Gujarat High Court
Muman Turabhai Dawoodbhai … vs Allauddinbhai Ibrahimbhai … on 23 July, 2026
NEUTRAL CITATION
C/SA/123/2006 CAV JUDGMENT DATED: 23/07/2026
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Reserved On : 01/07/2026
Pronounced On : 23/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 123 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
=============================================
Approved for Reporting Yes No
✓
=============================================
MUMAN TURABHAI DAWOODBHAI JETHWA,DECD.THRO'HIS
HEIRS & ORS.
Versus
ALLAUDDINBHAI IBRAHIMBHAI RAJPURA(DECD. THRO HERIS)
& ORS.
=============================================
Appearance:
MR. ANSHIN DESAI, SENIOR COUNSEL WITH
MR MRUGEN K PUROHIT(1224) for the Appellant(s) No.
1,1.1,1.2,1.3,1.4,1.5
MR JV JAPEE(358) for the Respondent(s) No.
1.1,1.2,1.3,1.4,1.5,1.6,1.7
=============================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
1. This Second Appeal is filed under Section 100 of the
Code of Civil Procedure, 1908 (hereinafter referred to as
‘CPC‘) against the judgment and decree dated 01.08.2006
passed by the Additional District Judge, Fast Track Court
No.1, Sabarkantha at Himmatnagar in Regular Civil Appeal
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No.40 of 1998, whereby it has quashed and set aside the
judgment and decree dated 20.07.1998 passed by 3 rd Joint
Civil Judge, Senior Division, Himmatnagar in Regular Civil
Suit No.55 of 1991.
2. The appellants herein are the legal heirs of the original
defendant, whereas the respondent herein is the original
plaintiff. For the sake of convenience, parties will be referred
as per their original status in the suit, i.e. plaintiff and
defendant.
SHORT FACTS:-
3. The plaintiff had entered into a registered Agreement to
Sell (hereinafter referred to as ‘the ATS’) (Exhibit-81) with
the defendant on 31.05.1969, whereby the defendant agreed
to sell the suit property for a sum of Rs.10,500/-. At the time
of execution of the ATS, the plaintiff paid Rs.6000/- which was
duly received by the defendant. As per the ATS, the
possession of the suit property was handed over to the
plaintiff. It is the case of the plaintiff that on 06.03.1970, he
paid further sum of Rs. 3000/- to the defendant. The receipt in
this regard allegedly given by the defendant with the
signature of witness. The same was produced along with the
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suit at Exhibit-82. It is alleged by the plaintiff that balance
sum of Rs.1500/- was paid in cash to the defendant. Thus, as
on date of the suit, agreed amount as per the ATS was paid to
the defendant.
3.1 It appears that revenue proceedings in regard to
Fragmentation Case was initiated before the Dy. Collector,
being Fragmentation Case No.17 of 1981, wherein vide order
dated 30.09.1986, the Dy. Collector concerned has directed
the plaintiff to handover the possession of the suit property to
the defendant. The Panchnama was carried out by
representative of Dy. Collector on 07.02.1990 while handing
over the possession of the suit property in favour of the
defendant. Accordingly, the possession of the suit property
was restored to the defendant. The plaintiff appears to have
challenged the aforesaid decision of the Dy. Collector before
the Additional Secretary, Revenue Department of State by
way of Revision, which appears to have allowed the Revision
of the plaintiff vide its order dated 28.01.1991.
3.2 According to the plaintiff, since the defendant was trying
to dispossess him from the suit property, he filed a suit in
question being Regular Civil Suit No.55 of 1991 on
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18.03.1991. It is a specific case of the plaintiff in the suit that
he is in possession of the suit property since 31.05.1969 upon
execution of the ATS, and the defendant is trying to
dispossess him despite the entire sale consideration being
paid to him. The principal prayer made in the suit is to protect
his possession and sought a declaration that the defendant
has no right, title or interest in the suit property and also
sought a declaration that the plaintiff is cultivating the suit
property upon basis of the ATS and that the defendant has no
right to take possession of the suit property from him. Apart
from the aforesaid prayers, the plaintiff has also sought for
specific performance of the ATS on 31.05.1969 and he has
paid entire sale consideration.
3.3 The defendant has contested the suit by filing his written
statement on 08.07.1991, disputing the possession of the
plaintiff and also did not admit to have received the balance
sale consideration from the plaintiff, i.e., Rs.4500/-. The
defendant did not admit to have issued any receipt of Rs.
3,000/. The defendant has specifically come out with a case,
after the aforesaid Panchnama drawn by revenue officer, he is
in possession of the suit property.
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3.4 After completion of the pleadings, the Trial Court
appears to have framed the following issues and answered
accordingly as below: –
“(1) Whether is it proved that the contract for
sale of the suit lands was executed by the
deceased father of the defendant on date
31/5/69 in favour of the plaintiff ?
(2) Whether is it proved that the possession of
the suit lands was handed over to the plaintiff on
the same day the contract for sale was
executed?
(3) Who is proved to be in possession of the suit
lands at the time of institution of this suit ?(4) Whether is it proved that the plaintiff has
paid up full amount i.e. Rs.10,500/- to the
deceased vendor for sale of the suit lands?(5) Whether is it proved that the defendant has
failed to perform his part of the contract for sale
?
(5A) Whether is it proved that the contract for
sale is void due to infringement of provision of
any law?
(6) Whether is it proved that the suit fails on the
ground of non-joinder of necessary parties?(7) Whether is it proved that adequate court-fees
stamp have not been affixed or used ? If yes,
what is its effect ?
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(8) – Whether is it proved that the suit is barred
by the law of limitation ?
(9) To which reliefs the plaintiff is entitled ?
(10) What final order and decree ?
xxxxxxxx……..xxxxxxxx………….xxxxxx……xxxxxxxx…….
(1)In affirmative.
(2) In affirmative.
(3) The defendant is in possession.
(4) In negative
(5)In negative
(5A) In negative
(6) In affirmative
(7) In affirmative, deficit Court-fees stamp is required to
be paid.
(8) In affirmative
(9)No.
(10) As per final order of this judgment.”
3.5 So far as the execution of the ATS is concerned, it was
believed by the Trial Court that the same was executed by the
defendant. It is also believed that pursuant to the execution of
the ATS, the possession of the suit property was handed over
to the plaintiff. Nonetheless, while answering Issue No.2, the
Trial Court has categorically opined that at the time of the
institution of the suit, the plaintiff was not in possession of the
suit property. Such reason of the Trial Court will be discussed
in the later part of this judgment.
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3.6 Likewise, the Trial Court has not believed that the
balance sale consideration of Rs.4,500/- had been paid by the
plaintiff to the defendant. The Trial Court has specifically
observed in its judgment that the plaintiff has failed to prove
the receipt dated 06.03.1970 produced at Exhibit-82, as none
of the signatories to the receipt were examined. So far as the
Rs.1500/- cash payment is concerned, the plaintiff was not
having any material to show that said amount was paid to the
defendant.
3.7 The Trial Court has also answered Issue No.6 against the
plaintiff, holding that due to the non-joinder of necessary
parties (i.e., non-joinder of all co-owners of the suit property),
the suit is also required to be dismissed on this ground as
well. So far as non-payment of requisite Court fees is
concerned, it was found that the plaintiff has not paid
adequate court fees.
3.8 Lastly, according to the Trial Court, as per the ATS, a
period of 3 years was fixed for making balance payment by the
plaintiff to the defendant, which was expired in the month of
May, 1970, whereas the suit in question was filed on
18.03.1991, thereby, it held that suit is filed beyond period of
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limitation as prescribed under Article 54 of the Limitation Act,
1963. Thus, considering the aforesaid reasons assigned by the
Trial Court, the suit filed by the plaintiff was dismissed.
3.9 Feeling aggrieved and dissatisfied with the aforesaid
decision, the plaintiff preferred a Regular Civil Appeal No.40
of 1998 before the Appellate Court. The Appellate Court
framed the followings points for consideration: –
“(1) Whether the defendant has entered into an
Agreement to sell with plaintiff Allauddin Ibrahim
Rajpura as stated by plaintiff?
(2) Who is in actual, physical and lawful
possession in suit land?
(3) Whether plaintiff proves essential elements of
Sec.53(A) of Transfer of Property Act i.e. doctrine
of part performance?
(4) Whether suit is barred by law of limitation?
(5) Whether plaintiff is entitled to get claimed
reliefs i.e. regarding injunction against the
defendant and specific performance of contract?(6) Whether suit is maintainable in law?”
3.10 According to the Appellate Court, the plaintiff was
always ready and willing to pay the sale consideration and as
such, paid Rs.6000/- at the time of execution of ATS and
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Rs.3000/- on 06.03.1970. So far as balance Rs.1500/- is
concerned, as the undertaking was filed before the Appellate
Court by the plaintiff, the same was appropriated by the
Appellate Court and it allowed the plaintiff to deposit in the
Court as the balance sale consideration. Accordingly, the
Appellate Court arrived at a conclusion that the plaintiff was
and is ready and willing to perform his part of contract.
3.11 The Appellate Court has also discussed the aspect of
settled possession and opined that by virtue of the registered
ATS, the plaintiff was put in possession and it requires to be
considered as lawful possession, and as per Section 53A of the
Transfer of Property Act, 1882 (for short ‘the Act, 1882’), the
plaintiff is entitled to the protection of his possession. It was
also observed by the Appellate Court in para-22 of the
impugned judgment that once the order of the Dy. Collector
was set aside by the Additional Secretary, Revenue
Department on 28.01.1991, the original position regarding
plaintiff’s possession is automatically restored back. It seems
that the Appellate Court has assumed the deemed possession
of the plaintiff as on the date of filing of the suit.
3.12 The Appellate Court also did not agree with the view
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taken by the Trial Court qua issue regarding limitation,
inasmuch as there was a charge over the disputed property
being mortgaged with the Cooperative Society and the same
was free from mortgage/charge on 18.07.1989. The sale deed
could not have been executed until said date due to bar under
Section 48(2) of the Gujarat Co-operative Societies Act,1961
(for short ‘the Cooperative Societies Act‘). Thus, according
to the Appellate Court, until such charge was removed from
the property, there was no reason for the plaintiff to call upon
the defendant to come forward for the execution of the sale
deed. Since the suit was filed in the year 1991, it was within 3
years from 18.07.1989 and accordingly, suit was filed within
period of Limitation Act.
3.13 Thus, in light of the aforesaid observations and reasons,
the Appellate Court has allowed the appeal filed by the
plaintiff and granted a decree of injunction. The defendant
was directed to execute a sale deed in favour of the plaintiff in
reference to the registered ATS after removing all charge and
encumbrance over it. The plaintiff was also directed to pay
additional Court fees as it was inadequate one at the time of
filing the suit.
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3.14 Feeling aggrieved and dissatisfied with the judgment
and decree passed by the Appellate Court, the legal heirs of
the original defendant have preferred the present second
appeal, which was admitted by this Court on 07.09.2006. At
the time of admitting this appeal, following substantial
questions of law were framed: –
“1) Whether on the facts and in the
circumstances of the case, the suit of the plaintiff
was barred by limitation?
2) Whether the learned trial Court could grant a
decree for specific performance in view of
Section-48(2) of the Cooperative Societies Act?
3) Whether on the facts and in the circumstances
of the case, a decree for injunction could be
made in favour of the plaintiff when on the date
of the suit, the plaintiff was not in possession?
4) Whether on the facts and in the circumstances
of the case, the Court was required not to grant a
decree for specific performance of the contract?”
SUBMISSION OF THE APPELLANTS – DEFENDANT
4. Mr. Anshin Desai, learned Senior Counsel with Mr.
Mrugen Purohit, learned advocate for the appellants –
defendant, has made the following submissions in support of
the appeal: –
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4.1 The Appellate Court has committed an error in law by
granting decree of specific performance in favour of plaintiff
in ignorance of provisions of Specific Relief Act as well as
overlooked Appendix-A, Form No. 47, appended to the First
Schedule of CPC. The suit was seeking mainly protection of
his possession on the suit property and sought a declaration
that defendant has no right, title or interest in the suit
property. The plaintiff never intended to file suit for specific
performance but as a consequential prayer, he sought for
performance of registered ATS.
4.2 The Appellate Court had not appreciated the fact that
plaintiff did not plead in the plaint that he was / is ready and
willing to perform his part of the contract and having failed to
prove the payment of balance sale consideration, no decree
for specific performance could have been granted in his
favour.
4.3 The possession of the suit property at the time of
institution of suit was not with the plaintiff and despite
knowing such fact that the possession of the suit property was
taken over from him on 07.02.1990 by way of Panchnama
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drawn by Revenue Officer, no relief for the possession of the
suit property sought by the plaintiff. Though, the plaintiff
could have sought for relief of the possession of the suit
property but having not prayed for, the same could not have
been granted by Appellate Court as it is barred by Section 34
of the Specific Relief Act.
4.4 The Appellate Court had completely lost sight of the fact
that payment of Rs.3000/- by the plaintiff on 06.03.1970 was
not proved in accordance with law, as Trial Court has
categorically recorded a finding that plaintiff has failed to
prove such payment through proper evidence as the receipt at
Exhibit-82 is not proved in accordance with law.
4.5 The Appellate Court, without discussing and upsetting
such reason recorded against the plaintiff by Trial Court,
erroneously presumed that payment of Rs.3000/- is already
made by the plaintiff to the defendant. The Appellate Court
could not have permitted the plaintiff to deposit Rs.1500/- at
the appellate stage, as in absence of such payment offered by
plaintiff prior to filing of the suit, it would suggest that he was
never ready and willing to perform his part of contract.
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4.6 The suit is filed on 18.03.1991, such suit could not have
been entertained and rightly dismissed by the Trial Court. The
plaintiff has not come with clean hands, rather suppressed the
material fact about possessed the suit property prior to filing
of the suit. The revenue records from 1969 till the date of
filing of the suit would indicate that the name of the plaintiff
was not reflected in such records, whereby it can be said that
the plaintiff was never in possession of the suit property.
4.7 The Appellate Court has committed a serious error in
law by upsetting the findings of fact recorded by the Trial
Court without appreciating the oral and documentary
evidences on record. The defendant has placed on record by
way of additional evidence before the Appellate Court, that
vide order dated 30.08.2002 passed by the Dy. Collector,
Himatnagar, whereby the Dy. Collector has rejected the
application of the plaintiff to restore his possession in the suit
property. The aforesaid order also indicates that at the time of
filing of the suit, the plaintiff was not in possession of the suit
property.
4.8 The Appellate Court has also committed a serious error
in law by observing that the suit is within the period of
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limitation, by ignoring the fact that the plaintiff did not offer
the balance amount in favour of the defendant within three
years from the date of execution of the registered ATS. Merely
there was a mortgage on the suit property, it would not stop
the period of limitation, inasmuch as the plaintiff could have
obtained a conditional decree.
4.9 The findings of fact recorded by the Appellate Court are
not only perverse but are contrary to the settled position of
law, and there is an egregious error committed by the
Appellate Court while allowing the appeal, which may be
corrected by this Court while exercising its power under
Section 100 of the CPC.
4.10 Mr. Desai, learned Senior Counsel would submit that the
decree of specific performance is a discretionary relief, and
considering the facts of the case, and as the plaintiff for quite
long time had not performed his part of the contract, such
relief ought not to have been granted by the Appellate Court.
4.11 Making the above submissions, Mr. Desai, learned
Senior Counsel would request this Court to allow the Second
Appeal.
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4.12 To buttress his arguments, Mr. Desai, learned Senior
Counsel would rely upon the following decisions of the
Hon’ble Apex Court:-
i. Her Highness Maharani Shantidevi P. Gaikwad
Vs. Savjibhai Haribhai Patel & Ors. reported in
(2001) 5 SCC 101;
ii. Pydi Ramana alias Ramulu Vs. Davarasety
Manmadha Rao reported inn (2024) 7 SCC 515.
SUBMISSIONS OF THE RESPONDENT – ORIGINAL
PLAINTIFF.
5. Per contra, Mr. J.V Japee, learned advocate for the
respondent-plaintiff, has vehemently opposed this second
appeal by making following submissions:
5.1 There is no error, much less any gross error, committed
by the Appellate Court while allowing the appeal. The conduct
of the defendant is not trustworthy, as recorded by the Trial
Court as well as the Appellate Court, and as such, the
defendant failed to prove his defense set-up before the Trial
Court; whereas, the plaintiff had successfully proved before
the Courts below that he was ready and willing to perform his
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part of the contract, and as such, in a financial position to pay
the balance sale consideration.
5.2 The Trial Court has committed a serious error in law by
not believing the payment receipt dated 06.03.1970 produced
at Exhibit-82. The defendant has not disputed about
genuineness of the said receipt in his written statement, and
has not alleged that it is a fraudulent one. In such
circumstances, once the aforesaid receipt is accepted at
Exhibit-82, it could not have been disbelieved by the Trial
Court.
5.3 The burden of proof was upon the defendant to prove
that he has not received Rs.3000/- which he failed to
discharge. The plaintiff, having paid the substantial sale
consideration and allowed to deposit balance Rs.1500/ in the
Appellate Court, which he has already deposited, the decree
of specific performance passed by the Appellate Court should
not be disturbed by this Court.
5.4 There is no dispute between the parties that pursuant to
the registered ATS, the plaintiff was put in possession of the
suit property. The panchnama dated 07.02.1990 (Exhibit-117)
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was prepared by the Revenue Authority in the absence of the
plaintiff, and as such, the defendant can only claim paper
possession of the suit property; however, the plaintiff has
been in possession of suit property all throughout being in
settled possession. The plaintiff is entitled to have protection
under Section 53A of the Act, 1882. The plaintiff put in
possession as a part performance of the contract, his
possession was required to be protected by the Court, which
in fact was rightly protected by the Appellate Court.
5.5 Once the Chief Secretary of the Revenue Department,
vide its order dated 28.01.1991 (Exhibit-83), quashed and set
aside the order dated 30.09.1986 (Exhibit-99) passed by the
Dy. Collector, the Appellate Court has correctly observed that
the possession of the plaintiff would automatically restore
back. The plaintiff remained in possession of the suit property
since 1969, which was tried to be disturbed by the defendant
after passing of the said order of the Dy. Collector, thereby,
the plaintiff had no other option but to approach the Civil
Court by filing a suit on 18.03.1991.
5.6 The Appellate Court has correctly opined that suit was
filed for specific performance, inasmuch as at the time of the
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execution of the ATS, there was a charge of a Cooperative
Society, and due to that charge and in view of Section 48(2) of
the Societies Act, the plaintiff could not able to execute the
sale deed. Once, such charge/mortgage was cleared on
18.07.1989, then after, the plaintiff was able to get the sale
deed executed. Thus, the suit was filed within three years
from 18.07.1989, and as such, filed in time.
5.7 Furthermore, there is neither any perversity nor any
erroneous finding recorded by the Appellate Court, in such
circumstances, no interference of this Court is required while
exercising powers under Section 100 of the CPC.
5.8 Making the above submissions, Mr. Japee, learned
advocate would request to dismiss the appeal.
5.9 To buttress his arguments, he would rely upon the
following decisions: –
i) Anil Rishi Vs. Gurbaksh Singh reported in (2006) 5
SCC 558;
ii) Anand Narayan Shukla Vs. Jagat Dhari reported
in 2026 SCC Online SC 827
6. No other and further submissions are being made by the
learned advocates for the respective parties.
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FINDINGS AND REASONS: –
7. At the outset, it is required to be observed that this
Second Appeal is filed against the incongruous findings of fact
recorded by the Courts below, inasmuch as the Trial Court
dismissed the suit, whereas the Appellate Court has allowed
the appeal, whereby decreed the suit in favour of the plaintiff.
8. Having heard the learned advocates of the respective
parties and upon perusal of impugned judgment and decree
passed by Courts below, following would emerge.
8.1 The original defendant executed the ATS in favour of the
plaintiff which was registered on 31.05.1969. The total sale
consideration fixed by the parties @ Rs. 10,500/. At the time
of its execution, the plaintiff paid sum of Rs.6000/- to the
defendant and balance Rs.4500/- was agreed to be paid within
stipulated time i.e. May, 1970. The plaintiff was put in
possession of suit land after execution of the ATS. It is a case
of plaintiff that he paid a sum of Rs.3000/- to defendant on
06.03.1970 in the presence of two persons who signed as
witness, and signatory to the receipt at Exhibit 82.
Nonetheless, those witnesses were not examined by the
plaintiff to prove the said receipt.
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8.2 The Dy. Collector concerned initiated a proceeding
against the parties under The Gujarat Prevention of
Fragmentation and Consolidation of Holdings Act, 1947
(hereinafter referred as ‘the Fragmentation Act’). It had
passed an order dated 30.09.1986, whereby directed the
plaintiff to handover the possession of suit property in favour
of defendant. Pursuant to the aforesaid order, the defendant
was put in possession of suit land, as can be confirmed from
the Panchnama prepared by the Revenue Officer on
07.02.1990. The plaintiff challenged the aforesaid order
passed by the Dy. Collector before Chief Secretary, Revenue
Department of State of Gujarat, who allowed his revision on
28.01.1991. Nonetheless, there is nothing on record to
suggest that the plaintiff was put in possession after the
aforesaid order passed by Chief Secretary. Without disclosing
the aforesaid fact of taking over possession, the plaintiff filed
the aforesaid suit sought the reliefs of declaration and
injunction as well as specific performance of the ATS.
8.3 After hearing the parties, the Trial Court has found that
possession of the plaintiff was already taken over on
07.02.1990. As per the aforesaid Panchnama, no relief in
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regards to protection of his possession can be granted. The
Trial Court has believed that the Panchnama was carried out
by the Revenue Officer in his official capacity, therefore, no
doubt could have been created. Since there was no prayer
made by plaintiff to reinstate him in the suit land, the Trial
Court did not grant any relief in this regard.
8.4 So far as relief regarding specific performance of the
ATS is concerned, the Trial Court has found that the plaintiff
failed to prove on record that he has paid a sum of Rs.3000/-
to the defendant, as according to the Trial Court, the receipt
of Rs.3000/- (Exhibit-82) is not proved by plaintiff in
accordance with law. The plaintiff had not examined witness
to the said receipt. So far as balance payment of Rs.1500/- is
concerned, the plaintiff was unable to prove such fact. Apart
from the aforesaid facts and circumstances so recorded by
Trial Court in its impugned judgment, it has been further
observed that there was no readiness and willingness on the
part of the plaintiff to perform his part of the contract, as he
failed to pay balance consideration before May, 1970 as
agreed by him in the ATS. Since the suit was filed in the year
1991, beyond the period of three years from May, 1970,
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according to Trial Court, the suit is time-barred and no relief
can be granted in favour of the plaintiff.
8.5 Whereas, the Appellate Court has found that the plaintiff
was ready and willing to perform his part of contract and
having paid entire sale consideration, there was no need for
him to state anything in regards to readiness and willingness.
The Appellate Court has allowed the plaintiff to pay Rs.1500/-
at the time of hearing of the appeal. Furthermore, according
to the Appellate Court, once the revision of plaintiff was
allowed by Chief Secretary, plaintiff was automatically put
back in the possession of suit land. It is also observed that by
virtue of the registered ATS, the plaintiff was put in
possession of suit land, as per Section 53A of the Act, 1882,
such settled possession of the plaintiff is required to be
protected. As per the Appellate Court, the suit was filed within
limitation, as at the time of execution of ATS, there was a
mortgage/charge created on the suit land which was removed
only on 18.07.1989 and then after, the plaintiff was able to get
the sale deed executed from defendant. Consequently, it has
allowed the appeal and set aside the order of Trial Court.
9. As observed above, this Court has admitted this Second
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Appeal by framing certain questions of law which I would like
to answer them as follows: –
QUESTION NO.1
10. It is true that as per terms of the ATS, the plaintiff was
required to pay balance sale consideration to the defendant by
May, 1970, but the bare reading of the terms of ATS, such
period was not the essence of the contract, inasmuch as it is
nowhere stated that the period of ATS would expire in the
month of May, 1970. Furthermore, there was a
mortgage/charge of a Cooperative Society on the suit land. In
such circumstances also, the defendant could not have
executed the sale deed in favour of the plaintiff without prior
permission of the society. In fact, as recorded by the Appellate
Court that such charge was removed on 18.07.1989 (as per
entry No.4404 at Exhibit-107), then after the suit land was
free from encumbrance (Exhibit-106) and within period of 3
years of said date, the suit was filed. According to the
Appellate Court, the suit was filed within period of limitation.
Taking totality of facts and circumstances and bare reading of
the ATS, the view taken by the Appellate Court that the suit
was filed within a period of limitation cannot be found fault
with.
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10.1 According to my view, no error of law is found on the
part of the Appellate Court when it observed that the suit was
filed within limitation. Question No.1 answered accordingly.
QUESTIONS NO.2
11. As Per Section 48(2) of the Gujarat Cooperative
Societies Act, 1961, no property or interest in the property
which is subject to a charge of the society shall be transferred
in any manner without previous permission of the society. It is
remained undisputed fact that at the time of execution of ATS,
there was a charge of the society on the suit land. So,
defendant was under legal obligation to get previous
permission of the society before executing sale deed in favour
of the plaintiff.
11.1 Section 48 of the Act, 1961 read as under: –
“48. (1) Notwithstanding anything contained in
any other law for the time being in force, but
subject to any prior claim of Government in
respect of land revenue or any money
recoverable as land revenue and to the
provisions of sections 60 and 61 of the Code of
Civil Procedure, 1908,–
(a) any debt or outstanding demand, owing to a
society by any member or a person who hasPage 25 of 42
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ceased to be a member shall be a first charge
upon–
(i) the crops or other agricultural produce
raised in whole or in part whether with or
without a loan taken from the society by
him,
(ii) cattle, fodder for cattle, agricultural or
industrial implements or machinery, or raw
materials for manufacture, or workshop,
godown or place of business, supplied to, or
purchased by him in whole or in part, from
any loan whether in money or goods made
to him by the society, and
(ii) any movable property which may have
been hypothecated, pledged or otherwise
mortgaged by him with the society, and
remaining in his custody;
(b) any outstanding demands or dues payable to
a society by any member ora person who has
ceased to be a member, in respect of rent,
shares, loans or purchase money or any other
rights or amounts payable to such society, shall
be a first charge upon his interest in the
immovable property of the society :
Provided that the prior claim of Government in
respect of dues other than land revenue, shall be
restricted for the purpose of this sub-section to
the assets created by a member out of the funds
in respect of which the Government has a claim.(2) No property or interest in property, which is
subject to a charge under sub-section (1) shall be
transferred in any manner without the previousPage 26 of 42
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permission of the society; and such transfer shall
be subject to such conditions, if any, as the
society may impose.
(3) Any transfer made in contravention of sub-
section (2) shall be void.
(4) Notwithstanding anything contained in sub-
sections (2) and (3), a society, which has as one
of its objects the disposal of the produce of its
members, may provide in its by-laws, or may
otherwise contract with its members,–
(a) that every such member shall dispose of
his produce through the society, and
(b) that any member, who is found guilty of
a breach of the by-law or of any such
contract, shall reimburse the society for any
resultant loss, determined in such manner
as may be specified in the by-laws.”
11.2 The aforesaid provisions of law would only indicate that
no transfer of suit land could have been effected by the
defendant in favour of the plaintiff without prior permission of
the society. Yet, the plaintiff could have sought for conditional
decree from the Court.
11.3 It is settled position of law that in a case like the
present one, the Court can always grant conditional decree in
favour of the plaintiff subject to he made out such case. [See –
Babasaheb Dhondiba Kute v. Radhu Vithoba Barde
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reported in (2024) 4 SCC 310].
11.4 According to my considered view, the Trial Court could
have granted decree for specific performance but it would
have been conditional decree, i.e. subject to approval /
permission of the society concerned. Question No.2 answered
accordingly.
QUESTION NO.3
12. The plaintiff has come out with a specific pleading in the
plaint that as on the date of filing of the Suit on 18.03.1991,
he was in possession of the suit land and the defendant was
trying to dispossess him, whereas the panchnama (Exhibit-
117) drawn on 07.02.1990 by the Revenue Officer pursuant to
the order dated 30.09.1986 passed by the Dy. Collector, (at
Exhibit-99) establishes otherwise. As per the panchnama, the
possession of the suit land was already handed over to the
defendant.
12.1 The Trial Court has discussed this aspect while
answering issue No.3 in its judgment, observed thus:-
“(17) On the strength of this order, Talati-
cum-Mantri has handed over the possession
of the suit lands to the defendant by
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preparing panchnama and possession was
given in the presence of panchas. It is
argued that the panchnama was prepared in
collusion with Talati-cum-Mantri. But this
argument cannot be accepted for this
statement does not get any support from
any evidence.
Exh.116 is the copy of notice dtd. 2/2/90
given to the plaintiff mentioning and
instructing the plaintiff to remain present
and to hand over possession of the suit
lands back in pursuance of order of Deputy
Collector dtd. 30/9/86 to the defendant. Of
course, the service of this notice is
unproved anyhow, it becomes clear that
possession of the suit lands was returned to
the plaintiff in the presence of panchas in
execution of the order of the Deputy
Collector, Himmatnagar on dtd. 7/2/90. This
panchnama was certainly outcome of the
order of higher authority i.e. Deputy
Collector and hence it cannot be said that it
was prepared in collusion with Talati.
(19) It is neither the case of the plaintiff
that after dt. 7/2/90 he has recovered
possession of suit lands nor evidences to
that effect. Therefore, it must be held that
after date 7/2/90 the defendant is
continuing in possession of the suit lands.
The submission that in revision the order of
Deputy Collector was set aside and so it
must be presumed that the plaintiff is still
continuing in possession does not hold
good. Because such presumption cannot be
made in absence of any such circumstances
or evidences. On dt. 7/2/90 the possession
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of suit lands was returned to the defendant
under the order of lawful authority. No
evidence is placed to show that thereafter
at anytime this possession was restored
back to the plaintiff in view of the order in
revision.
Under above circumstances, the deposition
of Sulemanbhai Alimad Dodia who
undisputedly happens to be the friend and
relative of plaintiff cannot help plaintiff, and
in the same way evidence of photographs
also cannot help plaintiff because the
photographer had no personal knowledge
that he drew photographs of survey no. 729
and 752. Otherwise also evidence of
photographs in which open agricultural
lands are shown are very weak evidence to
prove their possession. Hence it is also held
that at the time of the institution of this suit,
the defendant was in possession of the suit-
lands.”
12.2 Apart from the aforesaid findings of fact recorded by the
Trial Court, it appears that during the pendency of the said
Regular Civil Appeal filed by the plaintiff, the defendant
appears to have produced an order dated 30.08.2002 passed
by the Dy. Collector, Himmatnagar as an additional evidence,
whereby it has been brought on record that in the year 2001
also, the plaintiff had requested the Dy. Collector to direct the
defendant to handover the possession of the suit land to him.
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Having gone through the aforesaid order passed by the Dy.
Collector made available in the paper-book, it seems that the
plaintiff himself went to Dy. Collector for repossession of the
suit land, but his request was rejected by the Dy. Collector
vide its said order.
12.3 Though, this evidence was available on record and there
is a finding of fact recorded by the Trial Court, referred above,
unfortunately, the Appellate Court neither discussed nor set
aside such finding of fact recorded by Trial Court; rather
mentioned in para-22 of its impugned judgment, which read
thus:-
“[22] Now, it is submitted by defendant that,
under provision Bombay Prevention
Fragmentation and consolidation of holding Act
on dated 30.09.1986. The Dy. Collector of
Himatnagar passed the order to return and
restore the possession of the suit land to original
occupier i.e. defendant at Exh.99.
On the basis said order at Exh.99 Talati had
handed-over defendant by preparing the
possession of suit land to defendant by preparing
panchnama at Exh.117 to defendant.
But above stated order Exh.99 was set-a-side by
Chief Secretary, on dated 28.01.1991 at Exh.83.So, naturally order passed by The Dy. not
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Collector Exh.99 was in existence and at present
having no effect in law.
So, naturally original position regarding
plaintiff’s possession was restored.Otherwise, also, order passed by Revenue
Authority regarding possession also subject to
decision of Civil Court and decision of Civil Court
would prevailed upon it.”
12.4 It seems that the Appellate Court has presumed
that once the order of Dy. Collector was set aside by Chief
Secretary, the original position regarding plaintiff possession
was automatically restored, which is nothing but a perverse
finding on the part of the Appellate Court, inasmuch as the
Appellate Court had neither set aside the finding of the Trial
Court nor taken into account the subsequent order passed by
the Deputy Collector 30.08.2002 while rejecting the
application of the plaintiff.
12.5 According to my considered view, when there is a
finding of fact recorded by the Trial Court, whereby it reached
to the conclusion that defendant was in possession at the time
of filing of suit and in absence of any contrary finding
recorded by Appellate Court, upsetting such finding of fact, it
is far-fetched to assume that plaintiff was in possession at the
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time of institution of suit on 18.03.1991.
12.6 The plaintiff did not amend the prayer in the plaint nor
requested the Trial Court to direct the defendant to reinstate
the plaintiff in possession of the suit land. If such would be the
factual scenario, in absence of any such prayer made by the
plaintiff in the suit, there was no occasion for the Trial Court
to consider such prayer. In fact, the plaintiff sought relief of
declaration that defendant has no right, title or interest in the
suit land, and defendant cannot be allowed to forcibly take
possession of suit land. At the time of institution of suit,
undisputably, there was no sale deed registered in favour of
the plaintiff, thereby, he could not have sought declaration
that defendant has no right, title, interest in the suit land.
Likewise, as observed above, the plaintiff was not in
possession, since the possession of suit land from plaintiff was
already obtained by way of the aforesaid panchnama, there
was no reason for the Trial Court to answer issue No.3 in
favour of the plaintiff. I am not at all agreeable with the
submission of Mr. Japee, learned advocate that by way of the
panchnama, only paper possession was obtained by the
defendant. If this would have been a case, there was no
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reason for the plaintiff to request the Deputy Collector in the
year 2001 to restore back his possession. The plaintiff even
failed to lead any evidence on the record to show that at time
of the suit, he was in possession of the suit land.
12.7 Since the plaintiff was not found in possession of the
suit as on the date of suit, a decree for injunction in favour of
the plaintiff could not have been granted, which is correctly
not granted by the Trial Court; rather, the Appellate Court has
committed a serious error in law by granting protection in
favour of the plaintiff considered him in settled possession
that too without disturbing the finding of fact recorded by the
Trial Court that as on date of the suit, the plaintiff was not in
actual possession of suit land. Thus, in view of the aforesaid
reasons, question No.3 answered accordingly.
QUESTION NO.4
13. The Trial Court did not find that plaintiff was ready and
willing to perform his part of the contract; rather arrived at a
finding that plaintiff did not perform his part of contract by
making balance payment as per registered ATS within
stipulated time, i.e. before May, 1970. Whereas, the Appellate
Court has found that there was no reason for the plaintiff to
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plead readiness and willingness since entire sale
consideration has been paid by him to the defendant. This is
nothing but a factually incorrect observation and there is an
egregious error committed by the Appellate Court unnoticing
the findings of fact recorded by the Trial Court in its
judgement while answering issue No.4 & 5 that the plaintiff
failed to prove the money receipt of Rs. 3,000/ in accordance
with law as not examined any witness of the receipt. Such
finding of fact not specifically reversed by the Appellate
Court. Moreover, when the Appellate Court has permitted the
plaintiff to deposit Rs. 1500/ in the Court, there was no reason
for the Appellate Court to observe that entire sale
consideration was paid by the plaintiff at time of filing of the
suit. This finding of fact recorded by the Appellate Court is ex
facie perverse and contrary to evidence on the record.
13.1 The Appellate Court in its para-16 of impugned
judgment, observed thus: –
“[16] Now, considering Agreement to sell Exh.81,
receipt Exh.82 regarding payment of Rs. 3,000/-
and pursis at Exh.22, submitted before this Court
regarding further payment of Rs.1,500/- as stated
above it cannot be said plaintiff is not ready and
willing to perform his part of the contract. It isPage 35 of 42
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well settled law when full consideration was paid
specific performance should be granted in view
of Sub Section (3) of Section 20 of Specific Relief
Act, 1963, even, though there was absence of the
plea that, the plaintiff was ready and willing to
perform his part of contract…..”
13.2 The aforesaid finding is again an erroneous observation
and as such, perverse finding on the part of Appellate Court
which requires interference by this Court, inasmuch as
payment of Rs.3000/- (Exhibit- 82) was not proved on record
as recorded by Trial Court while answering Issue No.4. The
Trial Court has specifically observed in its impugned judgment
that receipt of Rs.3000/- produced at Exhibit-82 was not
proved by the plaintiff in accordance with law, as he had not
examined the witness to the receipt especially when its’
execution was disputed by the defendant. It seems that the
Appellate Court did not make any comment upon such
findings of fact recorded by the Trial Court while answering
Issue No.2; rather, the Appellate Court has presumed that
Rs.3000/- is already paid by the plaintiff to defendant, as
above. Even the Appellate Court has gone to the extent that
since full consideration was paid by the plaintiff, in view of
Section 20(3) of the Act 1963, even in absence of plea that
plaintiff was ready and willing to perform his part of contract,
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he should be granted relief of specific performance. Such an
observation made in para-16, as reproduced above, is not only
contrary to evidence but contrary to the provisions of law.
Undisputedly, entire sale consideration was not paid by the
plaintiff as the Appellate Court itself allowed the plaintiff to
deposit Rs.1500/- being balance sale consideration.
14. Mr. Desai, learned Senior Counsel, has correctly
submitted that the basic averment of readiness and
willingness on the part of the plaintiff was missing in the
plaint, and in fact, the suit was not essentially filed seeking
specific performance of ATS, but it was filed to get an
injunction from dispossession of the suit land. Whenever the
suit is filed seeking specific performance of a contract like the
ATS, as per the requirement of law, more particularly as per
Appendix-A, Form No. 47, appended to the First Schedule of
CPC read with Sections 10 and 16(c) of the Act, 1963, it is
sine qua non on the part of the plaintiff to make a specific
averment to be made in the plaint regarding his readiness and
willingness to perform the ATS on his part, failing which the
Court shall have to refuse its performance.
15. The bare reading of the plaint would clearly indicate that
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such mandatory requirement of law, so far as the pleading of
readiness and willingness is concerned, was evidently missing
in the plaint. Even Mr. J.V.Japee, learned advocate for the
plaintiff, during the course of his arguments, is not able to
point out such averment made in the plaint. When the plaintiff
sought for specific performance of the ATS, he ought to have
made such averment in his plaint that he was and is always
ready and willing to perform his part of the contract, and such
readiness and willingness is required to be observed by him
all-throughout till the end of the trial of the suit.
15.1 Mr. J.V.Japee, learned advocate for the plaintiff, would
try to submit, so far as the payment of Rs.3,000/- is
concerned, that even if the witnesses to the receipt at Exhibit-
82 were not examined, it would not mean that the plaintiff has
not paid Rs.3000/- to the defendant. According to Mr. Japee,
learned advocate; by citing the decision of the Hon’ble Apex
Court in the case of Anil Rishi (supra), the burden of proof
was upon the defendant to disprove such payment. The
aforesaid decision cited would not be helpful to the plaintiff,
as it is the case of the plaintiff that he paid Rs.3000/- to the
defendant and obtained a receipt, which was denied by the
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defendant. In such circumstances, it was the plaintiff upon
whom the initial burden of proof lies to prove the factum of
such payment, which he failed to discharge as observed by the
Trial Court, not at all discussed/disturbed by the Appellate
Court.
16. So far as the decision of the Hon’ble Apex Court in the
case of Anand Narayan Shukla (supra) is concerned, the
same would not be applicable, as the basic ingredient of
readiness and willingness on the part of the plaintiff was
missing from the plaint. In absence of not complying
mandatory requirement in law, no Court can grant the relief
of specific performance of the ATS in favour of the plaintiff.
According to my considered view, the aforesaid decision is
also not helpful to the case of the plaintiff.
17. At this juncture, it would be apt to refer to the decision
of the Hon’ble Apex Court cited by Mr. Desai, learned Senior
Counsel, in the case of Pydi Ramana @ Ramulu (supra). It
has been specifically observed in para-13 of the said decision
that in order to obtain specific performance, the plaintiff must
aver and prove that he has performed his part of the contract
and always being ready and willing to perform his part of the
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contract which are to be performed by him. It was held that it
is a condition precedent to obtain the relief of specific
performance.
18. Even though this Court may assume for the time being
that the plaintiff was having the capacity to pay the balance
sale consideration, whereby it can be assumed that he was
ready to pay, but considering the conduct of the plaintiff to
remain silent for more than 30 years after the execution of the
ATS, it would suggest that he was not all-throughout ready
and willing to perform his part of the contract as after the
execution of the ATS, until the filing of the suit, he never
called upon the defendant to execute the sale deed and/or not
insisted the defendant to obtain previous permission from the
society concerned or never shown any inclination to remove
the charge over the suit land. None of such acts were done by
the plaintiff for a quite a long time after the execution of the
ATS. The suit in question was filed almost after more than 30
years from the date of execution of the ATS.
19. In view of the aforesaid facts and circumstances, I am of
the considered view that considering the conduct of the
plaintiff and in the absence of any averments made regarding
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readiness and willingness in the plaint, which is a mandatory
requirement in law, the Appellate Court could not have
granted the decree for specific performance of the contract
(ATS) in favour of the plaintiff. Such finding of fact recorded
by the Appellate Court is not only perverse but grossly
erroneous, based on conjecture and surmise and contrary to
settled law, which requires interference by this Court even in
limited jurisdiction under Section 100 of the CPC, {See –
Tharammel Peethambaran and Ors. Vs. T. Ushakrishnan
and Ors. – AIR 2026 SC 938 : 2026 INSC 134}. Question
No.4 is answered accordingly.
CONCLUSION
20. The upshot of the foregoing observations, discussions,
and reasons, and having answered the substantial questions
of law framed by this Court as above, I am of the considered
view that the impugned judgment and decree dated
01.08.2006 passed by the Additional District Judge, Fast
Track Court No. 1, Himmatnagar in Regular Civil Appeal No.
40 of 1998 is unsustainable in law and requires to be quashed
and set aside and it is hereby quashed and set aside.
Consequently, the judgement and decree passed by the Trial
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Court dated 20.07.1998 passed by 3 rd Joint Civil Judge, Senior
Division, Himmatnagar in Regular Civil Suit No.55 of 1991 is
confirmed.
21. Accordingly, the present second appeal is allowed. The
decree be drawn accordingly. No order as to costs. R&P shall
be transmitted back to the concerned Trial Court.
(MAULIK J.SHELAT,J)
Lalji Desai
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