Gujarat High Court
Tileshwar Devnarayan Rai vs Anil Vinayak Pimputkar & 3 on 14 October, 2014
Author: S.G.Shah
Bench: S.G.Shah
C/AO/445/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 445 of 2013
With
CIVIL APPLICATION NO. 12130 of 2013
In
APPEAL FROM ORDER NO. 445 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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TILESHWAR DEVNARAYAN RAI....Appellant(s)
Versus
ANIL VINAYAK PIMPUTKAR & 3....Respondent(s)
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Appearance:
MR BJ TRIVEDI, ADVOCATE for the Appellant(s) No. 1
MR JT TRIVEDI, ADVOCATE for the Appellant(s) No. 1
MR K R MISHRA, ADVOCATE for the Appellant(s) No. 1
MR DILIP L KANOJIYA, ADVOCATE for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Page 1 of 20
C/AO/445/2013 CAV JUDGMENT
Date : ____/10/2014
CAV JUDGMENT
1. Admit. Learned advocate Mr. Dilip L. Kanojiya waives service of notice of admission on behalf of respondents.
1.1 Heard learned advocate Mr. J. T. Trivedi for the appellant and learned senior counsel Mr. S. R. Sanjanwala with learned advocate Mr. Dilip L. Kanojia for all the respondents.
2. Pursuant to order dated 29.11.2013, parties have produced compilation of relevant papers and made submissions for final disposal of the appeal.
3. The appellant is original plaintiff; whereas respondents are original defendants before the Civil Court at Valsad, camp @ Vapi in Special Civil Suit No. 17 of 2011. In such suit, plaintiff has prayed for specific performance to agreement to sell dated 10.01.1981 and possession receipt dated 25.12.1982 with alternative relief of declaration that because of suit property is in possession of the plaintiff since the year 1981 - 1982 it amounts to an adverse possession for more than 30 years with a permanent injunction as restraining the defendants as aforesaid. Whereas, plaintiff has prayed for interim relief to restrain the defendants from disturbing his possession and from evicting the plaintiff from the suit property without following due procedure of law and not to transfer the suit property to any 3 rd party or to create any Page 2 of 20 C/AO/445/2013 CAV JUDGMENT charge or encumbrance. The details of suit property is not at dispute at present, which is well described in the suit.
4. By impugned judgment and order dated 02.09.2013 the trial Court has dismissed the application for interim relief. Plaintiff has, therefore, challenged such order by way of appeal. It is the case of the plaintiff that father of the defendant namely Vinayak Pondoraj Pimputkar had executed one agreement to sell with possession on 10.01.1981 in favour of the plaintiff as well as one Dahya Bhagwan Rohit. On perusal of such agreement to sell, it transpires that the father of the defendants being original owner of the suit property has in fact sold out, by absolute sale, the suit properties in favour of its purchasers being plaintiff and Dahya Bhagwan Rohit accepting the total sale price being Rs.14,999/- from both of them (purchasers). It is further categorically stated that out of total amount, Rs.7500/- was paid by Dahya Bhagwan Rohit and Rs.7499/- had been paid by the present plaintiff and therefore he acknowledged the receipt of such amount confirming that now nothing remained to be paid by purchasers and thereby nothing to be received by the seller (father of the defendants). It is further stated that sale-deed is to be executed by converting the land for non-agricultural purpose within a year at the convenience of the seller and that expenditure of sale-deed is to be equally borne by the purchasers. The details of properties are thereafter specifically disclosed on such documents whereby seven survey numbers are disclosed with its area and further details.
Page 3 of 20 C/AO/445/2013 CAV JUDGMENT4.1 In addition to such agreement to sell the predecessor in title of the defendants - seller namely Vinayak Pondoraj Pimputkar has also executed one another agreement - cum - possession receipt in favour of the plaintiff on 25.12.1982, probably because of the fact that there was no discloser regarding possession in the previous agreement dated 10.01.1981. Therefore, by such second agreement dated 25.12.1982 i.e. almost after two years again original seller has endorsed such agreement and possession receipt confirming that on 10.01.1981 he has executed an agreement for the suit properties and accepted the amount of Rs.14,999/-. It is categorically disclosed in such documents that since sale proceed is already received and that nothing is left to be received, the possession of the suit property is being handed over to the Dahya Bhagwan Rohit and the plaintiff and made it clear that now purchasers are free to hold such land as absolute owner and to deal with it as such. It is also categorically stated that henceforth now nobody has any right or title whatsoever over the suit property and that even legal heirs of the seller does not have any right. It is further stated that, at the time of mutation of ownership the seller has to agree for all such transactions and after getting N.A. Permission, seller has to execute the sale-deed either in the name of purchasers or in any other name as confirmed by the purchasers. Both above documents are signed in presence of witnesses and it is more than 30 years old documents and therefore in absence of any specific evidence in rebuttal, such documents cannot be ignored.
4.2 Therefore, it is submitted by the appellant - plaintiff that Page 4 of 20 C/AO/445/2013 CAV JUDGMENT when there is prima facie evidence regarding ownership and possession of the suit property by the plaintiff, there is no reason for the trial Court to refuse to protect the right of the plaintiff if not for everything, then at least for possession considering settled legal position that possession cannot be snatched away without following due procedure of law. However, arguments of the plaintiff are in fact in response or in reply to submissions by the defendants. Therefore, it will be considered with the statements of the defendants.
5. If we peruse the impugned judgment, it seems that trial Court has mainly relied upon the revenue record and fact regarding another civil suit being Regular Civil Suit No. 48 of 1990 filed by the original seller Vinayak Pondoraj Pimputkar. The trial Court has also narrated all the history regarding such previous suit and application of present plaintiff to join him as defendant in the proceedings arising out of such litigation. So far as possession is concerned, the trial court has observed that plaintiff has failed to prove his actual possession and that possession of agricultural land cannot be decided only from Commissioner's report and therefore considering the agreement under reference, the trial Court has confirmed that plaintiff has failed to prove his case for specific performance while rejecting the application at Exhibit 5 for temporary injunction, so as to restrain the defendant from taking away his possession.
6. The scrutiny and discussion of other documents makes it clear that the trial Court has failed to consider the material for deciding such an application for interim relief and more Page 5 of 20 C/AO/445/2013 CAV JUDGMENT particularly trial Court has failed to consider the settled legal position that nobody should be evicted from the property i.e. possession cannot be taken away without following due process of law. Generally such term is being used against mentality of snatching away the possession forcefully. However, in the present case, the novel fact has come on record whereby an attempt was made by some litigant to confirm their possession without joining the plaintiff in such previous proceedings though there is an agreement disclosing that seller had handed over the possession of the suit property to the plaintiff and Dahya Bhagwan Rohit jointly.
6.1 Perusal of such impugned order makes it clear that it cannot sustain both on factual details so also on legal position. Therefore it certainly required to be interfered considering the following factual details and submissions.
7. It is submitted by the defendants that this is nothing but abuse of process of law by the plaintiff and thereby learned advocate for the defendants has read out the impugned order in detail. However, on considering overall facts and details on record it seems that, probably it is defendants, who are abusing the process of law. It is submitted by the defendants that though the suit is based upon the agreement dated 10.01.1981 and 25.12.1982 and that there is a reference of two persons as joint purchasers of suit property, suit is filed by only one of them and therefore suit is not maintainable without joining other person as litigant. Unfortunately defendants have failed to appreciate that they themselves have chosen such situation by filing previous suit being Page 6 of 20 C/AO/445/2013 CAV JUDGMENT Special Civil Suit No. 48 of 1990 wherein original seller has filed the suit only against Dahya Bhagwan Rohit, disclosing above referred two documents for restraining Dahya Bhagwan Rohit from disturbing their possession and to damage the suit property in any manner. Therefore, it is rightly contended by the plaintiff that such suit is filed in collusion between the seller and Dahya Bhagwan Rohit. It is pertinent to note that in a judgment and order dated 27.03.1991 below exhibit 5 in such previous suit No. 48 of 1990 though there is categorical discloser about the agreement under reference, the Court has not discussed all the facts in detail, and has relied upon the revenue entries only. However, it is also clear from the record that in such previous suit Dahya Bhagwan Rohit has filed reply stating that there is an agreement in their favour and that possession is with present plaintiff. Based upon such factual details when present plaintiff has applied to join him as litigant in such previous suit, when the trial Court has allowed such an application, surprisingly present defendants, plaintiffs in that suit, have challenged the said order by filing Special Civil Application No. 18795 of 2007 contending that present plaintiff is not a necessary party, wherein this High Court (Coram: Smt. Abhilasha Kumari, J.) by order dated 26.09.2009 quashed and set aside the said order in Regular Civil Suit No. 48 of 1990 whereby present plaintiff was allowed to join as defendant No.2, and matter is remanded for fresh hearing and disposal in accordance with law. Thereafter, when such application was dismissed by fresh order dated 26.09.2010, present appellant has preferred Special Civil Application No. 4807 of 2010 and this time the High Court (Coram: M. D. Shah, J.) has dismissed the petition and thereby confirming the rejection of application to join the present Page 7 of 20 C/AO/445/2013 CAV JUDGMENT plaintiff in such previous suit as litigant. However, it is clarified that if the petitioner i.e. present plaintiff filed a suit or initiated any proceedings, then same shall be decided without being influenced by the order dated 26.09.2010 as well as order passed by this Court in such a petition. Pursuant to such marathon race for joining him as a party in the suit filed by the defendant, plaintiff has no option but to file a fresh suit. Therefore, it does not suit in the mouth of the defendants that why present suit is filed only by him and not with Dahya Bhagwan Rohit in the form of Regular Civil Suit No. 48 of 1999 for the same property and the same issue is sub-judice even on today pursuant to pending appeal against judgment and decree in such suit irrespective of the fact that it is in favour of defendants.
7.1 Defendants have also contended that there is no pleading regarding readiness and willingness to perform his part of agreement by the plaintiff and, therefore, provisions of Section 16(c) of the Specific Performance Act is attracted, whereby in absence of specific averment, suit is bad and cannot be entertained and therefore there is no question of interim relief in favour of the plaintiff. Suffice to say that the averment regarding "willing to" applicable to the proposed purchaser only when some amount remains unpaid and it is payable by the purchaser to the seller as per terms and conditions of the agreement. In other words "willingness to perform" applies to the party who has to perform any act under such agreement, whereas if we refer the agreement in question dated 10.01.1981, it makes clear that in fact purchasers have already paid full consideration and sale price of the suit property and they have nothing to pay and nothing Page 8 of 20 C/AO/445/2013 CAV JUDGMENT to perform except accepting the property by way of sale deed which is to be executed by the seller after getting the land converted for non-agricultural purpose. Thereby, practically under the agreement, the duty is cast upon the seller to execute the sale-deed for non-agricultural purpose and, therefore, there is no reason or question regarding averment or proof or either performance or readiness and willingness of performance of any term of the contract. Thereby there is no substance in the statement by the defendants.
7.2 In answer to non - joining of present plaintiff in previous suit No. 48 of 1990, it is submitted by the defendants that previous suit was only against Dahya Bhagwan Rohit because there is an apprehension of disturbance of possession by Dahya Bhagwan Rohit and not by present plaintiff and, therefore, there is no reason to join him as litigant. So far as allegation of collusion is concerned, it is submitted that in such previous suit, present plaintiff has adduced evidence, which is recorded as his deposition at exhibit 52, whereby it is clear that Dahya Bhagwan Rohit was contesting such suit and there was not collusion with respondent. It is also submitted that when appellant has deposed in such previous suit, he has knowledge about claim of possession by the respondent. It is also submitted that there was prohibitory order against Dahya Bhagwan Rohit from disturbing possession of the respondent, when Dahya Bhagwan Rohit has dis-obeyed such prohibitory order, in proceedings for such disobedience, he was convicted and he has to file unconditional apology for disturbing possession of the respondent. With reference to such submissions, it is contended that the decision was with the Page 9 of 20 C/AO/445/2013 CAV JUDGMENT respondent - defendant and there was disturbance in such possession by Dahya Bhagwan Rohit only and hence suit is filed against Dahya Bhagwan Rohit and not at least present appellant. Whereas present appellant was aware about the claim of possession as disclosed herein above and therefore his suit was time barred.
7.3 It is further submitted that there is contradictory prayer in the plaint and some of the prayers are not permissible since it is not prayed jointly by both the purchasers. However, it is settled legal position that co-purchaser can certainly ask for specific performance of the agreement to sell if he is ready and willing to perform the obligations of all the purchasers whereas in the present case when there is no question of performance or any other act by the purchaser, there is no reason to deny right of the plaintiff to claim the suitable relief which he is otherwise entitled to under the law. At least plaintiff is entitled to have sale deed in his favour for his share in the property.
7.4 It is further contended that since plaintiff has never called upon the defendants to execute the sale-deed and plaintiff is aware about the dispute when he has filed an application in previous suit being Regular Civil Suit No. 48 of 1990 now suit is time barred. The answer to such submissions would be found in the citations referred by the plaintiff, which will be discussed herein after.
8. It is clear and certain that practically parties are being commonmen, may be because of ignorance of legal provisions, Page 10 of 20 C/AO/445/2013 CAV JUDGMENT initiated different proceedings for the same issues and sometimes even some judicial orders are passed answering such separate litigations and, therefore, only because of such situation, it would not be proper to decide any issue at least at such interim stage so as to put an end and thereby to put a litigant in a position from where he could not able to get any redressal of his issue and thereby it results into non-suing of such litigation, merely on technical ground and may be because of ill or improper advice or some decision with reference to some limited facts and circumstances available at the relevant time. With due respect, when plaintiff was not allowed to join as a defendant in the suit wherein issue is regarding the same suit property, which is claimed by the plaintiff in his possession and when High Court has observed that any suit filed by the plaintiff may be dealt with in accordance with law, at least at such interim stage the factual details are very much necessary to be examined for deciding any such pending issue. It is also evident from the record that as back as in the year 2006 Dahya Bhagwan Rohit has deposed on oath in Regular Civil Suit No. 48 of 1990 that suit property is jointly possessed by him with present plaintiff and that there are agreement in existence executed by him and defendants and thereafter when plaintiff is not prepared to join in the suit he has no option but to file present suit.
8.1 Even present plaintiff has also deposed in such previous suit that he is in possession of the suit property and that there is an agreement in their favour which are referred herein above. If we peruse the deposition of the present plaintiff as a witness in such previous suit, it becomes clear that defendant Page 11 of 20 C/AO/445/2013 CAV JUDGMENT had never put a single question regarding validity of the agreement in question though those agreements were referred. But in present suit defendants are not admitting the existence of such documents.
9. In light of above factual details and submissions by both the sides, if we peruse the decision cited by both the sides, it becomes clear that ultimately outcome of all such decision certainly tilt the issue in the favour of the plaintiff.
9.1 Appellant has relied upon following decision:
1) (2002) 3 SCC 676 between Shrimant Shamrao Suryavanshi & Anr. vs, Pralhad Bhairoba Suryavanshi & Ors., wherein the Honourable Supreme Court while dealing with the Transfer of Property Act and the Limitation Act observed as under:
"13. When the Transfer of Property Act was enacted, Section 53-A did not find place in it. In the absence of Section 53-A, there arose difference of opinion between various courts in India as regards the application of English doctrine of part performance of contract as it was then prevailing in England. Since there was a difference of opinion on question of the application of English equitable doctrine of part performance in various courts of India, the Govt. of India resolved to set up a Special Committee for making recommendations amongst others whether the British equitable doctrine of part performance be extended in India also. The Special Committee was of the view that an illiterate or ignorant buyer who had partly performed his part of contract required statutory protection. The Committee was of the further view that where a transferee in good faith that lawful instrument i.e. a written contract would be executed by the transferor takes possession over the property, the equity demanded that the transferee should not be treated as trespasser by the transferor Page 12 of 20 C/AO/445/2013 CAV JUDGMENT and subsequently evict him through process of law in the absence of lawful transfer instrument. The Special Committee also considered the question whether protection under the proposed Section 53-A to a transferee would also be available even if the period of limitation for bringing an action for specific performance of an agreement to sell has expired. On the said question, the Committee was of the view that even after expiry of period of limitation, the relationship between the transferor and transferee remains the same as it was within the period of limitation and, therefore, the possession over the property taken in part performance of an agreement is required to be protected even if the period of limitation for bringing an action for specific performance has expired.
14. The aforesaid recommendation of the Special Committee were accepted by the Govt. of India as the same is well reflected in the aims and objects of amending Act 1929 whereby Section 53-A was inserted in the Act.
15. The Special Committee's report which is reflected in the aims and objects of amending Act 1929 shows that one of the purposes of enacting Section 53-A was to provide protection to a transferee who in part performance of the contract had taken possession of the property even if the limitation to bring a suit for specific performance has expired. In that view of the matter, Section 53-A is required to be interpreted in the light of the recommendation of Special Committee's report and aims, objects contained in amending Act 1929 of the Act and specially when Section 53-A itself does not put any restriction to plea taken in defence by a transferee to protect his possession under Section 53-A even if the period of limitation to bring a suit for specific performance has expired.
16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are
1) there must be a contract to transfer for consideration any immovable property;
2) the contract must be in writing, signed by the transferor, or by someone on his behalf;Page 13 of 20 C/AO/445/2013 CAV JUDGMENT
3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
4) the transferee must in part performance of the contract take possession of the property, or of any part thereof;
5) the transferee must have done some act in furtherance of the contract; and
6) the transferee must have performed or be willing to perform his part of the contract.
17. We are, therefore, of the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract has barred by limitation.
22. Since the High Court has allowed the appeals solely on the ground that the remedy for bringing a suit for specific performance is lost, therefore, the defendant is not entitle to protect his possession under Section 53- A of the Act, we, after setting aside the judgment under challenge, send the matters back to the High Court to decide any other question of law, if arises in these appeals."
2) AIR 2004 SC 4342 between Rambhau Namdeo Gajre vs. Narayan Bapuji Dhotra , wherein the Honourable Supreme Court held that;
"10. Protection provided under Section 53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party."Page 14 of 20 C/AO/445/2013 CAV JUDGMENT
Thereby possession of the plaintiff cannot be disturbed when it was assigned in favour of the plaintiff equitable doctrine of part performance.
3) AIR 2010 SC 1654 between S. Kaladevi vs. V. R. Somasundaram & Ors. While dealing with the Registration Act, the Honourable the Supreme Court has held as under:
"11. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs. 100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act.
To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance."Page 15 of 20 C/AO/445/2013 CAV JUDGMENT
4) AIR 2008 SC 2718 between Arjan Singh vs. Punit Ahluwalia & Ors., wherein while dealing with the provisions of Civil Procedure Code and different suits for the same property by two purchasers, it is held that a decree between the parties cannot be bound the third party even if third party is concerned with suit property or agreement irrespective of his separate suit property in the same issues.
5) AIR 1989 SC 2097 between Krishna Ram Mahale vs. Mrs. Shobha Venkat Rao, wherein Honouable the Supreme Court has considered the right of possession and confirm that;
"It is a well - settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh, (AIR 1968 SC
620). This Court in that judgment cited with approval the well - known passage from the leading Privy Council case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, (AIR 1924 PC 144) where it has been observed (at p. 622 of AIR) "In India persons are not permitted to take forcible possession: they must obtain such possession as they are entitled to through a Court.""
6) AIR 1994 SC 853 between Chengalvaraya Naidu vs. Jagannath and Ors., wherein Honourable the Apex Court has held that;
"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in Page 16 of 20 C/AO/445/2013 CAV JUDGMENT the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. TheHigh Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property- grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal- gains indefinitely. We have no hesitation tosay that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
8. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts,he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non- production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants- defendants could have easily produced the certified registered copy of Ex.B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed Page 17 of 20 C/AO/445/2013 CAV JUDGMENT by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."
The sum and substance of all above citations makes it clear that at such interim stage when plaintiff has handed over the possession to him and he cannot be dispossessed without following due process of law, there is no reason to reject his prayer, more particularly when defendant has filed some suit against Dahya Bhagwan Rohit to confirm their possession. Therefore irrespective of possession in such previous suit regarding possession since it is between Dahya Bhagwan Rohit and defendants only, the trial court has to decide the issue of possession irrespective of averments made in such previous suit and shall decide in accordance with law without fail and to that extent rejection of application without protecting possession is not proper. However, fact remains that appeal against judgment and order in such previous suit No. 48 of 1999 is pending and has observed in this judgment, in such previous suit, it was Court's decision not to permit the appellant - plaintiff to join as litigant and therefore appellant has no option but to file such separate litigation.
9.2 As against that, defendant is relying upon the following decisions:
1) (2003) 10 SCC 390 between Manjunath Anandappa vs. Tammanasa & Ors., wherein while dealing with the Specific Relief Act, Honourable the Supreme Court held that in terms of provisions of Section 16(c) of the Specific Relief Act, it is incumbent upon plaintiff both to aver and to prove that he is ready and willing to perform the essential terms of the contract, which are to be Page 18 of 20 C/AO/445/2013 CAV JUDGMENT performed by him.
However, as discussed herein above, when there is no act remains to be performed as essential or otherwise under the contract by the plaintiff and when plaintiff has already paid the full consideration and when now it is for the defendant who has to perform a very part of contract for getting the non-agricultural use permission and execute the sale - deed, such judgment does not help the defendants in any manner whatsoever to succeed in present appeal or even before the trial Court.
2) (2004) 11 SCC 425 between Draupadi Devi and Ors. vs. Union of India & Ors. , wherein Honourable the Supreme Court has dealt with an issue of limitation and maintainability of suit. However, there is nothing in such judgment which preclude the plaintiff to initiate such litigation which is certainly pursuant to settled legal position as narrated in the decision by the Honourable the Supreme Court in the case of Shrimant Shamrao Suryavanshi (supra) . It is also found that judgment in case of Shrimant Shamrao Suryavanshi (supra) has not been considered in this reported case and it is neither over ruled nor distinguished in any other manner. Therefore, when case of Shrimant Shamrao Suryavanshi (supra) is directly touching the similar issue on hand there is no reason to discard the legal position confirming such judgment. Honourable the Supreme Court has considered the provisions of Independence Act, 1948 when suit is against the State Government by the private party and therefore observations in that act cannot be helpful to the party so Page 19 of 20 C/AO/445/2013 CAV JUDGMENT as to entitle to the claim in all together different facts and circumstances.
10. It would be appropriate to recollect the latest decision of Honourable the Supreme Court in case of Bhaskar Laxman Jadhav & Ors. vs. Karamveer Kakasaheb Wagh Education Society & Ors. reported in AIR 2013 SC 523 , wherein Honourable the Apex Court has reconfirmed that; "It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of the litigant to disclose all the facts of the case and leave the decision making to the Court."
10.1 In view of above facts and circumstances appeal is allowed. Thereby impugned orders are quashed and set aside. Both the parties are directed to maintain status quo of the suit property as on date.
10.2 In view of order passed in main Appeal, Civil Application does not survive and the same is disposed of accordingly.
(S.G.SHAH, J.) drashti Page 20 of 20