Advocates:
['ADV PADGAONKAR CHAITANYA PRAKASH', '', 'ADV ADITI RAMESH NAIK', 'ADV PALYEKAR VINITA VISHRAM', '', 'ADV KAMAT GHANEKAR TANVI', 'ADV MASHELKAR TANISHA AVINASH', 'ADV PADGAONKAR KISHAN C']

1 FA 31 2019

IN THE HIGH COURT OF BOMBAY AT GOA

FIRST APPEAL NO. 31 OF 2019

ANIL ANAND NAIK

... Appellant

Versus

YERUKALASRIGOVIND AND 2 ORS., ... Respondents

Mr. S. D. Lotlikar, Senior Advocate with Adv. Ms. S. Keny for the

Appellant.

Mr. Sudin Usgaonkar, Senior Advocate with Adv. Padgaonkar Kishan for

Respondent no.1.

Coram: DAMA SESHADRI NAIDU, J.

Date: 30th January 2020.

Oral Order:

The appellant is the plaintiff in Special Civil Suit No. 21/2017/A

before the Civil Judge, Senior Division, at Ponda. He has filed the suit

against the respondent, seeking the following reliefs:

(a) By a judgment and decree, the Deed of Sale dated 21^st April,

2015, registered at serial no.920/2015, and registered under

No.1197/2015, at pages 15 to 32, Book No.”I”, Volume No.2834,

dated 26/6/2015, executed in favour of defendant no.1 be

recalled and canceled.

(b) By a Judgment and Decree, the defendant No.1 herein, his

developers, agents, servants, laborers or any person/s claiming

through him be permanently retrained from developing

aforesaid property into plots and/or selling the same to

prospective purchasers, and/or from dong any construction

work of whatsoever nature by cutting down fruit an non-fruit

bearing trees thereon.

2 FA 31 2019

(c ) By a Judgment and Decree, the defendant No.1 herein, his

developer, agents, servants, laborers or any person/s claiming

through him be permanently restrained either mutating suit

property and/or creating third party right/interest over said

proper.”

2. After entering their appearance, the respondents as defendants

applied under Order 7 Rule 11 CPC for having the plaint rejected.

Eventually on the merits, the trial Court accepted the defendants'

contentions and rejected the plaint, through its order dated 11.06.2018.

Assailing that order, the appellant has filed this First Appeal.

3. It seems the second and the third respondents are the appellant's

relatives and proforma respondents.

4. The learned Senior Counsel for the appellant-plaintiff has

submitted that the first respondent-defendant wanted the trial Court to

reject the plaint for one reason, but the trial Court has rejected it for

another reason, which was not in the first respondent's contemplation. He

has submitted that the plaint clearly reveals the cause of action and the

relief sought is eminently sustainable.

5. In response, the learned Senior Counsel for the first respondent-

defendant has submitted that once the sale has been effected through a

registered instrument in accordance with law, failure of consideration, if

any, does not affect the conveyance. According to him, the vendor could sue

the purchaser for a valuable consideration, but not for having the

conveyance cancelled. As the second limb of his arguments, the learned

3 FA 31 2019

Senior Counsel has submitted that soon after the sale in the first defendant’s

favour, the plaintiff, along with his wife, has executed a registered Gift Deed

in his father's favour. According to him, by the time he filed the suit, the

plaintiff had no subsisting interest in the property because of the Gift

Deed. And finally, the learned Senior Counsel has submitted that under

Section 31 of the Specific Relief Act, cancellation could be sought only

when the document either becomes void or voidable.

6. To elaborate, the learned Senior Counsel has submitted that the

plaintiff has lost his locus to sue under Order 1 Rule 1 of CPC because he

had no subsisting interest by that time. Besides, under Order 31 of the

Specific Relief Act, the sale deed b