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TMI Blog2016 (3) TMI 1437X X X X Extracts X X X X X X X X Extracts X X X X ..... declaration was sought for declaring the sale deeds as null and void and a relief of grant of permanent injunction has also been sought. 3. As per the plaint averments, the plaintiff has stated in the plaint that he has entered into an agreement to sale dated 10/06/1985 and he has agreed to purchase 12.94 acres of land out of survey No.4 and 10.75 acres of land out of survey No.2/2. It was also stated by the plaintiff that his name was mutated in the revenue record, however, no sale deed was executed. It was also stated that part payment was made on 12/06/1985 and inspite of the aforesaid, the sale deed was not executed. In the plaint it was also stated that the respondent No.1 (plaintiff) is in possession of the suit land since 1985. 4. A further averment was made that the land admeasuring 3.160 hectare out of survey No.4/2 was sold to the present petitioners by registered sale deeds dated 15/06/1995 and 19/06/1995. The plaintiff has categorically stated that the name of the present petitioners / defendants No.4, 5 and 6 were mutated in the revenue record and they have made an attempt to dispossess the plaintiff and therefore, the civil suit was filed. 5. The defendants No.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered sale deed. It has also been stated that instead of filing a suit for specific performance of contract, a suit has been filed for declaration of sale deeds as null and void. He has also stated that the so called agreement was executed in the year 1985 and in the year 2011 a suit for specific performance of contract has become hopelessly time barred and therefore, no suit for specific performance of contract was filed. 10. It has also been argued that in the suit filed by the plaintiff, the readiness and willingness of the plaintiff is nowhere stated. He has placed reliance upon a judgment delivered by this Court in the case of Karim Bhai Vs. State of Maharashtra & Others reported in ILR 2009(3) 3167. 11. On the other hand, Shri Assudani has vehemently argued before this Court that such an application under Order VII Rule 11 of the CPC is not at all maintainable. He has argued that the Order II rule 2 will not operate as a bar in respect of the second suit is in respect of cancellation of sale deed. It has also been vehemently argued that in light of the Sec.53 of the Transfer of Property Act on account of part performance of contract and also on account of factum of possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9; Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamppaper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. Sections 53-A and 54 of the Transfer of Property Act:- [53-A.- Part performance. - Where any person contracts to tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation. -- A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee. 41. Injunction when refused. -- An injunction cannot be granted- (a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings; (b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought; (c) to restrain any person from applying to any legislative body; (d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter; (e) to prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en it satisfies all the conditions aforesaid. All the postulates are sine qua non and a party cannot derive benefit by fulfilling one or more conditions." 15. Reliance has also been placed upon a judgment delivered by this Court in the case of Manik Rao & Ors. Vs. Ramesh & Ors. reported in 2012(2) MPLJ 683, wherein the this Court in paragraphs No.7 and 8 has held as under:- "7. The condition precedent for applicability of section 53-A of the Transfer of Property Act are firstly, that there should be a contract to transfer for consideration any immovable property; secondly, that the contract should be in writing and its terms can be ascertained with reasonable certainty; thirdly, that the transferee in part-performance of the contract has taken possession of the property or any part thereof or if he is already in possession, he continues in possession in part-performance of the contract; fourthly, that the transferee has done some act in furtherance of the contract; and fifthly, that the transferee has performed or is willing to perform his part of the contract. Besides that, a party relying on section 53-A of the Transfer of Property Act has to plead and prove the readiness an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 claims ownership or claim relief for specific performance for acquiring title for he is entitled to claim, in absence of the same, a mere suit for declaration as the present suit is clearly hit by the proviso to section 34 of the Specific Relief Act. 18. It cannot be disputed that the Respondent No.1 has filed a previous suit i.e. C.O.S. No. 5-A/2011 before the XIII Civil Judge Class-I, Indore and during the pendency of the said suit the present suit was filed. It has been argued by learned counsel for the Respondent No.1 that the relief prayed in the present suit is different from the previous suit. The question is, when the suit property and claim of the Respondent No.1 is the same, why was the relief prayed in the present suit not claimed/prayed in the previous suit, while the same could have been and should have been claimed in the previous suit and if the same was not claimed or omitted to be claimed, the subsequent suit would be clearly hit by the provisions of Order II Rule 2 CPC. In view of the aforesaid provision of law, present suit is clearly barred by law and hence, the plaint is liable to be rejected. 19. The provisions of Order VI Rule 4-A of CPC are mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and who is or are the person/s presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title of the property may be affected and secure extracts/copies duly certified." 21. It is also clear that the present suit filed in the year 2011 to challenge the sale deeds of the year 1995 i.e. after 16 years is clearly barred by time, while the period of limitation is only 3 years. It is also not in dispute that the petitioners' name in the revenue record were also recorded in the year 1995. Thus, the suit filed by the Respondent No.1 is clearly barred by limitation as has been held by this Court in the case of Nanhi Bai Vs. Govind Rao reported in MPWN 2006 V. 3 NOTE 88 as under:- "9. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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