01Facts
The plaintiff entered into a registered Agreement to Sell (ATS) for agricultural land with the defendant on 31.05.1969 for ₹10,500, paying ₹6,000 upfront and taking possession.
p. 2The balance was due by May 1970. The plaintiff alleged further payments of ₹3,000 (1970) and ₹1,500 (cash), which the defendant disputed.
pp. 2-4In 1990, revenue authorities under the Fragmentation Act restored possession to the defendant via a formal Panchnama.
p. 3, para 3.1Although the Revenue Secretary later set aside the fragmentation order in 1991, actual possession remains with the defendant.
pp. 3, 31-32The plaintiff filed a suit in 1991 for declaration, injunction, and specific performance. The Trial Court dismissed the suit citing limitation and lack of possession; the First Appellate Court reversed this, granting specific performance.
pp. 7-1002Issues
i.1. Whether the suit was barred by the law of limitation under Article 54 of the Limitation Act?
p. 11, 24ii.2. Whether the Court could grant specific performance despite the bar under Section 48(2) of the Gujarat Co-operative Societies Act, 1961?
p. 11, 25iii.3. Whether a decree for injunction could be granted when the plaintiff was not in possession on the date of the suit?
p. 11, 28iv.4. Whether the plaintiff was entitled to specific performance in the absence of pleaded readiness and willingness?
p. 11, 3403Law Applied
Article 54 of the Limitation Act, 1963, regarding the three-year period for specific performance.
p. 24Section 48(2) of the Gujarat Co-operative Societies Act, 1961, which prohibits the transfer of property subject to a society’s charge without prior permission.
pp. 25-26Section 16(c) of the Specific Relief Act, 1963, and Appendix-A, Form No. 47 of the CPC, which mandate that a plaintiff must aver and prove continuous readiness and willingness to perform their part of the contract.
pp. 37-39Doctrine of part performance under Section 53A of the Transfer of Property Act, 1882.
p. 18Provisions in the judgment · 9 · Linked ones open on LawLens
Code of Civil Procedure, 1908 Section 100Section 60Section 61
Limitation Act, 1963 Section 54
Gujarat Cooperative societies Act-1961 Section 48
Specific Relief Act, 1963 Section 34Section 20Section 10Section 16
04Reasoning
The High Court found the suit was within limitation because the contract period only began to run after the mortgage charge was cleared in 1989.
p. 24Regarding the Co-operative Societies Act, the High Court held that while the charge existed, the Court could have issued a "conditional decree" subject to society permission.
p. 27The Trial Court proved via Panchnama that the defendant regained possession in 1990; the Appellate Court's assumption of "automatic restoration" of possession in 1991 without evidence was legally flawed.
pp. 31-32The plaintiff failed to specifically plead readiness and willingness in the plaint as required by Form 47 of CPC.
p. 37The plaintiff failed to prove the disputed payment of ₹3,000 through witnesses.
p. 36The Court held that the plaintiff's 30-year silence and failure to deposit the balance until the appeal stage demonstrated a lack of willingness.
p. 4005Holding
A decree for specific performance cannot be granted if mandatory pleadings of readiness and willingness are absent.
p. 41, para 19Since the plaintiff was not in actual physical possession on the date of the suit, the relief for protection of possession (injunction) was legally untenable.
pp. 33-34The High Court allowed the Second Appeal and set aside the judgment of the First Appellate Court, restoring the Trial Court's dismissal of the suit.
pp. 41-42Original Court PDF
MUMAN TURABHAI DAWOODBHAI JETHWA,DECD.THRO'HIS HEIRSvsALLAUDDINBHAI IBRAHIMBHAI RAJPURA(DECD. THRO HERIS)
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