Gujarat High Court

Hanspur Road Co.Op.Housing Society Ltd vs Vithal Mandir Trust on 12 January, 2023

Author:
Aravind Kumar

Bench:
Aravind Kumar
,
Ashutosh Shastri

C/FA/3517/2000 CAV JUDGMENT DATED: 12/01/2023

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2015
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2016
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2022
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2007
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2014
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2
of 2022
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ORDERS) NO. 3 of 2007
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ORDERS) NO. 3 of 2014
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2018
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 3
of 2022
In
R/FIRST APPEAL NO. 3517 of 2000

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With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 4
of 2022
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 5
of 2022
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 6
of 2022
In
R/FIRST APPEAL NO. 3517 of 2000
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 7
of 2022
In R/FIRST APPEAL NO. 3517 of 2000
=============================================
HANSPUR ROAD CO.OP.HOUSING SOCIETY LTD.
Versus
VITHAL MANDIR TRUST & 14 other(s)
=============================================
Appearance:
MR YATIN N. OZA, SENIOR COUNSEL WITH
MR YH MOTIRAMANI(3720) for the Appellant(s) No. 1
APPEARANCE WITHDRAWN for the Defendant(s) No. 12
DECEASED LITIGANT for the Defendant(s) No. 6
MS BELA A PRAJAPATI(1946) for the Defendant(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 10,9
THAKKAR AND PAHWA ADVOCATES(1357) for the Defendant(s)
No. 11,13
UNSERVED EXPIRED (N) for the Defendant(s) No. 7,8
GOVERNMENT PLEADER for the Defendant(s) No. 15
J K GANDHI(7482) for the Defendant(s) No. 14
MR SHALIN MEHTA, SENIOR COUNSEL WITH
MR ANKIT SHAH(6371) for the Defendant(s) No.
6.1,6.1.1,6.1.2,6.1.3,6.1.4
MR BJ TRIVEDI(921) for the Defendant(s) No. 4
MR BM MANGUKIYA(437) for the Defendant(s) No. 1
MR MEHUL S. SHAH, SENIOR COUNSEL WITH
MR MG NAGARKAR(496) for the Defendant(s) No. 3,5
MR NIRAJ V ASHAR(2562) for the Defendant(s) No. 15
MR NM KAPADIA(394) for the Defendant(s) No. 2
=============================================

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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI

Date : 12/01/2023
CAV JUDGMENT

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR)

1. This first appeal is directed against the

judgment and decree passed in Special Civil Suit No.167

of 1984 dated 23.10.2000 whereunder suit filed for

specific performance of Agreement of Sale dated

27.12.1974 came to be dismissed.

BRIEF BACKGROUND OF THE CASE:

2. The parties are referred to as per their rank in

the trial court.

3. Plaintiff claiming to be a cooperative society

registered under the
Gujarat Cooperative Housing

Societies Act
sought for a decree of specific performance

being passed in its favour contending inter alia that

property bearing Survey Nos.37 and 39 situated at village

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Thaltej, Taluka Daskroi, District Ahmedabad,

admeasuring 2-Acres and 29-Gunthas and 4-Acres and 38-

Gunthas respectively belonged to first defendant which is

a trust registered under the
Bombay Public Trusts Act

(for short, '
BPT Act
') and defendant Nos.2 to 8 are its

trustees. It was further contended that defendants had

executed an Agreement for Sale dated 18.08.1966 in

favour of Pramukhlal Jivanlal Parikh and Ambalal

Ishvarlal Prajapati. Said Pramukhlal Jivanlal Parikh as

well as the Trust executed an Agreement of Sale dated

21.09.1970 in favour of Gangaram Bhaskarrao Pavde.

Said Gangaram Bhaskarrao Pavde assigned his rights in

favour of a partnership firm M/s.Jalpa Traders through its

partner Mukundbhai Chimanlal Shah. One of the trustees

Mr.Kunjbiharilal Madhavlal Bhagwat is said to have

executed an Agreement to Sell dated 08.05.1972 in

favour of the partnership firm Jalpa Traders through its

partner Mukundbhai Chimanlal Shah and he had also

previously executed an Agreement dated 03.04.1972. As

such, Jalpa Traders claimed all rights under the

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Agreement to Sell acquired by it. The said rights of

Agreement of Sale which was acquired by Jalpa Traders

came to be assigned by the said firm through its partners

in favour of M/s.Chhaganlal and Company vide

Agreement to Sell dated 23.11.1973, who entered into an

Agreement of Sale in favour of the plaintiff society to sell

the land under the Agreement of Sale dated 27.12.1974,

under which agreement plaintiff society is said to have

paid a sum of Rs.15,000/- to M/s.Chhaganlal and

Company. Plaintiff also claimed that a sum of Rs.25,000/-

is paid on 20.05.1975 and Rs.5,000/- on 15.12.1978 and

in all Rs.45,000/- was paid to said Chhaganlal &

Company. Plaintiff claimed that all trustees of the

defendant trust have agreed to continue the Agreement

of Sale dated 27.12.1974 executed by M/s.Chhaganlal and

Company and at the first instance, the agreed price was

Rs.3.25 per sq.meter and it was agreed to be revised

upwards by Rs.2 per sq.meter totaling to Rs.5.25 per

sq.meter. It is also contended that while assigning all

rights over the said land in favour of the plaintiff society

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by the defendants, all the defendants have executed their

writings over the Agreement to Sell dated 27.12.1974 and

on 18.04.1976 vacant and peaceful possession of the land

(hereinafter referred to as 'suit schedule property')

agreed to be sold in favour of plaintiff society was handed

over to the plaintiff.

4. It is further contended by the plaintiff that

defendant trust had received a sum of Rs.20,001/-

towards consideration by Cheque dated 21.10.1982 which

has been duly accepted that it was in lieu of Cheque

dated 11.08.1982 owing to certain mistake in the said

cheque. It is also contended that further sum of

Rs.5,500/- was paid towards sale consideration on

30.12.1982 and a sum of Rs.5,000/- paid on 04.06.1983 by

cheque drawn on Ahmedabad District Cooperative Bank.

Thus, plaintiff society claimed that in all it had paid

Rs.30,501/- to the defendant trust.

5. Plaintiff also claimed that one Shri Babaji

Bapuji had been as appointed on 01.10.1976 as

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Watchman for the suit schedule property after obtaining

possession and a sum of Rs.4,800/- was paid to him by

Chhaganlal and Company and same had been refunded by

plaintiff to Chhaganlal and Company. Plaintiff als claimed

a sum of Rs.4,800/- was paid on 25.09.1978 and on

16.12.1978, further sum of Rs.4,800/-, Rs.5,300/- on

10.06.1980 and Rs.5,300/- on 17.06.1981. Thus, in all a

sum of Rs.25,000/- was claimed to have been paid to the

said Babaji Bapuji by the plaintiff society. It is further

contended that plaintiff society appointed Shri

Jagbahadur Lagbadahur Thapa as Watchman on monthly

salary and presently Rs.400/- is paid to him towards his

salary. It is contended that a room has been constructed

for the residence of said watchman and as such, plaintiff

claimed to be in possession of the suit schedule property.

6. Plaintiff has contended that it was desirous of

constructing houses for its members and as such had got

a layout plan drawn by the Engineer which plan was also

duly signed by the trustees. Plaintiff has contended that

defendant trust had also filed an application before the

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Charity Commissioner seeking permission to sell the suit

land as required under
Section 36
of the BPT Act. Plaintiff

also contended that defendants have filed Form No.1 at

Gandhinagar as per
Section 20
of the Urban Land

(Ceiling and Regulation) Act seeking exemption from the

provisions of said law wherein it is specifically mentioned

that defendant has proposed to sell the suit land to the

plaintiff.

7. Contending that defendant No.1 trust was

attempting to dispose of the suit land to someone else

owing to price escalation and there is likelihood of

plaintiff being disturbed of possession and despite being

told by the plaintiff to execute the sale, said demand is

not being complied by defendant and as such, plaintiff

initially instituted a Civil Suit No.210 of 1983 for

perpetual injunction which was withdrawn with

permission on 17.07.1984 and the present suit was filed

on the same day i.e. on 17.07.1984 seeking for specific

performance of the Agreement of Sale dated 27.12.1984.

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8. On service of suit summons, defendant Nos.1 to

4 and 6 appeared and filed their written statement

denying the averments made in the plaint except to the

extent expressly admitted thereunder. It was contended

that similar suit had been filed earlier and it has been

withdrawn and therefore the present suit was barred by

res judicata. It was also contended that present suit was

barred by limitation. It was specifically contended that

suit is not maintainable as per
Section 51
of BPT Act

since written permission from the Charity Commissioner

for filing of the suit was not obtained and on this ground

suit was liable to be dismissed. It was also contended that

Charity Commissioner is a necessary and proper party to

the suit as contemplated under
Section 51(3)
of the BPT

Act and for non-joining of necessary party, the suit is

liable to be dismissed. Contending that under
Section 80

of the BPT Act, the Civil Court does not have jurisdiction

to hear and adjudicate the suit, defendants sought for its

dismissal.

9. It was also contended that defendants had

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entered into Banakhat - Agreement to Sell the sit land to

Pramukhlal and Ambalal but later on the trust and

Pramukhlal made another Banakhat - Agreement to Sell

in favour of Gangaram Pavde which agreement was not

duly signed by all the trustees. It was further contended

that in the earlier Agreement to Sell entered into by the

trust with Pramukhal and Ambalal, it did not contain the

signature of Ambalal and as such, the said Banakhat -

Agreement to Sell was pleaded to be not legal. Denying

the fact that Gangaram Pavde had transferred his

Banakhat rights to third party, the plaintiff has been put

to strict proof of the same. It is further contended that

from amongst the trustees of the first defendant trust,

one of the trustees on advise of the plaintiff had entered

into Agreement to Sell in favour of Mukundbhai on behalf

of Jalpa Traders on 08.05.1972. This Agreement to Sell

was signed by Mr.Kunjbihari who had not been

authorized by all the trustees to enter into such

agreement. Hence, contending that trust is not

responsible or answerable for such transaction and

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denying that Kunjbihari being the Managing Trustee of

the trust or having any such unilateral power to enter

into Agreement of Sale, they have denied said agreement.

The agreement dated 03.04.1972 was also pleaded not to

be in the knowledge or not being in the knowledge of

defendants and plaintiff was put to strict proof of the

same. The right of Jalpa Traders transferring their

Banakhat rights, defendants pleaded their lack of

personal knowledge as also the right of Chhaganlal and

Company transferring their Banakhat rights in favour of

the plaintiff. The contention raised by the plaintiff in the

plaint in this behalf has been denied and plaintiff has

been put to strict proof of the same. The fact of

possession having been delivered to the plaintiff by the

trustees is also denied. The execution of the document

with regard to possession of the suit schedule property

having been delivered to the plaintiff is also denied by the

defendants. It was contended that one Mr.Anubhai

Premchand was claiming to be the tenant and the dispute

in this regard was pending before the Revenue Tribunal.

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The Banakhat - Agreement to Sell between Chhaganlal

and Company and M/s.Jalpa Traders on 13.11.1973 about

delivery of vacant possession is denied. It was specifically

denied that plaintiff was put in possession of the suit

lands.

10. Plaintiff was put to strict proof with regard to

affixure of signature of defendants with regard to layout

plan. However, defendants admitted to have made an

application before the Charity Commissioner for selling

the suit land and filing the form before the ULC

authorities.

11. It is also contended that defendant is a public

trust registered under
BPT Act
and without obtaining

permission to sell, the suit schedule property cannot be

sold to any private person and this fact is well within the

knowledge of the plaintiff. Hence, the alleged delivery of

possession of suit schedule property in favour of plaintiff

came to be denied. It was contended that suit land is in

possession of the tenants and case was pending before

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the Revenue Tribunal. Hence, it was contended that

plaintiff was not in possession of the suit land.

12. The defendants denied the plaintiff's claim of

having made any oral demand for executing the sale and

contended that there is no direct contact between the

plaintiff and defendants to sell the suit schedule land.

Contending that the trust cannot sell the land to the

plaintiff, as it does not have permission and defendants

are also not bound to sell the suit schedule land. It was

specifically contended that all the trustees have not

affixed their signatures and there is no legal contract

between plaintiff and defendants qua the suit land. On

these grounds amongst others pleaded in the written

statement, they sought for dismissal of the suit.

Defendant No.5 and 15 have filed their written

statements as per Exhibits-54 and 126 respectively.

Subsequently, 15th defendant was ordered to be deleted

and accordingly 1st defendant has been deleted. The

Charity Commissioner has not filed any reply. No other

defendants have filed their written statement. Hence,

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based on the pleadings of the parties, the learned Trial

Judge framed ten (10) issues for determination. Learned

Trial Judge has answered issue No.1 in the affirmative

and issue Nos.2, 8(a), 9 and 10 partly affirmative. Issue

Nos.3 to 8 in the negative.

13. In order to substantiate the averments made in

the plaint, one Shri Babulal got himself examined as only

witness on behalf of the plaintiff. His deposition has been

marked as Exhibit-49. No witnesses were examined on

behalf of plaintiffs. On appreciation of oral and

documentary evidence, learned trial Judge by judgment

and decree dated 23.10.2000 partly decreed the suit and

directed defendant Nos.1 to 8 and defendant No.14 to

refund sum of Rs.25,000/- plus Rs.40,000/- to the plaintiff

with interest at 12% per annum from the date of receipt

of judgment and dismissed the prayer for specific

performance. The relief of perpetual injunction sought for

has been rejected and the interim order which had been

granted on Exhibit-5 application came to be revoked.

Hence, this appeal.

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14. We have heard the arguments of Shri Yatin

Oza, learned Senior Counsel appearing for the appellant

and Shriyuths Shalin Mehta, Mehul S. Shah and Devang

Nanavati, learned Senior Advocates alongwith Shriyuths

Brijesh Trivedi, N.M.Kapadia and B.M.Mangukiya,

learned advocates for contesting respondents.

14.1 It is the contention of Mr. Yatin Oza, learned

Senior Advocate appearing for the appellant that Trial

Court had committed a serious error in not considering

the pleadings in proper perspective. He would contend

that learned Trial Judge ought to have appreciated the

fact that none of the defendants had tendered any oral

evidence in support of their pleadings and as such the

suit ought to have been decreed as prayed for. He would

contend that trial judge erred in arriving at a conclusion

that there is no existence of agreement of sale in favour

of the appellant warranting a decree of specific

performance by completely ignoring the fact that Trial

Court itself has accepted that plaintiff had proved that

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part of sale consideration had been paid by the plaintiff to

defendant No.1 trust which would itself indicate the

existence of an agreement of sale.

14.2 He would also contend that if there had been

no intention on the part of the appellant and respondent

No.1 trust to act upon the said agreement of sale, no

steps could have been taken by defendant No.1 as well as

by the appellant and the very fact that requisite

permission from the concerned authorities having been

filed not being in dispute was itself sufficient to arrive at

a conclusion that there was existence of an agreement of

sale and there was no intention on the part of plaintiff

and defendant No.1 not to act upon said agreement.

14.3 He would also contend that in part performance

of the agreement of sale, possession of the suit land had

been handed over to the plaintiff and as such defendant

No.1 is precluded from taking contrary stand in this

Appeal. He would submit that oral testimony of the

plaintiff's witness would get support from the

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documentary evidence tendered and same has been

completely ignored by the Trial Court and the ones which

have been considered is not accepted without any reasons

being assigned and as such there is no justification for

the learned Trial Judge to have arrived at a conclusion

that plaintiff was not in possession of the suit schedule

property.

14.4 He would elaborate his submissions by

contending that learned Trial Judge erred in arriving at a

conclusion that agreement of sale Exhibit 194 through

which the interest possessed by Chhaganlal & Company

was transferred to plaintiff was not having signatures of

all the trustees of respondent No.1 trust would be of no

consequence since way back in the year 1978, i.e. on

11.11.1978, a resolution had been passed by trust which

conclusively disclosed that defendant No.1 had consented

to the sale transaction in favour of Chhaganlal &

Company and thereafter in favour of the appellant,

subject to permission being obtained from the Charity

Commissioner and as such any stand taken contrary to

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the same either by defendant No.1 or by other trustees is

of no consequence.

14.5 He would contend that had it been the case of

the appellant not being ready and willing, it would not

have affected the payment of part consideration and

plaintiff would not have moved the authorities for

obtaining various permissions under provisions of various

statutes, nor would it have deployed its watchman for the

purpose of maintaining the suit land. He would also

contend that the provisions of
Sections 50
and
of the

Gujarat Public Trusts Act, 1951 would not be attracted to

the facts on hand as defendant No.1 trust is not a public

trust. He would also contend that provision contained

under
Section 36A
of the Gujarat Public Trusts Act, 1951

is applicable only to transfer by way of sale, mortgage or

release and not to a transaction of agreement of sale

which is distinct and different from that of transaction of

sale. Hence, he contends that question of obtaining prior

permission would not arise. He would also contend that

the documents produced along with civil applications

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seeking for additional evidence would clearly disclose the

existence of agreement of sale Exhibit 194 between

plaintiff and defendant No.1 and by referring to various

documents produced along with the plaint which though

produced had not been exhibited but referred to in the

deposition of plaintiff's witness to contend that all the

trustees except defendant No.7 had filed application

under
Section 36
of the Gujarat Public Trusts Act, 1951

before the Charity Commissioner seeking permission to

sell the suit schedule property to the plaintiff which itself

was sufficient to hold that there was an agreement of sale

executed by defendant No.1 in favour of the plaintiff. He

would draw the attention of the Court to the agreement of

sale marked as Exhibit 194 to contend that pursuant to

the said agreement executed in favour of plaintiff

executed by the said Chhaganlal & Company which had

been endorsed by 5 trustees and subsequently ratified on

18.4.1976 by 4 trustees and as such there being a clear

evidence to said effect, there was no impediment for the

Trial Court to have decreed a suit as sought for. He

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would also contend that as per the said endorsement

dated 18.4.1976 made by defendant No.1 trust and its

trustees, the possession of the suit schedule property was

handed over to the plaintiff and in furtherance of the

same, defendant No.2 on behalf of defendant No.1 trust

had filed Form No.1 before Urban Land Ceiling Authority

seeking exemption for selling the suit scheduled land. He

would also draw the attention of the Court to the

document dated 28.8.1978 issued by the District

Panchayat whereunder permission had been granted to

the plaintiff to purchase the suit land. By inviting the

attention of the Court to the order dated 20.10.1978

passed by the Revenue Department rejecting the

application seeking exemption under
Sections 19
and
of the Urban Land Ceiling Act, he would contend that

same would reflect that there was an agreement of sale in

favour of the plaintiff. He would further contend that

defendant No.1 trust had passed a resolution on

11.11.1978 resolving to sell the suit land to the plaintiff,

which resolution was duly signed by defendant Nos.2 to 4

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and 6 which would evident that there was an agreement

of sale and this when read along with Exhibit 205 to 207

would clearly evidence the fact of there being an

agreement of sale between plaintiff and defendant.

14.6 He would contend that even assuming and

accepting that only few trustees have signed the

agreement of sale then also appellant would be entitled to

seek specific performance and mere non-execution of the

agreement of sale by other trustees would not render the

agreement of sale invalid. He would contend that when

Form No.1 was filed before the Urban Land Ceiling

Authority for exemption, same was not objected to by any

other trustee and thus, defendant No.2 was held to be

authorised to act for and on behalf of other trustees.

Insofar as finding recorded by the Trial Court with regard

to advance money of Rs.45,000/- paid to defendant No.14,

he would submit that said defendant itself admitted in the

written statement filed to the said effect and as such

finding of the Trial Judge requires to be set aside. He

would also contend that plaintiff has complied with the

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terms and conditions of the agreement Exhibit 194 and

has paid Rs.25,001/- to defendant No.1 as per the agreed

terms viz. within 6 months. On account of defendants

having not denied this fact, he prays for adverse

inference being drawn against the defendants.

14.7 Insofar as possession of the suit schedule

property is concerned, he would submit that even in the

application filed by the trustees before various statutory

authorities, they admit that plaintiff was in possession of

the suit property and even otherwise Trial Judge failed to

consider the question of possession being immaterial

while adjudicating the suit filed for specific performance

of agreement of sale (Exhibit 194).

14.8 He would also contend that permission under

Section 36
of the Gujarat Public Trusts Act, 1951 not

being there on record was the reason for dismissing the

suit and same is contrary to the principles laid down by

this Court in AIR 1984 GUJ 145 and the judgment of the

Hon'ble Apex Court in 2020 SCC OnLine SC 825. he

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would contend that even otherwise subsequent

application can be filed and in view of subsequent law viz.

Urban Land Ceiling Act
having been repealed, question of

obtaining permission under
ULC Act
did not arise.

14.9 On the issue of readiness and willingness, he

would submit that very fact that plaintiff has complied

with all terms and conditions of the agreement would

indicate its continuous readiness and willingness having

been exhibited by the plaintiff. He would contend that

very fact that appellant has agreed to pay the revised

rates to the trustees; and has paid consideration towards

the defendant trust as well as defendant No.14 as agreed

to Exhibit 194 is a mirror to the fact that the appellant /

plaintiff has been ready and willing to perform his part of

the contract. He would also contend that though plaintiff

has not stated in actual words and stated to the effect

that he is ready and willing, the very fact that the plaintiff

is ready to pay the balance consideration as stated in the

prayer would suffice for this Court to arrive at a

conclusion that plaintiff has been ready and willing to

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perform his part of the contract. Non-consideration of

these vital aspects has resulted in miscarriage in

administration of justice.

14.10 Mr.Yatin Oza, learned Senior Counsel

appearing for the appellant would contend that

interlocutory applications filed for production of

additional evidence be allowed and the documents

produced along with the said application be admitted in

evidence. He would also contend that no time limit has

been fixed for filing of an application for additional

evidence. He would also contend that some of the

documents have come into existence subsequent to the

filing of the present appeal and as such this Court can

take note of subsequent events. He would also contend

that some of the documents which are prior to the filing

of the appeal were not in the custody of the appellant and

appellant had no knowledge as appellant was not a party

in the proceedings held by the Charity Commissioner and

as such these documents could not have been produced

at earlier point of time. He would submit that even

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otherwise for substantial cause the documents can be

taken on record and some of the documents being public

documents, this Court should adopt liberal approach in

receiving the same by way of additional evidence.

14.11 He would further contend that Explanation-II of

Section 16(c)
will have no application. He would contend

that
Section 114
of the Gujarat Public Trusts Act which is

analogous to
Section 80
of the Bombay Public Trusts Act

will have no application inasmuch as no Civil Court has

decided any issue and as such a conditional decree can be

passed by this Court. He would contend that escalation of

the price would not be a ground on which plaintiff can be

denied the relief of specific performance and he would

draw the attention of the Court to the judgment of

Hon'ble Apex Court in the matter of
Nirmal Anand Vs.

Advent Corporation Private Limited
reported in

(2002) 8 SCC 146. Hence, he has prayed for Appeal

being allowed. In support of his submissions, he has

relied upon following judgments :

(1) (2005) 1 SCC 172 - J.P. Srivastava & Sons

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Pvt. Ltd. vs. Gwalior Sugar Co. Ltd. And
Ors
.

(
2) AIR 1930 Mad 476 - Sultan Mahomed
Rowther vs. Muhammad Esur Rowther
and Ors
.

(
3) AIR 1952 P&H 234 - Shankar Das Rup Lal
vs. Governor - General
in Council

(4) (1970) 2 SCC 386 - Jugraj Singh and Anr.

Jaswant Singh & Ors.

(
5) 2018 (1) Mh.L.J. 259 - LIC of India versus
Digvijaysingh Gangasingh

(
6) (1999) 3 SCC 573 - Vidhyadhar v.
Manikrao and Anr.

(
7) (1927) 29 BOM LR 1392 - Sardar
Gurbaksh Singh vs. Gurdial Singh

(8) 2021 SCC OnLine SC 802 - Jitendra Singh
vs. State of MP and Ors.

(9) (2001) 7 SCC 698 - Adcon Electronics Pvt.
Ltd. Versus Daulat and Anr.

(10) AIR 1984 Guj. 145 -
Shah Jitendra Nanalal
Ahmedabad vs. Patel Lallubhai Ishverbhai
Ahmedabad and Ors
.

(11) 2020 SCC Online SC 825 - Ferrodous
Estates (Pvt.) Ltd. Versus P. Gopirathnam

(12) (2002) 5 SCC 481 - Nirmala Anand versus
Advent Corporation (P) Ltd.

(13) (1977) 3 SCC 179 - Govindbhai
Gordhanbhai Patel and Ors. vs. Gulam

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Abbas Mulla Allibhai & Ors.

(14) 2020 SCC Online SC 825 - Ferrodous
Estates (Pvt.) Ltd. Versus P. Gopirathnam

(15) (1969) 3 SCC 120 - Nathulal vs.
Phoolchand

(16) (1999) 6 SCC 337 - Syed Dastagir vs T.R.
Gopalakrishna Setty

(
17) Civil Appeal No. 5110 of 2021 - Sughar
Singh vs. Hari Singh (Dead
) through Lrs.
& Ors.

(
18) (1970) 3 SCC 140 - R.C. Chandiok and
Anr. vs. Chuni Lal Sabharwal and Ors
.

(19) CO 40 of 2018 - Bimal Chandra
Mukhopadhyaya vs. Pashupati Sengupta
& Ors.

(
20) 2019 (132) ALR 640 - Jamal Ahmad Khan
vs. Shamim Jahan

(21) (2001) 10 SCC 619 - State of Rajasthan
versus T.N. Sahani

(
22) (2012) 8 SCC 148 - Union of India vs.
Ibrahim Uddin and Anr
.

(23) (2001) 9 SCC 245 - Badami Devi and Anr.

Ambuja Raghavan

(24) (1992) Supp (2) SCC 623 - Ramesh kumar
v. Kesho Ram

(25) (2015) 1 SCC 677 - Wadi v. Amilal & Ors.

(26) 2022 SCC Online SC 292 - Sanjay Singh

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versus State of Jharkhand

(27) (2001) 10 SCC 619 - State of Rajasthan
versus T.N. Sahani

(28) AIR 1963 SC 1526 - K. Venkataramian v.

Seetharama Reddy

(29) IDMC Erstwhile Indian Dairy Machinery
Company Ltd. vs. Mohini Pressuram
Tilwani - CA NO.
2 of 2019 in LPA No.
1225 of 2019 in SCA No. 10252 of 2018

(30) 2005 (1) ALT 212 - Sridevgamma v. K.
Shivaraj and Ors.

(
31) AIR 1994 HP 172 - Mehar Chand and
Others versus Lachhmi and Ors
.

(32) (2013) 10 SCC 758 - Kaliya versus State
of MP

(
33) (2016) 16 SCC 482 - Rakesh Mohindra vs.
Anita Beri and Ors
.

(34) (2000) 6 SCC 735 - Marwari Kumhar and
Ors. Versus Bhagwanpuri Guru
Ganeshpuri and Anr.

(35) 1993 Mh.L.J. 588 - Abaji Daulata Yadav
since deceased by his heirs and
Others
versus Dhondiram Jagedevrao Yadav and
Ors
.

(36) AIR 1972 HP 19 - M/s. Lim & Co. vs. K.M.
Sayeed

(37) 2022 SCC Online 351 - Premlata @ Sunita
vs. Naseeb Bee and Ors.

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(38) LPA No. 1153 of 1998 - Legal Heirs of
deceased
Mithabhai Mavjibhai vs. State of
Gujarat

(39) 2010 SCC Online Guj.
8105 - Patel
Motibhai Galbabhai vs. Patel Dahiben
Valjibhai & Ors.

(
40) Civil Appeal No. 2095 of 2022 - P.
Ramasubbamma vs. V. Vijayalakshmi &
Ors
.

14.12 Mr.Shalin Mehta, learned Senior Counsel

appearing for the 6th defendant has contended that

agreements dated 18.08.1966, 21.09.1970, 08.05.1972

and 03.04.1973 as well as agreement dated 13.11.1973

which has been referred to in Exhibit 194 were never

produced and marked as exhibits and as such the very

basis on which plaintiff seeks specific performance has

not been proved, question granting decree for specific

performance does not arise. He would also contend that

plaintiffs have never demanded defendants for execution

of Sale Deed and would draw the attention of the Court to

paragraph 12 of the written statement filed by defendant

Nos.1 to 4 and 6. He would submit that after rejection of

the application by the Charity Commissioner no steps

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were taken by plaintiffs. He would contend that in the

instant case there were three rejections namely on

27.10.1970, the Charity Commissioner accorded

permission to sell the suit schedule property within a

fixed time. Subsequently, by order dated 26.02.1986 it

rejected the application filed by Vitthal Mandir Trust,

against which two revisions were filed namely one by the

trust which was subsequently withdrawn and another

revision by Bansilal Amritlal Parikh which came to be

dismissed on merits on 13.06.2001 which was confirmed

in Special Civil Application No.7360 of 2001. He would

contend that trustees are also pujaris and they have a

hereditary right. He would contend that terms and

conditions of the agreement of sale dated 27.12.1974

(Exh-194) are not fulfilled by the plaintiff and hence

specific performance ought to be rejected. He would

contend permission as required under
Section 36
has not

been obtained from the Charity Commissioner for sale of

suit schedule property; time limit as contemplated under

agreement dated 30.11.1973 is not adhered to; plaintiff

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was not possessing money as agreed to be paid under

Exhibit 194 and this is evident from the audit report

Exhibit 36.

15. He would submit that obtaining prior

permission under
Section 36
is mandatory and till filing of

the suit and even as on date no such permission has been

obtained from the Charity Commissioner by the plaintiff.

16. He would submit that plaintiff had earlier filed

a suit No.210 of 1983 and withdrew the same without any

opportunity to institute fresh suit. He would contend that

plaintiff has never whispered a word about readiness and

willingness. He would also submit that plaintiff who had

to aver and prove that he has performed or has been

always ready and willing to perform has not been averred

and proved. He would contend that ULC permission has

been rejected and proof of payment of advance amount

has not been proved by the plaintiff. Hence, he has

prayed for dismissal of the Appeal. In support of his

submissions, he has relied upon the following judgments :

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(i) 2021 Law Suit (SC) 601 - K. Karuppuraj versus
M. Ganesan

(ii) 2022 Law Suit (SC) 62 - Shenbagam and others
vs. K.K.Rathinavel

17. Shri Mehul Suresh Shah, learned Senior

Counsel appearing for 3rd defendant would submit that

there is no cause of action for the suit and the one alleged

in the plaint is without any basis and same is liable to be

rejected. He would also contend that Exhibit 194 is a

contingent contract and cannot be enforced. By

contending that subsequent event is to be taken note of

by relying upon the judgment of Hon'ble Apex Court in

the matter of
Pasupuleti Venkateswarlu vs. The Motor

& General Traders
reported in (1975) 1 SCC 770, he

prays for application for additional evidence filed being

allowed. Contending that permission to sell the suit

schedule property was not there and same has not been

obtained by plaintiff. He would contend that there are no

pleading in the plaint with regard to readiness and

willingness and plaintiff has also admitted under Exhibit

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208 which is an audit report of the plaintiff society for the

period 01.01.1984 to 30.06.1985 that closing balance as

on 1985 was only Rs.724.70ps.
which would indicate that

plaintiff society do not have any money, muchless the

balance amount of consideration being available or

possessed by it.

18. He would submit that a duty is cast on the

Court to protect the public property. In support of his

submission, he has relied upon 1978 GLR 661 and

(2007) 7 SCC 482.

19. He would submit that plaintiff had examined

only one witness as per the examination-in-chief Exhibit

49 and said witness had no authority and he had been

removed from the membership of society even as on the

date he tendered the evidence, he was not a member of

the plaintiff society. He has relied upon following

citations in support of his submission.

(
1) 2021 SCC OnLine SC 147 - Asha John
Divianathan vs. Vikram Malhotra

(2) (2019) 19 SCC 42 - Narayanamma and

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Another vs. Govindappa and Others

(3) 2010 (4) GLR 3562 - Prabodhkumar
Maganbhai Patel vs. Modasa Kadva
Patidar Chhatralaya and Others

(4) 2005 SCC OnLine Bom 706 - Janardan s/o

Ramchandra Bute (Wanjari) vs. Ganapati
Devasthan, Tahsil Deoll

(5) 2020 (3) Mh. L.J. 323 - Avinash
Kishorchand Jaiswal and Another vs. Shri
Rammandi Deosthan, Pavnar and Others

(
6) (2006) 7 SCC 470 - M. Meenakshi and
Others vs. Metadin Agarwal (Dead) By LRs
and Others

(7) Civil Appeal No.150 of 2022 (SC) -

Shenbagam and Others vs. K.K. Rathinavel

(8) Civil Appeal No.9124 of 2018 (SC) - Jagjit
Singh (D) through
LRs vs. Amarjit Singh
(D
) through his
LRs

(9) (2020) 3 SCC 280 - C.S. Venkatesh vs.
A.S.C. Murthy

(
10) (2019) 3 SCC 704 - Kamal Kumar vs.
Premlata Joshi and Others

(11) (2019) 19 SCC 415 - Mehboob-Ur-Rehman
(Dead) through LRs vs. Ahsanul Ghani

(12) 1978 GLR 661 - Hamumiya Bachumita vs.
Mehdihusen Gulamhusen

(
13) (2007) 7 SCC 482 - A.A. Gopalkrishnan vs.
Cochin Devaswom Board and Others

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(14) 1996 SCC OnLine P&H 548 - Punjab State
Coop. Bank Ltd. vs. Milkha Singh and
Another

(
15) (2015) 13 SCC 579 - Baluram vs. P.
Chellathangam and Others

20. Shri Brijesh Trivedi, learned counsel appearing

for the 4th defendant would contend that plaintiff has not

pleaded and proved readiness and willingness. He would

submit that no issue has been framed by the Trial Court

in this regard and no evidence has also been tendered. In

support of this proposition, he has relied upon AIR 2022

Online SC 998 and 2022 (1) JT 344.

21. By relying upon the judgment of the Hon'ble

Apex Court in the case of Khasgi (Devi Ahilyabai

Holkar Charities) Trust, Indore & Anr. Versus Vipin

Dhanaitkar & Others reported in 2022 Law Suit (SC)

854, he would contend that property of public trust

cannot be sold without obtaining permission. He would

also contend that there is no error in the judgment and

decree passed by the Trial Court and plaintiff having

failed to prove his capability to mobilize funds, the

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discretionary relief which has not been granted requires

to be affirmed. On the issue of possession of the suit

schedule property, he would contend that the Trial Court

has recorded a clear finding that plaintiff is not in

possession but defendant is in possession of the suit

scheduled proceeding which would not call for

interference. Hence, he prays for dismissal of the appeal.

In support of his submission, he has relied upon following

citations:

(i) 2022 LawSuit (SC) 62 - Shenbagam and others
vs. K.K.Rathinavel

(ii) AIR OnLine 2022 SC 998 - U.N. Krishnamurthy
(since deceased) Thr. Lrs. Versus A.M.
Krishnamurthy

(iii) 2022 Law Suit (SC) 854 - Khasgi (Devi
Ahilyabai Holkar Charities) Trust, Indore &
Anr. Versus Vipin Dhanaitkar & Others.

22. Shri N.M. Kapadia, learned counsel appearing

for 5th defendant would draw the attention of the Court to

the written statement filed by defendant Nos.1, 4 and 6.

He would submit that from the date of alleged agreement

of sale till filing of the suit, no demand has been made by

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the plaintiff and plaintiff has failed to prove its readiness

and willingness throughout. He would submit that

plaintiff's evidence has to be discarded by trial court and

rightly so, inasmuch as said witness had already resigned

as a member of the society on 13.09.1999 and by relying

upon the resolution dated 13.09.1999 passed by the

plaintiff society, he prays this Court should also ignore

the evidence of the plaintiff witness. He would also draw

the attention of the Court to the finding recorded by the

Trial Court on issue Nos.2 and 3 to contend that plaintiff

has made false statements at four places and plaintiff's

witness did not produce authorization to represent the

plaintiff or file the suit or depose before the Court. He

would submit that a specific defence has been taken by

the 5th defendant in paragraph 2 of the written statement

and as such, the evidence tendered by the plaintiff cannot

be looked into by this Court. By relying upon the

judgment of the Hon'ble Apex Court in Man Kaur

(Dead) by Lrs. vs. Hartar Singh Sangha reported in

(2010) 10 SCC 512 (paragraph 17), he would submit

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that only person with personal knowledge could have

deposed about the transaction and present witness

Mr.Babulal is not a signatory to Exhibit 194 and none of

the persons who have witnessed the execution of Exhibit

194 have entered the witness-box. Hence, he would

contend that evidence of Babulal need not be looked into.

23. He would also contend that there is no pleading

to the effect that Kunjbihari Bhagwat was the only trustee

and he was authorized to sign on behalf of all the

trustees. In the absence of pleading no amount of

evidence will help the party.
In support of this

proposition, he has relied upon the judgment in the case

of
Biraji Alias Brijraji and another vs. Surya Pratap

and others
reported in (2020) 10 SCC 729. He would

also contend that plaintiff is guilty of suppression of facts

namely it has not whispered a word in the pleadings

about the application filed under
Section 36
having been

rejected and hence, plaintiff is not entitled for

discretionary relief namely specific performance.

In

support of said submission, he has relied upon the

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judgment of the Hon'ble Apex Court in
Bhaskar Laxman

Jadhav and others vs. Karamveer Kakasaheb Wagh

Education Society and others
, reported in (2013) 11

SCC 531. He would contend that the conduct of the

plaintiff disentitles it to any relief and by drawing the

attention of the Court to the order dated 05.03.1992

passed in CRA No.141 of 1987 as per the Exhibit 134 to

contend that even after direction issued, plaintiff had

obtained 49 adjournments and as such, he prays for

rejection of the appeal. He would contend that when

Gujarat Revenue Appellate Tribunal in Appeal

No.TGNAA.33 of 1986 had affirmed the order of the

Charity Commissioner, who had refused to grant

permission to sell the property, question of granting

conditional decree does not arise. Hence, he prays for

rejection of the appeal. In support of his submission, he

has relied upon following judgments :

(
1) N. Vijaya Kumar vs. Smt. Y.N.Leelavanthi

- Judgment dated 05.05.2020 in Regular
First Appeal No.1627 of 2014 passed by
Karnataka High Court, Bengaluru Branch

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(2) (2010) 10 SCC 512 - Man Kaur (Dead) by
Lrs. vs. Hartar Singh Sangha

(3) (2007) 12 SCC 175 - Rozan Mian vs.
Tahera Begum and others -

(
4) (2013) 11 SCC 531 - Bhaskar Laxman
Jadhav and others vs. Karamveer

kakasaheb Wagh Education Society and
others -

(5) Anubhai Premchand Shah vs. Vithoba

Mandir Through its trustees and others -

Order dated 21.04.1992 passed in Special
Civil Application No.4656 of 1990

(6) (1975) 1 SCC 770 - Pasupuleti
Venkateswarlu vs. The Motor & General
Traders

(
7) (1997) 7 SCC 297 - Jaipur Development
Authority vs. Kailashwati Devi (Smt.
)

(
8) (1985) 1 SCC 251 - Variety Emporium vs.
V.R.M. Mohd. Ibrahim Naina

(
9) (2016) 13 SCC 124 - Union of India vs.
K.V.Lakshman and others

(
10) (2008) 8 SCC 511 - North Eastern
Railway Administration, Gorakhpur vs.
Bhagwan Das (Dead) by Lrs
.

(
11) (2018) 6 SCC 574 - Y.P.Sudhanva Reddy
and others vs. Chairman and Managing
Director, Karnataka Milk Federation and
others

(12) (2008) 5 SCC 444 - Lachhman Singh
(Deceased) Through Legal

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Representatives and others vs. Hazara
Singh (Deceased) Through Legal
Representatives and others

(
13) (2004) 10 SCC 507 - Jayramdas and Sons
vs. Mirza Rafatullah Baig and others

(
14) (2011) 15 SCC 692 - Radhakrishna
Dharmartha Private Trust and others vs.
Parmanand Soni (Dead) By Lrs
.

(
15) (2020) 10 SCC 729 - Biraji Alias Brijraji
and another vs. Surya Pratap and others

(16) (2019) 9 SCC 495 - Sri Ganapathi Dev
Temple Trust vs. Balakrishna Bhat Since
Deceased by His Legal Representatives
and others

(17) (1994) 1 SCC 1 - S.P.Chengalvaraya
Naidu (Dead) By Lrs. vs. Jagannath (Dead)
by Lrs.

and others

(18) Appeal Suit No.1052 of 1997 - Judgment
dated 03.12.2019 rendered in case of

Dr.K.Ananda Rao vs Andhra Evangelical
Lutheran

(19) Appeal No.TEN.A.A. 33 of 1986 -

Judgment dated 13.06.2001 rendered by
Gujarat Revenue Tribunal in the case of
Bansidhar Amritlal Parikh vs. Yadavrao
Madhavrao Bhagvat

(20) Special Civil Application No. 7360 of 2001

- Bansidhar Amritlal parikh vs.
Ranchhodbhai Visabhai Desai and Others.

(21) Special Civil Application No. 9962 of 2004

- Harjibhai Karamsibhai Desai vs. Swami

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Abhinnatmanand

24. Mr.Devang Nanavati, learned Senior Advocate

appearing for applicant in Civil Application No.3 of 2018

would contend that applicants are the holders of

agreement of sale dated 18.08.1966 for which the Charity

Commissioner had granted permission and claims to be

necessary and proper party to the present proceedings as

the suit schedule property for which the applicants have

initiated proceedings for specific performance. Hence,

he prays for the application being allowed. He has relied

upon following judgments : -

(i) (2007) 10 SCC 82 - Sumtibai and Others
versus Paras Finance Co. Regd.

Partnership Firm Beawer (Raj.) Through
Mankanwar (Smt.) W/o Parasmal Chordia
(Dead) and Others

(
ii) (2010) 7 SCC 417 - Mumbai International
Airport Private Limited vs. Regency
Convention Centre and Hotels Private
Limited and others

25. Mr. Mangukiya, learned counsel appearing for

respondent Nos.1, 12 and 13 would contend that

respondent No.1 is a juristic person and acts of human

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agency does not bind the trust. He would submit that

trustees and trust have fiduciary relationship. He would

also contend that suit schedule property is an agricultural

land and plaintiffs/purchasers are not agriculturists and

the transaction in question is hit by Section 63 of the

Gujarat Tenancy and Agricultural Lands Act. He would

submit that
Section 36
and
Section 80
of the Trusts Act

bars Civil Court's jurisdiction to grant any relief, as also

Sections 10
,
an 14 of the
Specific Relief Act
. He would

contend that there is no pleadings in the plaint that

transaction is for the benefit of trust and trustees had

acted bonafide in the interest of trust. He would contend

that in the memorandum of appeal, there is no mention

about the finding of the Trial Court being erroneous or

incorrect.

26. He would also elaborate his submissions by

contending that neither the bye-laws of the plaintiff

society have been produced nor the resolution. He would

submit that the provisions of Order VI Rule 14 and 15 has

not been complied and the plaint presented is not in

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accordance with Order XXIX. Hence, he prays for

dismissal of Appeal. In support of his submissions he has

relied upon following judgments : -

(1) AIR 2022 SC 3361 - U.N. Krishnamurthy
(since deceased) Thr. Lrs. Versus A.M.
Krishnamurthy

(2) Civil Appeal No. 150 of 2022 & 2022 (2)
SCALE 56 - Shenbagam and others vs.
K.K.Rathinavel

(3) AIR 2020 SC 3413 - Atma Ram v. Charanjit
Singh

(4) 1994 AIR 853; 1994 SCC (1) 1 - S.P.
Chengalvaraya naidu vs. Jagannath

(5) 1978 GLR 661 - Hamumiyan V.Bachumiyan

(6) (2007) 7 SCC 482 - A.A. Gopalkrishna v.

Kochin Devasthanam

(7) 2005 SCC Online Bom 706 - Janardan v.

Ganapathi Devasthanam

(8) 2010 (4) GLR 3562 - Prabodhkumar v.
Modasa Kadva Patidar

(
9) (2006) 7 SCC 470 - M. Meenakshi & Ors.
vs. Metadin Agarwal (D) by Lrs
. & Ors.

(
10) (1997) 1 GLR 547 - Najmudin I. Bharmal
and Ors. v. Charotar Gramoddhar Sahakari

27. By way of reply arguments, Shri Yatin Oza,

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learned Senior Counsel appearing for the appellant has

contended that there is an endorsement in Exhibit 194 of

possession of suit schedule property having been

delivered to the plaintiff and as such proving the contents

of Exhibit 194 does not arise. By referring to Exhibit 205,

he would contend that trustees (three trustees) have

consented for sale of suit schedule property in favour of

the plaintiff. According to him, when defendants have

agreed and admitted that they have consented for sale of

suit schedule property, they cannot take any contrary

stand in this Appeal. He would rely upon Exhibit 205 to

207 to contend that all trustees have declared that all

four trustees have signed and have given approval to the

agreement of sale Exhibit 194 by filing an application

filed before the Charity Commissioner dated 16.04.2001.

28. He would also submit that defendant Nos.2 to 6

having gone before the Charity Commissioner seeking

permission to compromise and admitting thereunder that

they would be willing to execute the Sale Deed, they

cannot now contend that there are no pleadings with

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regard to readiness and willingness. He would draw the

attention of the Court to Civil Application No.2 of 2014

and Civil Application No.6 of 2022 to contend that

plaintiffs have admitted to have filed application before

the Charity Commissioner agreeing and willing to sell the

suit schedule property in favour of plaintiff. Shri Oza,

learned Senior Counsel would contend since
ULC Act
has

been repealed, the order of rejection of ULC authorities

would be of no consequences and in support of his

submission, he has relied upon 2020 SCC Online 825.

29. By relying upon the judgments reported in

2022 SCC Online (SC) 351 and (2016) 14 SCC 161,

he would contend that defendants cannot be allowed to

take contradictory stands namely having taken a stand

before the Charity Commissioner agreeing to sell the suit

schedule property in favour of the plaintiff cannot now

contend and try to find holes in the plaint to stave off the

claim of plaintiff. He would also contend that

endorsement made on 18.04.1976 in Exhibit 194 by

defendants would clearly go to show that possession of

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the suit schedule property was delivered to plaintiff. He

would also submit that issue regarding readiness and

willingness was not framed and Court below had

committed an error in recording a finding on the said

aspect without framing an issue. In reply to the argument

of Mr.Mangukiya that the suit is hit by Order II Rule 2, he

relies upon the judgment of the Hon'ble Apex Court in

(2004) 11 SCC 219. In reply to the argument that

Exhibit 194 is hit by Section 63 of the Gujarat Tenancy

and Agricultural Lands Act, he would contend that Clause

(c) of the Section 63 was inserted with effect from 1977

namely by Act 30 of 1977 and Section 64A then prevailing

permitted sale of agricultural property in favour of a

cooperative housing society and this provision was

deleted only from 1987 namely by Act 21 of 1987 and as

such, he prays for rejection of the contentions raised by

the respondents and prays for appeal being allowed.

30. Having heard the learned advocates appearing

for the parties we are of the considered view that

following points would arise for our consideration :

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(i) Whether the applications filed for
additional evidence in Civil Application
Nos. 2 of 2007, 3 of 2007, 2 of 2014, 3 of
2014, 1 of 2015, 2 of 2022, 3 of 2022, 4
of 2022, 5 of 2022 and 6 of 2022,
deserve to be allowed or rejected ?

(ii) Whether Civil Application No. 1 of 2016
filed by 5th respondent under
section 151

CPC and order 14 Rule 2(2)
of CPC
and

Section 46
of Bombay Public Trust Act,
1950 deserves to be allowed or
dismissed ?

(iii) Whether Civil Application No. 1 of 2022
filed by appellant for deletion of
respondent no. 2 to 10 from the Appeal
appeal deserves to be allowed or
rejected ?

(iv) Whether Civil Application No. 3 of 2018,
filed by the proposed respondents for
being impleaded as respondents in First
Appeal deserves to be allowed or
dismissed ?

(v) Whether Civil Application No. 7 of 2022
filed by the appellant deserves to be

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allowed and as such proposed applicants
are to be impleaded as respondents 16
and 17 or it is to be rejected ?

(vi) Whether the judgment and decree
passed in Special Civil Suit No. 167 of
1984 deserves to be set aside or
confirmed or to be varied ?

(vii) Whether the court below has properly
evaluated the evidence both oral and
documentary tendered before it in
proper perspective or it suffers from any
infirmity whatsoever calling for
interference ?

(viii) Whether what order ?

31. During the pendency of the present appeal,

several applications for additional evidence, production of

documents to bring Legal representatives, condoning the

delay in filing such applications, framing of preliminary

issue, impleading of certain parties, deleting of

respondent Nos. 2 to 10 have been filed. In fact, it would

not be out of context to refer at this juncture itself that

some of the applications have been filed without even

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specifying the provisions of law. For the purposes of

convenience, we have tabulated the said interlocutory

applications hereinbelow:

Sr. Particulars
No.
1. CA No.1/2007 (Renumbered as CA

No.6547/2007) - Whereunder 9 documents
have been sought for being produced.

This Court by order dated 12.4.2022 dismissed
the said application as not pressed, since learned
counsel appearing for the appellant who had
filed the said application had made a submission
to the said effect.

2. CA No.2/2007 (Old CA No.6594/2007) filed by
respondent No.5 herein seeking for production
of 12 documents. None of the documents are
originals or certified copies.

3. CA No.3/2007 (Old CA No.9391/2007) filed by
respondent No.5 herein seeking for production
of 9 documents. None of the documents are
originals or certified copies.

4. CA No.2/2014 (Old CA No.6097/2014) filed by

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respondent No.5 herein seeking for production
of 4 documents. None of the documents are
originals or certified copies. Shri Yatin Oza,
learned Senior Counsel appearing for the
appellant has submitted that he has no
objection for allowing this application.

5. CA No.3/2014 (Old CA No.8385/2014) filed by
No.5 herein seeking for production of 4
documents. Though none of the documents are
certified copies, subsequently along with
affidavit dated 30.7.2022, the third document
viz. certified copy of the order dated 9.1.2004
passed in Appeal No. CIT(A)-I CC.1(I)/24.2.2003
by CIT (Appeals) has been tendered.

6. CA No.1/2015 (Old CA No.7389/2015) filed by
respondent No.5 herein seeking for production
of the order dated 13.6.2001 (photocopy)
passed by Gujarat Revenue Tribunal in Appeal
No.TEN A.A 33/1986. Subsequently, the
applicant by affidavit dated 11.2.2022 has
tendered certified copy of said order dated
13.6.2001.

7. CA No.2/2015 (Old CA No.7388/2015) filed by
the applicant seeking for being impleaded. The

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said application has been dismissed vide
order dated 13.8.2018 and it has reached
finality.

8. CA No.1/2016 (Old CA No.12486/2016) filed by
respondent No.5 herein under Section 151 and
Order 14 Rule 2(2)
of CPC
and
Section 46
of the
Bombay Public Trusts Act, 1950 to frame
preliminary issue regarding maintainability
of suit / appeal on the ground of absence of
permission under
Section 36
of the Bombay
Public Trusts Act, 1950, the prayer for specific
performance does not survive.

9. CA Nos.1 and 2/2018 filed by applicant for
condoning the delay in bringing the legal
heirs of deceased respondent No.6.1 (Shri
Kishor Sankhyari Bhagwat) and to bring the
legal representatives. These applications have
been allowed vide order dated 2.5.2018 and
legal heirs of deceased respondent No.6 have
been brought on record as respondent Nos.6.1.1
to 6.1.4.

10. CA No.3/2018 filed by the proposed respondents
seeking for impleadment as party
respondents in the First Appeal without

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invoking provisions of law and claiming that they
had filed an application for impleading in
Regular Civil Appeal No.27/2006 and they have
interest in the suit schedule property.

11. CA No.1/2022 filed by appellant herein for

deletion of original respondent Nos.2 to 10

from the appeal.

12. CA No.2/2022 filed by appellant herein for
production of additional evidence viz. to
mark the documents as exhibits which are
produced along with the plaint - list of
documents as Mark 3/1 to 3/3, 3/5, 3/6, 3/8, 3/9,
129/16, 129/32, 129/33, 129/34. The applicant
has also sought for production of 6 documents as
morefully described in paragraph 4 of the
application. All these documents are
photocopies. In fact, document Nos.3 to 6 have
come into existence subsequent to the impugned
judgment and decree. Further, it requires to be
noticed that these documents viz. 3 to 6 have
been produced by respondent No.5 along with
Civil Application No.6447/2007 (New CA
No.1/2007 which has been dismissed as not
pressed vide order dated 12.4.2022.

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13. CA No.3/2022 filed by appellant herein for
production of scheme dated 6.6.1989 framed
by the Charity Commissioner, Gujarat which
is a photocopy and not accompanied by original
or certified copy. However, this very document
has also been produced by respondent No.5
herein along with CA No.6794/2007.

14. CA No.4/2022 filed by respondent No.5 herein
under Order 41 Rule 27 and
Order 11 Rule 14 of
CPC
for production of 9 documents, out of
which document Nos.1 to 5 and 8 have come into
existence subsequent to the impugned judgment
and decree passed by the Trial Court.

15. CA No.5/2022 filed by appellant herein under

Order 41 Rule 27 of CPC
read with
Order 11
Rule 5 of CPC
and
Section 107(2)
of CPC for
direction to respondent No.15 to produce the
order dated 16.9.1991 passed by Joint Charity
Commissioner, Ahmedabad in Inquiry Case
No.30/85.

16. CA No.7/2022 filed by appellant herein under

Order 1 Rule 10 of CPC
read with
Section 107(2)

of CPC for impleading Shri Jatin
Rameshchandra Jalundhwala and Dr. Malay
Rameshbhai Mahadeviya on the ground that they

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have been appointed as trustees of defendant
No.1 trust by the Charity Commissioner vide
order dated 29.11.2021.

FINDINGS OF THE TRIAL JUDGE :

32. On the basis of pleadings of the parties, learned

trial Judge has framed the following issues : -

"(1) Whether the plaintiff proves that plaintiff
society is duly registered under the Gujarat Co-

operative
Societies Act
?

(2) Whether the plaintiff proves that the
earnest deed of the suit land was executed by
M/s. Chhaganlal and Company, in their favour
and the defendants have also given their
consent in this respect?

(3) Whether the plaintiff proves that they
have paid the amount of Rs.45,000/- to
M/s.Chhaganlal and Company and the
defendant trust as contended in para 1 of the
plaint?

(4) Whether the plaintiff proves that on the
day of filing of the present suit they are in
possession of the suit lands?

(5) Whether the plaintiff proves that the
defendants are trying to take away the
possession of the suit land from them and also
trying to transfer the suit lands in favour of
other persons?

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(6) Whether the defendant proves that the
suit of the plaintiff is bad for non-joinder of
necessary party?

(7) Whether the defendant No.1 to 6 proves
that this Court has got no jurisdiction to try this
suit?

(8) Whether the defendants No.1 to 6 proves
that the suit of the plaintiff is time barred?

(8a) Whether the present suit is maintainable
in view of the decree regarding the suit
property in favour of defendant No.15 passed
in Civil Suit No.16 of 1971 filed F.A. No.362 of
1976 of Gujarat High Court?

(9) Whether the plaintiffs are entitled to get
relief as prayed for?

(10) What order and decree?"

33. As noted above, one Mr. Babulal came to be

examined on behalf of plaintiff. Learned trial Judge while

adjudicating issue No. 2 & 3 has held plaintiff had failed

to prove of having made payment of Rs. 30,501/- to

defendant No. 1 to 8 and Rs. 45,000/- to 14 th defendant.

It has been further held defendants have admitted to

having consented to have executed agreement of sale

dated 18.04.1976 and on the ground of defendant Nos. 7

and 8 having not affixed their signatures to sale

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agreement, issue No. 2 has been held to have been

proved partly.

34. On issue No. 3, learned trial Judge has arrived

at a conclusion that plaintiffs have failed to prove the

same namely having paid Rs. 45,000/- to defendant No.

14 and Rs. 30,501/- to defendant Nos. 1 to 8.

35. Issue No. 4 and 5 related to plaintiff proving its

alleged possession of suit schedule property and same

has been held to have not been proved by plaintiff, by

arriving at a conclusion that plaintiff had failed to prove

possession of suit schedule property having been

delivered by 14 defendant to plaintiff. It has been further

held that form 7/12 for the year 1975-76 would reflect the

name of Anubhai Premchand in the columns of

possession. It has also been held plaintiff has not

examined the Watchman who according to plaintiff had

been appointed to take care of suit schedule property.

The alleged claim of plaintiff that defendants were

attempting to dispossess the plaintiff from suit schedule

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property has been negatived by answering issue no. 5

against plaintiff and it has been further held that plaintiff

had failed to prove alleged threat of defendants and their

attempts to take forcible possession of suit schedule

property.

36. At regards issue No. 6 to 8 it has been held in

the negative by the trial Court. To prove issue no. 6,

burden was cast on defendants. It was the plea of

defendant that suit schedule property was in possession

of a tenant. On account of document having not been

tendered before trial Court, it has been held that

defendants had failed to prove said issue. Issue No. 7 & 8

are also held to be not proved by defendants according to

learned trial Judge on the ground that extension of time

was agreed for performance of agreement of sale.

37. Insofar as issue No. 8-A which related to res

judicata, it came to be held by trial Judge that plaintiff

had filed an application to get itself impleaded in First

Appeal No. 362 of 1976, which came to be rejected by

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observing that consent decree passed in Civil Suit No. 16

of 1971 would not affect the right of plaintiff vide order

dated 07.07.1983 passed in Civil Appeal No. 2437 of 1983

(Exhibit 124/1) and considering said order, present suit

was held to be maintainable and it was not barred by res

judicata.

38. While answering issue No. 9 & 10 in the

negative, learned trial Judge has observed permission of

Charity Commissioner was lacking; permission from

competent authority for selling agricultural land was not

there; all the conditions of agreement of sale is not

satisfied; plaintiff was not ready and willing to pay

balance sale consideration; ULC permission was not

available; on these grounds these two issues were

answered against plaintiffs.

39. Having regard to the alternative prayer of

refund of advance money paid by plaintiff, same has been

ordered to be re-paid by defendant Nos. 1 to 8 and 14

namely Rs. 25,000/- & 40,000/- respectively with interest

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@ 12% p.a. from date of receipt.

40. In the aforesaid background, we proceed to

adjudicate the points formulated hereinabove.

DISCUSSION AND FINDINGS

RE : POINT NO. (i)

41. These applications namely Civil Application No.

2 of 2007, 3 of 2007, 2 of 2014, 3 of 2014, 1 of 2015, 2 of

2022, 3 of 2022, 4 of 2022, 5 of 2022 and 6 of 2022 have

been filed under Order 41 Rule 27 for production of

additional evidence.

42. Before proceeding to adjudicate as to whether

these applications are to be allowed or dismissed, it

would be apt and appropriate to note the contours of

consideration of such applications. It is trite law that

jurisdiction of the Appellate Court would be exercised not

only when Clause (a) or Clause (aa) of Sub-Rule (1) of

Rule 27 of Order 41 of the code is attracted but also

where such document is required by the Appellate Court

to pronounce the judgment or for any other substantial

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cause. If such additional evidence would have a material

bearing on the crucial issue arising for decision between

the parties, such application would be allowed de hors

the allowable deficiency, if any. If certified copy of public

documents are produced and they have a bearing on the

issue involved in the Appeal or the said document would

throw light on the issue to be adjudicated in the Appeal,

then also appellate Court would be justified in allowing

the application for additional evidence. However, if the

said documents would in no way espouse the cause of

either of the parties or it has some remote connection

which would not be necessary for arriving at ultimate

conclusion, then, such documents would not be permitted

to be taken on record. In the absence of plea raised, no

any amount of evidence tendered would be of any use.

43. The Appellate Court has power to allow

additional evidence not only if it requires such evidence

"to enable it to pronounce judgment" but also for "any

other substantial cause". Though general rule is that

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ordinarily, the Appellate Court would not travel outside

the record of the lower Court and additional evidence,

whether oral or documentary is not admitted, but
Section
of CPC carves out in exception to the General Rule

and enables the Appellate Court to take additional

evidence or to require such evidence to be taken, subject

to such conditions and limitations as may be prescribed

namely as prescribed under Rule 27 of Order 41.

Circumstances under which additional evidence are

adduced are; firstly - the Court from whose decree the

Appeal is preferred has refused to admit evidence which

ought to have been admitted [Clause (a) of Sub-Rule (1)],

secondly - the parties seeking to produce additional

evidence establishes that notwithstanding the exercise of

due diligence such evidence was not within the

knowledge or after exercise of due diligence be produced

by him at the time when the decree appealed against was

passed (Clause (aa) of Sub-Rule (1)); thirdly - the

Appellate Court requires any document to be produced or

any witness to be examined to enable it to pronounce

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judgment, or for any other substantial cause (Clause (b)

of Sub-Rule (1).

44. The scope of Sub-Rule (1) of Rule 27 of Order

41 was examined by Privy Counsel way back in 1931 in

the matter of
Parsotim Thakur versus Lal Mohar

Thakur
reported in AIR 1931 PC 143 and held by

observing that provisions of Section 107 is elucidated by

order 41 Rule 27 are not clearly intended to allow litigant

who has been unsuccessful in the Lower Court to patch

up the weak parts of his case and fill up the omissions in

the Court of Appeal.

The aforesaid principle was noticed

by the Hon'ble Apex Court in the case of
North Eastern

Railway Administration, Gorakhpur vs. Bhagwan

Das (Dead) by Lrs
. - (2008) 8 SCC 511 and held as

under : -

"15. Again in
K. Venkataramiah Vs. A. Seetharama
Reddy & Ors.
a Constitution Bench of this Court while
reiterating the afore-noted observations in Parsotim's
case (supra), pointed out that the appellate court has
the power to allow additional evidence not only if it
requires such evidence 'to enable it to pronounce
judgment' but also for 'any other substantial cause'.
There may well be cases where even though the court
finds that it is able to pronounce judgment on the state
of the record as it is, and so, it cannot strictly say that
it requires additional evidence 'to enable it to

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pronounce judgment', it still considers that in the
interest of justice something which remains obscure
should be filled up so that it can pronounce its
judgment in a more satisfactory manner. Thus, the
question whether looking into the documents, sought to
be filed as additional evidence, would be necessary to
pronounce judgment in a more satisfactory manner,
has to be considered by the Court at the time of
hearing of the appeal on merits."

45. Thus, irresistible conclusion which can be

drawn is, if appellate Court finds that additional evidence

sought to be admitted, are necessary to pronounce

judgment in a satisfactory manner, it would allow the

application as otherwise it would be dismissed. The

caveat on this issue would be that before considering or

adjudicating the Appeal on merits, it would be apt and

appropriate that such application filed for additional

evidence being taken up before taking up the Appeal.

Hence, we are examining these applications

independently before proceedings to adjudicate the

Appeal on merits.

46. In the instant case, it requires to be noticed

that plaintiff has filed the suit for specific performance of

agreement to sell dated 27.12.1974 (Exhibit 194). In

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order to substantiate their respective pleadings,

applications for additional evidence have been filed by

both the parties namely the plaintiff and the defendants

seeking production of certain documents. It is also in this

background, these applications are being considered by

us.

Civil Application No. 2 of 2007

47. This application has been filed by fifth

defendant. These documents undisputedly have come

into existence not only subsequent to the filing of the Suit

but also subsequent to the judgment and decree passed

by the trial Court. The documents which are sought to be

produced are:-

Sr. Document
No.
1. Income Tax Appellate Order dated
09.01.2004 in Appeal No. (CIT) (a)=I

CC.1(I)/24.02.03 in case of Jivraj V. Desai
regarding the period between 01.04.1990
to 20.10.2000 indicating transaction of the
popular builders taking over the structure

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of appellant society

2. Letter dated 07.05.2007 by Suhas Bhagwat
to the Assistant Commissioner of Income
Tax requesting to supply certified copies of
the documents regarding block assessment
in connection with
Jivrajbhai V. Desai
.

3. Letter dated 12.05.2006 by Suhas Bhagwat
to the Assistant Commissioner of Income
Tax requesting to supply certified copies of
the documents regarding block assessment
in connection with
Jivrajbhai V. Desai

4. Audit reports dated 06.12.2004 for the
period between 01.04.2003 to 31.03.2004
of the Vitthal Mandir Trust

5. Audit reports dated 26.12.2005 for the
period between 01.04.2004 to 31.03.2005
of the Vitthal Mandir Trust

6. Audit reports dated 21.10.2002 for the
period between 01.04.2021 to 31.03.2002
of the Vitthal Mandir Trust

7. Audit reports dated 03.09.2001 for the
period between 01.04.2000 to 31.03.2001
of the Vitthal Mandir Trust

8. Audit reports dated 28.12.2000 for the
period between 01.04.1998 to 31.03.1999
of the Vitthal Mandir Trust

9. Audit reports dated 28.12.2000 for the
period between 01.04.1997 to 31.03.1998
of the Vitthal Mandir Trust

10. Audit reports dated 28.04.1998 for the
period between 01.04.1997 to 31.03.1998
of the Vitthal Mandir Trust

11. Order framing the Scheme by the Joint
Charity Commissioner dated 06.06.1989
bearing scheme application no. 17/1985
regarding Vitthal Mandir Trust giving

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details of the beneficiaries of Bhagwat
Family members (effect of decree of the
Court) (certified copy of the scheme
produced on record vide separate affidavit
in Civil Application)

12. Memorandum of Understanding (MoU)
recovered from Arvind Shah the accountant
of Jivram Master indicating the purchase of
structure of appellant society by Popular
Builder dated 05.07.1998 received along
with Income Tax Order. (certified copy is
placed on record with Civil Suit No.
1847/04)

48. According to applicant - 5th defendant, these

documents were obtained from Income Tax Department

and it relates to the assessment order passed in respect

of Mr. Jivraj B. Desai, audit reports relating to first

defendant - trust as well as the scheme framed by Joint

Charity Commissioner dated 06.06.1989 contending inter

alia that these documents are necessary to establish or

required to prove alleged criminal conspiracy which has

been hatched by the persons in collusion with each other

to grab the valuable property of the trust viz. suit

schedule property.

49. By this application, the applicant also seeks

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production of application filed for granting permission

before the Charity Commissioner under
section 35
fo the

Act, after entering into MoU. A perusal of the averments

made in the application would indicate that in order to

drive home the inter se disputes then existing amongst

the trustees is sought to be placed on record as already

noticed hereinabove. These documents are not only

photocopies but also not certified copies. Even otherwise

said documents would not be required to adjudicate the

real controversy involved in the present Appeal. That

apart, the applicant has failed to prove the ingredients of

Sub-rule (1) of Rule 27 of Order 41 and has also failed to

prove as to how these documents would have any bearing

on the aspects involved in this Appeal or issues involved

in the suit. Hence, we are of the considered view Civil

Application No. 2 of 2007 (Old Civil Application No. 6794

of 2007) filed by defendant No. 5 deserves to be rejected

and accordingly it stands rejected.

Civil Application No. 3 of 2007

50. This is an application filed by fifth respondent

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seeking production of 9 documents namely following

documents : -

Sr. Document
No.
1. List of documents by the Court

Commissioner dated 26.10.1989 in RCS No.
543/89 in case of Anubhai Premchand Shah
v. Mittal Mandir Trust before the Civil
Court, Ahmedabad Rural

2. Intimation by the Court Commissioner
dated 24.10.89 to carry out the Court
Commission in RCS No. 543/89 in case of
Anubhai Premchand Shah v. Mittal Mandir
Trust before the Civil Court, Ahmedabad
Rural

3. Written statement dated 27.09.89 by the
trustees of Vitthal Mandir Trust in RCS No.
543/89 in case of Anubhai Premchand Shah
v. Mittal Mandir Trust before the Civil
Court, Ahmedabad Rural, pleading the
possession of the suit land with the trust
only

4. Panchnama dated 24.10.89 of the suit land
indication possession of Vitthal Mandir
Trust in RCS No. 543/89 in case of Anubhai
Premchand Shah v. Mittal Mandir Trust
before the Civil Court, Ahmedabad Rural
along with typed copy (certified copy is
placed on record with CA 8385/14)

5. The notice dated 21.12.2006 by the District
Registrar regarding proceedings of
cancellation & Liquidation of Appellant
Society

6. Letter dated 15.10.2005 by the District
Registrar Co-operative Societies (Rural)
Ahmedabad by Suhas Bhagwat asking to

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remain present for supply of documents
regarding appellant society

7. Report dated 30.11.2004 by the certified
auditor of the appellant society for the
period between 01.071999 to 31.03.2004
received under the
RTI Act
by Suhas
Bhagwat along with the accounts and the
list of members as on 31.03.2004 and the
register of the members

8. Reply dated 16.01.2007 by the appellant
society to the District Registrar Co-

operative Societies

9. The relevant page of yellow pages
indicating address of Popular Buildings at
Shanti Chambers, Ashram Road,
Ahmedabad

51. The applicant who is fifth defendant before trial

court has contended that in order to establish that

appellant has made incorrect statement with regard to

possession of suit schedule property by contending that

Shri Ranchodbhai V. Desai and Harjibhai K. Desai,

respondent No. 11 and 12 respectively, have stated

before the Charity Commissioner in the proceedings

initiated in Section 35 of the Bombay Public Trust Act and

before AUDA that possession of suit schedule property is

with the trust and simultaneously they had made a

incorrect statement before the Charity Commissioner on

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subsequent occasion that the possession of the suit

property is with the appellant. By relying upon the report

of the Court Commissioner made in Regular Civil Suit No.

543 of 1999 they seek to displace the stand of appellant.

It is also the endeavour of fifth defendant to establish

before this Court that plaintiff society is changing the

members and office bearers of the society and to

establish the said fact and prove new members have been

added to the society, this application has been filed

seeking production of documents specified in the

application. The issue relating to possession has to be

adjudicated not only as on date of agreement Exhibit 194

but also as on date of suit. Said exercise can be done

without looking into the documents sought to be

produced. None of the documents are original or certified

copies and for the reasons already indicated by us while

disposing of Civil Application No. 2 of 2007 and for the

same reasons, this application deserves to be rejected

and accordingly it stands rejected.

Civil Application No. 2 of 2014

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52. This application has been filed by fifth

defendant seeking production of following documents:-

Sr. Document
No.

1. Certified copy of Application for according
consent to the compromise with the
appellant dated 16.04.2001 regarding
present First Appeal made to the Charity
Commissioner

2. Certified copy of the order of rejection dated
05.12.2001 by the Charity Commissioner
regarding application for compromise with
the appellant dated 16.04.2001 regarding
presnet First Appeal made to the Charity
Commissioner

3. Certified copy of the application for the sale
of land to the appellant u/s 36 of Bombay
Public Trust Act by the trustees dated
30.08.2003 to the Charity Commissioner

4. Certified copy of the order dated 31.01.2004
to the appellant u/s 36 of the Bombay Public
Trust Act by the trustees dated 30.08.2003

53. We have heard the arguments of Shri N.M.

Kapadia, learned counsel appearing for fifth defendant

and Mr. Yatin Oza, learned Senior Counsel appearing for

appellant, who has submitted that he has no objection for

allowing this application. A perusal of the averments

made in the said application would indicate that fifth

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defendant intends to place on record that respondent no.

11 to 13 herein in alleged collusion with the appellant has

sought permission to sell the suit schedule property and

had filed an application under
section 36
of the Bombay

Public Trusts Act on 23.10.2000, during the pendency of

the Appeal, which came to be rejected by the Charity

Commissioner vide order dated 31.01.2004 and

contending that it is a subsequent event which had taken

place and seeking production of aforesaid four

documents, this application has been filed.

54. In the light of learned Senior Counsel

appearing for appellant having stated no objection this

application is allowed and four documents are ordered to

be marked as Exhibit 219 to Exhibit 222 and

accordingly they are marked.

Civil Application No. 3 of 2014

55. This application has been filed for production of

following four documents : -

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Sr. Document
No.

1. Certified copy of Application by the trustees
of the Charity Commissioner for the
construction of temple and Dharmashala
dated 12.10.98 under section 35 of the
Bombay Public Trust Act

2. Certified copy of the order dated 10.02.1999
by the Charity Commissioner regarding
application by the trustees to the Charity
Commissioner for the construction of temple
and Dharamshala dated 12.10.98

3. True copy of the Income Tax Appellate order
dated 19.01.2004 in Appeal No. CIT(A)-

ICC.1(I)/24/02/03 in case of Jivraj V. Desai
regarding Block period between 01.04.1990
to 20.10.2000 indicating transaction of the
Popular Builders taking over the structure
of appellant society (Certified copy
produced before the Civil Court in Civil Suit
No. 1847 of 2004)

4. Certified copy of the panchnama dated
24.10.89 of the suit land indication
possession of Vitthal Mandir Trust in RCS
No. 543/89 in case of Anubhai Premchand
Shah v. Vitthal Mandir Trust before the Civil
Court, Ahmedabad Rural along with typed
copy

56. By this application, fifth defendant is seeking

production of aforesaid four documents contending inter

alia that said documents are essential for deciding the

controversy that has arisen in this Appeal. It has been

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contended, though permission had been granted to the

trustees to construct Nursing Home, commercial complex

and residence, but trustees had applied for construction

of commercial units and contending that they are guilty of

fraud perpetrated, they are seeking production of these

documents. None of these documents have any bearing

for deciding the real controversy between the parties

involved in the present Appeal. Except document No. 3,

which is a certified copy of the order passed by the

Commissioner of Income Tax (Appeals) that too along

with an affidavit dated 30.07.2022. All other three

documents are not certified copies, that apart we find

that these documents would not be required for

adjudication of the real controversy between the parties

and as such, said application stands rejected.

Civil Application No. 1 of 2015

57. This is an application filed for production of the

order dated 13.06.2007 passed by Gujarat Revenue

Tribunal. Subsequently by affidavit dated 11.02.2022,

certified copy has been produced which would reflect by

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the said order, tribunal had confirmed the order of the

Charity Commissioner dated 26.02.1986 who had rejected

the application filed seeking permission to sell the suit

schedule property. Since one of the issue involved in the

present Appeal is whether there was a permission by the

Charity Commissioner under
section 36
of the Gujarat

Public Trusts Act to sell the suit schedule property by the

first defendant trust or otherwise, we are of the

considered view that said application requires to be

allowed and accordingly it is allowed and the document is

permitted to be marked as Exhibit 223.

Civil Application No. 2 of 2022

58. This is an application filed for production of

following documents by way of additional evidence : -

1. Photocopy of the order passed by the
Charity Commissioner dated 26.06.1967.

2. Photocopy of the order dated 16.09.1991
passed by the Joint Charity Commissioner,
Ahmedabad in Inquiry Case No. 30/85.

3. Photocopy of the application bearing No.
1/2001 said to have been filed by the trustees
of Vitthal Mandir Trust before the Charity
Commissioner (Filed on 16.04.2001).

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4. Photocopy of the order dated 05.12.2001
passed in Application No. 1/2001 by the
Charity Commissioner along with covering
letter dated 06.12.2001;

5. Photocopy of the application
No.36/59/2003 said to have been filed by
trustees of Vitthal Mandir Trust before the
Charity Commissioner on 30.08.2003.

6. Copy of the order dated 31.01.2004 in
Application No. 36/59/2003.

59. The documents which are sought to be

produced as Annexure C to F (as indicated in the Civil

Application) have also been sought for being produced by

the fifth respondent in Civil Application No. 2 of 2014,

which has been allowed by us by order of even date

hereinabove. Thus, what remains to be considered is

whether documents styled as Annexure A and B are to be

produced or not ? These are two orders which are

passed by the Charity Commissioner and Joint Charity

Commissioner dated 26.06.1967 and 16.09.1991 along

with enclosures thereto to contend that trustees of the

first defendant have given consent for agreement to sell

dated 27.12.1974 (Exhibit 194) as same is reflected in the

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said order. Both these orders are photocopies and

original or certified copies are not produced. On this

ground alone, it is liable to be rejected and accordingly it

stands rejected. Consequently Civil Application No. 2 of

2022 stands rejected.

Civil Application No. 3 of 2022

60. By this application defendant intends to

produce the copy of the scheme dated 06.06.1989 framed

by the learned Charity Commissioner in respect of first

defendant trust. On the short ground, this document was

also sought to be produced by fifth respondent by Civil

Application No. 2 of 2007 (Old Civil Application No. 6794

of 2007), which has already been dismissed vide order of

even date referred to supra, we are of the considered

view that entertaining of this application would not arise

and it stands rejected. It is also noticed said document is

sought for being produced along with Civil Application

No.6 of 2022 and as such it would be examined when we

take-up Civil Application No.6 of 2022.

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Civil Application No. 4 of 2022

61. By this application, fifth defendant has sought

for production of nine documents styled as Annexure A to

I. By these documents, fifth defendant seeks to buttress

the arguments that structure of the plaintiff society has

changed and most of the old members of the society were

removed and new persons were inducted. The

application filed before the Assistant District Registrar,

Cooperative Society, Ahmedabad, seeking the list and

members of the plaintiff society and exchange of

correspondence between fifth defendant and the officials

of the Corporation Department, is sought to be produced.

In substance, fifth defendant intends to place reliance on

the reply received from Cooperative Department to

contend that old members have resigned and new

members have been inducted to the plaintiff society.

Undisputedly, these documents have come into existence

subsequent to the filing of the suit. It is no doubt true

that subsequent events can be taken note by this Court as

held by the Hon'ble Apex Court in the case of M/s.

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Variety Emporium vs. V.R.M. Mohd. Ibrahim Naina
,

reported in 1985 AIR SC 207. At the cost of repetition,

it requires to be noticed that applicant will have to be

necessarily establish as to how the said evidence would

be of any relevance for adjudication of the issue relating

to the grant of decree for specific performance or not. It

is not doubt true that issue of hardship or exercise of

discretionary relief is concerned, same would be

considered as one of the factors. However, that by itself

would not be sufficient to arrive at a conclusion one way

or the other. In other words, the issue relating to grant

of specific performance or refusal would not hinge upon

these documents and it would not be of any vital

importance for this Court to adjudicate the rival claims

that has been raised in this regard. Hence, we are of the

considered view that these documents would not be of

any relevance for adjudicating the real controversy

between the parties and as such Civil Application No. 4 of

2022 stands rejected.

Civil Application No. 5 of 2022 and 6 of 2022

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62. These applications have been filed for

production of documents specified therein. As could be

seen from Civil Application No. 5 of 2022, plaintiff -

appellant is seeking for production of copy of the order

dated 16.09.1991 passed by Joint Charity Commissioner,

Ahmedabad in Inquiry Case No. 30/85 and for production

of application dated 12.04.2022 filed by it seeking

certified copies from the Charity Commissioner. In fact

these two documents have also been sought for being

produced through Civil Application No.6 of 2022. On this

ground, Civil Application No.5 of 2022 is dismissed.

63. Whereas, Civil Application No. 6 of 2022 is filed

by appellant seeking production of two documents

referred to hereinabove, as well as copy of order dated

26.06.1967 and applications filed by the trustees of the

first defendant - Trust before the Charity Commissioner

including the order passed thereon. Subsequently the

certified copies of the application dated 12.04.2001,

application dated 06.12.2001, order dated 05.12.2001

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passed by the Charity Commissioner, application dated

30.08.2003 filed by the first defendant - Trust before the

Charity Commissioner, the scheme dated 06.06.1989,

consent terms dated 12.07.1984 executed in First Appeal

No. 362 of 1976, order dated 12.07.1984 passed in First

Appeal No. 362 of 1976, judgment dated 19.11.1997

passed in C.R.A. No. 1235 of 1992, order dated

14.10.2010 passed by Charity Commissioner in Revision

Application No. 11 of 2005, order dated 29.11.2011

passed by Charity Commissioner, Gujarat State,

Ahmedabad, application dated 29.11.2021 (Exhibit 13)

and order dated 13.02.2017 and 11.01.2018 passed in

First Appeal No. 1814 of 2012, judgment passed in Civil

Misc. Application No. 1052 of 2010 by the City Civil

Court, Ahmedabad dated 02.09.2011, order dated

31.01.2004 passed by Charity Commissioner, are only

allowed and marked as Exhibit 224 to 237 since these

documents would have some relevance on the

controversy involved in this appeal and in the background

of pleadings laid before trial court. Accordingly, Civil

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Application No. 6 of 2022 stands partly allowed.

RE : POINT NO. (ii)

64. Civil Application No.1 of 2016 is filed under

section 151
of CPC read with Order XIV Rule 2(2) praying

this Court to frame the following preliminary issues : -

"(i) Whether the Suit/Appeal is maintainable in view
of the absence of and/or are rejection of application
under section 36 of the Bombay Public Trust Act and
also dismiss the appeal as barred by law and also by
holding that cause of action does not survive and also
in view of the fact the conduct of the respondents 11 to
13;

(ii) In the alternative dismiss First Appeal No. 3517
of 2000 filed by the original applicant, qua prayer of
specific performance and to confirm the judgment and
decree passed by the learned trial Judge in the suit."

65. A perusal of averments made in the application

would indicate fifth defendant is contending inter alia

that on account of application filed under
section 36
of

the Bombay Public Trusts Act having been rejected, the

present Appeal would be barred by Law as cause of

action would not survive for consideration. This is an

issue which requires to be examined in the Appeal by

examining the correctness and legality of the judgment

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and decree passed by the trial Court, in the teeth of the

pleadings and the evidence available. Hence, we are of

the considered view that this application requires to be

rejected and accordingly it stands rejected.

RE. POINT NO. (iii)

66. Civil Application No.1 of 2022 has been filed by

the plaintiff under
section 151
of CPC for deletion of

respondent Nos. 2 to 10 from this Appeal on the ground

that they have either resigned or have been removed

from the trustship of 1st defendant. It is also stated that

first defendant - trust is presently represented by the

existing trustees, who are joined as respondent Nos. 11 to

13 and contending that defendant Nos. 2 to 10 namely

defendants - respondents being ex-trustees are no longer

proper and necessary parties in the present First Appeal.

Plaintiff admit that first defendant - trust is contesting

the present Appeal. It is also admitted by the applicant -

plaintiff that there is dispute amongst the trustees and if

it were to be so, it is for the said parties namely the 1 st

defendant trust and its trustees to work out their rights in

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appropriate Forum and in this suit for specific

performance inter se dispute even if any between the

trustees or between the trust and the trustees cannot be

the subject matter of consideration in this Appeal, which

is filed by unsuccessful plaintiff being aggrieved by

judgment and decree passed dismissing the suit for

specific performance and decreeing the suit for refund of

money paid by it. Hence, Civil Application No. 1 of 2022

stands rejected.

RE. POINT NO. (iv)

67. Civil Application No.3 of 2018 has been filed by

the legal heirs of Mr. Pramukhlal Jivanlal Parikh and Mr.

Ambalal Ishwarlal Prajapati seeking for being impleaded

as parties to the present appeal. Mr. Devang Nanavati,

learned Senior Advocate appearing for the applicants

would contend that an agreement of sale had been

executed by Mr. Madhavrao Bhagwat as trustee of

defendant No.1 in favour of Mr. Pramukhlal Jivanlal

Parikh and Mr. Ambalal Ishwarlal Prajapati to sell the suit

schedule property in their favour and permission had also

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been granted on 27.10.1970 by the learned Charity

Commissioner for sale of suit schedule property in favour

of Shardaben Chimanlal Trust. It is contended that

trustees of Vitthal Mandir Trust - defendant No.1

executed an agreement of sale in favour of Mr.

Mukundbhai Chimanbhai Shah (Jalpa Traders) on

3.4.1972 for selling the suit schedule property and in turn

Jalpa Traders executed an agreement in favour of

Chhaganlal & Company - defendant No.14 on 23.11.1973

and this was confirmed by defendant No.1 trust. It is

further stated that Chhaganlal & Company executed an

agreement of sale in favour of the plaintiff society on

27.12.1974. He would contend that defendant No.1 trust

had also executed an agreement to sell on 23.5.1964 in

favour of Mr. Manharlal Nagindas Bhandari and

permission had also been granted by the Charity

Commissioner on 4.6.1964 to sell the suit schedule

proper in favour of Mr. Manharlal Bhadari and he had

instituted a Civil Suit No.16 of 1971 against Bhagwat

Family, Mr. Pramukhlal Jivanlal Parikh, Mr. Ambalal

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Ishwarlal Prajapati and Sharda Mandir Trust for specific

performance, damages and for the permanent injunction

which came to be dismissed on 17.4.1976 which was

challenged in First Appeal No.362 of 1976, wherein a

settlement was arrived at agreeing thereunder that in

case consent terms were not acted upon, liberty being

reserved to proceed with the suit. Hence, the original

applicants are said to have filed SCS No.68 of 1983 for

specific performance which has been dismissed on

13.9.1996 which was challenged in First Appeal No.5304

of 1996 which appeal came to be transferred to the

District Court and renumbered as RA No.27 of 2006

which was then partly allowed on 19.6.2012 and

remanded the matter back to the Trial Court as directed

thereunder. An application filed in the said suit by the

legal heirs of Mr. Pramukhlal Jivanlal Parikh and Mr.

Ambalal Ishwarlal Prajapati came to be dismissed by the

Trial Court on 1.10.2015 and consequently held that

Special Civil Suit No.68 of 1983 had stood abated.

Against the said order, Special Civil Application No.18589

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of 2015 was filed challenging the order dated 1.10.2015

and same is said to be pending. Hence, contending that

any judgment and decree passed in this appeal would

adversely affect their interest in pending Special Civil

Application No.18589 of 2015, applicants are before this

Court for being impleaded / joined as parties.

68. Reiterating the contentions raised in the

application and grounds urged thereunder, Mr. Devang

Nanavati, learned Senior Advocate seeks for allowing the

said application.
In support of his submission, he has

relied upon the judgment of the Hon'ble Apex Court in

the case of
Sumtibai and others vs. Paras Finance Co.

and others
[(2007) 10 SCC 82] and in the case of
M.P.

State Agro Industries Development Corporation Ltd.

and Another vs. Jahan Khan
[(2007) 10 SCC 88]. The

general rule for impleadment is that the plaintiff being

the dominus litis would choose the person against whom

he intends to litigate and he cannot be compelled to sue a

person against whom he does not seek any relief. A plain

reading of sub-rule (2) of Rule 10 of Order 1 would make

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it explicitly clear that a court may at any stage of the

proceedings either upon or even if any application, and

on such terms as may appear to it to be just, direct that

any person who ought to have been joined whether as

plaintiff or defendant, or whose presence before the court

may be necessary in order to enable the court to

effectually and completely adjudicate upon and settle all

questions involved in the suit, be added as party. In short,

court is given the discretion to add a person as a party

who is found to be necessary parties are proper parties.

The Hon'ble Apex Court in the case of
Mumbai

International Airport Private Limited vs. Regency

Convention Centre and Hotels Private Limited and

Others
[(2010) 7 SCC 417] has indicated as to who

would the necessary party or a proper party. It has been

held as under:

"15. A `necessary party' is a person who ought to have
been joined as a party and in whose absence no
effective decree could be passed at all by the Court. If a
`necessary party' is not impleaded, the suit itself is
liable to be dismissed. A `proper party' is a party who,
though not a necessary party, is a person whose
presence would enable the court to completely,
effectively and adequately adjudicate upon all matters

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in disputes in the suit, though he need not be a person
in favour of or against whom the decree is to be made.
If a person is not found to be a proper or necessary
party, the court has no jurisdiction to implead him,
against the wishes of the plaintiff. The fact that a
person is likely to secure a right/interest in a suit
property, after the suit is decided against the plaintiff,
will not make such person a necessary party or a
proper party to the suit for specific performance."

69. The Hon'ble Apex Court in the case of Kasturi

vs. Iyyamperumal [(2005) 6 SCC 733] has held that

following persons are to be considered as necessary

parties:

(i) The parties to the contract which is sought
to be enforced or their legal
representatives;

(ii) Transferee of the property which is the
subject matter of the contract.

70. It has also been held that a person claiming

title adverse to the title of the vendor could not be

impleaded. Keeping these principles in mind when we

turn our attention to the facts on hand it would clearly

indicate that applicants who are claiming to be the legal

heirs of Mr. Pramukhlal Jivanlal Parikh and Mr. Ambalal

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Ishwarlal Prajapati in whose favour there was an

agreement of sale are seeking to be impleaded in the

present proceedings which is a suit filed by the plaintiff

claiming specific performance on the strength of

agreement to sell dated 27.12.1974 Exhibit 194. If at all

applicants are having any right by virtue of the

agreement of sale dated 18.8.1966 which they are

claiming to be and espousing their cause by instituting

SCS No.68 of 1983 which has also been dismissed and

appeal filed thereon having abated and now pending in

Special Civil Application No.18589 of 2015 they would be

at liberty to work out their rights in the pending Special

Civil Application and applicants are neither proper

parties nor necessary parties in the present appeal, which

can also be adjudicated and disposed of by answering the

issues involved, even in the absence of the applicants.

The inter-se dispute even if any between the applicants

on the one hand and plaintiffs or defendant Nos.1 to 8

and 14 cannot be the subject matter of scrutiny or

examination by this Court in the present appeal. Hence,

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this Court is of the considered view that Civil Application

No.3 of 2018 is liable to be rejected and accordingly it

stands rejected.

RE. POINT NO. (v)

71. Civil Application No.7 of 2022 under
Order 1

Rule 10 of CPC
read with 107(2)
of CPC
has been filed by

plaintiffs for impleading Shri Jatin Rameshchandra

Jalundhwala and Dr. Malay Rameshbhai Mahadeviya,

contending inter alia that after filing of the present

Appeal, respondent Nos. 2 to 10 have either resigned or

have been removed and they are no longer trustees and

one of the newly added trustee namely Yash Kishor

Bhagwat is already on record as respondent No. 6.1.4 and

proposed respondents are necessary and proper parties

to these proceedings. Perusal of averments made in the

application do not indicate as to how they are necessary

and proper parties. Any inter se controversy or dispute

between the trustees cannot be subject matter of

consideration. The first defendant - trust being a party

and represented by Counsel, any inter se dispute between

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the trust and trustees can be resolved in appropriate

proceedings and in appropriate forum. Hence, without

expressing any opinion on the claim made and we find

that it is not necessary to issue notice to the proposed

respondents as specified in the present application.

Hence, Civil Application No. 7 of 2022 stands rejected by

reserving liberty to the parties to work out their rights in

accordance with law before proper forum.

POINT NOS. (vi) AND (vii) :

72. The issues framed by the Trial Court and

adjudicated essentially revolves around these two points.

The incidental points that may arise for consideration

would also be formulated as and when necessary and at

appropriate stage of this judgment and during the course

of our discussion on these two points and while re-

evaluating the evidence tendered before the Court below.

73. Since above points are interlinked and finding

recorded on one point is likely to overlap with other, we

have taken up these two (2) points together for being

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adjudicated and answered.

74. Plaintiff which is a Co-operative Housing

Society has brought the suit for specific performance of

agreement to sell dated 27.12.1974 which document

came to be marked as Exhibit 194.

75. Plaintiff has contended that it is a registered

cooperative housing society and being in need of houses

for its members had agreed to purchase the lands bearing

Survey No. 37 and 38 measuring 2 Acre 29 gunthas and 4

Acre 38 gunthas situated at Thaltej (referred to as 'suit

schedule property') Taluka Daskroi, Dist. Ahmedabad

which belonged to or owned by first defendant. It is the

case of the plaintiff that defendants had executed an

agreement to sell the suit schedule property dated

18.08.1966 in favour of Mr.Pramukhlal Jeevanlal Parikh

and Mr.Ambalal Ishwarlal Prajapati. It is further case of

plaintiff that Mr.Pramukh Jeevanlal Parikh as well as first

defendant trust executed an agreement to sell dated

21.09.1970 in favour of Mr.Gangaram Bhaskar Rao Pavde

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and said Mr.Gangaram Bhaskar Rao Pavde had assigned

his rights in favour of a partnership firm M/s. Jalpa

Traders represented by its partners Mukundbhai

Chimanlal Shah. It is further case of plaintiff that trustee

of the first defendant trust, Mr. Kunjbiharilal Madhavlal

Bhagwat (for short hereinafter referred to as

'Kunjbiharilal') had executed an agreement to sell dated

08.05.1972 in favour of the said partnership firm M/s.

Jalpa Traders. It is also stated that Kunjbiharilal had

previously executed an agreement dated 03.04.1972 also

in favour of Jalpa Traders. Hence, it was contended that

all rights under agreement to sell was acquired by M/s.

Jalpa Traders. The said agreement holder M/s. Jalpa

Traders through its partner Mr. Mukundbhai Chimanlal

Shah is said to have assigned its rights in favour of M/s.

Chhaganlal & Company vide agreement to sell dated

13.11.1973. In turn, M/s. Chhaganlal & Company is said

to have assigned all its rights in favour of the plaintiff -

society vide agreement to sell dated 27.12.1974 (Exhibit

194), whereunder it is said to have been agreed to sell

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the suit schedule property for Rs. 13.25 paise per sq. yds.

and received Rs. 15,000/- in cash on the date of

agreement to sell. It is further stated that a further sum

of Rs. 25,000/- was paid by the plaintiff on 20.05.1975

and Rs. 5,000/- was paid on 15.12.1975 and thus, in all a

sum of Rs. 45,000/- is said to have been paid by the

plaintiff to M/s. Chhaganlal & Company. It is further

contended by plaintiffs that all the trustees of the first

defendant trust agreed to continue the agreement of sale

dated 27.12.1974 executed by M/s. Chhaganlal &

Company. It is further pleaded that at the first instance

agreed price was Rs. 3.25 paisa per sq. mtr., and same

was agreed to be revised upwards by Rs. 2 per sq. mtr.

totalling Rs. 5.25 per sq. mtr. while assigning all rights

over the suit land in favour of plaintiff society by the

defendants. It is stated in the plaint that all the

defendants have endorsed their consent for the

agreement to sell dated 27.12.1974. Plaintiff further

pleads that on 18.04.1976, vacant and peaceful

possession of the suit schedule property was handed over

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to the plaintiff by the defendants.

76. It is the further case of the plaintiff that first

defendant has received Rs. 20,001/- towards sale

consideration by cheque dated 21.10.1982 which has

been duly accepted by the first defendant and same was

paid in lieu of defective cheque dated 11.08.1982. It is

further case of the plaintiff - society in all had paid

Rs.30,501/- to the defendant trust.

77. Plaintiff also claimed after obtaining possession

of suit schedule property that one Mr. Babji Bapuji,

watchman was appointed to look after the security of suit

schedule property after obtaining possession and he was

being paid salary every month. Subsequently, one Shri

Jagbahadur Lokbahadur Thapa was appointed as

Watchman to take care of suit schedule property and he

was residing in the room constructed in the suit schedule

property. It is further case of the plaintiff that a layout

plan was drawn by an Engineer Shri Kantilal R. Patel as

plaintiff society was desirous of constructing houses for

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its members and the said plan drawn by the Engineer was

signed by all the trustees of defendant trust.

78. Plaintiff has further pleaded that defendant

trustees filed an application seeking permission to sell the

suit schedule property before the Charity Commissioner -

16th defendant under
section 36
of the BPT Act. The

defendants are also said to have filed form No. 1 under

section 20
of the Urban Land Ceiling Act (then

prevailing), wherein it is said to have been stated

specifically by the defendants that suit land was being

sold to the plaintiff.

79. Plaintiff has contended that first defendant -

trust was attempting to dispose of the suit land to

someone else, owing to escalation in land price and it

would adversely effect its rights. It was also contended

that plaintiff's possession over the suit schedule property

was sought to be disturbed and attempts were made to

dispossess the plaintiff from suit schedule property by

posing threats. It is contended that defendants were not

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executing the sale deed in spite having demanded and a

police complaint was lodged in that regard contending

that trustees of the defendant trust are attempting to sell

the suit schedule property to third party and pleading

that members of the plaintiff society are middle class

person and have invested huge amounts they would be

put to great loss if the defendants were to sell the suit

schedule property to third party or disturb plaintiff's

possession. Hence, plaintiff filed a Civil Suit No. 210 of

1983 for permanent injunction which was withdrawn on

17.07.1984 and thereafter the present suit for specific

performance came to be filed.

80. On service of suit summons, defendants No. 1

to 4 and 6 appeared and have filed their written

statements denying the averments made in the plaint and

putting plaintiff into strict proof of the same. It has been

specifically contended as noticed hereinabove, the

present suit was barred by res judicata since similar suit

filed earlier had been withdrawn without any valid

reason. It was also contended that suit is barred by

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limitation; suit was not maintainable as per
section 51
of

BPT Act, since written permission had not been obtained

from the Charity Commissioner for filing the suit. It was

contended that defendant had executed an agreement to

sell the suit schedule property to Mr. Pramukhlal and

Mr.Ambalal and later on first defendant trust and

Mr.Pramukhlal executed another agreement to sell the

suit land in favour of Mr.Gangaram Pavde which

agreement was not duly signed by all the trustees. It was

also contended that agreement to sell entered into

between first defendant and Mr.Pramukhlal and

Mr.Ambalal did not contain the signature of Mr.Ambalal

and as such it was not a legal and valid document. The

assignment or transfer of the rights by Mr.Gangaram

Pavde to third party was denied and plaintiff was put to

strict proof of the same. It was contended that agreement

to sell dated 08.05.1972 executed in favour of

Mr.Mukundbhai on behalf of Jalpa Traders had been

signed by one of the trustees namely Mr. Kunjbihari, who

had not been authorized by all the trustees to enter into

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such agreement and as such denied that trust was

answerable and also denied that Kunjbihari being the

managing trustee of the trust was entiteld to enter an

agreement of sale of suit schedule property. Other

averments made in the plaint had also been denied as

already noticed hereinabove. It was specifically denied

that first defendant being a public trust registered under

BPT Act
, it cannot sell the suit schedule property without

obtaining permission from the 17th defendant and there

was no such permission granted by the Charity

Commissioner. The delivery of possession of suit schedule

property also came to be denied. As noticed hereinabove

averments made in the plaint has been denied by these

defendants. Sum and substance of the defence put forth

by defendant no. 1 to 4 and 6 have already been noticed

by us hereinabove.

81. In this background, when judgment passed by

the trial court is looked into, it would emerge therefrom

that on the issue of agreement of sale, the learned trial

Judge has framed to two issues namely issue no. 2 and 3

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and has answered partly in the affirmative and partly in

the negative. In this process, the learned Trial Judge has

recorded a finding at paragraph 7 of the judgment, the

substance of which can be formatted as under.

82. The agreement to sell dated 27.12.1974 marked

as Exhibit 194 has been held to have not been duly signed

by all the trustees; the say of the plaintiff that Exhibit 194

reflects Rs. 5,000/- and there is no mention of plaintiff

having paid 5,500/- to defendants - trustees on

30.12.1982 and no receipts are produced; there is

inconsistency in the pleadings namely at one breath

plaintiff has stated on oath that defendants have not filed

necessary application seeking permission. Whereas in

another breath, namely in the plaint they have contended

necessary applications have been filed by defendants

before the Charity Commissioner and they had also filed

form no. 1 under the Urban Land Ceiling Law; defendant

no. 7 and 8 having not affixed their signatures to Exhibit

194 and thereby the plea of the plaintiff that all the

trustees of the trust having signed Exhibit 194 has been

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disbelieved by the trial court.

83. At the outset, it requires to be noticed that

burden is on the plaintiff to prove the execution of the

agreement of sale dated 27.12.1974. In the instant case,

undisputedly the first defendant has not executed the

agreement of sale dated 27.12.1974 in favour of the

plaintiff and this is an admitted fact or in other words,

plaintiff does not dispute this fact. On the other hand,

witness examined on behalf of plaintiff namely Mr.

Babubhai who claimed to be the Chairman of the plaintiff

society has clearly admitted in his deposition that

defendants no. 2 to 8 are trustees of the first defendant

trust which is a trust registered under the Bombay Public

Trust Act. He further deposes that defendant no. 1 to 8

executed the agreement of sale dated 18.08.1966 in

favour of Mr. Pramukhlal Jeevanlal Parikh and Mr.

Ambalal Ishwarlal Prajapati. It is pertinent to note at

this juncture that said agreement of sale dated

18.08.1966 has not seen the light of the day. He

further deposes that Mr. Pramukhlal Jeevanlal Parikh and

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the first defendant trust together executed an agreement

of sale on 21.09.1970 in favour of one Shri Gangaram

Bhaskarrao Pavde. It is pertinent to note at this

juncture that said agreement of sale also has not

seen the light of the day. It is further case of plaintiff

that on 03.04.1972, said Shri Gangaram Bhaskarrao

Pavde assigned the rights of his sale agreement in favour

of a partnership firm M/s. Jalpa Traders represented by

its partner Mr. Mukundbhai Chimanlal Shah. The said

agreement of assignment dated 03.04.1972 has also

not seen the light of the day. It is further necessary to

notice at this juncture that agreement of sale executed in

favour of Shri Gangaram Bhaskarrao Pavde was by Shri

Pramukhlal Jeevanlal Parikh and the first defendant trust

only. In other words, the other person who possessed the

right by virtue of agreement of sale dated 18.08.1966

namely Shri Ambalal Ishwarlal Prajapati has not affixed

his signature to the agreement of sale dated 21.09.1970.

Thus, no right flowed in favour of Shri Gangaram

Bhaskarrao Pavde to execute the agreement of sale or

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assign his rights in favour of M/s. Jalpa Traders, in

respect of suit schedule property that too in respect of

share of Mr.Pramukhlal Jeevanlal Parikh. Thus, what

right flowed to either Jalpa Traders or Mukundbhai

Chimanbhai Shah is only limited right or half of the right

he possessed over the suit schedule property.

84. Be that as it may. The said Mukundbhai

Chimanbhai Shah partner of M/s. Jalpa Traders is said to

have executed an agreement of sale or assigned the

rights which partnership firm possessed or acquired on

03.04.1972 in favour of Chhaganlal & Company under a

deed of Agreement of Sale dated 23.11.1973. It is

pertinent to note at this juncture that said

agreement of sale has also not seen the light of the

day. All these deeds, agreements or assignment deed/s

have neither been tendered come before the trial Court

nor it has been tendered by the plaintiff before this Court.

On account of these documents having been denied in

toto by defendant no. 1 to 4 and 6 in their written

statement, burden cast on the plaintiff has not been

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discharged. However, for reasons best known, plaintiff

did not produce any of these deeds or documents to prove

the chain of events which culminated in execution of the

subject agreement of sale dated 27.12.1974 Exhibit 194.

85. Thus, initial burden which was cast upon

plaintiff has not been discharged and on this ground

alone, plaintiff ought to have been non-suited.

86. Now we turn our attention to the agreement of

sale Exhibit 194 dated 27.12.1974 based on which suit

has been filed. This is an agreement of sale - said to have

been executed by partner of M/s.Chaganlal & Co., in

favour of plaintiff society and plaintiff claims same has

been consented to by the 1st defendant - trust and its

trustees and as such it is binding on them and they are

required to execute the sale deed in favour of plaintiff. It

is contended by the plaintiff that it had paid a sum of Rs.

15,000/- on the date of agreement of sale to its vendor

namely Chhaganlal & Company - 14th defendant. It has

been further pleaded that a sum of Rs. 20,000/- was paid

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on 21.10.1982 and then Rs. 5,000/- is paid on 30.12.1982.

It is also claimed that another sum of Rs. 5,000/- was paid

on 04.06.1983 by cheque. Thus, plaintiff claimed that in

all it had paid Rs. 30,501/- to defendant trust. Whereas

PW-1 claims that plaintiff in all had paid Rs. 45,000/- to

M/s. Chhaganlal & Company, the 14th defendant.

Whereas, averments made in the plaint is contrary to

what is stated in plaint. Thus, as rightly pointed out by

the trial Judge, the plea in the plaint itself is not only

inconsistent but also contrary to the plea raised in the

plaint as well as statement made on oath by plaintiff's

witness Mr. Babulal in his deposition.

87. Thus, plaintiff is claiming right to seek specific

enforcement of agreement of sale dated 27.12.1974

(Exhibit 194). To prove said agreement one Shri Babubhai

has been examined. Perusal of his examination-in-chief

would indicate plaintiffs have tried to trace their right to

seek specific performance based on Exhibit 194, which is

an agreement of sale dated 27.12.1974 executed by the

partner of M/s.Chaganlal & Co., namely Mr. Chhaganlal

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Girdhar Patel in favour of plaintiff society. There is a

reference to agreement to sell dated 18.08.1966 said to

have been executed by trustee and administrator of 1 st

defendant trust in favour of Shri Pramukhlal Jivanlal

Ambalal and Ambalal Ishwarlal Prajapati (which

document is not produced or has seen light of the day, as

already observed hereinabove). Aforesaid two agreement

holder namely Shri Pramukhlal and Shri Ambalal, one of

them namely Shri Pramukhlal Jivanlal Ambalal along with

one Shri Kunjbihari Madhavdas Bhagvat, Managing

Trustee of 1st defendant trust is said to have executed an

agreement of sale on 21.09.1970 in favour of Shri

Gangaram Baskarrao Pavde (which document has also

not seen light of the day). It is also contended that by

virtue of said Banakhat dated 21.09.1970, Shri Gangaram

Bhaskarrao Pavde gave away all the rights of Banakhat

and assigned it to Shri Mukundbhai Chimanlal Shah,

partner of M/s. Jalpa Traders on 08.05.1972 along with

Shri Kunjbihari Madhavlal Bhagwat. The said M/s. Jalpa

Traders is said to have executed a banakhat assigning all

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rights in favour of M/s. Chhaganlal & Co. Plaintiff has

further pleaded by virtue of the said rights having vested

with M/s. Chhaganlal & Co., they in turn have executed

an agreement to sale dated 27.12.1974 (Exhibit 194) in

favour of plaintiff. In order to prove the averments made

in the plaint, as noticed hereinabove, plaintiff has got

examined Shri Babubhai, who has stated to the following

effect :

"Defendant is Vithal Mandir Trust. It is a .....xxx......
above trust. Defendants 1 to 8 execute sale agreement
of the said land in favour of Pramukhlal Jivanlal Parikh
and Ambalal Ishwarlal Prajapati on the date
18.08.1966. Pramukhlal Jivanlal Parikh and the trust
came together and made sale agreement in favour of
Shri Gangaram Bhaskarrao Pavde on the day
21.09.1970. On the day 03.04.1972, Gangaram
Bhaskarrao Pavade assigns the rights of his sale
agreement to Mukundbhai Chimanlal Shah, a partner
of the partnership firm in the name of Messers Jalpa
Traders on the basis of said sale agreement. He made
sale agreement in favour of Mukundbhai Chimanlal
Shah. Thereafter, all the rights has been given to
Messers Chhaganlal & Co. from Shri Mukundbhai
Chimanlal Shah, a partner of Messers Jalpa Traders on
the day 23/11/73. On the basis of all the rights in said
agreement, Chhaganlal & Co. granted all its rights and
sale said land to plaintiff on the day 27.12.1974. For
that, plaintiff has given Rs. 15,000/- on the same date
at the time of sale agreement. Then Rs. 25,000/- is
given on 20.05.1975, and then Rs. 5,000/- is given on
15.12.1978. In this way, the plaintiff has paid Rs.
45,000/- to Messers Chhaganlal & Co. The execution of
the sale agreement on dated 27.12.74 has been
continued by the partners of Messers Chhaganlal & Co.
and all the trustees of the aforesaid defendant trust.
Defendant No. 1 to 8 have given all the rights of the

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above land to the plaintiffs. The plaintiff is occupying
the claimed land."

87-A. Thus, comparison of the pleadings and

deposition wold clearly indicate that there is

inconsistencies. On one hand, in the plaint, it has been

stated at paragraph 1 to the effect that plaintiff society

has in all paid Rs. 30,501/- to the defendant trust,

whereas witness examined on behalf of plaintiff has

stated that Rs. 45,000/- is paid to M/s. Chhaganlal & Co.

This inconsistency is at large and staring at face and as

such, we are of the considered view that plaintiff has

failed to prove the plea raised in the plaint or there has

been inconsistency between the pleadings and evidence.

88. In order to prove its claim the plaintiff has

examined one witness Mr.Babulal who claims that he is the

chairman of the plaintiff society on the date he was

deposing. He is neither signatory to the Agreement of Sale

Exhibit 194 nor witness to the said document. A perusal of

his deposition would indicate as though he is speaking to

facts and being conversant with same or in other words, he

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was having personal knowledge of the facts which is

otherwise. Burden is cast on the plaintiff to prove that said

witness had either personal knowledge or he was informed

by any one of the signatories to Exhibit 194 about the facts

of which he has deposing. None of these are present in the

instant case. In his examination-in-chief dated 26.09.2000,

he has deposed to the following effect :

"I was doing part-time job in Chhaganlal & Co. in the
year 1973 and in this manner I was connected with the
said company. Mr.Chhaganlal Girdharlal Patel is the
main partner of Chhaganlal & Co. I know him very well.
I saw him writing frequently when I was doing part-time
job in Chhaganlal & Co. and therefore, I know his
signature well."

89. Thus, the witness examined on behalf of plaintiff who

was an employee of Chhaganlal & Co. had no authority to

depose on behalf of the plaintiff society. That apart, there

is no authorization given by the plaintiff society to

Mr.Babulal to depose on behalf of the plaintiff society.

There is no resolution passed by the plaintiff society

authorizing Mr.Babulal to depose before the Court. There

is absolutely no material to show that Mr.Babulal was a

member of the plaintiff society or he was the Chairman of

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the plaintiff society. There is no material placed by the

plaintiff to establish that as on 1974 when Exhibit 194

came into existence, Mr.Babulal was a member of the

plaintiff society. On the other hand, the admission in the

examination-in-chief dated 26.04.2000 which is extracted

hereinabove would suggest that as on 1973, he was doing

part-time job in Chhaganlal & Co. (Defendant No.14)

90. The Hon'ble Supreme Court in the case of Man

Kaur (Dead) by Lrs. vs. Hartar Singh Sangha, reported

in (2010) 10 SCC 512, has held that where a party to the

suit does not appear in the witness-box and states his own

case on oath and does not offer himself to be cross-

examined by the other side, a presumption would arise

that the case set up by him is not correct. It is also held

that only the person with personal knowledge of details of

transaction can depose. It has been further held :

"17. To succeed in a suit for specific performance,
the plaintiff has to prove: (a) that a valid agreement of
sale was entered by the defendant in his favour and the
terms thereof; (b) that the defendant committed breach
of the contract; and (c) that he was always ready and
willing to perform his part of the obligations in terms of
the contract. If a plaintiff has to prove that he was

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always ready and willing to perform his part of the
contract, that is, to perform his obligations in terms of
the contract, necessarily he should step into the witness
box and give evidence that he has all along been ready
and willing to perform his part of the contract and
subject himself to cross examination on that issue. A
plaintiff cannot obviously examine in his place, his
attorney holder who did not have personal knowledge
either of the transaction or of his readiness and
willingness. Readiness and willingness refer to the state
of mind and conduct of the purchaser, as also his
capacity and preparedness on the other. One without the
other is not sufficient. Therefore a third party who has
no personal knowledge cannot give evidence about such
readiness and willingness, even if he is an attorney
holder of the person concerned.

18. We may now summarise for convenience, the
position as to who should give evidence in regard to
matters involving personal knowledge:

(a) An attorney holder who has signed the plaint and
instituted the suit, but has no personal knowledge of
the transaction can only give formal evidence about the
validity of the power of attorney and the filing of the
suit.

(b) If the attorney holder has done any act or
handled any transactions, in pursuance of the power of
attorney granted by the principal, he may be examined
as a witness to prove those acts or transactions. If the
attorney holder alone has personal knowledge of such
acts and transactions and not the principal, the
attorney holder shall be examined, if those acts and
transactions have to be proved.

(c) The attorney holder cannot depose or give evidence
in place of his principal for the acts done by the
principal or transactions or dealings of the principal, of
which principal alone has personal knowledge.

(d) Where the principal at no point of time had
personally handled or dealt with or participated in the
transaction and has no personal knowledge of the
transaction, and where the entire transaction has been
handled by an attorney holder, necessarily the attorney
holder alone can give evidence in regard to the

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transaction. This frequently happens in case of
principals carrying on business through authorized
managers/attorney holders or persons residing abroad
managing their affairs through their attorney holders.

(e) Where the entire transaction has been conducted
through a particular attorney holder, the principal has
to examine that attorney holder to prove the
transaction, and not a different or subsequent attorney
holder.

(f) Where different attorney holders had dealt with the
matter at different stages of the transaction, if evidence
has to be led as to what transpired at those different
stages, all the attorney holders will have to be
examined.

(g) Where the law requires or contemplated the plaintiff
or other party to a proceeding, to establish or prove
something with reference to his `state of mind' or
`conduct', normally the person concerned alone has to
give evidence and not an attorney holder. A landlord
who seeks eviction of his tenant, on the ground of his
`bona fide' need and a purchaser seeking specific
performance who has to show his `readiness and
willingness' fall under this category. There is however a
recognized exception to this requirement. Where all the
affairs of a party are completely managed, transacted
and looked after by an attorney (who may happen to be a
close family member), it may be possible to accept the
evidence of such attorney even with reference to bona
fides or `readiness and willingness'. Examples of such
attorney holders are a husband/wife exclusively
managing the affairs of his/her spouse, a son/daughter
exclusively managing the affairs of an old and infirm
parent, a father/mother exclusively managing the affairs
of a son/daughter living abroad."

91. The witness who had been examined on behalf of

the plaintiff Mr.Babulal having no personal knowledge of

the transaction (Exhibit 194) cannot be held to be a person

who knew as to what transpired when the Agreement of

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Sale Exhibit 194 came into existence. Hence, the

contention raised by the plaintiff that it had proved the

contents of Exhibit 194 also cannot be digested and it has

to be rejected.

92. As could be seen from the judgment and decree

of the trial Court, the suit has been dismissed essentially

on the following grounds :

(i) Non-availability of permission from
Charity Commissioner;

(ii) Permission not obtained from ULC
authorities;

(iii) All trustees have not signed the agreement
of sale dated 27.12.1974 (Exhibit 194);

(iv) Readiness and willingness has not been
shown or exhibited by plaintiff;

(v) Possession of the suit schedule property is
not with the plaintiff or plaintiff has failed
to prove said claim.

93. One of the prime contention raised by both the

sides is that on account of permission from the Charity

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Commissioner has not been obtained, the agreement to

sell Exhibit 194 cannot be enforced. In fact in the written

statement filed by defendant Nos. 1 to 4 and 6, it has

been contended in paragraph 12 that defendant had filed

such application before the Charity Commissioner and it

was rejected. It was also specifically averred in the

written statement to the following effect :

"12. With regard to para no. 4 ...xxxxx...
corrospondence with the defendant. The defendant in
this matter are public trust registered under the

Bombay Public Trusts Act
and as per the provisions
therein that obtaining legal permission to sell from the
Government, they cannot sell such land to any private
person and the plaintiff is aware of the fact very well
and therefore, without obtaining such permission, the
question of handing over peaceful possession does not
arise. ..........xxxx........."

94. Contention has also been raised in this regard

in this Appeal also. Appeal being continuation of original

proceedings and though there is no much discussion on

this aspect by the learned trial Judge, we have examined

the same on this issue also. In order to adjudicate the

same, we are of the considered opinion that it would be

necessary to extract
Section 36
of the Gujarat Public

Trusts Act, 1950, as applicable, and it reads as under : -

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"36. (1) Notwithstanding anything contained in the
instrument of trust--

(a) no sale, mortgage, exchange or gift or any
immovable property, and

(b) no lease for a period exceeding ten years in
the case of agricultural land or for a period exceeding
three years in the case of non-agricultural land or a
building.

belonging to a public trust, shall be valid without the
previous sanction of the Charity Commissioner.

(2) The decision of the Charity Commissioner under
sub-section (1) shall be communicated to the trustees
and shall be published in such manner as may be
prescribed.

(3) Any person aggrieved by such decision may appeal
to the Gujarat Revenue Tribunal within thirty days from
the date of its publication.

(4) Such decision shall, subject to the provisions of sub-
section (3) be final."

95. Mr. Yatin Oza, learned Senior Counsel

appearing for appellant has contended that even if

permission sought for has been rejected, conditional

decree can be passed and has pressed into service the

Full Bench Judgment of this Court in the case of
Shah

Jitendra Nanalal Ahmedabad vs. Patel Lallubhai

Ishverbhai Ahmedabad and Ors.
AIR 1984 Guj. 145.

A perusal of this judgmetn would indicate that in the case

of Shah Jitendra, the Full Bench had formulated question

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no. 2 in the background of facts obtained therein and had

opined as under : -

"13. In this view, in answer to the second question
referred to us we hold that a conditional decree for
specific performance subject to exemption being
obtained under
section 20
of the Urban Land (Ceiling
and Regulation) Act, 1976 (Act No. 33 of 1976) is
permissible. As we have said earlier, we do not propose
to answer the first question as it may not be necessary.
The case will be sent back."

96. As could be seen from the above judgment, it

has been held that such conditional decree can be passed

subject to exemption being obtained under
section 20
of

the Urban Land (Ceiling and Regulation) Act, 1976 (since

repealed). However, as on date of the suit
ULC Act
was

in force and even applying the said principle, it would not

detain us for too long to brush aside the contention

raised by learned Senior Advocate Mr. Yatin Oza for the

reasons more than one; the words and expression found

in Clause (a) of sub-section (1) of Section 36 commences

with non-obstante clause namely with expression "no

sale, mortgage, exchange or gift of any immovable

property", would be valid without the previous sanction

of the Charity Commissioner, if such immovable property

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belongs to a Public Trust.

97. In the instant case, the permission sought for

had been rejected even according to plaintiff. The sole

witness examined on behalf of plaintiff in his evidence

recorded on 26.04.2000, has stated to the following

effect:

"the trustees of the defendant trust applied to the
Charity Commissioner for permission to sell claimed
land. Copy of submitted application is represented at
Exhibit 129/34. Application is signed by trustees. The
application Number is 36/8/80."

98. He has also deposed that an application under

section 20
of the ULC Act had been filed seeking

exemption. Nowhere he has stated that permission from

ULC had been granted. Even otherwise according to

contention raised by respective learned advocates

appearing for parties, the Charity Commissioner rejected

the permission on 26.02.1986. Against which, two

Revision Applications were filed. The revision application

filed by trust challenging the rejection order came to be

dismissed as withdrawn. One Mr. Banwarlal Amrutlal

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Parikh, challenged the order of rejection passed by

Charity Commissioner, resulted in its dismissal on merits

on 13.06.2001. This was challenged in Special Civil

Application No. 7360 of 2001, which has been dismissed

on 12.03.2003. Certified copy of the order dated

13.06.2001 passed by the Gujarat Revenue Tribunal in

Appeal No. TEN AA 33/1986 has been produced along

with Civil Application No. 1 of 2015 (Old Civil Application

No. 7389 of 2015), which has been allowed by order of

even date, to be received as additional evidence and

marked as Exhibit 223, it would clearly indicate that

order passed by the Charity Commissioner on 26.02.1986

was affirmed. The copy of order dated 12.03.2003 passed

in Special Civil Application No. 7360 of 2001 produced

along with Civil Application No. 1 of 2016 (at page 50

therein) would clearly indicate that the order of Tribunal

dated 13.06.2001 has also been affirmed.

99. In other words, the order of rejection passed by

Charity Commissioner had attained finality or to put it

differently, there is no order passed by the Charity

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Commissioner as required under section 36 for

permitting the sale of suit schedule property by the first

defendant trust which is a Public Charitable Trust.

100. The Full Bench of the High Court of Mumbai in

the case of Avinash Kishorchand Jaiswal and Another

vs. Shri Rammandi Deosthan, Pavnar and Others,

reported in 2020 (3) Mh. L.J. 323, has held that

previous sanction of the Charity Commissioner for sale of

property belonging to trust is mandatory and any

alienation of trust property without the same is null and

void. It has been held as under :-

"8. In our view, the requirement of obtaining
previous sanction of the Charity Commissioner under
Section 36(1)(a) of the said Act to sell or alienate the
immovable property belonging to a public trust is
mandatory and the power can be exercised only on the
application made under Section 36(1)(c) by a trust or
the trustees, seeking authorization to dispose of such
property. Any sale or alienation of an immovable
property of the public trust without such sanction is
null and void. While deciding such application, the
Charity Commissioner has to have regard to the
interest, benefit and the protection of the trust. The
power cannot be exercised suo motu or on his own by
the Charity Commissioner. The power to grant sanction
includes power to refuse sanction on the ground that it
is not in the interest and benefit of the trust and that
the property needs to be protected."

101. In the background of suit schedule property

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being public trust property and both the parties namely

plaintiff and defendant (some of them) being ad idem on

this had sought permission from the Charity

Commissioner to sell the suit schedule property. Even

according to the plaintiff, application had been made by

trustees of defendant No.1 trust way back in the year

1980. The said application though produced along with

the plaint with Mark 129/34 but not marked as exhibit

would clearly indicate that for sale of suit schedule

property, permission had to be obtained from the Charity

Commissioner. The said permission had been sought for

and had been rejected by the Charity Commissioner vide

order dated 26.2.1986, confirmed by the Tribunal by

order dated 13.6.2001 (Exhibit 223) and affirmed in

Special Civil Application No.7360 of 2001 vide order

dated 12.3.2003. Hence, we are of the considered view

that the principle enunciated by the Full Bench in
Shah

Jitendra
's case referred to supra would be inapplicable as

in the said case, it was a claim simpliciter for grant of

decree of specific specific performance even when such

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permission having sought for had been refused.

102. Even assuming that the said principle as

enunciated by the Full Bench of this Court is to be

accepted, we are of the considered view that it would be

applicable or operate in a situation where there is no

permission sought for and such permission having not

been refused. In a given case where the trust or any one

else on behalf of the trust who were to apply for grant of

permission under
Section 36
of the Bombay Public Trusts

Act, 1950 and such permission is refused, in such

circumstances, it cannot be gainsaid that the conditional

decree can be passed. This proposition also gets support

from the authoritative pronouncement of the Hon'ble

Apex Court in the case of
M. Meenakshi and Others

vs. Metadin Agarwal (Dead) By LRs and Others

[(2006) 7 SCC 470].

103. In the instant case, agreement of sale dated

27.12.1974 Exhibit 194 has relied upon by plaintiff for

the relief of specific performance against the defendant,

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on account of alleged defendants refusal to execute the

sale deed. A perusal of the said agreement would clearly

indicate that it has been entered into between plaintiff

society and 14th defendant. Said agreement has been

executed on behalf of society by its Chairman Mr.Patel

Manilal Atmaram (who has not entered the witness-

box). The vendor i.e. 14th defendant who is said to have

executed the said agreement in favour of the plaintiff is

on the strength of agreement of sale dated 13.11.1973,

which has been produced at Mark 193/1. However, same

was not exhibited as already noticed hereinabove. It is

agreed under the said agreement that permission of the

Charity Commissioner to sell the suit schedule property

has to be obtained by the "Owner". This agreement is

said to have been signed by the partner of M/s.

Chhaganlal & Co. and also witnessed by Mr.Mukundbhai

Chimanlal Shah and Mr.Gangarao Bhaskarrao Pavde on

behalf of M/s.Jalpa Traders. However, none of them have

been examined in the instant case. The agreement of sale

marked as Exhibit 194 has been appended with two

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additional sheets and the purported first endorsement

dated 18.4.1976 is said to have been signed by the

trustees of 1st defendant. However, the records do not

disclose as to who are all trustees of the first defendant

trust at the relevant point of time. On this issue, we

would be dealing at a later stage. Turning our attention

back to the core issue, namely non-obtaining of the

permission from the Charity Commissioner is concerned,

we notice undisputedly the owner of the suit schedule

property (1st defendant) had to obtain permission from

Charity Commissioner to sell the suit land and in the

written statement filed by defendants 1 to 4 and 6, it has

been specifically contended by them that no such prior

permission had been obtained by defendant trust.

Plaintiff's witness in his further examination-in-chief

recorded on 29.03.2000 has also admitted this fact which

is to the following effect :

"The plaintiff society xxxx land in question. As per the
terms of the said agreement, necessary permissions, in
order to get final sale deed registered, were required to
be obtained by the defendants. The defendants had
not obtained or made an application to get the
necessary permission which were required to be

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obtained. Therefore, I had requested the defendants
to obtain necessary permissions and after obtaining the
same, to get the final sale deed registered, but the
defendants did not take any action to obtain
permissions. And if any such action has been done,
the defendants had not made me aware thereof. If the
defendants xxxx willing for the same." (Emphasis
supplied by us)

104. He has also deposed that trustees of the 1 st

defendant trust had submitted an application to the

Charity Commissioner to sell the suit schedule property

as per the application vide Mark-129/34 and they had also

filed a declaration before the ULC authorities as per

application Mark-129/35. However, for reasons best

known both these documents were not marked as an

exhibit. The application marked as 129/34 is a photocopy

of the application submitted to the Charity Commissioner

and is said to have been signed by the trustees of 1 st

defendant trust (not all trustees) seeking for exemption.

Learned advocates appearing for both parties admit that

application filed before the Charity Commissioner on

27.10.1970 (not exhibited) came to be rejected by the

Charity Commissioner vide order dated 26.02.1986,

against which the trust filed a revision application and

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same was dismissed as withdrawn. Being aggrieved by

the order of rejection, Mr.Banvarilal Amrutlal Parikh had

filed a revision application in Appeal No.TEN AA 33/1996

which came to be dismissed on merits on 13.06.2001 -

Exhibit 223, whereunder it had been observed to the

following effect :

"10. The learned advocate for the respondent xxxx
before the Charity Commissioner. The person who is
the proposed purchaser from the trust has no locus
standi before the Charity Commissioner. The only
aggrieved person can be the trust and in this case, the
trust no longer wishes to proceed with the same. The
trust had filed a revision application 35 of 1986 before
this Tribunal. This has been withdrawn by the trust.
Consequently, the trust is no longer having any
grievance against the order of the Charity
Commissioner."

105. It has also been observed by the Tribunal that

from the papers available on record, it is not evident as to

why the properties of the trust are required to be

disposed of and how the proceeds of the same would be

utilized for the benefit of the trust. It has been further

observed by the tribunal thus :

"18. It may be noted xxxx also has not succeeded. It
may, therefore, be said that the matter is now once
again wide open. It does not appear in the interest of
the trust to give approval for the erstwhile agreements

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made by the earlier trustees, because the interest of
the trust and reasonableness of the proposals of the
trust have not been fully explained. The need to dispose
of the property has also to be fully examined. Under the
circumstances, I find that the order of the Charity
Commissioner is quite proper and should not be
interfered with. I therefore xxxx order."

This would clearly indicate that permission to sell the suit

schedule property sought for was not granted by the

Charity Commissioner and order of rejection had attained

finality.

106. Appellant - plaintiff has also made an attempt

to produce certain documents during the pendency of this

appeal by way of additional evidence, contending it has

come into existence after the judgment and decree

passed by the trial Court and during the pendency of the

present appeal and said documents have a bearing on the

facts of the present case. Even accepting the same for a

moment and for the limited purpose of looking into the

documents annexed to CA No.6 of 2022 it would clearly

emerge therefrom that the Charity Commissioner

rejected the application No.36/59/2003 said to have been

filed by four trustees and said application having been

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dismissed vide order dated 31.01.2004. The application

filed for such permission was on 17.04.2001 and it would

indicate that same was filed on account of the proposed

compromise to be entered into in the appeal, whereunder

they had sought permission to sell the suit schedule

property. However, said application also came to be

dismissed on 31.01.2004. Thus, it would emerge from the

records that undisputedly there was no permission

accorded by the Charity Commissioner to sell the suit

land in favour of plaintiff.

107. The Hon'ble Apex Court in the case of

Narayamma and others vs. Govindappa and others -

(2019) 19 SCC 42 has held if a decree were to be

granted in favour of the plaintiff on the basis of an illegal

agreement which is hit by statute, it will be rendering an

active assistance by the Court in enforcing an agreement

which is contrary to law. It has been further held :

"20. It could thus be seen that, although illegality is not
pleaded by the defendant nor is relied upon by him by
way of defence, yet the court itself, upon the illegality
appearing upon the evidence, will take notice of it, and
will dismiss the action ex turpi causa non oritur actio. It

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has been held, that no polluted hand shall touch the
pure fountain of justice. It has further been held, that
where parties are concerned in illegal agreements or
other transactions, courts of equity following the rule of
law as to participators in common crime will not
interpose to grant any relief, acting upon the maxim in
pari delicto potior est conditio defendetis et
possidentis.

*** *** ***

28. Now, let us apply the another test laid down in the
case of
Immani Appa Rao
(supra). At the cost of
repetition, both the parties are common participator in
the illegality. In such a situation, the balance of justice
would tilt in whose favour is the question.

As held in

Immani Appa Rao
(supra), if the decree is granted in
favour of the plaintiff on the basis of an illegal
agreement which is hit by a statute, it will be rendering
an active assistance of the court in enforcing an
agreement which is contrary to law. As against this, if
the balance is tilted towards the defendants, no doubt
that they would stand benefited even in spite of their
predecessor-in-title committing an illegality. However,
what the court would be doing is only rendering an
assistance which is purely of a passive character.

As
held by Gajendragadkar, J. in
Immani Appa Rao

(supra), the first course would be clearly and patently
inconsistent with the public interest whereas, the latter
course is lesser injurious to public interest than the
former."

108. Any sale of an immovable property belonging to

a public trust would be void ab-initio if sold without

permission of Charity Commissioner as held by this Court

in the case of Prabodhkumari Maganbhai Patel vs.

Modasa Kadva Patidar - 2010 (4) GLR 3562,

whereunder it has been held :

"15. At the outset, it is required to be noted and it is
an admitted position that the suit property is the

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property of Public Trust, Shri Modasa Kadva Patidar
Trust at Modasa, District: Sabarkantha which is a Trust
registered under the
Bombay Public Trusts Act
. The
aforesaid Public Trust was running the Boarding in the
suit property in question and there was an open space
on the front side of the Boarding upon which, the shops
in question have been constructed and they are in
occupation and in possession of the respective
petitioners herein. Respective petitioners claim to be in
possession of the disputed shops in question as alleged
and claiming through respondent Nos. 2 and 3 herein
as Trustees of the Trust. It is the case on behalf of the
respective petitioners that respondent Nos. 2 and 3
herein as Trustees of aforesaid Trust have leased the
shops in question to the respective petitioners thereby,
they have become the tenant of the suit shops in
question. That as the property in question belongs to
the Trust registered under the
Bombay Public Trusts
Act
, it is subject to restrictions/provisions under the

Bombay Public Trusts Act
.
Section 36
of the Bombay
Public Trusts Act creates a clear embargo/bar of
transferring in any manner whatsoever the Trust
property without prior sanction of the Charity
Commissioner.

Section 36
of the Bombay Public Trusts Act reads as
under:

36[(1)] [Notwithstanding anything contained in the
instrument of trust -]

(a) no sale, mortgage, exchange or gift or any
immovable property, and

(b) no lease for a period exceeding ten years in the case
of agricultural land or for a period exceeding three
years in the case of non-agricultural land or a building,
belonging to a public trust, shall be valid without the
previous sanction of the Charity Commissioner.

[(2) The decision of the Charity Commissioner under
sub-section (1) shall be communicated to the trustees
and shall be published in such manner as may be
prescribed.

(3) Any person aggrieved by such decision may appeal
to the Gujarat Revenue Tribunal within thirty days from
the date of its publication.

(4) Such decision shall, subject to the provisions of sub-
section (3) be final.]

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Therefore any sale, mortgage, exchange or gift of any
immovable property and/or lease for a period
exceeding 3 years in the case of non-agricultural land
or a building belonging to a public trust is void ab
initio. As held by this Court in the case of Huseinmiya
Safimiya v. Habibsha Hasamsha Fakir reported in 1985
(2) GLR 928 any alienation of the immovable property
of the public trust without express permission of the
Charity Commissioner as required under
Section 36
of
the Act shall be invalid and is void and not binding to
the Trust. Similar view has been expressed by this
Court in the case of Pratik Medicines v. Board of
Management reported in 2005 (2) GLH (UJ) 15 Page 26
and it is held that lease of the Trust property without
prior permission of the Charity Commissioner is void ab
initio. In the present case, admittedly, before alleged
lease in favour of the respective petitioners admittedly
prior permission of the Charity Commissioner is not
obtained. On the contrary permission under
Section 36

of the Act has specifically refused by the Charity
Commissioner. Under the circumstances, alleged lease
in favour of the respective petitioners is nullity and void
ab initio. It is required to be noted that in the present
case, not only there is no prior permission of the
Charity Commissioner before the alleged lease in
favour of the respective petitioners, there was already
an application submitted by the respondent Nos. 2 and
3 alleged to be the Trustees at the relevant time when
the shops in question were leased and submitted the
application before the Charity Commissioner under

Section 36
of the Act for post-facto permission and to
regularize the lease in favour of the respective
petitioners and the Charity Commissioner has
dismissed the said application and refused to regularize
the lease in favour of the respective petitioners and
refused to grant post-facto permission under
Section 36

of the Act. It is required to be noted that before the
Charity Commissioner, the respective petitioners were
also heard. It is also required to be noted that there
were objections filed by the respondent Nos. 4 to 11
who were the Trustees of the Trust and direction was
sought and the learned Charity Commissioner has
while rejecting the application submitted by the
respondent Nos. 2 and 3 herein claiming to be the
Trustees of the Trust at the relevant time when there
was a lease in favour of the respondent petitioners, has

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specifically observed that respondent Nos. 2 and 3
through whom the petitioners are claiming the lease in
their favour and inducted the petitioners, were not the
trustees of the Trust. There is a specific finding given
by the Charity Commissioner that respondent Nos. 2
and 3 who have alleged to have leased the shops in
question in favour of the petitioners had no authority to
lease the suit property belonging to the public trust.
That the learned Charity Commissioner after hearing
the parties not only dismissed the application
submitted for post facto permission under
Section 36
of
the Act but has also allowed the objections submitted
by the respondent Nos. 4 to 11 herein Trustees of the
Trust and has directed the Trustees of the Trust to get
back the possession after following due process and
report to the Charity Commissioner within 60 (sixty)
days. It is required to be noted that the order passed by
the Charity Commissioner was challenged by the
respective petitioners before the Gujarat Revenue
Tribunal by way of revision application and the said
revision application is dismissed and the order passed
by the Charity Commissioner has become final.

Thus the alleged lease in favour of the respective
petitioners is not only hit by
Section 36
of the Bombay
Public Trusts Act and is a nullity and void ab initio but
as observed by the Charity Commissioner, the same
was by the persons i.e respondent Nos. 2 and 3 who
were not the Trustees on the PTR of the Trust and that
they had no Authority to lease shops in
question/premises in question on behalf of the Trust.
Therefore, the rights of the respective parties have
been adjudicated upon by the Charity Commissioner
who is the only Competent Authority under the
provisions of the
Bombay Public Trusts Act
. Under the
scheme and provisions of the Bombay Pubic Trusts Act,
Charity Commissioner is the only Competent Authority
to decide the dispute with respect to the property of
the public trust.

18. Now to appreciate the aforesaid submissions, it is
required to be noted that admittedly, the property in
question belong to the public trust. For any dispute
with respect to the property belonging to the public
Trust only Charity Commissioner has the jurisdiction
under the Bombay Public Trust Act. Not only that but
even with respect to the lease of the property

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belonging to the public trust, prior sanction of the
Charity Commissioner is must as required under

Section 36
of the Act. Except the Charity
Commissioner, no other Authority or Court has any
jurisdiction with respect to the Trust property. As per

Section 80
of the Bombay Public Trusts Act, no Civil
Court has jurisdiction to decide and deal with any
question which is by or under
Public Trust Act
to be
decided or dealt with by any officer or authority under
the
Bombay Public Trusts Act
or in respect of which
decision or order such officer or authority has been
made final and conclusive."

109. A plain reading of
Section 36
of BPT Act would

indicate that for sale of property owned by a public trust

the condition precedent is previous sanction. Hence, ex-

post facto sanction cannot be obtained after the sale

transaction as it is not a sanction in the eye of law and it

would not be valid. Such grant of prior sanction is not

technical or procedural, but it affects the very right of the

trust and the public who have interest in the suit

property. Hence, the agreement of sale cannot be valid

unless there is a previous sanction. In fact the Hon'ble

Apex Court in the case of Minakshi and other vs.

Metadin Agarwal reported in (2006) 7 SCC 470 has

held conditional decree cannot be granted when the

permission is applied and rejected. It has been further

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held:

"17. The competent authority under the 1976 Act
was not impleaded as a party in the suit. The orders
passed by the competent authority therein could not
have been the subject-matter thereof. The Plaintiff
although being a person aggrieved could have
questioned the validity of the said orders, did not chose
to do so. Even if the orders passed by the competent
authorities were bad in law, they were required to be
set aside in an appropriate proceeding. They were not
the subject matter of the said suit and the validity or
otherwise of the said proceeding could not have been
gone into therein and in any event for the first time in
the Letters Patent Appeal.

39. Furthermore,
Section 20
of the Specific Relief
Act confers a discretionary jurisdiction upon the courts.
Undoubtedly such a jurisdiction cannot be refused to
be exercised on whims and caprice; but when with
passage of time, contract becomes frustrated or in
some cases increase in the price of land takes place,
the same being relevant factors can be taken into
consideration for the said purpose. While refusing to
exercise its jurisdiction, the courts are not precluded
from taking into consideration the subsequent events.
Only because the Plaintiff-Respondents are ready and
willing to perform their part of contract and even
assuming that the Defendant was not entirely vigilant
in protecting their rights in the proceedings before the
competent authority under the 1976 Act, the same by
itself would not mean that a decree for specific
performance of contract would automatically be
granted. While considering the question as to whether
the discretionary jurisdiction should be exercised or
not, the orders of a competent authority must also be
taken into consideration. While the court upon passing
a decree for specific performance of contract is entitled
to direct that the same shall be subject to the grant of
sanction by the concerned authority, as was the case in

Mrs. Chandnee Vidya Vati Madden v. Dr. C.L. Katilal
and Others
[AIR 1964 SC 978] and Nirmal Anand v.
Advent Corporation (P) Ltd. And Others [(2002) 5 SCC
481]; the ratio laid down therein cannot be extended to
a case where prayer for such sanction had been prayed
for and expressly rejected. On the face of such order,

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which, as noticed hereinbefore, is required to be set
aside by a court in accordance with law, a decree for
specific performance of contract could not have been
granted."

110. In the instant case the order of the Charity

Commissioner rejecting the application filed under

section 36
of the Act came to be passed on 26.02.1996

which has been confirmed by the Gujarat Revenue

Tribunal on 13.06.2001 (Exhibit 223) and order of the

Tribunal has also been confirmed by the learned Single

Judge of this Court in SCA 7360 of 2001 and as such it

cannot be gainsaid by the appellant that notwithstanding

the orders of the Charity Commissioner refusing to grant

permission to sell the suit schedule property either prior

to entering into agreement to sell or during the pendency

of these proceedings, yet a conditional decree of specific

performance can be passed. Said contention is without

merit and it is liable to be rejected and accordingly, it

stands rejected. In the light of said finding recorded by

us, the judgments relied upon by Mr.Yatin Oza, learned

Senior Counsel appearing for the appellant would not

come to the rescue of the appellant.

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111. Another ground on which the learned Trial

Judge has refused to grant the specific performance of

the agreement to sell dated 27.12.1974 - Exhibit 194 is

on the ground that all the trustees of the 1 st defendant

trust have not affixed their signatures.

112. It is an undisputed fact that Exhibit 194 has

been entered into between plaintiff and 14 th defendant. It

is also the contention of plaintiff that agreement of sale

executed by 14th defendant in favour of the plaintiff as per

Exhibit-194 have been ratified by the 1st defendant and its

trustees and as such 1st defendant trust and its trustees

defendant Nos. 2 to 8 bound by it. The plea raised by

plaintiff in this regard is traceable to paragraph 1 of the

plaint, which is to the following effect :

"1. The plaintiff society xxxx by the defendants. All
the defendants have executed their writings over the
agreement to sell dated 27.12.1974. Thereafter, xxxx
hereinbelow."

113. In the written statement filed by defendant

Nos. 1 to 4 and 6, it has been specifically contended that

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defendants had earlier entered into an agreement to sell

the suit property with Shri Pramukhlal and Shri Ambalal,

who in turn had entered into another Banakhat -

Agreement to Sell on 21.09.1970 in favour of Shri

Gangaram Pavde and in the said agreement all the

trustees have not signed. It was further pleaded that in

the agreement of sale entered into between the 1 st

defendant trust with Shri Pramukhlal and Shri Ambalal, it

did not contain the signature of Mr.Ambalal. The

defendants have specifically denied of Mr.Gangaram

Pavde having assigned his rights in favour of M/s.Jalpa

Traders under agreement dated 03.04.1977. It was also

specifically pleaded that agreement to sell the suit

schedule property on 08.05.1972 has been entered into

by one trustee only in favour of Jalpa Traders and

admittedly the said agreement did not contain the

signatures of all the trustees and the burden which was

cast on the plaintiff to prove that the sole trustee

Mr.Kunjbihari Madhavlal Bhagwat having been

authorized by all other trustees has not been proved or in

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other words, this factual aspect has remained in vacuum.

Mr. Yatin Oza, learned Senior Counsel appearing for the

appellants has contended that Mr. Kunjbiharilal

Madhavlal Bhagwat was acting on behalf of all the

trustees and he was authorised to sign all the documents

on behalf of the trust and as such he has affixed the

signature to the agreements and various applications filed

before the statutory authorities. Hence, he contends that

non-signing of the agreement of sale Exhibit 194 or any

other document by all other trustees would not erase the

value of Exhibit 194 or in other words, it can be enforced

against defendant No.1 trust. Such contention cannot be

accepted for reasons more than one. Firstly, there is no

proof of Kunjbiharilal Madhavlal Bhagwat alone being

authorised to act on behalf of defendant No.1 trust.

Except said point having been canvassed during the

course of arguments. In fact, there is no plea also raised

in this regard. The witness examined on behalf of plaintiff

also does not whisper a word on this issue. In the absence

of any cogent material tendered by the plaintiff in this

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regard, the contention of Mr. Yatin Oza, learned Senior

Counsel cannot be accepted.
In the absence of pleadings,

no amount of evidence will assist the parties as held by

the Hon'ble Apex Court in the case of
Biraji Alias

Brijraji and another vs. Surya Pratap and others

[(2020) 10 SCC 729] whereunder it came to be held to

the following effect:

"8. Having heard the learned counsels on both sides,
we have perused the impugned orders and other
material placed on record. The suit in Original Suit No.
107/2010 is filed for cancellation of registered adoption
deed and for consequential injunction orders. In the
adoption deed itself, the ceremony which had taken
place on 14.11.2001 was mentioned, hence it was
within the knowledge of the appellants- plaintiffs even
on the date of filing of the suit. In the absence of any
pleading in the suit filed by the appellants, at belated
stage, after evidence is closed, the appellants have filed
the application to summon the record relating to leave/
service of Ramesh Chander Singh on 14.11.2001 from
the Rajput Regiment Centre Fatehgarh. It is fairly well
settled that in absence of pleading, any amount of
evidence will not help the party. When the adoption
ceremony, which had taken place on 14.11.2001, is
mentioned in the registered adoption deed, which was
questioned in the suit, there is absolutely no reason for
not raising specific plea in the suit and to file
application at belated stage to summon the record to
prove that the second respondent- Ramesh Chander
Singh was on duty C.A.Nos.4883-4884 of 2017 as on
14.11.2001. There was an order from the High Court
for expeditious disposal of the suit and the application
which was filed belatedly is rightly dismissed by the
Trial Court and confirmed by the Revisional Court and
High Court."

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114. Thus, it would emerge from the above

discussion that :

(i) The Agreement to Sell dated 21.09.1970

said to have been executed by Jivanlal Parikh and

the 1st defendant, all the trustees of the 1 st

defendant had not affixed their signature or in

other words, plaintiff has not proved the

execution of said agreement or the said

agreement having the signature of all the trustees

of 1st defendant trust;

(ii) In the agreement to sell dated 18.08.1966

entered into between the 1st defendant with

Pramukhlal Jivanlal Parikh and Ambalal Ishwarlal

Prajapati the signature of Mr.Abmalal is not

forthcoming;

(iii) The agreement to sell dated 08.05.1972

executed by Mr.Kunjbiharilal Madhavlal Bhagwat

in favour of M/s.Jalpa Traders undisputedly did

not contain the signatures of other trustees of the

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1st defendant trust.

(iv) The plaintiff has failed to prove that

Kunjbiharilal Madhavlal Bhagwat alone was

empowered to act on behalf of the trust or he

alone was empowered to execute the agreement

to sell.

115. Hence, in our considered opinion, the finding

recorded by the trial Court that plaintiff had failed to

prove all the trustees of 1 st defendant trust have affixed

their signatures to the agreement of sale dated

24.12.1972 (Exhibit 194) as well as the prior agreements

under which the plaintiff is claiming right has also not

been proved rightly so. In this background, it has to be

necessarily held that either ratification by the new

trustees of the sale agreement executed in favour of the

plaintiff by either giving declaration or approving the

same through any means would be of no consequence. In

that view of the matter, contentions raised by the

appellant in this regard cannot be accepted and it stands

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rejected.

116. The learned advocates appearing for the

contesting defendants have vehemently contended that

there is no averment made in the plaint with regard to

readiness and willingness and even in the event of this

Court arriving at a conclusion that reading of all the

averments made in the plaint in toto would indicate such

averments being there, then in such an event it has to be

construed as a conditional plea and it ought not to be

accepted. In fact the defendants 1 to 4 and 6 in their

written statement at paragraph 14 have specifically

pleaded that plaintiff has never shown any willingness nor

made any demand.

117.
Section 16 (c)
of the Specific Relief Act would

indicate that specific performance of a contract cannot be

enforced in favour of a person, if he fails to prove that he

has performed or has always been ready and willing to

perform the essential terms of the contract which are to

be performed by him, other than terms the performance

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of which he has been prevented or same has been waived

by the defendant. The expression "who fails to prove" was

substituted by Act 18 of 2018 and prior to the same the

words - expression "must aver" was found in
Section

16(c)
. In other words, the expression "must aver" which

existed earlier was substituted by the words "who fails to

prove". This amendment has come into effect from

19.09.2018. Thus, it is incumbent upon party who wants

to enforce the performance of a contract has to aver and

prove that he has performed or has been always ready

and willing to perform the essential terms of the contract.

A plain ready of
Section 16(c)
of the Specific Relief Act

makes it absolutely clear, that plaintiff has to plead

readiness and willingness to perform the essential terms

of the contract and it is a condition precedent for

obtaining relief of specific performance. Plaintiff has to

allege or aver and prove his "continuous" "readiness and

willingness" to perform his part of the contract from the

date of contract. Hon'ble Apex Court in the case of

Shenbagam and others vs. K.K.Rathinavel
, reported

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in 2022 LawSuit (SC) 62, has held : -

"29. We shall now advert to the respondent‟s conduct
throughout the sale transaction. The respondent has
failed to provide any documents or communication
which would indicate that he called upon the appellants
to perform their obligations or discharge the mortgage
within the time period stipulated in the contract. Even
after the expiry of the six months, the respondent did
not reach out to the appellants. It is only in response to
the appellants‟ legal notice that the respondent
demanded performance of their obligations. Merely
averring that he was waiting with the balance
consideration and believed that the appellants would
clear the encumbrance is insufficient to prove that the
respondent-plaintiff was willing to perform his
obligations under the contract."

118. It would be of benefit to note the judgment of

the Apex Court in the case of
Syed Dastgir vs T.R.

Gopalkrishna Seatty
[(1999) 6 SCC 337], whereunder

it has been held that readiness and willingness to perform

essential terms of the contract as required to be pleaded

under
Section 16(c)
, there cannot be any specific

phraseology. It has been held :

"9. So the whole gamut of issue raised is, how to
construe a plea specially with reference to
Section
16(c)
and what are the obligations which the plaintiff
has to comply with reference to his plea and whether
the plea of the plaintiff could not be construed to
conform to the requirement of the aforesaid Section, or
does this section require specific words to be pleaded
that he has performed or has always been ready and is
willing to perform his part of the contract. In
construing a plea in any pleading, Courts must keep in

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mind that a plea is not an expression of art and science
but an expression through words to place fact and law
of ones case for a relief. Such an expression may be
pointed, precise, some times vague but still could be
gathered what he wants to convey through only by
reading the whole pleading, depends on the person
drafting a plea. In India most of the pleas are drafted
by counsels hence aforesaid difference of pleas which
inevitably differ from one to other. Thus, to gather true
spirit behind a plea it should be read as a whole. This
does not distract one from performing his obligations
as required under a statute. But to test, whether he has
performed his obligations one has to see the pith and
substance of a plea. Where a statute requires any fact
to be pleaded then that has to be pleaded may be in
any form. Same plea may be stated by different persons
through different words then how could it be
constricted to be only in any particular nomenclature
or word. Unless statute specifically require for a plea to
be in any particular form, it can be in any form. No
specific phraseology or language is required to take
such a plea. The language in
Section 16(c)
does not
require any specific phraseology but only that the
plaintiff must aver that he has performed or has always
been and is willing to perform his part of the contract.
So the compliance of Readiness and willingness has to
be in spirit and substance and not in letter and form.
So to insist for mechanical production of the exact
words of an statute is to insist for the form rather than
essence. So absence of form cannot dissolve an essence
if already pleaded. "

119. Thus, if it could be gathered from the

averments made in the plaint that averments with regard

to readiness and willingness can be found, it would

suffice and on account of exact words not being found,

the plaintiff cannot be non-suited.

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120. The Apex Court in the case of K.Kupuraj vs M.

Ganeshan - AIR 2021 SC 4652 has held :

"8. It is required to be noted that as per the case of
the original plaintiff, the defendant was required to
evict the tenants and hand over the physical and vacant
possession at the time of execution of the sale deed on
payment of full sale consideration. Even in the suit
notice issued by the plaintiff, the plaintiff called upon
the defendant to evict the tenants and thereafter
execute the sale deed on payment of full consideration
from the plaintiff. Even when we consider the pleadings
and the averments in the plaint, it appears that the
plaintiff was never willing to get the sale deed executed
with tenants and/or as it is. It was the insistence on the
part of the plaintiff to deliver the vacant possession
after evicting the tenants. Therefore, on the basis of the
pleadings in the plaint and on appreciation of evidence,
the learned Trial Court held the issue of willingness
against the plaintiff. However, before the High Court,
the plaintiff filed an affidavit stating that he is now
ready and willing to get the sale deed executed with
respect to the property with tenants and unfortunately,
the High Court relying upon the affidavit in the first
appeal considered that as now the plaintiff is ready and
willing to purchase the property with tenants and get
the sale deed executed with respect to the property in
question with tenants, the High Court has allowed the
appeal and decreed the suit for specific performance.
The aforesaid procedure adopted by the High Court
relying upon the affidavit in a First Appeal by which
virtually without submitting any application for
amendment of the plaint under
Order VI Rule 17 CPC
,
the High Court as a First Appellate Court has taken on
record the affidavit and as such relied upon the same.
Such a procedure is untenable and unknown to law.
First appeals are to be decided after following the
procedure to be followed under
the CPC
. The affidavit,
which was filed by the plaintiff and which has been
relied upon by the High Court is just contrary to the
pleadings in the plaint. As observed hereinabove, there
were no pleadings in the plaint that he is ready and
willing to purchase the property and get the sale deed
executed of the property with tenants and the specific

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pleadings were to hand over the peaceful and vacant
possession after getting the tenants evicted and to
execute the sale deed. The proper procedure would
have been for the plaintiff to move a proper application
for amendment of the plaint in exercise of the power
under
Order VI Rule 17 CPC
, if at all it would have
been permissible in a first appeal under Section 96
read with
Order XLI CPC
. However, straightaway to
rely upon the affidavit without amending the plaint and
the pleadings is wholly impermissible under the law.
Therefore, such a procedure adopted by the High Court
is disapproved.

The learned Trial Court held the issue of willingness
against the plaintiff by giving cogent reasons and
appreciation of evidence and considering the pleadings
and averments in the plaint. We have also gone through
the averments and the pleadings in the plaint and on
considering the same, we are of the opinion that the
learned Trial Court was justified in holding the issue of
willingness against the plaintiff. The plaintiff was never
ready and willing to purchase the property and/or get
the sale deed executed of the property with tenants. It
was for the first time before the High Court in the
affidavit filed before the High Court and subsequently
when the learned Trial Court held the issue of
willingness against the plaintiff, the plaintiff came out
with a case that he is ready and willing to purchase the
property with tenants. For the purpose of passing the
decree for specific performance, the plaintiff has to
prove both the readiness and willingness. Therefore,
once it is found on appreciation of evidence that there
was no willingness on the part of the plaintiff, the
plaintiff is not entitled to the decree for specific
performance. Therefore, in the present case, the
learned Trial Court was justified in refusing to pass the
decree for specific performance."

121. A plea was raised in the aforesaid case by the

defendant that plaintiff has not pleaded readiness and

willingness, which was rebutted by the plaintiff. It was

agreed under the agreement of sale therein that

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defendant would evict the tenants and hand over physical

and vacant possession of the suit schedule property at the

time of execution of the sale deed. This plea was

considered by the Hon'ble Apex Court as plaintiff therein

was not willing to obtain the sale deed with tenants.

When this principle enunciated by the Hon'ble Apex

Court is applied to the facts of this case and when we

turn our attention to Exhibit 194 namely agreement of

sale dated 27.12.1974, it would indicate that

consideration of Rs.25,000/- was paid by the plaintiff to

the 14th defendant (not to the 1st defendant trust) for

purchasing the suit schedule property on the condition

that owner (1st defendant) will have to obtain permission

of the Charity Commissioner for selling the suit schedule

property and title clearance certificate has to be obtained

from the competent authority within six months. It was

also stipulated by the plaintiff that necessary NA

permission, ULC permission will have to be furnished by

the vendor viz., 14th defendant or 1st defendant. These

conditions stipulated under Exhibit 194 would indicate

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that plaintiff was only willing to purchase the suit

schedule property conditionally namely if there were to

be permission granted by the Charity Commissioner and

other statutory permissions being available. In other

words, plaintiff was not willing to purchase the suit

schedule property in the absence of these permissions. As

such, the principles enunciated by the Apex Court in

Karuppuraj's case referred to supra would be applicable.

122. In this background, when we look at the

deposition of PW-1 it would emerge therefrom that there

is not even a whisper by said witness expressing his

readiness and willingness. The principles enunciated by

Hon'ble Apex Court in the matter of
Man Kaur (dead)

by LRS vs Hartar Singh Sanga
- (2010) 10 SCC 512

would be apposite to be quoted, wherein it has been held

that if plaintiff has to prove readiness and willingness, he

has to step into the witness-box and has to give evidence

that he was all along ready and willing to perform. It has

been further held :

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"17.
Section 10
of the Act deals with cases in which
specific performance of contract is enforceable. It
provides that except as otherwise provided in that
Chapter (dealing with Specific Performance of
Contracts) of the Act, specific performance of any
contract may, in the discretion of the court, be
enforced when the act agreed to be done is such that
compensation in money for its non-performance would
not afford adequate relief. Explanation (i) to
section 10

provides that unless and until the contrary is proved,
the court shall presume that the breach of a contract to
transfer immovable property cannot be adequately
relieved by compensation in money. Sub-sections (2)
and (5) of
section 21
of the Act provide that in a suit for
specific performance, if the court decides that specific
performance ought not to be granted, but that there is
a contract between the parties which has been broken
by the defendant, and that the plaintiff is entitled to
compensation for that breach, it shall award him such
compensation accordingly; and that no compensation
shall be awarded under this section unless the plaintiff
has claimed such compensation in his plaint.
Section 23

of the Act provides that a contract otherwise proper to
be specifically enforced, may be so enforced, though a
sum be named in it as the amount to be paid in case of
its breach and the party in default is willing to pay the
same, if the court, having regard to the terms of the
contract and other attending circumstances, is satisfied
that the sum was named only for the purpose of
securing performance of the contract and not for the
purpose of giving to the party in default an option of
paying money in lieu of specific performance."

123. Plaintiff must allege and aver that he was ready

and willing to perform his part of contract from date of

agreement till the date of institution of the suit as held by

the Hon'ble Apex Court in the case of
Sandhya Rani vs

Sudha Rani
reported in AIR 1978 SC 537. In the instant

case, there is not even whisper in the plaint to the said

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effect or averments made in the plaint does not even

remotely suggest about readiness and willingness of the

plaintiff either prior to the suit or at the time of

institution of the suit or thereafter. The evidence of PW-1

is also silent. In totality, there is no averment found

anywhere from the pleadings, for this Court to arrive at a

conclusion that plaintiff has been ready and willing to

perform its part of the contract and defendants had failed

to perform their part of the contract. In the absence of

pleadings and evidence, refusal to grant discretionary

relief by the trial court cannot be found fault with and

said findings have t be necessarily held as just and proper

and same would not call for our interference in appellate

jurisdiction. If two views are possible and the one taken

by the trial Court being in consonance with material

evidence available on record, this Court would not disturb

such finding in exercise of appellate jurisdiction.

124. It would be further necessary to note yet

another plea has been raised by Mr.Yatin Oza, learned

Senior Counsel appearing for the plaintiff contending that

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when there is no issue in this regard framed by trial

Court, there was no need or necessity for plaintiff to

prove the said issue. Though said argument would look

attractive at first blush, it cannot be accepted for reasons

more than one. Firstly, consent cannot confer

jurisdiction. Secondly,
Section 16(c)
being mandatory,

absence of plea in the plaint and in the deposition it

would not otherwise cure the glaring defect. Thirdly,

plaintiff has not sought for recasting of the issues but on

the other hand with open eyes, having known the defense

put up by the defendants Nos.1 to 4 and 6 in their written

statement at paragraph-14 has proceeded with the suit

and submitted himself to the jurisdiction of the Court and

called for an opinion or judgment in that regard.

Fourthly, the judgment of the trial court would indicate

at paragraph-11 while adjudicating issue No.9 and 10

learned Trial Judge has examined this issue and held that

terms of the agreement would indicate that plaintiff had

expressed or given its conditional willingness, which has

already been noticed by us hereinsupra as impermissible

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in the teeth of judgment of the Apex Court in Karuppura's

case supra. Thus, contentions raised in this regard stands

rejected.

125. While the court exercises the discretionary

power for grant or refusal of a decree of specific

performance, one of the paramount considerations would

be the conduct of the plaintiff which would be taken into

consideration. If the conduct of the plaintiff is such that

which would not inspire confidence, then necessarily the

discretionary power would not be exercised to grant the

relief, but, on the other hand, if the plaintiff has come the

court with clean hands and has played his role with

utmost sincerity, necessarily the discretionary relief

would be granted. The Hon'ble Apex Court in the case of

Atma Ram v. Charanjit Singh
[AIR 2020 SC 3413]

has held as under:

"... ... ... A person issues legal notice on particular year
claiming readiness and willingness and files a suit for
mandatory injunction and after three years converts the
said suit to specific performance suit will not be entitled
to the relief of specific performance."

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126. Yet another important aspect which the court

would take into consideration while considering the plea

for grant of specific performance would be readiness and

willingness where the balance sheet of the plaintiff does

not reflect of having sufficient fund to discharge the

plaintiff's part of the contract, the discretionary relief

would not be granted as held by the Hon'ble Apex Court in

the case of U.N. Krishnamurthy (since deceased) Thr.

Lrs. Versus A.M. Krishnamurthy [AIR 2022 SC 3361].

In the instant case, the plaintiff's balance sheet as per

Exhibit 208 reflects it does not possess any fund and there

is negative profit and as such question of granting specific

performance would not arise. Hence, point Nos. (vi) and

(vii) is answered by holding that judgment and decree

passed in Special Civil Suit No. 167 of 1984 deserves to be

confirmed and there is no error committed by the Trial

Court in dismissing the suit.

127. This Court places on record its appreciation for

valuable assistance rendered by all the learned advocates

who appeared in the matter and extending their

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cooperation for disposing of the lis which commenced in

the year 1984 which is a off-shoot of an alleged agreement

of sale dated 27.12.1974 (Exhibit 194).

128. For the reasons aforestated, we proceed to pass

following

JUDGEMENT

(i) Civil Application No.2/2007, Civil Application
No.3/2007, Civil Application No.3/2014, Civil
Application No.1/2022 and Civil Application
No.2/2022 are hereby dismissed.

(ii) Civil Application No.2/2014 is allowed and documents
are ordered to be marked as Exhibits 219 to 222.

(iii) Civil Application No.1/2015 is allowed and the
document viz. certified copy of the order dated
13.6.2001 passed by the Gujarat Revenue Tribunal is
ordered to be marked as Exhibit 223.

(iv) Civil Application No.3/2022, Civil Application
No.4/2022 and Civil Application No.5/2022 are
dismissed.

(v) Civil Application No.6/2022 is allowed in part and
documents are ordered to be marked as Exhibits 224
to 237.

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(vi) Civil Application No.1/2016, Civil Application
No.1/2022, Civil Application No.3/2018 and Civil
Application No.7/2022 are hereby rejected.

(vii) First Appeal No.3517/2000 is hereby dismissed and
judgment and decree dated 23.10.2000 passed by the
6th Joint Civil Judge (Senior Division) at Ahmedabad
(Rural) in Special Civil Suit No.167/1984 is affirmed.
No order as to costs.

(viii) Registry is directed to draw the decree accordingly.

(ARAVIND KUMAR,CJ)

(ASHUTOSH SHASTRI, J)

FURTHER ORDER IN FIRST APPEAL No. 3517 OF 2000

Learned counsel appearing for appellant seeks to
continue the order of stay of judgment and decree passed
by the Trial Court. We are of the considered view that
since we have examined the issues from all angles,
question of continuing the said stay does not arise and
said prayer stands rejected.

(ARAVIND KUMAR,CJ)

(ASHUTOSH SHASTRI, J)

Bharat/Gaurav/Amar

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