Gujarat High Court

Nayankumar Bhagvanbhai Patel Mevda vs Ashokbhai Chhotabhai Patel on 16 January, 2025

Author:
Sangeeta K. Vishen

Bench:
Sangeeta K. Vishen

NEUTRAL CITATION

C/CA/3285/2024 JUDGMENT DATED: 16/01/2025

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CIVIL APPLICATION (FOR LEAVE TO APPEAL) NO. 3285 of 2024
In F/FIRST APPEAL NO. 16173 of 2024
With
R/CIVIL APPLICATION NO. 3288 of 2024
In F/FIRST APPEAL NO. 15092 of 2024

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

and

HONOURABLE MR. JUSTICE NIRAL R. MEHTA

================================================================

Approved for Reporting Yes No
Yes
================================================================
NAYANKUMAR BHAGVANBHAI PATEL MEVDA
Versus
ASHOKBHAI CHHOTABHAI PATEL & ORS.
================================================================
Appearance:
MR. ARCHIT P JANI(7304) for the Applicant(s) No. 1
DELETED for the Respondent(s) No. 11,12,13
MR SP MAJMUDAR(3456) for the Respondent(s) No. 10
NOTICE SERVED for the Respondent(s) No. 1,14,15,2,3,4,5,6,7,8,9
================================================================
CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 16/01/2025
COMMON ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)

1. Captioned civil application no.3285 of 2024 is for seeking
leave to file appeal challenging the order as well as consent decree,
both dated 11.02.2023 passed by the learned 26th Additional Senior
Civil Judge, Vadodara in Special Civil Suit no.277 of 2022. Similarly,
in civil application no.3288 of 2024, the applicant is seeking leave to
file appeal to challenge the order dated 21.01.2023 passed below

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Exhibit 1 so also the decree of the same date by the learned
Additional Senior Civil Judge, Vadodara in Special Civil Suit no.11 of
2023. Since both the applications are connected, parties being
common so also the issue, they are being disposed of by this
common oral judgment. Parties have been referred to as per their
status in civil application no.3285 of 2024.

2. Mr Archit P. Jani, learned advocate appearing for the applicant,
submitted that the applicant has Agreement to Sell dated
17.03.2022 in his favour, executed by the respondents, except
respondent no.10. It is submitted that Special Civil Suit no.277 of
2022 was filed by the respondents against the respondent no.10,
seeking cancellation of the alleged Agreement to Sell executed on
01.01.2013, only with a view to nullifying the rights of the applicant.
Another Special Civil Suit no.11 of 2022 was filed by the respondent
no.10 seeking specific performance of the said Agreement to Sell
dated 01.01.2013 against the rest of the respondents.

2.1 It is submitted that it is surprising to note that the Special Civil
Suit no.11 of 2023 was filed on 11.01.2023 and respondent no.9
appeared on 13.01.2023 on his behalf and on behalf of the others
and immediately within a span of 10 days i.e. on 21.01.2023, it was
disposed of on the ground of settlement. Similarly, the Special Civil
Suit no.277 of 2022 was disposed of on 11.02.2023. It is further
submitted that the applicant was not made party in any of the suits
filed by the respondents individually or jointly.

2.2 It is next submitted that respondent no.9 preferred a Special
Civil Suit no.14 of 2023 seeking cancellation of the registered
Agreement to Sell dated 17.03.2022; however, subsequently, on
14.07.2023 it came to be withdrawn simplicitor. It is submitted that
the details of the suits and the Agreement to Sell were missing;
however, the suit was withdrawn with an assurance that the sale

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deed would be executed in favour of the applicant.

2.3 It is submitted that after the passing of the consent decree,
Execution Petition was filed and as a result, on 08.04.2023, order
has been passed by the learned Additional Senior Civil Judge
appointing the Court Commissioner. It is thereafter, that the
registered sale deeds have been executed by the Court
Commissioner. It is submitted that the applicant having no option
had to file a Special Civil Suit no.299 of 2023 seeking specific
performance of the Agreement to Sell dated 17.03.2022 and is
pending. It is submitted that the applicant is severely prejudiced by
the consent decree inasmuch as, it had paid consideration of Rs.50
lacs and when there is a registered Agreement to Sell coupled with
the consideration, the respondents i.e. original owners have no
option but to execute sale deed in his favour.

2.4 It is submitted that it is also not in dispute that at the time of
execution of the registered Agreement to Sell, there were no civil
cases pending by the original owners or against the original owners.
So far as the so called Agreement to Sell dated 01.01.2013 in favour
of the respondent no.10 is concerned, the same also creates a
doubt inasmuch as, for almost 10 years, no steps were taken and
only in the years 2022 and 2023, the suit proceedings were
initiated. It is submitted that the suits were filed only with a view to
seeing that the rights of the applicant is prejudiced. Surreptitious
filing of the suits by the respondents, inter se, was nothing but an
abuse of process of law.

2.5 Reliance is placed on the judgment in the case of
Sakina
Sultanali Sunesara (Momin) & Ors. vs. Shia Imami Ismaili Momin
Jamat Samaj & Ors.
reported in 2020 (1) GLR 586. It is submitted
that it is by now well settled that a third party who was not a party

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to the suit or compromise, but had an interest in the subject matter
of compromise and is aggrieved by the decree passed by the Court
under
Order 23 Rule 3 of the Code of Civil Procedure
, 1908
(hereinafter referred to as "the Code"), the remedy available to him
is to either approach very same Court seeking review or to file an
appeal with the leave of the Court under the provisions of sub-
section (1) of
Section 96
of the Code. It is submitted that while
summarizing, the Full Bench, has held and observed that if the
aggrieved party was not the party to the suit, the remedy available
to him, to challenge the decree passed by the Court on the basis of
the compromise between the parties to the suit (consent decree),
would be to file an appeal under sub-section (1) of
Section 96
of the
Code with the leave of the appellate court or to file a review
application before the Court which passed the decree, as may be
permissible under
Section 114
read with Order 43 of the Code. It is
therefore submitted that the remedy available to the applicant, is to
challenge the compromise deed, after seeking the leave of this
Court. It is submitted that the option to file suit, is not available.

Reliance is placed on the judgment in the case of
Praash Robin
Nayudu vs. Rev. Imanuel S. Kant
reported in 2023 (2) GLR 1319.

2.6 Further reliance is placed on the judgment in the case of

Gulam Nabi Khanday and Others vs. Mushtaq Ahmad and Others

reported in 2024 SCC OnLine J&K 107.

Reliance is also placed on the
judgment of the Apex Court in the case of M/s.
Sree Surya
Developers & Promoters vs. N. Shailesh Prasad
reported in (2022) 5
SCC 736, wherein, it has been held and observed that a party to a
consent decree, to challenge the compromise decree on the ground
that the decree was not lawful, has to approach the same Court
which recorded the compromise and a separate suit challenging the
consent decree, would not be maintainable.

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2.7 Further reliance is placed on the judgment in the case of

Pushpa Devi Bhagat vs. Rajinder Singh and Others
reported in
(2006) 5 SCC 566. Specific reference is made to paragraph 17
wherein, while referring to the amended provisions of Order 23 of
the Code, inter alia, it has been held and observed that no appeal is
maintainable against the consent decree having regard to the
specific bar contained in sub-section (3) of
Section 96
of the Code.
Besides, no independent suit can be filed for setting aside a
compromise decree on the ground that the compromise was not
lawful; in view of the bar contained in Rule 3-A of the Code.

2.8 While summing up, it is contended that there was a registered
Agreement to Sell in favour of the applicant. Moreover, the applicant
has paid an amount of Rs.50 lacs. It was only keeping in dark the
applicant, that the suits were filed and settlements were arrived at.
Respondent no.9 was fully aware about the Agreement to Sell and
hence, the suits filed by the respondents were nothing but fraud
played upon the Court. In the circumstances, the applicant be
permitted a leave to file the appeal.

3. Per contra, Mr S. P. Majmudar, learned advocate appearing
with Mr Hardik J. Karathiya, learned advocate for the respondent
no.10, submitted that the application, suffers from vice of
suppression of material fact inasmuch as, the applicant has chosen
not to disclose the factum of filing of the suit by him seeking specific
performance of the Agreement to Sell. Though reference is made of
all other suit, the details of the suit filed by the applicant is missing
and hence, the application deserves to be rejected only on the
ground of suppression of material fact.

3.1 It is further submitted that clearly, the applicant, is mere
holder of the Agreement to Sell and has no other interest in the
property and therefore, appealable interest is not in favour of the

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applicant owing to passing of the consent decree. It is further
submitted that it is settled that under the provisions of the
Transfer
of Property Act, 1882
(hereinafter referred to as "
TP Act
"),
Agreement to Sell does not create any interest. As against this,
there is a registered sale deed executed in favour of respondent
no.10. Also, the applicant is neither a necessary nor a proper party.
If at all, the applicant is aggrieved or has any grievance, it has to
prove his case independently and on its own merits, without
referring to the proceedings or the documents executed between
the respondents.

3.2 Reliance is placed on the judgment in the case of
Patel
Vinodbhai Khodidas vs. Patel Pravinbhai Kacharabhai
reported in
2021 (3) GLR 2601. It is submitted that the issue stands fully
covered by the principle
laid down in

the said judgment
. Not only
the principle but the facts, were also identical. This Court, has
considered the aspect of aggrieved person so also the appealable
interest of the aggrieved person. Coordinate Bench, after
considering various judgments on the point so also the provisions of

Section 96
and Order 23 Rule 3 of the Code, has held and observed
that in order to acquire the status of the aggrieved party, the person
must have legal interest and enforceable right which would in turn
allow him to question the decree or order by preferring appeal
though, he may not be a party to the suit or the proceedings. It has
also been held and observed that the applicants who claim their
interest on the basis of the Agreement to Sell, could not be said to
be holding any interest in the property to be within the definition of
"legally aggrieved or prejudiced persons".

3.3 For the proposition that Agreement to Sell does not confer any
interest, reliance is placed on the judgment in the case of
Suraj
Lamp and Industries Pvt. Limited vs. State of Haryana
reported in

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(2012) 1 SCC 656. It has been held and observed that any
agreement to sell which is not a registered deed of conveyance
would fall short of the requirements of
Sections 54
and
of the TP
Act and will not confer any title or transfer any interest in
immovable property.
Section 54
defines the term 'sale' and would
mean a transfer of ownership in exchange for a price paid or
promised or part-paid and part-promised. The provision also
envisages that such transfer in the case of tangible immoveable
property can be made only by a registered instrument.

3.4 Reliance is also placed on the judgment in the case of

Venigalla Koteswaramma vs. Malampati Suryamba
reported in
(2021) 4 SCC 246. It is submitted that law enunciated by the Apex
Court, is that as per the provisions of
Section 54
of the TP Act, an
agreement for sale of immoveable property does not, of itself,
create any interest in or charge on such property; a person having
an agreement for sale in his favour does not get any right in the
property, except the right of obtaining sale deed on that basis.

3.5 In support of the submission of suppression of material fact,
reliance is placed on the judgment in the case of
HMT Ltd. vs.
Rukmini and Others
reported in AIR 2024 SC 4677. The Apex Court,
in no uncertain terms, stated that a person seeking equitable relief,
must come with clean hands, put forward all facts before the Court
without concealing or suppressing anything and seek appropriate
relief. It is submitted that when a person does not disclose all the
correct facts, he would be guilty of misleading the Court. In the
present case, though the applicant has mentioned about all the
suits, has chosen not to state about the suit filed by him against the
respondent no.9 seeking specific performance. The applicant has
already initiated the proceedings of specific performance and he has
to prove his rights independently and on the strength of his own

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case.

3.6 It is further submitted that the judgment of Full Bench will not
apply to the applicant, as the applicant cannot be said to be
aggrieved party. It is only the party who has the appealable interest,
can be permitted to file the appeal. The applicant, has to satisfy that
he has an appealable interest. In view of mere Agreement to Sell,
the applicant, cannot claim that he has the appealable interest. It is
therefore urged that the applications do not deserve to be
entertained and may not be accepted.

4. In a brief rejoinder, Mr Archit P. Jani, learned advocate for the
applicant, submitted that suppression, has to be of a material fact.
In the present case, the filing of the suit would not be material or
connected with the issue raised. Even otherwise, in the appeal
memo, there is a specific reference of the suit filed by the applicant
and hence, by no stretch of imagination, it can be construed that
there was a suppression by the applicant. It is also submitted that
Agreement to Sell does not confer any right but, the applicant can't
wait until the order of consent decree is set aside. The applicant,
would not get any relief unless the consent decree is challenged and
is quashed and set aside. It is submitted that if the suit were to be
allowed then there is nothing left to be executed in favour of the
applicant and hence, consent decrees have to go.

4.1 Reliance is placed on the judgment in the case of
R.
Janakiammal vs. S. K. Kumarasamy (Deceased) Through Legal
Representatives and Others
reported in (2021) 9 SCC 114. It is
submitted that the suit against the consent decree would not be
maintainable is a clear ratio
laid down by
the Apex Court in
the said
judgment
.

Further reliance is placed on the judgment in the case of

Mooman Jafferali Aliji Maknojiya vs. Shia Imami Ismaili Momin Jamat
Samaj
reported in 2021 (0) AIJEL-HC-243430. The said judgment has

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been relied upon, for the proposition of aggrieved party.

Reliance is
also placed on the judgment in the case of
V. N. Krishna Murthy and
Another vs. Ravikumar and Others
reported in (2020) 9 SCC 501.

4.2 It is therefore urged that the applicant is very much aggrieved
party and hence, be permitted the leave to challenge the order and
consent decree, both dated 21.01.2023 as well as order and decree
both dated 11.02.2023 passed by the Court below.

5. Heard the learned advocates appearing for the respective
parties. Considered the facts, the law and the record made
available.

6. Tersely stated are the facts. Discernibly, Special Civil Suit
no.277 of 2022 was filed by the respondents except respondent
no.10 seeking declaration that the Agreement to Sell dated
13.01.2022 as well as the possession receipt be declared as illegal
and bad as the same has been executed without the knowledge of
the plaintiffs. Subsequent thereto, the respondent no.10 filed
Special Civil Suit no.11 of 2023, inter alia, seeking specific
performance of the Agreement to Sell dated 01.01.2013 and for
consequential relief of possession, pursuant to the possession
receipt dated 22.01.2016.

7. Apparently, in the Special Civil Suit no.277 of 2022, the
parties have submitted compromise purshis - Exhibit 13 and the
learned Judge, has passed an order dated 11.02.2023 in terms of
the compromise purshis. Decree was drawn accordingly of the same
date. On the other hand, in Special Civil Suit no.11 of 2023
compromise purshis - Exhibit 8 was filed with the Court below and
the order has been passed dated 21.01.2023, disposing of the suit
in terms of the purshis. Decree was passed accordingly of the same
date.

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8. Apropos the above referred two orders and decrees, that
execution proceeding no.4 of 2023 was initiated. Order dated
08.04.2023 came to be passed below Exhibits 1, 6 and 8 appointing
the Court Commissioner for the purpose of executing the sale deed
and order dated 19.04.2023 below Exhibits 1, 6, 9 and 23 for
appointing Court Commissioner and executing sale deed. After the
proceeding, ultimately registered sale deeds have been executed by
the Court Commissioner. It is the compromise deed; the orders
passed thereon and the consequential order dated 08.04.2023 and
sale deeds executed in the execution proceedings, which have
given rise to the captioned application by the applicant seeking
leave to challenge the order and consent decree both dated
11.02.2023 passed in Special Civil Suit no.277 of 2022 as well as
order and decree both dated 21.01.2023 passed in Special Civil Suit
no.11 of 2023.

9. While adverting to the facts touching the applicant, notably,
Agreement to Sell was executed by the respondent nos.1 to 9 dated
17.03.2022. It is the case of the applicant that when there was an
Agreement to Sell, the suits filed, could not have been settled
between the parties, as the rights of the applicant have been
prejudicely affected. The applicant has also filed Special Civil Suit
no.299 of 2023 against the respondents seeking specific
performance of the Agreement to Sell as well as challenging the
registered sale deeds in favour of the respondent no.10. Clearly, it is
the Agreement to Sell dated 17.03.2022, on the basis whereof, the
applicant is claiming his right so as to challenge the orders passed
in the suits. Hence, one needs to ascertain as to whether any rights
can be said to have been invested or conferred upon the applicant
so as to take out the captioned proceedings. Thus, few judgments
on the point are worth referring to.

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10.
In the case of
Sakina Sultanali Sunesara (Momin) & Ors. vs.
Shia Imami Ismaili Momin Jamat Samaj & Ors.
(supra), the full
bench, in paragraph 30 of the judgment has stated that when a
person aggrieved is third party who was neither a party to suit nor a
party to the compromise on the basis of which the decree was
passed would not be bound by such decree. Such decree cannot be
said to be consent decree qua such party and therefore, either the
bar contained in sub-section (3) of
Section 96
or bar under Rule 3-A
of the Order XXIII, would not be applicable to him. Such an
aggrieved party with a leave of the Court can always file an appeal
as per the provisions of the Code and can challenge the validity of
the compromise decree on the grounds available to him. The full
bench, while summing up its reasoning, in paragraph 40 (vii) has
observed thus:

"(vii) If the aggrieved party was not the party to the suit, the
remedy available to him to challenge the decree passed by the
Court on the basis of compromise between the parties to the suit
(consent decree), would be to file an appeal under
Section 96(1)
of
C.P.C., with the leave of the appellate Court, or to file a review
application before the Court, which passed the decree, as may be
permissible under
Section 114
read with
Order XLVII of C.P.C
."

11. Therefore, the aggrieved third party, who is not a party to the
suit or compromise, the remedy available to him is to file an appeal
with the leave of the Court, as neither the consent decree nor the
orders would be binding upon him. The issue then would arises is as
to who can be said to be an aggrieved party. A person aggrieved,
must be a person who had suffered a legal grievance, against whom
a decision has been pronounced which has wrongfully deprived him
of something or wrongfully refused him something or wrongfully
affected his title of something and it does not include a person who
suffers from a psychological or an imaginary injury. A person
aggrieved must therefore necessarily be one whose right or interest

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has been adversely affected or jeopardized.

12.
In the case of
Mooman Jafferali Aliji Maknojiya vs. Shia Imami
Ismaili Momin Jamat Samaj
(supra), the coordinate bench, while
considering the application seeking leave to appeal has held and
observed that a stranger cannot be permitted to file an appeal in
any proceedings unless he satisfies the Court that he falls within the
category of aggrieved person. It is only where the judgment and
decree prejudicely affects the person, who is not a party to the
proceedings, can prefer an appeal with the leave of the appellate
Court. The expression, "person aggrieved" has been lucidly
explained to mean that it does not include a person who suffers
from a psychological or an imaginary injury; a person aggrieved
must therefore, necessarily be one, whose right or interest has been
adversely affected or jeopardized. Summarizing the principle, in
paragraph 16, this Court, has observed thus:

16. The principles governing grant of leave to appeal may be
summarised as under :

(i)
Sections 96
and
of the CPC provide for preferring an appeal
from an original decree or decree in appeal respectively;

(ii) the said provisions do not enumerate the categories of persons
who can file an appeal;

(iii) however it a settled legal proposition that a stranger cannot be
permitted to file an appeal in any proceedings unless he satisfies the
Court that he falls within the category of aggrieved person;

(iv) it is only where a judgment and decree prejudicially affects a
person who is not a party to the proceedings, he can prefer an
appeal with the leave of the Court;

(v) a person aggrieved, to file an appeal, must be one whose right is
affected by reason of the judgment and decree sought to be
impugned;

(vi) the expression person aggrieved does not include a person who
suffers from a psychological or an imaginary injury;

(vii) it would be improper to grant leave to appeal to every person
who may in some remote or indirect way be prejudicially affected by
a decree or judgment; and

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(viii) ordinarily leave to appeal should be granted to persons who,
though not parties to the proceedings, would be bound by the
decree or judgment in that proceeding and who would be precluded
from attacking its correctness in other proceedings."

13.
In the case of
R. Janakiammal vs. S. K. Kumarasamy
(Deceased) Through Legal Representatives and Others
(supra), the
Apex Court, was dealing with the provisions of Order 23, Rule 3 and
3-A of the Code. The principle which can be deduced is, that the
remedy available to a party to a consent decree to avoid such
consent decree is to approach the Court which recorded the
compromise and made a decree in terms of it and establish that
there was no compromise. In that event, the Court which recorded
the compromise will itself consider and decide the question as to
whether there was a valid compromise or not. It has been observed
that this is so because a consent decree is nothing but a contract
between parties superimposed with a seal of approval of the Court.
The validity of a consent decree depends wholly on the validity of
the agreement or compromise on which it is made. Therefore, the
compromise on the basis of which the consent decree is passed, is
merely a contract. Consent decree is nothing but a contract
between the parties superimposed with a seal of the approval of the
Court.

14. The present applicant who is seeking leave to appeal to
challenge the order and decree dated 21.01.2023 and order and
decree both dated 11.02.2023 passed in Special Civil Suit no.11 of
2023 and Special Civil Suit no.277 of 2022, respectively, whether
can be said to be an aggrieved party and if yes, what would be the
remedy available to the applicant as he was not a party to the suit
proceedings. Therefore, the first and foremost threshold to be
cleared is that third party should be an aggrieved person.

15.
In the case of
Suraj Lamp and Industries Pvt. Limited vs. State
of Haryana
(supra), the Apex Court considered the provisions of

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Sections 5
,
53A
,
of the TP Act as well as
Section 17
of the
Registration Act, 1908. It has been held and observed that
Section
of the TP Act makes it clear that contract of sale, that is, an
agreement of sale, does not, of itself, create any interest in or
charge on such property. While discussing the provisions of
Section
i.e. requirement of registration of document, it has been held and
observed that transfer of immovable property by way of sale can
only be by a deed of conveyance and in absence of a deed of
conveyance (duly stamped and registered as required by law), no
right, title or interest in an immoveable property can be transferred.
In paragraph 12, it has been further observed that any contract of
sale (agreement to sell) which is not a registered deed of
conveyance (deed of sale) would fall short of the requirements of

Sections 54
and
of TP Act and will not confer any title nor
transfer any interest in an immovable property (except to the
limited right granted under
Section 53A
of TP Act). According to TP
Act, an agreement of sale, whether with possession or without
possession, is not a conveyance as
Section 54
of TP Act provides
that sale of immoveable property can be made only by a registered
instrument. Paragraphs 11 and 12 are reproduced hereinbelow for
ready reference.

"11.
Section 54
of TP Act makes it clear that a contract of sale,
that is, an agreement of sale does not, of itself, create any interest
in or charge on such property. This Court in
Narandas Karsondas v.
S.A. Kamtam and Anr.
(1977) 3 SCC 247, observed:

A contract of sale does not of itself create any interest in, or
charge on, the property. This is expressly declared in
Section 54
of
the Transfer of Property Act. See Rambaran Prosad V/s. Ram Mohit
Hazra [1967]1 SCR 293. The fiduciary character of the personal
obligation created by a contract for sale is recognised in
Section 3

of the Specific Relief Act, 1963, and in
Section 91
of the Trusts Act.
The personal obligation created by a contract of sale is described
in
Section 40
of the Transfer of Property Act as an obligation
arising out of contract and annexed to the ownership of property,
but not amounting to an interest or easement therein."

In India, the word `transfer' is defined with reference to the word
`convey'. The word `conveys' in
section 5
of Transfer of Property

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Act is used in the wider sense of conveying ownership... ...that only
on execution of conveyance ownership passes from one party to
another...."

In
Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra
[2004 (8) SCC
614] this Court held:

"Protection provided under
Section 53A
of the Act to the proposed
transferee is a shield only against the transferor. It disentitles the
transferor from disturbing the possession of the proposed
transferee who is put in possession in pursuance to such an
agreement. It has nothing to do with the ownership of the
proposed transferor who remains full owner of the property till it is
legally conveyed by executing a registered sale deed in favour of
the transferee. Such a right to protect possession against the
proposed vendor cannot be pressed in service against a third
party."

It is thus clear that a transfer of immoveable property by way of
sale can only be by a deed of conveyance (sale deed). In the
absence of a deed of conveyance (duly stamped and registered as
required by law), no right, title or interest in an immoveable
property can be transferred.

12. Any contract of sale (agreement to sell) which is not a
registered deed of conveyance (deed of sale) would fall short of
the requirements of
sections 54
and
of TP Act and will not
confer any title nor transfer any interest in an immovable property
(except to the limited right granted under
section 53A
of TP Act).
According to TP Act, an agreement of sale, whether with
possession or without possession, is not a conveyance.
Section 54

of TP Act enacts that sale of immoveable property can be made
only by a registered instrument and an agreement of sale does not
create any interest or charge on its subject matter."

16. Similarly, in the case of
Venigalla Koteswaramma vs.
Malampati Suryamba
(supra), the Apex Court, has held and
observed that as per
Section 54
of the TP Act, an agreement for sale
of immovable property does not, of itself, create any interest in or
charge on such property. A person having an agreement for sale in
his favour does not have any right, except the right of obtaining sale
deed on that basis. Paragraphs 39 and 39.1 of
the said judgment
,
read thus:

"39. Apart from the above, it is also fundamental, as per
Section 54

of the Transfer of Property Act, 1882, agreement for sale of
immoveable property does not, of itself, create any interest in or
charge on such property, Bank of India v. Abhay D. Narottam and
Ors.: (2005) 11 SCC 520. A person having an agreement for sale in
his favour does not get any right in the property, except the right of

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obtaining sale deed on that basis8. For ready reference, we may
reproduce
Section 54
of the Transfer of Property Act that reads as
under: -

"54. "Sale" defined.- "Sale" is a transfer of ownership in exchange for
a price paid or promised or part-paid and partpromised. Sale how
made.- Such transfer, in the case of tangible immoveable property of
the value of one hundred rupees and upwards, or in the case of a
reversion or other intangible thing, can be made only by a registered
instrument. In the case of tangible immoveable property of a value
less than one hundred rupees, such transfer may be made either by
a registered instrument or by delivery of the property. Delivery of
tangible immoveable property takes place when the seller places the
buyer, or such person as he directs, in possession of the property.

Contract for sale.- A contract for the sale of immoveable property is
a contract that a sale of such property shall take place on terms
settled between the parties. It does not, of itself, create any interest
in or charge on such property."

39.1. It goes without saying that the alleged agreement for sale did
not invest the vendee with title to, or any interest in, the property in
question; and the alleged agreement for sale did not invest the
vendee with any such right that the plaintiff could not have
maintained her claim for partition in respect of the properties left by
Annapurnamma without seeking declaration against the agreement.
Therefore, this plea about non-maintainability of suit for want for
relief of declaration against the said agreement for sale remains
totally baseless and could only be rejected."

17. Therefore, it is well settled that the transfer of immovable
property by way of sale can only be by a deed of conveyance and
deed of conveyance, has to be duly stamped and registered as
required by law and in absence thereof, no right, title or interest in
an immovable property can be transferred. The law enunciated, is
also that any contract of sale which is not registered deed of
conveyance would fall short of the requirements of
Sections 54
and
of the TP Act and will not confer any title or interest in an
immovable property.

18. Concededly and not in dispute, the applicant is claiming right
flowing from the Agreement to Sell dated 17.03.2022 executed by
the respondents except respondent no.10. Concededly, there is no
sale deed executed in favour of the applicant by the respondents.
Therefore, the issue which arises for consideration of this Court, is

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as to whether in absence of any registered sale deed, in tune with
the provisions of
Section 54
of the TP Act read with
Section 17
of the
Registration Act, 1908, can it be said that any right or interest has
been invested in the applicant. Also, merely on the basis of the
Agreement to Sell, whether the applicant can be said to be an
aggrieved person. Clearly, answer to both the above referred issues
has to be in negative in view of the above referred judgments and
principle laid down therein.

19. At this stage, the judgment of the coordinate bench directly
on the point, is apt to be referred to. In the case of
Patel Vinodbhai
Khodidas vs. Patel Pravinbhai Kacharabhai
(supra), the question that
fell for consideration and recorded in paragraph 2 was that whether
the applicants, not a party to the suit, which resulted into
compromise decree, can be said to be an aggrieved party to be
entitled to be conferred right to appeal and to be consequently
granted leave to appeal. The answer was given in negative by
holding that the applicants do not qualify on facts and in law to be
the aggrieved persons to be entitled to question the compromise
decree between the parties to the suit in question by preferring
appeal thereagainst. It has also been held that whatever rights the
applicants can claim on the basis of agreement to sell in their
favour, they have to establish such rights and the enforceability
thereof in an independent proceedings by filing separate suit. The
suit for specific performance was filed with respect to Agreement to
Sell dated 29.06.2008 read with supplementary agreement dated
27.09.2011 executed by the defendants therein. Compromise
purshis was filed and decree was passed in terms of the
compromise. The applicants were aggrieved by the said
compromise decree on the ground that the plaintiff had executed an
agreement to sell dated 05.08.2008 in favour of five persons and
those persons, executed an Agreement to Sell in favour of the

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applicant, and the applicants claimed that they have acquired the
interest in the subject property.

Reliance was placed on the
judgment in the case of
Sakina Sultanali Sunesara (Momin) & Ors.
vs. Shia Imami Ismaili Momin Jamat Samaj & Ors.
(supra). The
coordinate bench, considered the provisions of
Section 96
, Order 23
Rule 3 of the Code. The aspect of aggrieved person was considered
in detail and this Court, held that as per the law enunciated, the
person filing appeal must have a legal grievance against the
decision which wrongfully deprived him of something or affected his
title to something. This Court, after considering various judgments,
provisions; held that in order to be entitled to prefer an appeal, a
person must be one who can be said to be aggrieved against the
judgment. The aggrievement has to be a legal aggrievement where
the aggrieved person could be said to be prejudicially affected to
permit him to prefer appeal even if he is not a party to the suit
proceedings. He must have an appealable interest. A party who
would be benefited because of the change in the judgment by
redressal of the legal injuria is said to have an appealable interest.
Paragraph 9 and connected paragraphs read thus:

"9.Having discussed the principles of law as above and particularly
considering the concept of 'aggrieved person' to be entitled to enjoy
the right to appeal, now the basic facts of the case may be
recapitulated and reverted to. The plaintiff Patel Pravinbhai
Kachrabhai of Special Civil Suit No.31 of 2012 had executed
agreement to sell dated 05th August, 2008 in respect of the subject
matter property involved in the above Special Civil Suit for specific
performance between the plaintiff and the defendants in favour of
one Patel Bharatkumar and three others. This Bharatkumar and three
others, subsequently on 09th December, 2008 executed another
document being agreement for sale in favour of the present
applicants. When the suit was compromised between the parties to
the suit, the applicants on the basis of the above agreements dated
05th August, 2008 followed by 09th December, 2008 claimed their
interest to project themselves as the party aggrieved qua the
compromise decree.

9.1 In other words, what is fundamental is that in order to be entitled
to prefer an appeal, a person must be one who can be said to be
aggrieved against the judgment. This aggrievement has to be a legal
aggrievement where the aggrieved person could be said to be

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prejudicially affected to permit him to prefer appeal even if he is not
a party to the suit proceedings. He must have an appealable interest.
A party who would be benefited because of the change in the
judgment by redressal of legal injuria, is said to have an appealable
interest. The change in the judgment prayed to be appealed against
by the third party, when brings an immediate right or legal benefit,
then the person can be said to be having appealable interest. This
appealable interest should not be contingent, speculative or
futurative. The appealable interest must be substantial and
immediate.

9.2 In order to acquire the status of aggrieved party, the person must
have legal interest and an enforceable right which would in turn
allowing him to question the decree or order by preferring appeal,
though he may not be a party to the suit or proceedings. The
applicants who claim their interest on the basis of the agreements to
sell as above could not be said to be holding any interest in the
property to be within the definition of legally aggrieved or prejudiced
persons. As the applicants are not 'aggrieved party' vis-a-vis the
compromise decree having regard to their legal status, they could not
be clothed with right to appeal. They do not have 'appelable interest'
in connection with the compromise decree."

20. The facts on hand are in close proximity to the facts available
in the case of
Patel Vinodbhai Khodidas vs. Patel Pravinbhai
Kacharabhai
(supra) and
the said judgment
, would directly apply so
also the principle.

21. Contention is also raised that the suit would not be
maintainable against the consent decree, in view of the judgment in
the case of
Pushpa Devi Bhagat vs. Rajinder Singh and Others

(supra). Pertinently, the facts were that the suit was filed by the
landlords against the appellant therein for recovery of the
possession. Recording the submissions of the learned advocate,
order was passed disposing of the suit as settled and parties were
directed to be bound by the statements made. Subsequently, for
some of the respondents appearance was filed. It is thereafter, a
fresh decree was drawn in terms of the final order. It is at that point
of time, that the appellant therein filed an application for setting
aside the decree dated 18.07.2001 on the ground that she had not
instructed her counsel to enter into any compromise on her behalf
and in absence of any written compromise between the parties, duly

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signed, there was no lawful agreement or compromise. Application
for setting aside the consent decree was not pursued but appeal
was filed before the learned District Judge. Consent decree came to
be set aside on the ground that there was no agreement or
compromise reduced in writing and signed by the parties. The
matter was remanded to the trial court. The judgment was subject
matter of challenge before the Delhi High Court under Order 43 Rule
(1-u) of the Code and it allowed the landlord's appeal on the ground
that consent decree did not fall under the first part of Order 23 Rule
3 requiring an agreement or compromise between the parties to be
in writing and signed by the parties but fell under the second part of
the said provisions.

22. It is this judgment of the High Court, which was challenged in
appeal before the Apex Court and the issues were, (i) whether the
appeal filed under
Section 96
of the Code against the consent
decree was maintainable and (ii) whether the compromise resulting
in a consent decree dated 18.07.2001 was not a valid compromise
under Order 23 Rule 3 of the Code. With this background, the Apex
Court, held that against consent decree no independent suit can be
filed for setting aside the consent decree on the ground that
compromise was not lawful in view of the bar contained in Rule 3-A
of the Code. The Apex Court, in paragraph 17, has observed thus:

"17. The position that emerges from the amended provisions of
Order 23, can be summed up thus :

(i) No appeal is maintainable against a consent decree having regard
to the specific bar contained in
section 96(3)
CPC.

(ii) No appeal is maintainable against the order of the court
recording the compromise (or refusing to record a compromise) in
view of the deletion of clause (m) Rule 1 Order 43.

(iii) No independent suit can be filed for setting aside a compromise
decree on the ground that the compromise was not lawful in view of
the bar contained in Rule 3A.

(iv) A consent decree operates as an estoppel and is valid and

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binding unless it is set aside by the court which passed the consent
decree, by an order on an application under the proviso to Rule 3 of
Order 23.

Therefore, the only remedy available to a party to a consent decree
to avoid such consent decree, is to approach the court which
recorded the compromise and made a decree in terms of it, and
establish that there was no compromise. In that event, the court
which recorded the compromise will itself consider and decide the
question as to whether there was a valid compromise or not. This is
so because a consent decree, is nothing but contract between
parties superimposed with the seal of approval of the court. The
validity of a consent decree depends wholly on the validity of the
agreement or compromise on which it is made. The second
defendant, who challenged the consent compromise decree was
fully aware of this position as she filed an application for setting
aside the consent decree on 21.8.2001 by alleging that there was no
valid compromise in accordance with law. Significantly, none of the
other defendants challenged the consent decree. For reasons best
known to herself, the second defendant within a few days thereafter
(that is on 27.8.2001), filed an appeal and chose not to pursue the
application filed before the court which passed the consent decree.
Such an appeal by second defendant was not maintainable, having
regard to the express bar contained in
section 96 (3)
of the Code."

23. It has been held that the only remedy available to a party to a
consent decree to avoid such consent decree is to approach the
Court which recorded the compromise and made a decree in terms
of it and establish that there was no compromise. Therefore, the bar
is to a party to a consent decree and the remedy available to the
party is to approach the Court which recorded the compromise;
however
,
the said judgment
, did not deal with the right of a third
party who was neither a party to the agreement nor the suit nor the
consent decree. The said judgment, therefore, would not apply to
the facts of the present case.

24. It is noteworthy that it is not in dispute that there is an
Agreement to Sell dated 17.03.2022 in favour of the applicant
which, as is by now well settled would not create or invest any right
in favour of the applicant. When there is no right invested, simply
because the order which has been passed as a result of the
compromise decree, is not the liking of the applicant, would not
make a person aggrieved, much less any appealable right in his

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favour.

25. Besides, the applicant has also filed Special Civil Suit no.299
of 2023 seeking specific performance and is pending. The applicant
can very well pursue the said suit which may be decided in
accordance with law and hence, both the civil applications are
dismissed with no order as to costs.

SD/-

(SANGEETA K. VISHEN,J)

SD/-

(NIRAL R. MEHTA,J)
RAVI P. PATEL

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