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GUJARAT HIGH COURT
Dr. A.P. Thaker, J.
Jayeshkumar Mathurbai Patel —Appellant
versus
Mukeshbhai Vershibhai Desai —Respondent
R/Appeal From Order No.130 of 2020 with Civil Application (for Stay) No.1 of 2020
Decided on 27.4.2022
Counsel for the Parties:
For the Appellant Nos.1 and 2:Mr. Mihir Thakore, Sr. Advocate with Shashvata U Shukla (8069), Advocate
For the Respondent No.5:Mr. Kamal Trivedi, Sr. Advocate with Mr. Sunil S Joshi (2925), Advocate
For the Respondent Nos.2 and 4: Notice Served
For the Respondent No.3: Notice Served by DS
For the Respondent No.1: Served by Publication in News
IMPORTANT POINTS
(1) Notice of earlier contract is sine qua non for applicability of provision of Section 91 of Indian Trusts Act, 1882.
(2) Agreement to sell—Enforceability of an agreement to sell is always depending upon fact that person who is assigning his right in property, has some sort of right devolved upon him by virtue of some prior transaction between himself and owner of property.
Headnote:
(A) Indian Trusts Act, 1882—Sections 91 and 96—Property acquired with notice of existing contract—A person acquiring any property with notice that another person has entered into an existing contract affecting that property, of which specific performance could be enforced, he must hold that property for benefit of later to the extent necessary to given effect to alleged contract—Notice of earlier contract is sine qua non for applicability of provision of Section 91—If a person acquiring property subsequently is a bonafide purchaser, then, provisions of Section 91 would not be applicable—Transaction by a bonafide purchaser for consideration, is also saved from applicability of Section 91. (Paras 35 and 36)
(B) Civil Procedure Code, 1908—Order XXXIX Rules 1 and 2 read with Section 151—Agreement to sell—Suit for specific performance, cancellation of documents and declaration of injunction in respect to suit property—In State of Gujarat, there is no need of any registered re-conveyance deed to be executed for cancellation of a sale-deed—So far as agreement to sell for assignment of right in a property is concerned, it can very well be enforceable at law—However, enforceability of an agreement to sell is always depending upon fact that person who is assigning his right in property, has some sort of right devolved upon him by virtue of some prior transaction between himself and owner of property—All three ingredients for granting interim injunction is lacking in this matter—Trial Court has considered this fact—Impugned order of Trial Court is plausible—However, considering fact that there is some disputed question of fact involved in the matter and during pendency of proceedings, construction have been erected rightly or wrongly, interest of justice should be subserved if construction, if any made or third party interest, if any, created by defendant No.5, is made subject to ultimate decision of suit. (Paras 40, 41, 43 and 44)
Result: Appeal from Order dismissed.
JUDGMENT (ORAL)
Dr. A. P. Thaker, J.—Being aggrieved and dissatisfied with the impugned order dated 19.2.2020 passed below Exh-5 by the learned Principal Senior Civil Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad in Special Civil Suit no. 119 of 2019 whereby the trial Court has disallowed the application filed by the plaintiffs-appellants for interim injunction, the original plaintiffs have preferred this Appeal from Order under Order 43 Rule 1(r) of Code of Civil Procedure.
2. The appellants are the original plaintiffs and the respondents are the defendants before the trial Court. For the brevity and convenience, the parties are referred to in this order as per the nomenclature assigned to them in the trial Court.
3. The plaintiff has filed the Suit for specific performance, cancellation of documents and declaration of injunction in respect to the Suit property being land revenue survey No. 52 admeasuring 0-48-56 Hect - Are- Sq. Mtrs and Survey No.53 admeasuring 0 – 52 - 61, Hect – Are – Sq. Mtrs (Final Plot No. 79 admeasuring 7500 sq. Mtrs of the TP Scheme no.3 (Vejalpur), situated at Mauje: Vejalpur, District: Ahmedabad, on the following facts:
3.1 The suit properties originally belong to defendant Nos. 2 and 3, each having one-half share in the suit property. On 15.2.2017, notarised agreement to sell (Serial No. 250/17) was executed by defendant No.2 in favour of defendant no.1 with respect to her undivided one-half share of the suit property i.e. admeasuring 3750 sq. mtrs. On the same day, a Special Power of Attorney executed by defendant no.2 in favour of defendant no.1 regarding the one-half share of the property which was notarised (Sr. No. 251/17).
3.2 On 30.11.2017, the defendant No.3 executed notarised possession Agreement-cum-declaration (1695/17) in favour of defendant no.1 for her one-half share of the suit property i.e. admeasuring 3750 sq.mts. On the same day, defendant no.3 has also executed a Special Power of Attorney in favour of defendant No.1, which was also notarised (1696/17). That on 1.5.2018, a registered agreement to sell No. 1034 came to be executed by defendant No.3 (through Power of Attorney) in favour of defendant No.1 regarding one-half share of suit property. On 2.5.2018, registered sale deed No.1044 came to be executed by defendant no.3 (through Power of Attorney) in favour of defendant No.4 regarding her one-half share of suit property admeasuring 3750 sq. mtrs.
3.3 On 14.5.2018, a registered sale deed No. 1157 came to be executed by defendant No.2 (through her Power of Attorney defendant No.1) in favour of defendant No.1 regarding one-half share of the suit property. On the same day, a notarised MoU came to be executed between defendant No.1 and plaintiff whereby defendant No.1 agreed to sell the suit property to the plaintiff and the plaintiff had already paid Rs. 84 Lakh under MoU to the defendant No.1.
3.4 It is alleged by the plaintiff that the defendant No.1 has failed to get cancelled document, if any, executed by the defendant No.2 and 3 and also to execute the sale deed in their favour, the defendant No.1 did not care to do so. According to the plaintiff, they came to know from the Newspaper that notice for title clearance was issued by the advocate for the rest of the defendants and on inquiry found that various documents which includes cancellation of the transaction between the defendant No.1 and defendant Nos. 2 & 3. It was also revealed that defendant No.4 has executed sale-deed on 19.12.2018 bearing No. 6863 and it is also revealed that defendant No.2 has also executed a deed in favour of defendant No.5 dated 5.12.2018 vide No. 6802. According to plaintiff, thus, the defendants have joined hands to frustrate the plaintiff’s right in relation to the suit property. It is contended that the plaintiff has paid the consideration to defendant No.1 and the plaintiff is ready and willing to pay the remaining consideration amount and perform their part of contract. They have also alleged
