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Showing contexts for: void deed in Pravin S/O Jethalal Kamdar vs State Of Maharashtra, Through ... on 26 April, 1995Matching Fragments
15. The next question which needs consideration is whether when the sale deed is void, we should exercise our discretion to grant relief of possession of the suit property to the plaintiff. The learned counsel for the defendants has urged before us that the equitable relief of the declaration that the sale deed is void and the consequential relief of possession should not be granted to. the plaintiff because he has not come with clean hands and that there was mistake of law committed by both the parties. He has submitted before us that the averments in the plaint as also the evidence of the plaintiff contain improvements, embellishments, distortion and twisting'of the facts and circumstances and taking the same and the background of the transaction in question into consideration, it cannot be said that the plaintiff has come with clean hands in the instant case.
21. It is however, true that there is discretion conferred upon the. Court under Sections 31 and 32 of the Specific Relief Act, 1963 an cancellation of the instrument as void or vaidable or in granting the relief of declaration that the instrument is void or viodabte, but in the instant case since the sale deed dated 23-8-1976 is void ab initio, the suit is in truth and substance a suit for possession of the suit property since when the sale-deed is void ab initio, there is no need to set it aside and the same can be ignored. What has however, to be seen is that the exercise of discretion by. the Court in granting the equitable relief must be upon sound principles and considerations. It cannot be gainsaid that when the defendants have obtained the' possession of the suit property under a void sale-deed, there is reasonable apprehension of the substantial injury to the plaintiff within the meaning of Section 31 of the Contract Act.
tion in which they stood when the contract was made; or
(c) where third parties have, during the subsistence of the contract, acquired rights in good faith without notice and for value; or
(d) 'where only a part of the contract is sought to be rescinded and such part is not severable from the' rest of the contract.
22A. It is material to see that the defendants have not brought the case in any of the circumstances referred to in sub-section (2) of Section 27 of the Specific Relief Act. In particular, there is no case made out (hat the third party's right or interest has come into being upon the suit property and therefore, there is hindrance in granting the relief of possession to the plaintiff. In fact, according to the case of the defendants the said property is in possession of the defendants because it was purchased for housing the office of the defendant No. 3. No other change of circumstances have also been proved since the date of pre-emptive purchase because of which the defendants are not in a position to substantially restore the possession of the suit property to the plaintiff. In these circumstances when the sale-deed is void because there is no provision to support the preemptive purchase by the defendants and more-over as held by the-Supreme Court in the case Radhakishan v. Shridhar (cited supra), there are no equities in favour of the State, then there is no reason why the discretion should not be exercised in granting [he relief of possession of the suit property, to the plaintiff since the sale-deed executed between the parties is void ab-initio.
25. The learned Counsel for the defendants has urged before us that the main relief which is sought in the suit is of declaration that the order passed by the defendant No. 2 under the ULC Act on 26-5-1976 exercising option to purchase the suit property is void and consequently the sale deed executed pursuant to the same on 23-8-1976 is also void. The submission thus is that it is Art. 58 of the Limitation Act, 1963 which would be applicable to the said declaration and since the period of limitation prescribed therein is 3 years from the date the right to sue accrues i.e. when the said sale deed which is void is executed by the parties, the suit is barred by time as it is filed beyond a period of 3 years from the date of the sale-deed i.e. 23-8-1976. Even if the period of limitation is reckoned from the date of the Judgment of the Supreme Court in Bhim Singhji's case or its publication in law reports in 1981. It is urged that the suit is still beyond 3 years and is thus barred by time.