The present First Appeal has been filed by the Appellants - Original Defendants under Section 96 of the Code of Civil Procedure, 1908 challenging the impugned judgment and order passed in Special Civil Suit No.362 of 2007 by the learned Senior Civil Judge, Ahmedabad Rural at Mirzapur dated 30.7.2011 on the grounds stated in the memo of Appeal.
The Suit has been filed by the Respondent herein - Original Plaintiff and the same has been allowed regarding the specific performance of the agreement to sell / banakath.
The same has been assailed in the present First Appeal inter alia on the ground that the court below has failed to appreciate that the premises in question was given by the Appellants - Original Defendants for residential purpose and there was no such intention of sale. It is also contended that the Appellants have also filed Civil Suit No.403 of 2007 before the learned Civil Judge, Ahmedabad Rural praying for possession of the disputed property and the said Suit is pending. It is also contended that the agreement to sale is unregistered, and therefore, in view of the judgment reported in 2003 (3) SCC, 229 read with the provisions of Transfer of Property Act, 1882, if it is not registered, it has no value for the purpose of Section 53 of the Transfer of Property Act.
Heard learned Advocate Mr. M.P.Prajapati for Mr. R.M.Parmar for the Appellants. Learned Advocate Mr. Prajapati has referred to the impugned judgment and order and also tried to submit that because there was a relationship between the parties, the premises in question was given only for the purpose of residence, which is subsequently claimed under the banakath / agreement to sale. Learned Advocate Mr. Prajapati submitted that it has been executed as banakath / agreement to sale by taking the advantage of innocence of the Appellants and therefore he has also filed a Suit, which is pending. Learned Advocate Mr. Prajapati submitted that as per the provisions of the Registration Act as well as Transfer of Property Act, the banakath which is unregistered, will not have any effect for the purpose of Section 53 of the Transfer of Property Act and title in the property cannot be transferred. He has also tried to submit that the stamp has been purchased on his name and though he has signed the papers he was not aware that it was an agreement to sale or banakath, and therefore, the present Appeal may be allowed. Learned Advocate Mr.Prajapati strenuously submitted that till the Suit filed by him is decided, the decree may be stayed and the possession of the premises in question is already with the Opponent / Original Plaintiff, and therefore, the present Appeal may be Admitted.
Learned Advocate Mr. Mehul S.Shah for the Respondent referred to the impugned judgment and order and submitted that factually the submissions are not correct as it has been admitted by the Appellants in their deposition that there is no relationship except they have a common sur name. He has also referred to agreement to sale and submitted that it cannot be believed that such clear writing which is not disputed that he has not executed such a contention can be raised. He submitted that it is only as an after thought due to rise in the price that he wants to create such claim on the title. Learned Advocate Mr. Mehul Shah submitted that his contention throughout has been that there was relationship and it was given only for the purpose of staying but it is not explained how the agreement to sale of banakath has been executed. He submitted that admittedly, the consideration has been received including by cheque for which there is no explanation. He further submitted that infact a receipt at Exh.29 has been passed which make the position clear. He therefore submitted that the present Appeal may not be entertained.
Learned Advocate Mr. Mehul S.Shah has submitted that the registration of banakath / agreement to sell is not compulsory for the purpose of Suit of specific performance as the law does not require any such registration.
In view of this rival submissions, it is required to be considered whether the present Appeal can be entertained or not.
Though, normally the First Appeals are admitted and are required to be admitted. However, a little scrutiny of the judgment and the contention is also required to be made with regard to any point of law raised. In the facts of the case though the Appellants have claimed that the premises in question was given only for the purpose of residing there and it was never intended to be sold by agreement to sale and such an agreement to sale has been executed without his understanding, is too difficult to digest. He has not disputed about the execution of the agreement to sale / banakath. The stamp paper is purchased in his name, there is no explanation with regard to payment of consideration which has been received and it is also not disputed including the consideration received by way of cheque. On top of that, the receipt at Exh.29 make the position more than clear about the intention that he had accepted the money towards the consideration and it is specifically stated not only in the banakath but even in the receipt which has been passed for the payment received that it is towards the consideration for the property / premises in question.
Therefore, in the background of this position, it cannot be said that any error has been made or any point of law which has been raised which would call for any exercise of discretion. Further, the court below has referred to the contention regarding registration of the banakath with reference to the provisions of Transfer of Property Act and it has been specifically stated that the possession has been parted in part performance of the agreement to sale / banakath as required under Section 53A of the Transfer of Property Act. In view of the discussion made referring to the judgment of the Hon'ble Apex Court, it cannot be said that there is any error in the impugned judgment which would call for any interference. This Court is in complete agreement with the findings arrived at and the reasoning recorded for the same. Therefore, there is no substance in any of the contentions raised by learned Advocate Mr. Prajapati appearing with learned Advocate Mr. Parmar, and the present First Appeal, therefore, deserves to be dismissed and accordingly stands dismissed in limine.
Civil Application stands disposed of accordingly.
(Rajesh H.
Shukla,J) Jayanti* Top