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2004 Supreme(Bom) 637
IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Britto N.A., J.
Joao Salvador Jesus another .... Appellants.
Versus
Fatima Electra Jasmina D’Silva.... Respondent.
First Appeal No. 85 of 1998, decided on 22-4-2004.
Advocates appeared :
S.D. Lotlikar, Sr.A. with S. Naik, for appellants.
P.S. Rao, for respondent.
Headnote:Civil Procedure Code, 1908 - Section 96 - First appeal - Against judgment/decree dated 12.3.1998 passed by Civil Judge (SD) - Plaintiff purchased property sold by defendant/appellant - In said property a house illegally occupied by two persons - Plaintiff filed suit against them - Plaintiff deprived of possession - Plaintiff claimed recovery of Rs. 2,27,000/- with interest from defendant - Registered notice sent to defendant - Not replied - Defendant contested suit - Persons illegally occupied property not entitled for any relief - Document produced by them a bogus and fraudulent document - Not binding on defendants - Defendants denied claim of plaintiff - Plaintiff failed to prove her case against defendants - Suit for recovery of consideration cannot be filed without seeking cancellation of sale deed - Appeal allowed - Judgment/decree dated 12.3.1998 of trial Court set aside - Suit of plaintiff dismissed with costs. - Although the plaintiff failed to prove that the said agreement (Exh. PW 1/E1) was executed by the uncle of the defendants, even in case there was such an agreement, it was only a promise made to sell and such a promise could not have created, in favour of the defendants, any interest in the property. That apart, the plaintiff had also failed to prove by acceptable evidence that the said Martha and Elvira or for that matter prior to that their mother had come in possession of the suit property pursuant to the said agreement/private writing. At the cost of repetition it may be stated that the plaintiff is seeking to recover the consideration paid by her possibly because of the interference of the said Martha and Elvira in the enjoyment of the property purchased by the plaintiff. As the old adage goes, one cannot have the cake and eat it too. The plaintiff cannot have title to the property and at the same time recover the money paid by her as consideration for the said sale deed.
Civil Procedure Code, 1908 - Order XLI, Rule 33 - Grant of relief - Powers of appellate Court - Granting relief not prayed is one thing - Moulding relief quite different - Relief not sought - Cannot always be granted on principle that reliefs can be moulded. - Granting of reliefs not prayed for is one thing and moulding of reliefs is quite another. Reliefs not sought cannot always be granted on the principle that reliefs can be moulded.
2.The case of the plaintiff was that in the said property sold by the defendants there was a house occupated by Martha and Elvira Furtado who had put some illegal structure in the property and as a result of which the plaintiff had filed a suit against them bearing S.C.S. No. 215/91/B and in the said suit the said Martha and Elvira had filed a written statement on 23-6-93 and had produced a document (Exh. P.W. 1/E1) executed by the Uncle of defendant No. 1, Joaquim Francisco Roque Santana Cotta whereby the property in an area of 2675 sq. mtrs. was agreed to be sold by the said Joaquim Francisco to Smt. Teresa Gomes, the late mother of the said Martha and Elvira for a consideration of Rs. 55,000/-.
3.The plaintiff had stated that the said agreement showed that the area agreed to be sold to the said Teresa Gomes was the southern portion of the property "Nelitoleaxeta" and the northern portion was at that time already sold to some other party (Mrs. Rosada Crasto) and the portion agreed to be sold to Smt. Teresa Gomes was the only portion which had remained to be sold.
4.The plaintiff stated that at that time when the property was sold to the plaintiff, the defendants had shown a road in the remaining portion and, as such, the area of the remaining plot sold to the plaintiff was shown as 2315 sq. m. and that the said agreement also showed that the late uncle, the said Joaquim Francisco even gave possession of the said remaining portion to the said Smt. Teresa Gomes. The plaintiff stated that inspite of the agreement which right to have been noticed by the defendants, he defendants sold the property to the plaintiff for consideration of Rs. 2 lakhs and that in the said sale-deed it was mentioned that the defendants would have right to the said property and that it was free from all charges and encumbrances whatsoever and that the defendants had also stated in the sale-deed that they would fully compensate the plaintiff in case the plaintiff was deprived of the possession of the property or any part thereof due to any defect in the title of the defendants.
5.The plaintiff stated that in view of the said agreement executed by the said Joaquim Francisco, the late uncle of the defendants, the possession of the said property was with Martha and Elvira and the plaintiff was deprived of the possession of the said property and the said Martha and Elvira did not allow the plaintiff on her attorney to enter the said property.
6.The plaintiff therefore prayed for recovery of Rs. 2 lakhs being the consideration paid by the plaintiff to the defendants, Rs. 12,000/- being the sum spent by the plaintiff on the stamp paper, Rs. 5,000/- being the expenses incurred by the plaintiff for completion of the sale-deed and Rs. 10,000/- by way of expenses incurred by the plaintiff due to litigation, and in all, the plaintiff claimed Rs. 2,27,000/- with interest at the rate of 22% from 16-4-91.
7.The plaintiff stated that through her Advocate the plaintiff sent a notice on 30-6-95 to the defendants by registered A.D. and demanded the payment of the said amount but the defendants who received the said notice, did no even care to reply to the same. The plaintiff stated that the cause of action for the present suit arose on 20-6-83 when the Martha and Elvira filed their written statement in the said S.C.S. No. 215/91/B whereby the existence of the said documents came to
