Daulat vs Narendra Parmar
- Court
- Madhya Pradesh High Court
NEUTRAL CITATION NO. 2026:MPHC-IND:11471
1 FA-1737-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI
FIRST APPEAL No. 1737 of 2024
DAULAT
Versus
NARENDRA PARMAR AND OTHERS
Appearance:
Shri Hitesh Sharma, learned counsel for the appellant.
Shri Madhusudan Dwivedi, learned counsel for the respondent No.1.
Ms. Surbhi Bahal, learned Panel Lawyer Panel Lawyer for the
respondent/State.
Heard on: 23.04.2026
Pronounced on : 13.07.2026
ORDER
With the consent of parties this appeal is being heard finally as the
same has been filed against an order passed under Order 7 Rule 11 CPC,
whereby suit of the appellant has been rejected.
Before adverting to the facts on merits of the case, with the consent of
both counsel for respective parties, I.A.No.1822/2025, which is filed under
order 1 Rule 10 CPC is closed for the reasons that it is not necessary to
advert to the said application at this stage of the case.
The present appeal has been filed by the appellant being aggrieved by
the order dated 2.8.2024 passed by the trial Court in RCS-A No.558/2023,
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:11471
2 FA-1737-2024
whereby while allowing the application filed by the defendant No.1 under
Order 7 Rule 11 CPC the plaint was rejected.
2. Facts of the case are that appellant/plaintiff filed a suit for declaring
sale deed null and void and permanent injunction with respect to agricultural
land bearing survey No.131/1 (0.164 Hectares), 131/3 (0.156 Hectares),
137/1 (0.150 Hectares), 137/3 (0.163 Hectares), 137/4/1 (0.105 Hectares),
141/1 (0.045 Hectares), 363/3/1 (0.056 Hectares) and 363/3/2/2 (0.089
Hectares) total 1.082 Hectares situated at village Sonvay, Tehsil Mhow (New
Tehsil Rau), District Indore (hereinafter referred to as "suit property"). It was
stated in the plaint that with respect to suit property one Burhanuddin S/o
Hakimuddin, who is resident of Saifee Nagar, Indore introduced the plaintiff
to defendant No.1, who expressed his willingness to purchase the suit
property from the plaintiff for a total sale consideration of Rs.1,04,00,000/-.
The defendant No.1 stated that he will pay the entire sale consideration
through cheques. He posed himself as a businessman of Siyaganj, Indore. As
the aforesaid Burhanuddinm was an acquaintance of the plaintiff, he believed
on them.
2.1 According to the above mentioned discussion the plaintiff
executed registered sale deed on 6.4.2022 for the suit property for a total sale
consideration of Rs.1,04,00,000/-. The defendant No.1 handed over four post
dated cheques on the same day of the said amount for payment of sale
consideration.
2.2 It is also pleaded in the plaint that the plaintiff is a low educated
villager, he signed on the sale deed in the office of Sub-Registrar and when
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:11471
3 FA-1737-2024
on 12.4.2022 he taken those cheques for depositing in the bank for their
encashment, he came to know that one cheque No.312398 drawn on Canara
Bank was only for an amount of Rs.1,04,000/-, which should have been
Rs.4,00,000/-. The plaintiff according contacted with the defendant No.1,
whereupon the defendant came to meet the plaintiff and promised the
plaintiff that he will give new cheque in lieu of the cheque of Rs.1,04,000/-.
He further stated that it may take some time in receiving the new cheque and
by then the dates on other cheques will also expire. Thus, he taken all the
cheques back with an assurance that he will handover new cheques having
entire sale consideration and accordingly amended sale deed will be
executed. As the defendant No.1 came to the plaintiff along with
Burahanuddin who was known to the plaintiff/appellant since long, thus he
believed on the assurance of defendant No.1 and handed over the cheques of
sale consideration back to the defendant No.1. It is stated that in this manner
fraud has been played with the plaintiff and as appellant has not received sale
consideration, thus the sale deed is invalid. It was also stated that despite
repeated reminders the defendant No.1 continued to assure that payment
shall be made, however, no payment was made. On the contrary, it was
stated that his cheque book got exhausted and it will take some time to get it
printed from head office of the Bank at Bombay. Thus, the plaintiff initially
believed and weighted, however, when he enquired about defendant No.1
and went to his residence, he came to know that his financial condition is not
good, he came to know that defendant No.1 is not a businessman, but he is
employed with some businessman, thus suspicion arose in the mind of the
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:11471
4 FA-1737-2024
plaintiff. As such, the defendant no. 1 by playing fraud and deceit got the
sale deed executed by handing over post dated cheques without any intention
of paying any sale consideration for such purchase of land.
2.3 After filing of this plaint the trial Court issued notices to the
defendant No.1 on 27.1.2023. On 13.3.2023 the defendant No.1 entered his
appearance through an Advocate. On 21.3.2023 the appellant filed an
applications under Order 6 Rule 17 CPC as well as under Order 1 Rule 10 of
CPC in view of subsequent development in as much as the defendant No.1
had executed sale deeds in favour of five other persons. Learned counsel for
the defendant No.1 prayed for time to file reply to the application under
Order 6 Rule 17 CPC, which was filed on 11.5.2023, thus the matter was
fixed for arguments on the said application. However, on 20.10.2023 the
defendant No.1 filed application under Order 7 Rule 11 of CPC, the
appellant filed reply to this application.
2.4 Initially, the trial Court had taken up the application filed under
Order 6 Rule 17 CPC on several dates. However, from 20.10.2023 onwards
application under Order 7 Rule 11 CPC was taken up and ultimately by the
impugned order dated 2.8.2023 the same was allowed. It was held that the
appellant/plaintiff has filed suit for declaration of sale deed null and void
only for the reason that the payment of sale consideration was not made by
the defendant No.1. The trial Court found execution of the sale deed proved
as it was admitted by the plaintiff himself. As such, by referring to the
judgment of the Hon'ble Apex Court rendered in the case of Dahiben Vs.
Arvind Bhai Kanlyanji Bhansali (Gajra), reported in (2020) 7 SCC 366 it
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:11471
5 FA-1737-2024
was held that the suit is not maintainable. The trial Court held that only a suit
for recovery of sale consideration can be filed, thus the suit of the
plaintiff/appellant was dismissed by allowing the application of the
defendant no. 1 filed under Order 7 Rule 11 CPC. Thus, being aggrieved by
the same, present appeal has been filed by the plaintiff.
3. Learned counsel for the plaintiff/appellant has two fold arguments;
firstly without deciding application for amendment filed under Order 6 Rule
17 CPC the application of the defendant filed under Order 7 Rule 11 CPC
was entertained, which in itself is an illegality. Learned counsel in support of
his submissions has placed reliance on order passed by this Court on
30.6.2023 in Civil Revision No.383/2022 (Smt. Suchitra Dubey Vs. Sattar
and others). Second submission of learned counsel for the appellant is that in
any case this application could not have been allowed. The reliance as placed
by the trial Court on the judgment of Dahiben (supra) is misplaced. His
submission is that in the present case not only issue of non-payment of sale
consideration, however, issue that fraud was played is also involved. He, thus
submits that pleadings of the present case would show that the suit is not
based only on the fact of non-payment of sale consideration, but the case of
the plaintiff is that defendant No.1 got the sale deed executed by playing
fraud upon the plaintiff. Thus, the rejection of suit by the trial Court is
contrary to law. In support of his submissions he has placed reliance on the
judgment of the Hon'ble Supreme Court in the case of Kewal Krishan Vs.
Rajesh Kumar and others, reported in (2022) 18 SCC 489, Gurdev Singh Vs.
Harvinder Singh, reported in 2022 SCC OnLine SC 2193 and Shaukat
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:11471
6 FA-1737-2024
Hussain Mohammed Patel Vs. Khatunben Mohmmedbhai Polara, reported in
(2019) 10 SCC 226.
4. Per contra, learned counsel for the defendant No.1 submits that
perusal of sale deed would show that in para 4 of the same the receiving of
sale consideration is accepted in para 5 delivery of possession has been
recorded. In para 6 the title and rights are transferred in the name of
defendant No.1. In para 15 of the sale deed it is recorded that same is not in
violation of Section 22(A) of Registrikaran Adhiniyam. He submits that all
the paragraphs have to been seen. He further submits that before filing suit
the plaintiff has not issued any notice to the defendant No.1. Thus, the trial
Court had correctly rejected the suit by allowing application under Order 7
Rule 11 CPC. Learned counsel for the defendant in support of his
submissions has placed reliance on the judgment of Hon'ble Supreme Court
in the case of Vidyadhar Vs. Manikrao and another, reported in (1999) 3
SCC 573 and Dahiben Vs. Arvind Bhai (supra).
5. Heard learned counsel for the parties; perused the record.
6. The first contention of learned counsel for the appellant is that
before amendment application could have been entertained. The application
filed under Order 7 Rule 11 CPC was considered and the suit was rejected.
In support of his submissions he has placed reliance on the order passed by
this Court in the case of Smt. Suchitra Dubey (supra). On a perusal of the
record of the trial Court it would rather come to the fore that application
under Order 6 Rule 17 CPC for amendment in the pleadings filed by the
plaintiff on 21.3.2023. The record would also show that to this application
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:11471
7 FA-1737-2024
reply was filed by the defendant No.1 on 11.5.2023. The order sheets of the
trial Court would show that trial Court has taken cognizance of the
application for amendment filed under Order 6 Rule 17 CPC on 21.3.2023.
Time was granted to the defendant No.1 for filing reply to the same and the
Court continued to grant time for the same on 2.4.2023, 2.5.2023, 11.5.2023,
20.7.2023 and 21.8.2023. However, on 12.9.2023 the matter was adjourned
on the request of counsel for the plaintiff and the next date was fixed as
13.3.2023. On that date counsel for the defendant No.1 was supplied the
documents. Thus, the matter was adjourned to 20.10.2023 and on this date
defendant No.1 filed his application under Order 7 Rule 11 CPC. Thus, from
this date onwards the Court completely ignored the application under Order 6
Rule 17 CPC and continued to grant time to the plaintiff and the defendant
No.1 on the application filed under Order 7 Rule 11 CPC and ultimately the
same was allowed on 2.11.2024, thereby dismissing the suit. It is, thus clear
that the Court was very well aware about the pendency of the amendment
application. This Court in the case of Smt. Suchitra Dubey (supra) in para 14
has held as under:-
"14. The position which hence emerges is that the
provisions of Order 6 Rule 17 of the CPC are not
restricted or controlled by provisions of Order 7 Rule
11 of the CPC. Where an application under Order 6
Rule 17 is filed and is pending then the same ought to
be decided first prior to decision on the application
under Order 7 Rule 11. The same would be more so
when the application under Order 6 Rule 17 is filed
pursuant to filing of an application under Order 7 Rule
11 and intends to remedy the defects as pointed out in
the said application. Such consideration of an
application under Order 6 Rule 17 would be in the
interest of justice. If there is some objection as regards
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:11471
8 FA-1737-2024
maintainability of the claim and that objection is sought
to be remedied by plaintiff by appropriately amending
the plaint, then such amendment application needs to
be considered first."
7. It is, thus clear that before adverting to the application filed under
Order 7 Rule 11 CPC the Court should have considered the application filed
for amendment in the pleadings of the plaint. The impact after amendment in
the pleadings may be there on the application filed under Order 7 Rule 11
CPC. As such, in the considered view of this Court the trial Court erred in
allowing application filed under Order 7 Rule 11 CPC without deciding the
application for amendment.
8. The next issue for consideration before this Court is that,
irrespective of the fact that the application for amendment was pending, even
if we considered the application filed under Order 7 Rule 11 CPC
independently, then also whether in view of the pleadings in the plaint the
same could have been dismissed by the trial Court under Order 7 Rule 11
CPC. For that we have to consider the nature of pleadings. As recorded in
the beginning of this order the plaintiff projected an element of deception or
fraud in his pleadings, which is clear from entire reading of plaint
particularly para Nos.4, 7 and 9, which are reproduced as under:-
''4. ,
यह क वाद सीधा साधा ामीण प रवेश का
य होकर अिधक पढ़ा िलखा भी नह है और व!य प " को
-
देखकर उसके $ारा उप पंजीयक काया 'लय म ( अपने ह )ता+र
,
कये गये और जब वाद $ारा व!य प " म ( उ .ले/खत
12.04.2022 (
पी.ड .सी. चे 3स को पेम (ट के िलये दनांक बारह
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:11471
9 FA-1737-2024
)
अ 5ैल दो हजार बावीस को िनकालकर ब 6क जाने लगा तो उसे
7ात हुआ क व!य प " म ( उ .ले/खत केनरा ब 6क के चेक
312398 ( )
!मांक तीन एक दो तीन नौ आठ म ( उ .ले/खत
1,04,000/- (
रकम मा " =पये अ +र =पये एक लाख चार
) 4,00,000/- (
हजार है जब क उ रािश को =पये अ +र =पये
)
चार लाख होना चा हये । इस पर वाद $ारा 5ितवाद !मांक
1
से संपक ' कया तो वह वाद से िमलने आया और वाद को
1,04,000/- (
व!य प " म ( उ .ले/खत =पये अ +र =पये एक
)
लाख चार हजार के चेक के )थान पर नया चेक देने का
''
आ Aासन दया और साथ ह यह भी कहा क नये चैक आने
, ,
म ( समय लग सकता है तब तक तार ख िनकल सकती है
और नवीन चै 3स के आधार पर संशोिधत ड ड िन Bपादत व
पंजीकृत कराने का हवाला देते वाद को धोखे म ( रखकर
हुऐ
व!य प " म ( उ .ले/खत सभी चे 3स वाद से वापस 5ाE कर
ले गया और वाद को उ चेको के बदले नवीन चैक लाकर
देने व संशोिधत ड ड का िन Bपादन व पंजीयन कराने का
, 1
आ Aासन दया /जस पर वाद ने 5ितवाद !मांक नरे FG
,
परमार को र /ज)H म ( उ .ले/खत सभी चैक 5दान कर दये
1 ( )
चूं क 5ितवाद !मांक एक का प रचय वाद के पुव
प रिचत बुरहानु Jन ने करवाया था इसीिलये वाद ने
1 ( )
5ितवाद !मांक एक क K बात पर वAास कर उसे व!य
"
प " म ( उ .ले/खत सभी चै 3स 5दान कर दये । 5ितवाद
1 ( )
कमांक एक ने नवीन चे 3स देने व संशोिधत ड ड का
िन Bपादन व पंजीयन होने तक वाद से वाद )त संप L का
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:11471
10 FA-1737-2024
आिधप Mय भी वाद के पास ह रखे जाने का िनवेदन कया
और उसे वAास दलाया क नवीन चे 3स दये जाने के बाद
उसका भुगतान होने व संशोिधत ड ड का िन Bपादन व
पंजीयन पर ह वह वाद से वाद )त संप L का आिधप Mय
1 ( )
5ाE कर लेगा। इस 5कार 5ितवाद कमांक एक $ारा वाद
,
के साथ छल कया गया परंतु वाद )त भूिम का आिधप Mय
,
वाद के पास ह है तथा वाद को 5ितफल क K रािश अ 5ाE
,
होने से वकय पूण ' नह है इस कारणवश व!य प "
हुआ
शू Fय होकर वाद पर बंधनकार नह है तथा िनर )त कये
जाने यो Pय है।
7. ,
यह क इसके उपरांत वाद $ारा जब 5ितवाद
1 ( )
कमांक एक क K वा )तवक /)थती जानने का 5यास कया
1
तो वाद को 7ात हुआ क 5ितवाद !मांक का कोई यापार
नह है ब /.क वह कसी यापार के यहां नौकर करता है और
उसक K आिथ 'क /)थती ऐसी नह है क वह =पये
1,04,00,000/- ( )
अ +र =पये एक करोड़ चार लाख का
भुगतान वाद को वकय 5ितफल के =प म ( कर सके। वाद
$ारा 5ितवाद से संपक ' कर उसके िनवास )थल पर भी गया
तो वाद ने पाया क ना तो व!य प " पंजीब S कराने क K
1 ( )
/)थती म ( और ना ह उसके प Tात 5ितवाद !मांक एक
क K आिथ 'क /)थती ऐसी है क वह व!य प " म ( उ .ले/खत
,
रािश का भुगतान वाद को कर सके /जससे वाद को यह
1 ( )
)पU क 5ितवाद !मांक एक ने वाद से छल करने
हुआ
क K िनयत से अपनी आिथ 'क /)थती अ Mयंत गंभीर होने के
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:11471
11 FA-1737-2024
उपरांत भी वाद को धोखे म ( रख अपने प + म ( व!य प " का
,
पंजीयन करा पी.ड .सी. चेक वाद को दये जब क 5ितवाद
1 ( )
कमांक एक यह जानता था क उसक K आिथ 'क /)थती
ठ Vक नह है और ना ह व!य प " म ( उ .ले/खत 5ितफल रािश
का भुगतान या वाद को उसके $ारा दये गये पी.ड .सी. चेको
का भुगतान कभी वाद को 5ाE होगा।
9. , 1 ( ) /
यह क 5ितवाद !मांक एक नरे FG परमार
$ारा द गई धमक K से उसक K मंशा )पU 5तीत होती है क
उसके $ारा अपनी बुर आिथ 'क /)थती होने के त Wय को
छुपाकर पूव ' िनयो /जत योजना के तहत वाद के साथ छल
करने के आशय से पुव ' प रिचत बुरहानु Jन के प रचय का
सहारा लेकर वाद से व!य प " िन Bपादन व पंजीयन अपने
प + म ( कराया और वाद को धोखे म ( रखकर गलत चेक रािश
का उ .लेख व!य प " म ( करा उसक K आड़ म ( र /ज)H म
उ .ले/खत सम )त चैको को 5ाE करने का षडयं " रचते
हुए
वाद को चे 3स देने व संशोिधत ड ड का िन Bपादन व
दूसरे
पंजीयन का भरोसा दलाकर नवीन चै 3स नह दये और
अंततः वाद )त भूिमयो को अ Fय" व!य करने पर आमादा
''
है
9. At this stage it may also be relevant to point out that even in the
amendment application para 9A is requested to be added in the plaint, which
provides as under :-
'' , 1 ( ) 14.11.2022
यह क 5ितवाद !मांक एक $ारा दनांक
( )
चौदह नवंबर दो हजार बावीस को कोई चैक या रािश 5दान
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:11471
12 FA-1737-2024
नह करने बाबद )पU श Zदो म ( कहा /जसके उपरांत त Mकाल
-
ह वाद $ारा अपने अिधव ा के मा [यम से \ीमान उप
, - -1( )
पंजीयक महोदय उप पंजीयक काया 'लय इ Fदौर एक के
,
सम + एक िल /खत आप L इस आशय क K 5)तुत क K क
1 ( )
5ितवाद !मांक एक $ारा कराये गये र /ज)टड' व!य प "
MP179092022A1373351 06.04.2022 (
कमांक दनांक छः
2022) ,
अ 5ैल के आधार पर कसी अ Fय य सं )था या
िनकाय के प + म ( र /ज)टड' व!य प " का पंजीयन नह ं करे।
इस सूचना पर से व र] पंजीयक महोदय $ारा अपनी ट प उस
1 ( )
पर अं कत कर । 5ितवाद !मांक एक इस त Wय से
भलीभांती प रिचत था क उसके $ारा व!य प " म
उ .ले/खत व!य 5ितफल रािश का भुगतान वाद को नह ं
14.11.2022 (
कया है और दनांक चौदह नवंबर दो हजार
)
बावीस को वाद को व!य 5ितफल रािश अथवा चैक देने से
इंकार करने के उपरांत अपने सुिनयो /जत योजना के अधीन
वाद को +ित का रत करने व धोखाधड़ करने के उ Jे^य से
अिधकारातीत =प से व!य प "ो का पंजीयन दनांक
08.12.2022 ( )
आठ दसंबर दो हजार बावीस व दनांक
14.12.2022 ( ) ,
चौदह दसंबर दो हजार बावीस को कया
/जसकK जानकार वाद को प Tातवत_ प र/)थितयो म ( 5ाE
''
हुई।
10. On reading of these paragraphs it comes to the fore vividly that the
case of the plaintiff/appellant is that defendant No.1 met with the plaintiff
having deception in mind. He deliberately played fraud with the plaintiff.
The pleadings stated that he was never in a position to pay sale
consideration. It is clearly stated that he has taken back all the cheques,
which were given at the time of execution of sale deed on a false pretext.
Perusal of the sale deed particularly in para 4 would show that the entire sale
consideration was stated to be paid through five cheque; four cheques of
Rs.25,00,000/- each and one cheque of Rs.1,04,000/-. It is this cheque of
Rs.1,04,000/- taking excuse of which all the other four cheques were also
taken back. It can also be seen that there is no other payment except these
cheques and as per the story in the plaint all the cheques have been taken
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM
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13 FA-1737-2024
back by the defendant No.1. It is, thus clear that there is complete absence of
any sale consideration at all. The Hon'ble Apex Court in the case of Kewal
Krishan (supra) has held in para 17, 18 and 19 as under:-
"17. The High Court has not disturbed the finding
recorded by the District Court regarding the failure of
the respondents to adduce evidence regarding the
payment of consideration under the sale deeds dated
10th April 1981. The High Court in paragraph 29
merely observed that the sale consideration of
Rs.5,500/- and Rs.6,875/- was not exorbitant and was
not out of reach of Sudarshan Kumar’s sons and wife.
Perhaps, the High Court has ignored that it was
considering a case of sale deeds of the year 1981 and
that the purchasers under one of two sale deeds were
minor sons of Sudarshan Kumar and it was not even
pleaded that they had any source of income. The same is
the case with the sale deed executed by Sudarshan
Kumar in favour of his wife. Thus, undisputed factual
position is that the respondents failed to adduce any
evidence to prove that the minor sons had any source of
income and that they had paid the consideration payable
under the sale deed. They did not adduce any evidence
to show that Sudarshan Kumar’s wife was earning
anything and that she had actually paid the
consideration as mentioned in the sale deed.
18. Section 54 of the Transfer of Property Act, 1882
(for short “the TP Act”) reads thus:
54. “Sale” defined.—“Sale” is a transfer of
ownership in exchange for a price paid or promised or
part-paid and part-promised.
Sale how made.—Such transfer, in the case of
tangible immoveable property of the value of one
hundred rupees and upwards, or in the case of a
reversion or other intangible thing, can be made only by
a registered instrument.
In the case of tangible immoveable property of a
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:11471
14 FA-1737-2024
value less than one hundred rupees, such transfer may
be made either by a registered instrument or by delivery
of the property.
Delivery of tangible immoveable property takes
place when the seller places the buyer, or such person
as he directs, in possession of the property.
Contract for sale.—A contract for the sale of
immoveable property is a contract that a sale of such
property shall take place on terms settled between the
parties.
It does not, of itself, create any interest in or charge
on such property.” Hence, a sale of an immovable
property has to be for a price. The price may be payable
in future. It may be partly paid and the remaining part
can be made payable in future. The payment of price is
an essential part of a sale covered by section 54 of the
TP Act. If a sale deed in respect of an immovable
property is executed without payment of price and if it
does not provide for the payment of price at a future
date, it is not a sale at all in the eyes of law. It is of no
legal effect.
Therefore, such a sale will be void. It will not effect
the transfer of the immovable property.
19. Now, coming back to the case in hand, both the sale
deeds record that the consideration has been paid. That
is the specific case of the respondents. It is the specific
case made out in the plaints as originally filed that the
sale deeds are void as the same are without
consideration. It is pleaded that the same are sham as
the purchasers who were minor sons and wife of
Sudarshan Kumar had no earning capacity. No evidence
was adduced by Sudarshan Kumar about the payment of
the price mentioned in the sale deeds as well as the
earning capacity at the relevant time of his wife and
minor sons. Hence, the sale deeds will have to be held
as void being executed without consideration. Hence,
the sale deeds did not affect in any manner one half
share of the appellant in the suit properties. In fact, such
a transaction made by Sudarshan Kumar of selling the
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:11471
15 FA-1737-2024
suit properties on the basis of the power of attorney of
the appellant to his own wife and minor sons is a sham
transaction. Thus, the sale deeds of 10th April 1981 will
not confer any right, title and interest on Sudarshan
Kumar’s wife and children as the sale deeds will have to
be ignored being void. It was not necessary for the
appellant to specifically claim a declaration as regards
the sale deeds by way of amendment to the plaint. The
reason being that there were specific pleadings in the
plaints as originally filed that the sale deeds were void.
A document which is void need not be challenged by
claiming a declaration as the said plea can be set up and
proved even in collateral proceedings."
11. Thus, there was no sale in terms of Section 54 of the Transfer of
Property Act as per the pleadings of the plaint.
12. The Hon'ble Apex Court in the case of Shaukat Hussain
Mohammed Patel (supra) has held in para 6 as under:-
"6. It is well settled that for the purposes of the
provisions of Order 7 Rule 11 of the Code, the entirety
of the averments in the plaint have to be taken into
account. Going by the version of the appellant as
detailed in the plaint, there was an element of deception
and fraud which was practised upon him as a result of
which the document concerned got entered into. It is
also a matter of record that the consideration in respect
of the transfer of the property in question was stated to
have been paid in cash."
13. The Hon'ble Apex Court in the case of Shaukat Hussain (supra)
has held that for the purposes of consideration of an application filed under
Order 7 Rule 11 of the Code the entirety of plaint averments have to be
taken into consideration. In the said case also the Hon'ble Apex Court
considered the plaint averments, which provided an element of deception and
fraud. Thus, the Court found that the application under Order 7 Rule 11 CPC
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:11471
16 FA-1737-2024
was correctly rejected by the High Court. In the present case a complete
reading of the plaint would show that the case of the plaintiff is not only that
for absence of sale consideration the sale deed should be declared as null and
void, but the case of the plaintiff is that the defendant No.1 made false
promise, he was never in a position to pay sale consideration and he played
fraud and deception for getting the sale deed executed from the plaintiff. As
such, the trial Court incorrectly relied upon the judgment of Hon'ble Apex
Court in the case of Dahiben (supra). In the case of Dahiben (supra) facts of
the case were completely different. In that case there were 36 cheques given
as sale consideration for the sale deed executed on 2.7.2009, whereafter suit
was filed in that case on 15.12.2014. In the meanwhile there were several
sale deeds executed by the purchaser to several persons and in the said case it
was stated that six cheques got encashed, but rest of them were dishonoured.
The Hon'ble Supreme Court found this story unnatural for several reasons,
however, mainly for the reason that the suit was filed for cancellation after a
period of five years. The Hon'ble Apex Court also considered that the
cheques must have been presented, however, when they were dishonoured
suit was not filed promptly. In the present case the facts are completely
different. In the present case the sale deed was executed on 6.4.2022, five
post dated cheques were given, all of them were taken back with promise to
give fresh cheques as there was mistake in one of the cheques, however,
fresh cheques were never given. Thus, the suit was filed on 23.1.2023 i.e.
within eight months. It has to be kept in mind that the cheques were post
dated, they were taken back by the defendant No.1 with a promise to give
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:11471
17 FA-1737-2024
fresh, the plaintiff pleads all this was done with fraud and deception in mind.
Thus, in the present case it cannot be said that there is gross delay in filing
the civil suit. Also there is complete absence of sale consideration, coupled
with the fact that there is plead of fraud and deception.
14. Lastly, learned counsel for the defendant No.1 argued that in terms
of Section 55 of the Transfer of Property Act the seller is entitled for the
ownership of the property was passed to the buyer before payment of whole
of the purchase money or any part thereof, remaining unpaid and for interest
on such amount. He submits that only suit which can be filed after
registration of sale deed is only for recovery of sale consideration and not for
cancellation of sale deed.
15. The submission of learned counsel for the respondent No.1 is
misplaced. The provisions of Section 55 of the Transfer of property Act
presupposes a valid execution of the sale deed and thus the rights of buyers
and sellers pursuant to a valid execution of sale deed are described. Here, the
question of validity of very execution of the sale deed itself is involved,
which according to the plaintiff is based on deception and fraud.
16. Here one more fact is important in this case, a perusal of the
application filed by defendant No.1 under Order 7 Rule 11 CPC would show
that in two paragraphs i.e. para No.5 and 8 it is stated that the entire suit of
the plaintiff is based only on non-payment of sale consideration in the
application Section 54 was reproduced and thus it was requested that the suit
should be dismissed as cheques were handed over, which fact is recorded in
the sale deed. Significantly, there is not even a whisper of valid payment,
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:11471
18 FA-1737-2024
cheques are being referred without saying further that they had been
encashed by the plaintiff. The assertion in para 5 and 8 are ex-faice incorrect
because the suit is not based only on non-payment of sale consideration, but
real story of the plaint is that execution of the sale deed is based on deception
and fraud. In view of this the plaint could not have been rejected without
recording evidence of respective parties. The case is such, which requires the
trial after framing issues by recording evidence of all the parties.
17. In view of the above analysis in the facts and settled position of
law for both the reasons i.e. plaint averments are not such that the suit could
have been dismissed under Order 7 Rule 11 CPC and also when the suit was
dismissed under the said provisions the application for amendment under
Order 6 Rule 17 CPC was pending, the appeal is allowed. The impugned
order dated 2.8.2024 is hereby set aside. The matter is remitted back and
restored to its original number on the file of the trial Court.
(PAVAN KUMAR DWIVEDI)
JUDGE
soumya
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/13/2026
1:49:49 PM