( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION USJ FIRST APPEAL NO.225 OF 1990 FIRST APPEAL NO.225 OF 1990 FIRST APPEAL NO.225 OF 1990 Dr.Jitendrasinh Mohansinh Parmar since deceased through his LRs. 1. Shardaben Jitendrasinh Parmar 2. Dimple Rathod 3. Brijendrasinh Jitendrasinh Parmar 4. Ravindraisinh Jitendrasinh Parmar R/at Silvassa, Dadra & Nagar Haveli ..Appellants (Orig.plaintiff) V/s. 1. Ambaben Ramabhai Patel (widow) 2. Divaliben Jadavbhai Patel 3. Dajibhai Ramabhai Patel 4. Lallubhai Ramabhai Patel 5. Naniben Ramabhai Patel 6. Manglabhai Ramabhai Patel 7. Govindbhai Ramabhai Patel 8. Rajeshkumar Champaklal Shah 9. Shaileshkumar Champaklal Shah 10.Rushmaniben Champaklal Shah 11.Sangeetaben Rajeshkumar Shah Resp.Nos.8 to 11, r/at Silvassa, Dadra & Nagar Haveli. ..Respondents (Orig.defendants) ...... Mr. H.D. Palve for the appellants None for respondent Nos.1 to 7. Mrs. Bhavana Shah for respondent Nos.8 to 11. ...... CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 22nd April, 2009 DATED : 22nd April, 2009 DATED : 22nd April, 2009 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. The present appeal concerns land bearing plot No.354 situate at city Silvassa within the territory of Dadra and Nagar Haveli. The original appellant Dr. Jitendrasinh instituted the suit for specific performance in regard to land admeasuring 4 Are out of plot No.354 in the Court of Civil Judge, Dadra Nagar ( 2 ) Haveli, Silvassa being Special Civil Suit No.1 of 1986. The learned Civil Judge, Dadra and Nagar Haveli, Silvassa (hereinafter referred to as the ’learned trial Judge’) decided the suit and by judgment and decree dated 27th February, 1990 declined to grant specific performance in regard to the suit land i.e. 4 Are. The learned trial Judge directed the present respondents to pay to the original appellant Rs.16,000/- being the amount paid by the original appellant. The said amount of Rs.16,000/- was paid as and by way of consideration to the respondents. Interest was also granted in terms of item No.3 of judgment dated 27th February, 1990. This judgment dated 27th February, 1990 is challenged in this first appeal. It may be noted that during the pendency of this appeal, original appellant Dr.Jitendrasinh expired and his heirs were brought on record as appellants. Few facts necessary for the disposal of this appeal are as under. 2. According to the appellants, the respondents claimed that they were the owners in respect of plot No.354 and by agreement dated 22nd April, 1983 respondents agreed to sale to the original appellant 4 Are of land i.e. the suit property. According to the original appellant a sum of Rs.16,000/- was paid to the respondents but the respondents did not comply ( 3 ) with their contractual obligation and that is why the original appellant was required to institute the suit as mentioned aforesaid. The respondents contested the suit by denying the execution of the agreement and other related aspects. 3. At trial, the original appellant stepped into the witness box. In addition to that the brother of original appellant Mr. Surendrasingh was examined as DW-3. Witnesses were examined on behalf of the respondents and original defendant No.7 Govindbhai Ramabhai Patel also stepped into the witness box. After considering the entire record, the learned trial Judge decreed the suit as mentioned aforesaid. 4. Learned advocate Mr.Palve appearing on behalf of the appellants and Mrs. Bhavna Shah appearing on behalf of respondent Nos.8 to 11 took me through the entire record for the purpose of advancing their respective submissions. 5. Learned advocate Mr.Palve tried to submit that the impugned judgment delivered by the learned trial Judge is wrong in as much as the learned trial Judge has gone into the question of mis-description of the property involved and other related aspects and the observations of the learned trial Judge in the ( 4 ) ultimate analysis are not born out by the evidence placed before the Court. The learned advocate Mr.Palve appearing on behalf of appellants had contended that the learned trial Judge gave unnecessary emphasis on certain admissions made by the appellant as regards the description of the suit property. According to learned advocate Mr.Palve, the inference drawn by the learned trial Judge as regards falling the suit property to the lot of the Government of India after the decision of Regular Civil Suit No.4 of 1985 is also contrary to the evidence and that is how the learned advocate Mr.Palve objected to the decree. 6. Learned advocate Mrs.Bhavna Shah took me through the evidence and tried to point out that the present respondents contended that they are the owners of entire land admeasuring 60 Are bearing plot No.354 and that they had filed the suit in the Court at Silvassa being Regular Civil Suit No.4 of 1985 against Union of India and the Indian Red Cross Society wherein settlement took place and consent terms were filed by which 15 Are of land came to be given to the respondents who were plaintiffs in the said suit on ownership basis and the respondents lost control over 45 Are as the same was given to the Government of India. She had drawn my attention to the consent ( 5 ) terms filed by and between the parties to the said suit and had also drawn my attention to the sketch annexed to the said consent terms. She pointed out that description of the property agreed to be sold in terms of suit agreement dated 22nd April, 1983 got changed and on account of consent terms in Civil Suit No.4 of 1985 the respondents could retain only 15 Are and 45 Are went to the lot of Government of India and therefore even if it is accepted that some property was agreed to be sold to the original appellant the property mentioned in the suit agreement dated 22nd April, 1983 was not available for sale and as such the relief of specific performance was not granted by the learned trial Judge. 7. She had also drawn my attention to the evidence of Mr.Surendrasingh, brother of the present appellant who was a practicing lawyer at Silvassa who had in turn suggested that there was some efforts to settle the matter to give to original appellant a land admeasuring only 2 Are instead of 4 Are. She had submitted that even if one could say that there was an agreement to sale 4 Are to the original appellant, the land which was agreed to be sold to the original appellant was not available for disposal in favour of the original appellant at the time when the learned trial Judge was about to pass the decree because in ( 6 ) the year 1985, substantial portion of the land went to the lot of Government of India and there is no evidence on record to show that the 4 Are of land agreed to be sold in April, 1983 was out of 15 Ares which was allotted to respondents. 8. Learned advocate Mrs. Shah submitted that this aspect of the matter ought to have been considered at the time of passing the decree and that is how the learned Judge ought to have proceeded. She pointed out that evidence of Surendrasingh clearly goes to show that he had marked the land which was agreed to be sold to the appellants on the map which was annexed to the consent terms and the said map shows that the land agreed to be sold to the original appellant went to the lot of Government of India after the consent terms filed in the Civil Suit No.4 of 1985. She had, therefore, submitted that the change in the situation which was brought about by the consent terms in Suit No.4 of 1985 had bearing on the entire matter and if that is considered, the learned trial Judge’s view that specific performance cannot be granted is required to be confirmed. The learned trial Judge according to her rightly decreed the suit to the extent of repayment of the consideration and reasonable interest at the rate of 6% per annum. She submitted that in the ultimate analysis, the learned ( 7 ) trial Judge was right and no interference is required in the impugned judgment and decree. 9. On the basis of arguments advanced before the Court, following points do arise for my determination. (i) Whether the original appellant could prove that after the consent terms in Regular Civil Suit No.4 of 1985 were signed, the land which was agreed to be sold pursuant to agreement dated 22nd April, 1983 remained under the control of the respondents ? Ans. In the negative. (ii) Whether any interference is required in the impugned judgment ? Ans. In the negative. (iii) What orders ? Ans. As per the final order. 10. I have with the assistance of learned advocates on both the sides perused the record. The suit agreement dated 22nd April, 1983 relates to 4 Are out of plot No.354. The record shows that at the relevant time, the property was in the possession of the respondents and the description of the land i.e. ( 8 ) 4 Are agreed to be sold to the original appellant was absolutely of a general nature in as much as the boundaries described in the agreement are as follows. On or towards East - Government Silvassa Khanvel Road. On or towards West - Government quarters after passing the land from out of the same land. On or towards North - The houses of us, the vendors are situated on the land from out of the same land. On or towards South - Government quarters. 11. This description appears to have been mentioned because at the relevant time, the respondents were holding a large plot of land i.e. 60 Are and it appears that a small area of 4 Ares of land was agreed to be sold, out of the said large land namely 60 Are. The development which took place in the year 1985 namely settlement of the suit between the respondents and the Government of India changed the complexion of the entire matter. As a result of the consent terms dated 10th May, 1985, respondents could keep with them 15 Are and had to give up substantial portion of the land i.e. 45 Are. This is how total area of 60 Are is accounted for. Perusal of ( 9 ) the consent terms dated 10th May, 1985 goes to show that after 10th May, 1985, the respondents could own only 15 Are. It is pertinent to note that the present suit came to be filed on 17th January, 1986 i.e. after 10th May, 1985 when the consent terms came to be filed. In the entire evidence lead on behalf of the original appellant, there is no mention whatsoever that the suit land of 4 Are forms a part and parcel of 15 Are which was allowed to be retained by the respondents. In order to seek specific performance of 4 Are in the year 1986 or thereafter i.e. after the lodgment of the suit it was absolutely necessary for the original appellant to specifically state that out of 15 Are which was then available with the respondents, 4 Are was agreed to be sold. It is pertinent to note that the evidence in the present suit was recorded sometime in June, 1989. At that time, as to which land was available with the respondents namely 15 Are was definitely known to the original appellant. It is possible to say that it did not occur to the original appellant that he could amend the plaint and seek specific relief regarding 4 Are by giving specific description and the boundaries because by that time the respondents had only 15 Are and not 60 Are. No such steps were taken by the original appellant. Even otherwise, in the evidence also there is no specific mention that out of 15 Are ( 10 ) land which was then given to the respondents, a particular portion with particular boundaries was agreed to be sold way back in the year 1983. In substance, as a result of developments which took place in the year 1985 and thereafter, the land which was agreed to be sold in the year 1983 was not available with the respondents for executing the same and that is how the specific performance could not have been granted by the learned trial Judge. 12. The learned trial Judge has looked to this problem in a different angle in as much as he has given weightage to the admission on part of the original appellant where the original appellant has admitted that the description of the property mentioned in the plaint as regards North direction and Southern direction is incorrect. This observation is based on the evidence given by the original appellant. Certainly original appellant had to admit this mistake in the drafting of the plaint because at the time of giving evidence in the year 1989, the original appellant must have realized that as the situation at site had changed i.e. respondents could retain 15 Are of land. The learned trial Judge also looked to the evidence of Surendrasingh DW-3 who has specifically stated that he encircled the area which was agreed to be sold to the original appellant on the sketch which ( 11 ) was annexed to the consent terms and that the learned Judge has after observed that that the land which was agreed to be given to the original appellant has gone to the lot of the Government of India. 13. In substance, the learned trial Judge was right in holding that land admeasuring 4 Are described in agreement dated 22nd April, 1993 was not available for selling it to the original appellant under the agreement in view of change in the situation at site due to consent terms mentioned above. As a result of this, he rightly declined to grant specific performance of suit agreement and he rightly observed that the original appellant is entitled to refund of the consideration paid alongwith the interest. Points for determination are accordingly answered. 14. In view of the aforesaid observation, the first appeal filed by the appellants will have to be dismissed. Hence, the following order:- ORDER ORDER ORDER . First Appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to costs. ( 12 ) (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)