransukhlal Patel - (supra), the facts of the case were totally different. In that case, the Agreement to Sell was for Rs.14,35,500/- and the plaintiff had paid Rs.12,80,000/- as earnest money. In the said case, the Court was deciding an Appeal from Order in which the Court found that the Agreement to Sell did not inspire any confidence as it was made on a small piece of paper and there was no evidence that an amount of over Rs.12 lakhs had been paid as earnest money. Similarly, in Khimjibhai Harjivanbhai Patadia v. Patel Govindbhai Bhagvanbhai & Ors. (supra), the Agreement to Sell was entered into about 13 years prior to filing the suit for specific performance and the receipt showing part payment of the consideration amount was also disputed. According to the learned counsel for the respondent No.1, the present case stands on a totally different footing as the suit has been filed after about two years of entering into the Agreement to Sell, when it was learnt that the petitioner has entered into a second Agreement to Sell qua the suit property with respondent No.2. The learned counsel for the respondent No.1 has also sought to distinguish State of Gujarat v. Narges K.Panthaky (supra) which holds that an agreement not registered, though under Section 17 of the Registration Act, the same was compulsorily registerable, does not divest the right of the owner in the land. It is submitted that the said judgment will not be applicable to the facts and circumstances of the present case as the facts are totally different.

On the strength of the above submissions, the learned counsel for the respondent No.1 has prayed for dismissal of the petition.

7. I have heard the learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record.

8. The principal contention raised by the learned counsel for the petitioner is that the Agreement to Sell dated 08.09.2006, which is the subject matter of the suit is a concocted and bogus one and the thumb thereupon is not the thumb impression of the petitioner. In my considered view, this contention raises disputed questions of facts, which cannot be decided by this Court in the present petition, wherein the order of the lower Appellate Court setting aside the order of the Trial Court below Ex.5 has been challenged. Whether the Agreement to Sell executed with the respondent No.1 is a fraudulent one, is for the Trial Court to decide in the suit. According to the petitioner, the genuine agreement is the one entered into with the respondent No.2 on 15.07.2008, for a sale consideration of Rs.4 lakhs and not the earlier one sought to be enforced by the respondent No.1. The Trial Court, while deciding the application at Ex.5 has also considered this aspect and has observed that it is disputed question which can be decided after leading evidence. Having observed so, the Trial Court, apparently swayed by the fact that the Agreement to Sell dated 08.09.2006 is an unregistered one, rejected the application at Ex.5. At this stage, when the suit is pending Trial, no observation regarding the genuineness or otherwise of the Agreement to Sell dated 08.09.2006 can be made by this Court. This aspect cannot be decided without framing an issue and deciding the same after leading evidence. That stage is yet to come during trial. As rightly observed by the lower Appellate Court in the impugned order, not granting an order of status-quo on the basis that the Agreement to Sell at mark 4/1 is an unregistered one, would seriously prejudice the respondent No.1 and would almost amount to dismissal of the suit. The Court is yet to decide the disputed questions of facts that have arisen regarding the Agreement to Sell dated 08.09.2006. In the said circumstances, when there are two agreements to sell regarding the same property, one of which is unregistered, in my considered view, the order of the lower Appellate Court directing the maintenance of status-quo till the final decision of the suit is just and proper. Not only has the lower Appellate Court directed maintenance of status-quo, but has also directed the Trial Court to decide the suit expeditiously. The said order cannot be considered to be prejudicial to the petitioner in any manner.

9. The propositions of law enunciated in (i) Vishnu Ramtaji Thakore & Ors. v. Amit Pransukhlal Patel, (ii) Khimjibhai Harjivanbhai Patadia v. Patel Govindbhai Bhagvanbhai & Ors., and

(iii) State of Gujarat v. Narges K.Panthaky (supra) are not disputed in the facts and circumstances of those particular cases. However, in the present case, the facts are on a different footing and the genuineness or otherwise of the earlier Agreement to Sell is still to be decided by the Trial Court. The other contentions regarding the evidentiary value of the unregistered Agreement to Sell are not being dealt with for the same reason.

10. It is relevant to note that the Trial Court had granted an order of status-quo in the application at Ex.5, which continued till the rejection of the said application. On an application being filed for extension of the status-quo order pending appeal, the Trial Court extended the order of status-quo. The lower Appellate Court had initially granted an order of status-quo, which has been confirmed by the impugned order, meaning thereby, that status-quo qua the suit property, which is the subject-matter of the Agreement to Sell, has continued from the filing of the application at Ex.5.

11. The contention of the learned counsel for the petitioner that the respondent No.1 and his team are land-grabbers and are systematically grabbing lands of poor people by pressurizing them to sell the same at cheaper rates, is merely stated to be rejected as not only it is irrelevant but is also unsupported by any material on record.

12. The impugned order of the lower Appellate Court has been passed after taking into consideration all relevant legal and factual aspects, and is based upon clear and cogent reasons. As the same does not suffer from any legal infirmity or error of law or jurisdiction, the interference of this Court, in exercise of its supervisory jurisdiction is not warranted.

13. The petition, therefore, fails and is dismissed. Rule is discharged. There shall be no orders as to costs.

(Smt.Abhilasha Kumari, J.) (sunil) Top

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Gujarat High Court