1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 299 OF 2009 Pradeep Arjundas Ramchandani .. Appellant versus Smt.Anita Sunil Mafai .. Respondent ... Mr.S.P. Kanuga for the appellant Mr.Vinod Tayade for the respondent. CORAM : B.H.MARLAPALLE AND D.G. KARNIK, JJ DATED : 26th March 2009 P.C.: 1. This appeal is directed against the judgement and order dated 1st December 2008 passed by the Joint Civil Judge, Sr. Division, Kalyan dismissing the Special Civil Suit no.56 of 2005 filed by the appellant. 2. When we heard the learned counsel for the 2 parties on admission of the appeal on 12th March 2009, we were of the view that the appeal can be disposed of finally at the stage of admission itself. Accordingly, we called for the record and proceedings and made clear to the counsel that the appeal would be disposed of finally at the stage of admission itself. Record has been received and we have perused the same and have heard the counsel for the parties. 3. According to the appellant (original plaintiff), the property bearing Chalta No.163, Plot no.618(P), Sheet No.75, situate opposite Block No.A-25, Ulhasnagar Camp no.1, admeasuring 1792 sq.yards (for short "the suit property") was in occupation of one Murlidhar Girdharilal Gurnani - the father of the respondent (original defendant). As per the government resolution dated 27th April 1973, the respondent was entitled to get a conveyance in her favour from the government. The appellant who was interested in the development of the suit property entered into an agreement with the respondent to purchase half share in the suit property on 7th April 2002. As the respondent thereafter failed to obey the said agreement the appellant filed a suit bearing Special Civil Suit no.56 of 2005 against her for the following reliefs. 3 a) The Hon’ble Court may be pleased to declare the right, title and interest of any nature whatsoever of the Plaintiff in the suit premises/property know as plot/ property Opp. Bk.No.25, area adm. about 1792 sq.yards Ulhasnagar -1, Dist.Thane for half share. b) The Hon’ble Court may be pleased to direct the Defendant not to create 3rd party on sale the suit property (plot). c) The Plaintiff craves leave to file the documents as and when required for the relief, he claims in the interest of justice. d) The defendant is ordered and decreed to pay the cost of this suit to the Plaintiff. e) Any or other such relief as this Hon’ble Court may deem, fit and proper in the interest of justice and equity be granted. 4 4. After considering the evidence adduced by the parties the trial court dismissed the suit. Aggrieved appellant is in appeal. 5. Averments made in the plaint and in particular the prayer clause show that the suit filed by the appellant was not for the specific performance of the agreement dated 7th April 2002. The suit was filed on the assumption that the appellant had become owner of the half share in the property on the basis of the agreement dated 7th April 2002. The appellant had claimed a declaration that he had half share in the suit property and had further prayed for an injunction restraining the respondent from creating third party interest therein. 6. We have perused the agreement dated 7th April 2002, titled as "Memorandum of Understanding". It is not a deed of conveyance. It is not registered and is written on a stamp paper of Rs.20/- only. By any standards, it cannot be construed as a conveyance or transfer of any interest in the suit property rights in favour of the appellant. Section 54 of the Transfer of Property Act lays down that the agreement of sale, by itself, does not create any interest in the property. The learned trial Judge has held that 5 the appellant was not an owner of the property and the agreement dated 7th April 2002 did not create any interest in the property in his favour. We find no error in the said finding recorded by the trial Judge. 7. Mr.Kanuga, learned counsel for the appellant however submitted that the plaint must be read as a whole and minor errors or lacunaes in drafting of the plaint cannot and should not cause prejudice to the appellant. He submitted that read as a whole the suit should be treated as a suit for specific performance of the agreement dated 7th April 2002. So construed a decree for specific performance ought to have been passed in favour of the appellant by the trial court. We are unable to agree with the submission for the reasons given below. 8. We have carefully perused whole of the plaint. By any stretch of imagination, the appellant’s suit cannot be treated as a suit for specific performance for an agreement of sale dated 7th April 2002. Not only that no relief for specific performance was claimed in the plaint, even otherwise the plaint cannot be construed as a plaint of a suit for specific performance. There is no pleading in the plaint about his readiness and willingness of the appellant to perform his part of the contract which is a 6 pre-requisite for passing of a decree for specific performance in view of section 16(c) of the Specific Relief Act. In paragraph no.5 of the plaint, the appellant has stated that he had sent legal notice to the respondent on 7th February 2005 asserting that he was the owner of half share of the suit property. The appellant was thus claiming that he had become the owner of half share in the suit property. In the absence of any conveyance he acquired no title and the trial Judge has rightly held that appellant was not the owner. We confirm the finding of fact recorded by the trial court that appellant was not the owner of half or any share in the suit property. Since the appellant was not owner of half share or any share in the suit property, he was not entitled to a relief of declaration of ownership. The suit has rightly been dismissed by the trial court. 9. The appeal therefore fails and is dismissed but in the circumstances, without any order as to costs. (D.G. KARNIK, J) (B.H. MARLAPALLE, J)