AO/9620/2008 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 96 of 2008 With CIVIL APPLICATION No. 3523 of 2008 In APPEAL FROM ORDER No. 96 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= POPATBHAI GOVINDBHAI VEKARIA & 5 - Appellant(s) Versus VALLABHBHAI NATHABHAI PATEL - Respondent(s) ========================================================= Appearance : MR ANSHIN H DESAI for Appellant(s) : 1 - 6. MR PREMAL R JOSHI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 22/09/2008 ORAL JUDGMENT 1. In this appeal, the appellants original defendants have challenged an order dated AO/9620/2008 2/15 JUDGMENT 4.2.2008 by which the learned Principal Senior Civil Judge, Jamnagar allowed application exh.13 filed by the plaintiff present respondent and further directed the defendants by way of interim measure during pendency of the suit, not to transfer the suit land or any part thereof in favour of anyone by sale or otherwise and further directed that possession of the suit land not be handed over to anyone. 2. The appellants are the original defendants. The present respondent has filed Special Civil Suit No. 34/2005 before the learned Civil Judge(SD), Jamnagar praying inter-alia for specific performance of an agreement dated 30.11.1995 entered into between the plaintiff and the defendants. The plaintiff has also prayed that the defendants be directed to accept the remaining payment of the sale price and thereafter, to execute the sale deed in his favour. 3. The case of the plaintiff is that between the plaintiff and the defendants, an agreement to sale land bearing Survey No.39 paiki admeasuring 7 Acre and 7 Gunthas of vilalge Vibhapur, Taluka and District Jamnagar as well as land bearing survey No. 396 paiki admeasuring 4 Acre and 30 Gunthas of the same village at the price of Rs. 80,000/- per vigha and for a total sale consideration of Rs. 23,85,000/- took place on AO/9620/2008 3/15 JUDGMENT 30.11.1995. According to the plaintiff he had been making payment periodically to the defendants as per the said agreement. However, sale could not be completed on account of the provisions of the Urban Land Ceiling and Regulation Act as well as for want of completion of other formalities. Ultimately, the land was converted into non agricultural land. The land prices appreciated considerably due to which the defendants were not interested in performing their part of the contract. The plaintiff therefore, issued a registered A.D. Notice dated 10.3.2005 and also published a public notice on 11.3.2005 in newspapers. To this notice, advocate for the defendants gave evasive reply which required the plaintiff to file the suit. Some two years after filing of the suit, the plaintiff filed application Exh.13 for interim injunction in which he prayed that during the pendency of the suit, the defendants be prevented from transferring the suit land to any other person and from handing over the possession thereof to anyone. It is on this application exh.13 that learned Judge passed the impugned order dated 4.2.2008. 4. Along similar lines, the plaintiff has instituted Special Civil Suit No. 36/2005 before the same Court and prayed for specific performance of the agreement to sale other lands of the same village. Though plaintiff is common AO/9620/2008 4/15 JUDGMENT in both the suits, defendants are not. There also the plaintiff had prayed for interim injunction which was granted by the trial Court. The defendants therein had challenged such interim order before this Court and the Appeal from Order No. 97/2008 came to be dismissed by the Learned Single Judge of this Court by an order dated 9.4.2008. 5. Learned advocate Shri Anshin Desai appearing for the appellants vehemently submitted that there are several factors which need to be appreciated by this Court in the present appeal and that order passed by the learned Judge of this Court on 9.4.2008 in Appeal from Order No.97/2008 should not hinder this Court from appreciating all the documents and other materials produced on record in the present appeal. 5.1 My attention was invited to several documents on record to suggest that the defendants were all through out in actual physical possession of the suit land and that such possession was never parted in favour of the plaintiff at any stage. It was further contended that right from year 1995 when the agreement to sale took place, the plaintiff took no further steps to perform his part of the contract and more than 10 years after the contract, the plaintiff filed the suit for specific performance which was barred by AO/9620/2008 5/15 JUDGMENT limitation. It was further contended that even after filing of the suit for nearly two years, no injunction was prayed for. He further contended that in March 2001, the defendants had issued notice to the plaintiff cancelling the agreement to sale. On 7.6.2001 notice was also published in the newspaper and it was contended that at any rate agreement should have been treated having been cancelled at the hands of defendants in the year 2001 and if the plaintiff had any dispute about the same, he had to challenge the same within the period of limitation. It was further contended that before filing of the suit, character of the land has changed. The defendants had already sold the land to other persons. No injunction therefore, could have been grated in favour of the plaintiff. 5.2 Learned advocate Shri A.H. Desai placed reliance on the following decisions : 1) Khimjibhai Harjivanbhai Patadia v. Patel Govindbhai Bhagvanbhai & ors. reported in 2006(4) GLR 3058 2) Order of Supreme Court in Special Leave Petition (Civil) No. 2900/2007 in case of Khimjibhai Harjivanbhai Patadia v. Patel Govindbhai Bhagvanbhai & ors. AO/9620/2008 6/15 JUDGMENT 3) Arvindbhai Dahyabhai Patel & anr. v. Krishnakant J. Shah reported in 2007(2) GLR 1563. 4) Ajay Mohan and others v. H.N. Rai and others reported in 2008(2) SCC 507. 5) State of Maharashtra v. Digambar reported in 1995(4) SCC 683. 6) Veetrag Holding Co. Ltd. v. Gujarat State Textile Corporation Ltd. reported in 1996(3)GLR 536. 6. On the other hand, learned advocate Shri Premal Joshi appearing for respondent original plaintiff submitted that the facts of the present case are identical to those involved in Appeal from Order No. 97/2008. This Court therefore, should follow the order passed in the said appeal and dismiss the present appeal as well. He further submitted that in view of the provisions contained in Section 53A of the Transfer of Property Act, suit should be treated to be within limitation. He submitted that conduct of the defendants was also deplorable. Having agreed to sale the land and having pocketed substantial amount towards the sale price, they now want to back out from the commitment. AO/9620/2008 7/15 JUDGMENT 7. Having thus heard learned advocates appearing for the parties and having perused the documents on record, following aspects of the matter emerge : 7.1 Between the plaintiff and defendants, agreement to sale the suit lands was entered into on 30.11.1995. In the said agreement to sale, it was provided inter-alia that the entire sale consideration would be paid over by 30.5.1997. It is not in dispute that such payment was not made within the time provided. 7.2 By registered notice dated 22- 29.3.2001, the defendants put the plaintiff to the notice that the plaintiff has not made the payment of the sale consideration as per the agreed terms and that therefore, the defendants by giving final notice call upon the plaintiff to make full payment of the remaining amount within 15 days and have registered sale deed executed, failing which, the defendants would forfeit the part payment made. They further stated that they have always been ready and willing to perform their part of the agreement and if the plaintiff fails to make payment of the remaining amount within the time specified in the notice, the defendants would be entitled to deal with the land in question as per their wish and transfer the same to anyone. As per the defendants, such notice was duly served on the AO/9620/2008 8/15 JUDGMENT plaintiff. To this limited aspect for the purpose of the present appeal, the plaintiff has not raised any dispute; of-course subject to proof being produced before the Civil court in this regard at the time of final disposal of the suit. 7.3 A public advertisement also came to be issued on 7.6.2001 by the defendants in which it was stated that despite service of notice dated 29.3.2001, the plaintiff has not acted as per the terms of agreement due to which the contract has been cancelled and the sale price paid by the plaintiff has been forfeited. They also called upon the interested persons to lodge their objection or claim with respect to the suit land if created by the plaintiff in the meantime. Admittedly, the plaintiff raised no objection in response to this advertisement also. 8. For the purpose of this appeal, I have presumed that the plaintiff was duly served with the notice dated 29.3.2007. Admittedly, there was no response to the said notice or public advertisement of June 2001. The question that calls for consideration is whether the learned Judge committed an error in granting interim protection in favour of the plaintiff in view of these facts. Simultaneously, it will also be necessary for me to examine the effect of order AO/9620/2008 9/15 JUDGMENT dated 9.4.2008 passed by the learned Single Judge of this Court in Appeal from Order No. 97/2008. 9. From the documents on record, it becomes quite clear that the defendants had never parted with the possession of the suit land in favour of the plaintiff. Through out the currency of the agreement, even after filing of the suit and long thereafter, the plaintiff has not been able produce any material to suggest that at any point of time, the possession of the suit land was transferred to the plaintiff. In the agreement to sale entered into between the parties, there is no narration that possession was handed over to the plaintiff. In fact, the plaintiff had to make full payment of the agreed price by 30.5.1997 upon which the defendants had to execute the sale deed in their favour. Admittedly, full payment was not made by the said date and no sale deed was ever executed. Even the plaintiff does not dispute that the Revenue Records continue to show the names of the defendants. The defendants continue to pay the land revenue for the property in question. Even otherwise no evidence has been produced by the plaintiff to suggest that at any point of time, the possession of the lands in question was handed over to the plaintiff by the defendants. In fact, the averments made by plaintiff in the Civil Suit as well as in AO/9620/2008 10/15 JUDGMENT application exh.13 seeking interim injunction also point to the fact that even according to the plaintiff, possession of the land was never with the plaintiff. Prayer made in the interim injunction application is for preventing the defendants from selling the suit land and from transferring the possession thereof in favour of anyone else. Thus clearly the plaintiff also conceded to the position that possession of the suit land was never with the plaintiff. Even by impugned order, learned trial Judge only injuncted the defendants from transferring of the suit land or possession thereof in favour of anyone. If the plaintiff was in possession of the suit land, such direction would be incongruent. The plaintiff has not challenged the said order to the extent it does not protect his possession. From all angles therefore, i.e. on available documentary evidence, from the plaintiff's own averment in exh.13 application as also the fact that the impugned order only prevents the defendants from transferring the title and possession of the land in favour of anyone but does not protect the possession of the plaintiff as also the fact that the plaintiff has not raised any grievance about such an order would conclusively show that the plaintiff was never put in possession of the land in question. 10.This conclusion is extremely important since it AO/9620/2008 11/15 JUDGMENT is the case of the plaintiff that on account of provisions contained in Section 53A of the Transfer of Property Act, suit would not be barred by limitation. To this legal contention, I would advert at a slightly later stage. 11.Insofar as factual aspects are concerned, in addition to the above observations, I find that defendants had, as noted, issued registered A.D. notice to the plaintiff on 29.3.2001 indicating that plaintiff has not acted as per the terms of agreement and not made payment of substantial amount of sale consideration. They therefore, called upon the plaintiff to do so immediately and have the registered sale deed executed, failing which, they would be free to transfer the land to anyone else. At this stage it is not in dispute that such notice was duly served on the plaintiff. In any case further public notice also came to be issued on 7.6.2001 wherein referring to the earlier registered A.D. notice, the defendants stated that the plaintiff not having made payment of the remaining sale consideration, the agreement to sale stands cancelled and any other person who in the meantime, may have any right created in his favour may lodge his claim. The plaintiff did not respond to the said public notice also. Insofar as defendants are concerned therefore, latest by 7.6.2001 agreement to sale stood cancelled. Quite apart from the question whether AO/9620/2008 12/15 JUDGMENT time was of the essence of the contract or not, the defendants on their side treated the agreement cancelled - upon the plaintiff according to them - having failed to perform his part of the contract. If the plaintiff had any dispute about such unilateral cancellation of the agreement, it was his duty to approach the Court of law questioning the stand of the defendants and seeking appropriate relief in this regard. This had to be done within the period of limitation prescribed. Such a suit was filed only in the year 2005. 12.Section 53A of the Transfer of Property reads as under : “53A Part Performance.-Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then,notwithstanding that [***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the AO/9620/2008 13/15 JUDGMENT transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract; Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.” 13.It can thus be seen straightway that the said provision would apply in a case where transferee in part performance of the contract has taken possession of the property or any par thereof or being already in possession continued in possession in part performance of the contract. In the present case, I find that this vital condition is not fulfilled. Section 53A of the Transfer of Property Act therefore, will have no application in the present case. 14.In view of the above background, I find that the learned Judge committed error in granting injunction in favour of the plaintiff. It is true that under somewhat similar circumstances, my learned predecessor has taken a different view in Appeal from Order No. 97/2008. I however, find that certain factual issues and other relevant aspects were not fully highlighted before the Court. Further, in the order dated 9.4.2008, learned Judge had not laid down any ratio on legal issue which would bind me in exercise of my discretion. Present is a AO/9620/2008 14/15 JUDGMENT case where I am examining whether the plaintiff has established any prima facie case on the strength of material produced by both sides. 15.Under the circumstances, with profound respect to the learned Judge, I still do not find that I can follow the same view or that in any manner, I am bound in exercise of my discretion. 16.This brings me to the authority cited by the respondents. Reliance was placed on the decision of Bombay High Court in case of Balasaheb Manikrao Deshmukh and another v. Rama Lingoji Warthi reported in AIR 2000 Bombay 337, wherein it was observed that in view of provisions contained in Section 53-A of the Transfer of Property Act, protection under the doctrine of part performance is available to the purchaser even in the suit for specific performance of contract has become time barred. In the present case, however, as already noted, I find that the respondent i.e. original plaintiff undisputedly was not in possession of the suit land and Section 53-A of the Transfer of Property Act would therefore, have no applicability. 17.Under the circumstances, order dated 4.2.2008 is set aside. Appeal succeeds. Appeal as well as civil application disposed of accordingly. 18.Needless to say, all the observations made AO/9620/2008 15/15 JUDGMENT above are meant for dealing with the interim stage of the suit and will not hamper either side in pursuing their contentions in the pending suit. 19.At the request of learned advocate Shri Joshi for the respondent, this order shall stand stayed till 30.11.2008. (Akil Kureshi,J.) (raghu)