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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, A.C. RAO, JJ.
Kiritbhai Dahyabhai Patel - Appellant
Versus
Gujarat Eco Infrastructure Pvt. Ltd. - Respondent
R/First Appeal No. 479 of 2019
Decided On : 18-10-2019
Transfer of Property Act, 1882 - Section 54 - Civil Procedure Code, 1908 - Section 96 – Order 7 , Rule 11 - Petition original plaintiffs and is directed against judgment Suit - court rejected plaint provision – Petition sake of convenience appellants shall be referred to as plaintiffs and respondents shall be referred to as defendants suit came to be instituted by plaintiffs for a declaration cancellation of sale-deed and permanent injunction - Dispute pertains to agricultural land situated in bearing Revenue Survey admeasuring plaintiffs claim to be owners of land in question - Defendants expressed their desire to purchase land from plaintiffs executed sale-deed in favor of defendants in good faith by accepting lakh from defendants paid by way of a demand draft issued upon HDFC Bank Limited Branch - Permission is granted by competent authority to use land for industrial purpose and land is transferred in name of defendants - According to plaintiffs although they had executed sale-deed in favor of defendants in good faith yet defendants have to still pay balance amount – Held, Court consideration is received that day but when vendor denies it is allowed to show that consideration has not been received as recited and to recover consideration - But mere fact that there is a recital that consideration had been received - While as a matter of fact it has not been received is not enough to show that no consideration was intended to pass and that document was a bogus one executed gratuitously - Courts sale-deeds are filed where consideration is recited as receives is not received as a matter of fact - That is why there is also a lien in favor of vendor for unpaid consideration - Specific evidence of a convincing nature must be adduced to show that a sale deed reciting payment of consideration was really executed for no consideration - No doubt a piece of evidence tending to show that will be recital of receipt of consideration when no as a matter of fact been paid as recited - But a recital will not be conclusive - A court has to go into whole evidence and come to its own conclusion - Courts below have given very cogent reasons for holding that no sale consideration was paid by defendant to plaintiff - In sale deed sale consideration of was shown to have been paid earlier in advance in village - In order to prove payment of sale consideration defendant examined one who stated that plaintiff had borrowed - Impugned order is not sustainable in law court below has failed to apply correct principles of law so far as concerned – Appeal allowed (Para 37)
JUDGMENT :
J.B. PARDIWALA, J.
1. This First Appeal under Section 96 of the Code of Civil Procedure, 1908 (for short, 'the CPC') is at the instance of the original plaintiffs and is directed against the judgment and decree passed by the 3rd Additional Senior Civil Judge, Bharuch, dated 30th November 2017 below Exh. 22 in the Special Civil Suit No. 98 of 2015, by which the court rejected the plaint under the provisions of Order 7, Rule 11 of the CPC.
2. For the sake of convenience, the appellants herein shall be referred to as the plaintiffs and the respondents herein shall be referred to as the defendants.
3. It appears that the plaintiffs instituted the Special Civil Suit No. 98 of 2015 in the court of the 3rd Additional Senior Civil Judge, Bharuch, with the following prayers:
(2) After executing the sale deed pursuant to the subject matter land/property the possession of the same is continuously with us the plaintiff herein above uninterrupted, it is humbly requested to resolve the same and to pass such an order.
(3) To declare that as the possession of the said subject matter property/land is with us the plaintiff herein above the defendants do not have any kind of right, authority or claim to bringing any kind of obstruction or obstacle in it.
(4) To pass an order granting permanent relief restricting the defendants, their men, agents, servants and all concerns from raising any kind of rights against our rights pertaining to the subject matter property/land in any way, manner or kind.
(5) Without following any prescribed procedure of law the defendants shall not take away the possession of the subject matter land/property from us the plaintiff herein above in any way, manner or kind, it is humbly requested to pass such an order in favour of us the plaintiff and against the defendants in the vast interest of justice.
(6) To realize the costs of the suit from the defendants.
(7) To grant each and every other such further relief/s which the Honourable Court may deem fit and proper looking to the facts and circumstances of the case."
4. Thus, the suit came to be instituted by the plaintiffs for a declaration, cancellation of sale-deed and permanent injunction. The dispute pertains to agricultural land situated in the sim of Mauje village Aladar, Taluka Vagra, District Bharuch, bearing Revenue Survey No. 35, admeasuring 9-hectare-59-aare and 11 sq.meters. The plaintiffs claim to be the owners of the land in question. The defendants expressed their desire to purchase the aforesaid land from the plaintiffs.
5. It is the case of the plaintiffs that it was represented by the defendants that the land being agricultural and the defendants being non-agriculturist, they would purchase on the premise that the same is to be used for industrial purpose. According to the plaintiffs, the total sale consideration fixed was Rs. 85,80,000=00 (Rupees Eighty-five Lakh Eighty Thousand only). The plaintiffs executed the sale-deed in favour of the defendants in good faith by accepting Rs. 20 lakh (Rupees Twenty Lakh only) from the defendants paid by way of a demand draft issued upon the HDFC Bank Limited, Bharuch Branch, dated 10th January 2009. According to the plaintiffs, it was represented by the defendants that the balance amount of Rs. 65,80,000=00 shall be paid after
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