ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1 This First Appeal is at the instance of the original plaintiff and is directed against the judgement and decree passed by the Additional Senior Civil Judge, Sanand dated 5th December 1990 below Exhibit : 21 in the Special Civil Suit No.111 of 2018, by which the plaint came to be rejected under the provisions of Order VII Rule 11 (d) of the Code of Civil Procedure.

2 The facts giving rise to this appeal may be summarized as under:

3 The appellant herein is the original plaintiff. The respondents Nos.1 to 6 are the original owners of the suit property. The respondent No.7 is the original defendant No.7 and the purchaser of the suit property from the erstwhile owners i.e. the defendants Nos.1 to 6 respectively.

4 The appellant – original plaintiff instituted the Special Civil Suit No.111 of 2018 in the Court of the Principal Senior Civil Judge, Sanand for specific performance of an oral contract, cancellation of the sale deed executed by the original owners in favour of the defendant Nos.7 and permanent injunction. It is the case of the appellant – original plaintiff that the defendants Nos.1 to 6 are the lawful owners of the land bearing survey No.2135/2 situated at Sanand, District : Ahmedabad. This parcel of land is of restricted tenure, hit by the provisions of Section 43 of the Bombay Tenancy Act. According to the plaintiff, he entered into negotiations with the original owners for the purchase of the land bearing survey No.2135/2. According to the plaintiff, he entered into an oral contract with the owners for purchase of a part of the survey No.2135/2 at the rate of Rs.5,100/- per sq. yard for a total sale consideration of Rs.3,30,14,850/- (Rupees Three Crore Thirty Lakh Fourteen Thousand Eight Hundred Fifty only). It was understood between the plaintiff and the original owners that the original owners would take the necessary steps to get the land converted to old tenure. According to the plaintiff, he paid Rs.1,16,00,000/- (Rupees One Crore Sixteen Lakh only) to the original owners. Some amount was paid by way of cheques and some in cash. This payment was made to the original owners by the plaintiff between 2012 and 2014. The plaintiff has also placed vouchers duly signed by the owners acknowledging the receipt of the money towards the sale consideration. As the original owners were not able to get the land converted to old tenure, it was agreed between the parties that the original owners would sell one another parcel of land owned by them i.e. the survey No.1686 after obtaining the necessary N.A. permission from the competent authority in accordance with law. It is the case of the plaintiff that it was understood between the parties that the sale consideration of Rs.1,16,00,000/- (Rupees One Crore Sixteen Lakh only) paid by the plaintiff for the survey No.2135/2 would be treated as the earnest money for the purchase of the survey No.1686. According to the plaintiff, he entered into an oral agreement with the original owners i.e. the defendants Nos.1 to 6 to purchase the survey No.1686 in place of survey No.2135/2. The purchase price was fixed at the rate of Rs.81,00,000/- (Rupees Eighty One Lakh only) per Vigha (2378 sq. mtrs.), which comes to Rs.2,35,71,000/- (Rupees Two Crore Thirty Five Lakh Seventy One Thousand only). It is the case of the plaintiff that Rs.1,16,00,000/- (Rupees One Crore Sixteen Lakh only) was to be adjusted towards the total sale consideration of Rs.2,35,71,000/- (Rupees Two Crore Thirty Five Lakh Seventy One Thousand only).

5 According to the plaintiff, he was always ready and willing to perform his part of the contract. However, one fine day i.e. on 29th May 2017, he read a public notice issued by the defendants Nos.1 to 6 through an advocate in a daily newspaper “Sandesh” seeking title clearance certificate. No sooner the plaintiff read the notice, then he immediately gave a reply in the form of objections dated 8th June 2017. According t