Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Guj) 1833

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
GITA GOPI, J.
Bhupendra Shantilal Shah – Appellant
Versus
Fanny Rustomji Contractor - Defendant
R/First Appeal No. 2592 of 2019 with Civil Application (For Stay) No. 1 of 2019
Decided On : 06-05-2022

Advocates Appeared:
For the Appellant : Mr. Salil M. Thakore.
For the Defendants : Mr. Percy Kavina, Sr. Adv. with Mr. A.B. Munshi.

The court held that a suit for declaration of ownership of property is not barred by Section 34 of the Specific Relief Act, 1963, if the plaintiff is able to prove that he/she was not dispossessed of the property and that the defendant is not a bona fide purchaser.

Headnote:
The court held that the suit filed by the plaintiff seeking a declaration of ownership of the disputed property and cancellation of the sale deed executed in favor of the defendants was maintainable and not barred by the provisions of Section 34 of the Specific Relief Act, 1963. The court found that the defendants failed to prove that the plaintiff was dispossessed of the property in 1985 as claimed by them and that the original documents relied upon by the defendants to establish their title were not produced or proved during the trial. The court also held that the power of attorney executed by the plaintiff in favor of the defendant No.1 was not executed and authenticated in accordance with the provisions of Section 85 of the Indian Evidence Act, 1872, and therefore, could not be admitted in evidence. The court further held that the secondary evidence adduced by the defendants to prove the contents of the disputed documents was inadmissible as the defendants failed to give notice to the plaintiff under Section 66 of the Evidence Act, 1872, and did not prove that the defendant No.1, who was in possession of the original documents, was out of their reach.
Fact of the Case:

The plaintiff, the owner of a property situated in Akota, Taluka and District : Vadodara, filed a suit against the defendants claiming ownership of the property and seeking a declaration of the sale deed executed in favor of the defendants as illegal and void. The defendants claimed that they were bona fide purchasers of the property and that the plaintiff had executed a power of attorney in favor of the defendant No.1, authorizing him to sell the property. The plaintiff denied the execution of the power of attorney and alleged that the sale deed was forged and bogus.
Finding of the Court:

The court found that the defendants failed to prove that the plaintiff was dispossessed of the property in 1985 as claimed by them and that the original documents relied upon by the defendants to establish their title were not produced or proved during the trial. The court also held that the power of attorney executed by the plaintiff in favor of the defendant No.1 was not executed and authenticated in accordance with the provisions of Section 85 of the Indian Evidence Act, 1872, and therefore, could not be admitted in evidence. The court further held that the secondary evidence adduced by the defendants to prove the contents of the disputed documents was inadmissible as the defendants failed to give notice to the plaintiff under Section 66 of the Evidence Act, 1872, and did not prove that the defendant No.1, who was in possession of the original documents, was out of their reach.
Issues: 1. Whether the suit filed by the plaintiff was barred by the provisions of Section 34 of the Specific Relief Act, 1963? 2. Whether the defendants were bona fide purchasers of the property? 3. Whether the power of attorney executed by the plaintiff in favor of the defendant No.1 was valid and genuine? 4. Whether the secondary evidence adduced by the defendants to prove the contents of the disputed documents was admissible?
Ratio Decidendi: 1. The court held that the suit filed by the plaintiff was not barred by the provisions of Section 34 of the Specific Relief Act, 1963, as the defendants failed to prove that the plaintiff was dispossessed of the property in 1985 as claimed by them. 2. The court held that the defendants were not bona fide purchasers of the property as they failed to prove that the power of attorney executed by the plaintiff in favor of the defendant No.1 was valid and genuine. 3. The court held that the power of attorney executed by the plaintiff in favor of the defendant No.1 was not valid and genuine as it was not executed and authenticated in accordance with the provisions of Section 85 of the Indian Evidence Act, 1872. 4. The court held that the secondary evidence adduced by the defendants to prove the contents of the disputed documents was inadmissible as the defendants failed to give notice to the plaintiff under Section 66 of the Evidence Act, 1872, and did not prove that the defendant No.1, who was in possession of the original documents, was out of their reach.
Final Decision: The court dismissed the appeal filed by the defendants and upheld the judgment and decree of the trial court.

JUDGMENT :

1. The appellants are defendant Nos.2 & 3 of Special Civil Suit No.823 of 2011 filed before the 12th Additional Senior Civil Judge, Vadodara with a plea that they are the bona fide purchasers of the suit property for valuable consideration and are lawful owners

2. The present respondent No.1 had filed the suit claiming ownership of the disputed property against five defendants. The learned trial Court Judge was pleased to allow the suit on 03.05.2019 granting the relief prayed by the plaintiff declaring the sale deed dated 01.06.2010, in favour of the defendant Nos.2 & 3, present appellant, as illegal and therefore, declared it as void. Further the defendants were ordered not to execute any document of sale, mortgage or gift with defendant Nos.2 & 3 or with their agents or representatives, and further restrained from transferring or assigning the suit land or to create any third party interest or to create any hindrance in the possession and occupation of the suit property of the plaintiff.

3. The appellants as defendant Nos.2 & 3 of the suit have challenged the decree and judgment and have contended that respondent No.1, as plaintiff, ought to have sought further relief of possession and therefore, there could not be any declaration with respect to the sale deed, as the suit becomes barred by law. That, no Court would pass an order in futility since the respondent No.1 as the plaintiff had not made any prayer for recovery of possession, as in spite of declaration of the sale deed as illegal, the respondent no.1 would not get back the property.

4. The appellants have also challenged the decree contending that the power of attorney executed by the plaintiff-respondent No.1 in favour of respondent No.2- defendant No.1 is in accordance with law and the learned trial Judge has erred in holding that the said power of attorney is not fulfilling the provision under section 85 of the Indian Evidence Act, 1872. Further, the appellants have raised the contention that the findings of the learned trial Judge of the documents and signatures being bogus are without any basis and not supported by any evidence, and the learned trial Judge has erred in not believing the banakhat and ought not to have declared the sale deed illegal.

5. The appellants have further raised the ground that the learned Judge has erred by not accepting the opinion of the hand-writing expert, to appreciate that the admitted signature of respondent No.1 in the registered sale deed No.3152 dated 27.07.1964 is same as on the documents of 1985.

6. The suit filed on 18.11.2011 is with the facts that plaintiff is the owner of the property situated at Akota, Taluka and District : Vadodara with revenue survey No.165, City Survey No.15, Sub-plot No.2, ad-measuring 780 square metres. The said property was purchased by her from the original owner Adam M. Patel for a consideration of Rs.8,401/-. The sale deed was executed on 27.07.1964, and, on the basis of the sale transaction the revenue change entry No.878 was made on 20.02.1966. The plaintiff thus claims that, since then, she is the owner and in possession of the said plot no.2. The plaintiff claims that she had been paying the revenues of the suit property and after the purchase of the land, had constructed a compound wall, while with the passage of time the wall deteriorated and thereafter, installed fence around the plot.

7. The husband of the plaintiff – Rustomji Contractor died in the year 2002-03 and her son – Sohrab since 1977 is in London and second son Jahengir being a Senior Engineer was at Germany with some construction company and has been staying at Mumbai for the last many years. Her married daughter is staying at Vadodara since the last 60 years. It was the case of the plaintiff that both the sons were residing out of India and there was no necessity of constructing any house on the suit land. She states that her husband had purchased the land in her name for constructing a house for her sons.

8. The sale d