IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 889 of 1984 with FIRST APPEAL No 1118 of 1984 with CIVIL REVISION APPLICATION No 1200 of 2000 with CIVIL APPLICATION No 5478 of 2002 with CIVIL APPLICATION No 1477 of 2002 with CIVIL APPLICATION No 2915 of 2003 For Approval and Signature: Hon'ble MR.JUSTICE KSHITIJ R.VYAS and Hon'ble MR.JUSTICE AKSHAY H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- RAVJIBHAI MATHURBHAI SOLANKI DECD.THROUGH HIS HEIRS & L.RS: Versus BIJALBHAI DEVJIBHAI PRAJAPATI -------------------------------------------------------------- Appearance: 1. First Appeal No. 889 of 1984 MR RA PATEL for Petitioner No. 1,9-8,10-8 MR HM PARIKH for Petitioner No. 1/1-1/2,1/3/A-1/3/B, 1/4/A-1/4/D,1/5/A-1/5/E,1/6/A-1/6/B,2,3,4 .......... for Petitioner No. 1/3,1/4,1/5,1/6 MR RN SHAH for Petitioner No. 2,3,4-8,9-8,10 MR RA PATEL for Respondent No. 1 MR MB FAROOQUI for Respondent No. 2 NOTICE SERVED for Respondent No. 3 MR SURESH M SHAH for Respondent No. 4 MR MEHUL S SHAH for Respondent No. 4 MR AJ PATEL for Respondent No. 5-9 2. First Appeal No. 1118 of 1984 MR SHIRISH JOSHI for Petitioner No. 1 MR MB FAROOQUI for Respondent No. 1 3. Civil Revision Application No. 1200 of 2000 MR MB GANDHI for Petitioner MR RN SHAH & MR. SHIRISHBHAI J. JOSHI for contesting Respondents. -------------------------------------------------------------- CORAM : MR.JUSTICE KSHITIJ R.VYAS and MR.JUSTICE AKSHAY H.MEHTA Date of decision: 04/09/2003 CAV COMMON JUDGEMENT (Per : MR.JUSTICE AKSHAY H.MEHTA) 1. The aforesaid First Appeals are filed by the original defendants. First Appeal No. 889 of 1984 has been filed by original defendants nos. 1, 7, 8, 9, 10, 11, 12, 13, 14 and 15; whereas First Appeal No. 1118 of 1984 has been filed by original defendants nos. 16, 17, 18 and 19. These appeals have been filed by them for challenging the judgment and decree dated 27th March, 1984 passed by the learned 3rd Joint Civil Judge [S.D.] Nadiad in Special Civil Suit No. 15 of 1982 allowing the suit of the original plaintiffs and passing the decree of specific performance directing original defendants nos. 1, 2, 3 and 6 to 19 to execute sale deeds in favour of original plaintiffs upon their paying the balance amount of Rs.3,37,800/=. 1.1. The Civil Revision Application (for short 'CRA') has been filed by original plaintiff no. 2 against the order passed by the learned Civil Judge [S.D.] Anand in Special Execution Petition No. 28 of 2000 seeking execution against the original defendants of this case in respect of the aforesaid judgment and decree. The order impugned in the Civil Revision Application is dated 9/11/2000. 1.2. Since the appeals and the CRA arise from the same proceedings, they were heard together and they are now being disposed of by this common judgment. 1.3. For the sake of convenience, the parties are referred to in this judgment by their original position in the suit. 2. From the record of the case and in particular plaint, case of the plaintiffs appears to be that the original defendants nos. 1 and 2, namely Ravjibhai Mathurbhai Solanki and Gaguji Mathurbhai Solanki were brothers. They were the tenants of lands bearing survey nos. 2415/3 admeasuring A-0 Guntha-26 and survey no. 2415/2 admeasuring A-0 Guntha-25. Further defendant no. 2 was also tenant of land bearing survey no. 2416/1 admeasuring A-0 Guntha-22. These lands were new tenure and situated on the outskirts of Anand town. It is the say of the plaintiffs that by virtue of the provisions of the Bombay Agricultural Lands and Tenancy Act (for short 'Tenancy Act') the said defendants had become the owners of the said lands after paying the amount determined by the tenancy Court to the original owner of land and their names were accordingly entered into the revenue records. It is the further say of the plaintiffs that with the introduction of town planning scheme, these lands were covered under it and in place of these lands, the defendants were given the lands of old tenure, which were situated away from the aforesaid agricultural lands and which were numbered as Final Plot Nos. 432/2, 432 and 432/4. Defendants nos. 1 and 2 were put in actual possession of the final plots. Since the lands allotted to them under the scheme were slightly lesser than the lands held by them earlier, defendants have been paid compensation of Rs.40,000/=. It is the say of the plaintiffs that for survey no. 2415/3 admeasuring 24 Gunthas defendants were given final plot no. 432/2 admeasuring 2185-93-75 sq. mtrs., for land bearing survey no. 2416/1 admeasuring 22 Gunthas final plot no. 432/4 admeasuring 1037-50 sq. mtrs. and land bearing survey no. 2415/2 (29 Gunthas) final plot no. 432 were given to defendants nos. 1 and 2. The total land allotted to these defendants was 4843 sq. mtrs. The boundaries of these lands have been adequately described in the plaint. 2.1. It is the say of the plaintiffs that they have been dealing in the business of purchasing lands, plotting them and after developing the same by raising construction, to sell them. Defendants nos. 1 and 2 had therefore, negotiated with them for the sale of aforesaid final plots and ultimately they decided to sell to the plaintiffs land admeasuring 4843-78-12 sq. mtrs. from final plot nos. 432/2, 432/4 and 432 and to retain 708-17-16 sq. mtrs. for themselves. The purchase price was fixed at Rs.4,10,000/=. In view of this, a document of agreement to sell was executed by and between the plaintiffs and defendants nos. 1 and 2 on 24th March, 1980. It is the say of the plaintiffs that till the date of execution of the said document the plaintiffs had already paid to defendants nos. 1 and 2 a sum of Rs.27,000/= towards the part payment of consideration for the purchase of land. It was also agreed between the parties that the balance amount was to be paid upon defendants nos. 1 and 2 obtaining the title clearance certificate and the said amount was to be paid in installments as per the convenience of the plaintiffs. It is further averred by the plaintiffs that the agreement to sell was signed on behalf of defendant no. 2 by his power of attorney holder, Solanki Lakhabhai Mathurbhai, who also happened to be his real brother which was duly approved by defendant no. 2. It is further averred that towards the consideration for the purchase of land, the plaintiffs had paid to defendants nos. 1 and 2 and/or the power of attorney holder of defendant no. 2 different sums on different dates. The plaintiffs have also stated that prior to actual execution of the document there was an oral agreement entered into between the plaintiffs and defendants nos. 1 and 2 in respect of sale of the suit land whereby these defendants had agreed to sell the land at the rate of Rs.10,000/= per Guntha and the plaintiffs had paid a sum of Rs.8,000/= by cheque dated 25th March, 1979 but the cheque was withdrawn and cash amount was paid at the instance of defendants nos. 1 and 2 and thereafter, Rs.17,000/= on 25th February, 1980 and Rs.2,000/= on 24th March, 1980 in cash. Thus, according to the plaintiffs, at the time of execution of the agreement to sell on 24th March, 1980 they had already paid to defendants nos. 1 and 2 a sum of Rs.27,000/=. After the execution of the document the plaintiffs had paid Rs.27,200/= to defendant no. 1 between the period from 14th May, 1980 and 30th May, 1981 and to defendant no. 2 sum of Rs.18,000/= on different dates during the period from 27th June, 1980 till 11th June, 1981. Thus, according to the plaintiffs, they had paid to defendants nos. 1 and 2 a sum of Rs.72,200/= out of the total agreed price of Rs.4,10,000/=. The details of the payments made to defendants nos. 1 and 2 have been adequately described in the plaint. These details also show that on 30th May, 1981 amount of Rs.4,500/= was paid to Kalpana Medical Stores at the instance of defendant no. 1 and amount of Rs.3,000/= was paid to Gopalbhai Jivanbhai, the brick merchant also at the instance of defendant no. 1. 2.2. It is the say of the plaintiffs that due to the rise in the prices of lands defendants nos. 1 and 2 started having second thought regarding the agreement to sell the lands to present plaintiffs. They, therefore, made preparation to sell the lands to third parties and it had come to their knowledge that they had in fact negotiated with defendants nos. 3 to 6 for sale of the suit land by charging higher price. In view thereof, the plaintiffs had filed Civil Suit No. 314 of 1981 in the Court of the learned Civil Judge at Anand for permanent injunction against defendants nos. 1 and 2 restraining them from transferring the suit land to third parties. In the Civil Court at Anand the plaintiffs had also prayed for temporary injunction but the same was rejected by the Court and hence the plaintiffs had preferred appeal in the District Court at Nadiad, where they had been able to obtain order regarding maintenance of status-quo on 11th January, 1982. It is the say of the plaintiffs that despite the prohibitory orders operating against defendants nos. 1 and 2, they had actually sold land admeasuring 4 Gunthas forming part of final plot no. 432 by registered sale-deed dated 15th January, 1982 to defendant no. 3. Similarly defendants nos. 1 and 2 had also entered into contract for sale of the suit land with the defendants nos. 4, 5 and 6. In view of this, the plaintiffs had sought permission of the Civil Court at Anand to withdraw Suit No.314 of 1981 with a view to file suit for specific performance. The said suit was permitted to be withdrawn by the Anand Court vide order dated 22nd January, 1982. It is further averred by the plaintiffs that since the defendants had actually started disposing of the land defeating the rights of the plaintiffs, a public notice dated 8th September, 1981 was given in the local daily for information of the public at large not to purchase the said lands. It is the say of the plaintiffs that in fact to warn defendant no. 3 they had personally gone to the office of the Registrar and had specifically informed him about the litigation regarding these lands, but no heed was paid to their caution and agreement was entered into by him with defendants nos. 1 and 2. 2.3. According to the plaintiffs, when they had repeatedly contacted defendants nos. 1 and 2 and asked them not to sell lands to third parties and to sell lands to them i.e. the plaintiffs, they were approached by defendants' advocate Mr. M.N. Bhalja, who told them that unless they paid the price at the rate of Rs.15,000/- per Guntha, the lands would not be sold to them. Thus, defendants nos. 1 and 2 had made their intention very clear of defeating the right of the plaintiffs arising under the agreement to sell and, therefore, they had no other alternative but to approach the Court and file a suit for specific performance of the contract. The plaintiffs averred that they were ready and willing to pay the balance amount to defendants nos. 1 and 2 and perform their part of the contract. 2.4. In the suit the plaintiffs prayed that a decree of specific performance be passed in their favour and the defendants nos. 1 and 2 be directed to perform their part of the contract and upon payment of balance amount of Rs.3,37,800/=, they should execute a sale deed in favour of the plaintiffs. It was also prayed that the defendants be directed to retain land admeasuring 505-84-05 sq. mtrs. from any part of the aforesaid final plots and the rest of the lands be handed over to the plaintiffs. In the alternative the plaintiffs prayed that in lieu of the suit lands, the defendants nos. 1 and 2 be directed to pay compensation of Rs.4,10,000/= together with interest at the rate of 18% p.a. from the date of filing of the suit to the plaintiffs. It appears that the last relief regarding payment of compensation has been deleted subsequently vide Exh. 75 dated 13th July, 1982. 2.5. Originally when the suit was filed defendants nos. 1 to 6 were joined as parties to the suit. However, during the pendency of the suit, on coming to know that the suit lands were sold to other persons by defendants nos. 1 and 2, the plaintiffs have joined, by amending the plaint, the purchasers of the suit land as defendants nos. 7 to 19. It also appears that defendants nos. 4 and 5 were deleted from the proceedings of the suit vide Exh. 268 and Exh. 71 dated 20th December, 1983 and 5th July, 1982 respectively. 3. The suit came to be resisted by the defendants. Defendant no. 1 filed his written statement at Exh. 30. It was contended by the defendant that the suit was false and that they had never executed any agreement of sale on 24th March, 1980 in favour of the plaintiffs. He also denied that till the time the document was executed, the plaintiffs had already paid a sum of Rs.27,000/=. He had further denied that there was any oral contract entered into between the plaintiffs and defendants nos. 1 and 2 whereby it was agreed to sell the suit lands to them by defendants by charging price of Rs.10,000/= per Guntha. He had further contended that the entire story with regard to payments made on different dates and total amount of Rs.72,200/- having been paid to defendants nos. 1 and 2 or the power of attorney holder of defendant no. 2 was concocted and false and the receipts have been fabricated by committing forgery. It is further stated by defendant no. 1 that the document dated 24th March, 1980 purporting to be an agreement to sell is nothing but a glaring instance of forgery. According to him, the plaintiffs have fabricated these documents by forging the signatures of the defendants with a view to grab the property of defendants nos. 1 and 2. It is his say that so far payment of Rs.8,000/= is concerned, it was paid to the defendants to meet the expenses incurred by them for the litigations pending in revenue Court and this Court in respect of the suit land and it was also agreed by defendants nos. 1 and 2 to repay the said amount with interest. It is further stated that on 10th April, 1980 defendants have paid a sum of Rs.9,000/= i.e. Rs.8,000/= towards principal amount and Rs.1,000/= by way of interest to the plaintiffs, for which a writing was executed on the stamp paper of Rs.10/=. It was further stated that since the entire claim of the plaintiffs is based on a forged document, no reliefs can be granted to them. It was, therefore, prayed that the suit of the plaintiffs be dismissed with costs and they may be directed to pay compensation of Rs.3,000/= for causing unnecessary harassment to the defendants. 3.1. Defendant no. 2 has filed his written statement at Exh. 37 wherein he has denied that the suit land was old tenure land and not agricultural land. He has also denied any payment having been made by the plaintiffs and execution of document at Exh. 207. He has further stated that with a view to grab the land of defendants, the plaintiffs have created forged documents and they have filed a false suit. 3.2. So far defendants nos. 4 and 7 to 11 are concerned, they have filed written statement to the amended plaint as well as to the application at Exh. 128. They have denied the averments made in the plaint and have stated that the suit against them was not maintainable as they were the bonafide purchasers for value without notice. They have further stated that since the provisions of the Tenancy Act are applicable to the suit lands and since no permission as required u/S. 43/63 had been obtained before execution of document at Exh. 207, the transaction was ab-initio void and no cause of action had arisen in favour of the plaintiffs. According to them, sub-plots bearing nos. 1, 2 and 3 of final plot no. 432 admeasuring about 12 Gunthas were sold to defendants nos. 7, 8 and 9 on 26th January, 1982 for sum of Rs.1,20,000/= and at that time there was no litigation pending between the parties nor there was any order of injunction operating in favour of the plaintiffs. It is further stated that on 21st December, 1981, defendants nos. 1 and 2 had sold land from final plot no. 432 admeasuring 21.5 Gunthas to defendants nos. 10 to 13 for Rs.2,40,551/=. The sale deeds have been duly executed and these defendants have now become the owners of the lands sold to them. They have, therefore, submitted that this suit could not be proceeded against them. They have denied the execution of documents of agreement to sell entered into between the plaintiffs and defendants nos. 1 and 2. They have, therefore, prayed that the suit be dismissed. 3.3. So far defendants nos. 10 and 11 are concerned, they have opposed the application submitted by the plaintiffs for maintaining status-quo. The said written statement is at Exh. 165. According to them, since on previous occasion the plaintiffs had given similar application which was not accepted by the Court and hence subsequent application for the said relief could not be entertained. Further that since the alleged deed of agreement to sell is against the provisions of section 43 of the Tenancy Act, there was no question of passing any decree for specific performance. 4. The trial Court, on completion of the pleadings, framed as many as 39 issues at Exh. 162. 5. During the course of the proceedings of the suit the plaintiffs have led evidence oral as well as documentary. In support of its case plaintiff no. 2 Ismail Gafurbhai Vora has entered the box and given evidence at Exh. 203. In the course of his deposition before the Court, he has also produced several documents including the Banakhat in question at Exh. 207. He has also produced the permission for sale obtained by defendants under the provisions of sections 43 and 63 of the Tenancy Act. Vide Exhs. 208 to 230 he has produced the receipts issued by the defendants nos. 1 and 2 and power of attorney holder of defendant no. 2 in token of the payment made to them on different dates towards the consideration of the sale of suit land to them by defendants. His evidence is completely in accordance with the averments made in the plaint, which have already been narrated above and the defendants have not been able to dislodge them in the cross-examination. 5.1. Plaintiffs have also examined one Jashbhai Chaturbhai Patel at Exh. 215. The said witness is owner of Kalpana Medical Stores and he has been examined with a view to prove the payment of Rs.4,500/= by plaintiffs at the instance of defendants nos. 1 and 2. He has completely supported the case of plaintiffs and has stated that amount was paid to him towards outstanding bill for purchase of medicines for elder brother of defendants 1 and 2. The third witness of the plaintiff is Ranchhodbhai Chhaganbhai. He is the person who has purchased the stamp paper on which the Banakhat in question has been prepared and he has also attested the same as witness of the plaintiffs. 5.2. So far defendants are concerned, neither defendant no. 1 nor defendant no. 2 has chosen to enter the witness box and give evidence in support of their say. 5.3. So far defendant no. 8 is concerned, he has examined himself at Exh. 272. Defendant no. 9 and defendant no. 10 have also examined themselves at Exhs. 373 and 284 respectively. Lastly defendant no. 16 has examined himself at Exh. 289. These defendants have given evidence in support of their say that they are the bonafide purchasers of the suit land for consideration without notice. It may be noted here that though they have examined themselves to prove the fact regarding purchase of suit land by them, they have not produced any sale-deed in respect of the same, which according to them, was sold by defendants nos. 1 and 2 to them. Thus, they have chosen to rely upon their oral evidence alone. 5.4. So far defendants nos. 1 and 2 are concerned, though adequate opportunity was given to them to lead evidence, they did not take any step to do so, and ultimately the trial Court closed the evidence on their behalf. Later on, defendant no. 2 submitted an application at Exh. 281 to the Court to permit him to lead evidence and to examine himself at the trial, which was turned down by the learned Judge vide order dated 4/1/1984. Against the said order, the defendants and in particular defendant no. 2 did not choose to file any proceedings before the appropriate forum and thus said order has uptill now remained unchallenged. 6. At the end of the trial, the learned Judge decreed the suit of the plaintiffs and directed the plaintiffs to pay the remaining consideration of Rs.3,37,800/= to defendants nos. 1 and 2 and on payment of such amount to them, defendant nos. 1 and 2 and defendants nos. 3, 6 to 19 to execute sale-deeds in favour of the plaintiffs in respect of the suit land. It was also decreed by the learned Judge that in the event of defendants failing to execute the sale-deeds, the Court shall execute the sale-deeds on their behalf in favour of the plaintiffs through a Court Commissioner towards the execution of this decree and put the plaintiffs in possession of the suit land. 7. It is this judgment and decree, which are now being challenged in these appeals by the original defendants. So far defendant no. 2 is concerned, he has not preferred any appeal against the aforesaid decree. However, he has been joined as respondent in First Appeal No. 1118 of 1984. 8. The Civil Revision Application is preferred by plaintiff no. 2 as already stated above. In the CRA he has prayed that the judgment and order dated 9th November, 2000 passed by the learned Jt. Civil Judge [S.D.] Anand below Exh. 1 in Execution Petition No. 28 of 2000 be quashed and set aside and to direct the respondents to execute the requisite sale-deeds in favour of the petitioner of the said CRA i.e. plaintiff no. 2. He has further prayed that in the event of said respondents failing to execute the sale-deeds, the Sale Commissioner be appointed to complete the said formality. It is to be mentioned here that both defendants i.e. defendants nos. 1 and 2 have expired during the pendency of the First Appeals. Defendant no. 1 - Ravjibhai Mathurbhai has expired on 20th October, 1998; whereas defendant no. 2 - Gagujibhai Mathurbhai has expired on 20th July, 1988. (As per the affidavits filed by his heirs, the date is 4th March, 1990). Their heirs and legal representatives have been duly brought on record of these appeals. It is also borne out from the record that in the year 1991 the heirs of defendant no. 2 and defendant no. 1 Ravjibhai himself have executed sale-deeds of most of the lands comprising the suit land. Mr. M.B. Gandhi,