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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH NAGPUR.
SECOND APPEAL NO. 448 OF 1996
1. Shrikant Gopalkrushna Tare,
aged 37 yrs., Occu. Service,
R/o Prajapati Nagar, Wadgaon
Road, Tq. And Distt. Yavatmal.
2. Kishorkumar Chhanumaharaj Dubey,
aged 47 yrs. Occu. Service,
R/o Akanksha Apartment, Gedam
Nagar, Yavatmal. APPELLANTS.
VERSUS
1. Vasant Nagorao Mahalley,
Aged 42 yrs. Occu. Service, R/o
Anand Nagar, Yavatmal.
2. Ambadas Shriram Deshpande
aged 42 yrs. Occu. Service,
R/o Parate's House. Seth
Mahadev Nagar, Yavatmal.
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3. Pratibha w/o Prabhakar
Deshpande, aged 47 yrs.,
R/o Om Society, Yavatmal.
4. Pushpa Khanderao Pande,
aged 52 yrs., Occu. Household,
R/o Waghapur, Distt.Yavatmal.
5. Rambhau Sambhaji Dhagale,
aged 44 yrs. Occu. Service,
R/o Urban Bank Datta Chowk,
Yavatmal.
6. Vishnu Shriram Pardhi,
aged 37 yrs. Occu. Service,
Bangar Nagar, Yavatmal.
7. Shankar Wagare, aged
42 yrs., Occu. Service,
R/o District Forest Office,
Yavatmal.
8. Ganpat Vithobaji Bhoyar,
aged 42 yrs., Occu. Cultivator,
R/o V. N. Mahalley, Anand Nagar,
Yavatmal.
9. Priya wd/o Prakash Kamavisdar,
aged 43 yrs. R/o 61, Mathura
Nagari, Darvha Road, Yavatmal.
10. Radhika d/o Prakash Kamavisdar,
Minor, through her Guardian
Mother Smt. Priya wd/o Prakash
Kamavisdar, aged 43 yrs. R/o 61,
Mathura Nagari, Darvha Road,
Yavatmal.
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11. Sheela Shamrao Kamavisdar (dead):
11(a) Vilas Shamrao Kamavisdar
adult, New Pragati Society,
Mahadeo Nagar, Yavatmal.
11(b) Mahesh Shamrao Kamavisdar,
Adult, Amba Apartment,
S-2 Hanuman Nagar, Yavatmal.
11(c) Varsha Shamrao Kamavisdar,
Adult, C/o Mahesh S. Kamavisdar,
Amba Apartment, S-2 Hanuman
Nagar, Yavatmal.
Shri. Abhijit Deshpande, Counsel for the appellants.
Shri. R. R. Deshpande, Counsel for the respondents.
CORAM: C. L. PANGARKAR J.
Date: 7th OCTOBER 2009.
ORAL JUDGMENT:
This appeal is preferred by the original plaintiffs who lost
in the first appellate Court. The facts giving rise to the appeal are as
follows:
Plaintiffs and defendants mutually agreed to purchase
field Survey No. 93/3 of village Lohara district Yavatmal from one
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Sonabai. Each of the plaintiffs and defendants contributed a sum of
Rs.4546/- towards the consideration. The sale deed was however
obtained in the name of defendants 1 to 5. In order to evidence this
arrangement an agreement was executed on 15.04.1982 between
plaintiffs and defendants. It was agreed that each of the plaintiffs
and defendants i. e. 11 persons would have equal share in the said
field. It was agreed that the suit field should thereafter be converted
to non agricultural use. It was also agreed that after the said field is
converted to non agricultural use, all the plots will be equally
distributed among the plaintiffs and defendants. Accordingly the
said field was converted into a non agricultural land. Another
agreement was executed on 07.05.1990 under which it was agreed
that each of the plaintiffs would be entitled to get three plots out of
the said layout and the remaining three plots would be sold and a
piece of one acre of land was also agreed to be sold. It was also
agreed that the consideration obtained from sale of one acre of land
would be distributed equally amongst the plaintiffs and defendants.
Defendants also got executed a letter of consent from plaintiffs on
04.05.1990 to that effect. Accordingly the plaintiffs were paid Rs.
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8484/- towards the consideration of sell of one acre of land. The
plaintiffs called upon the defendant No.1 to execute the sale deed in
respect of plot Nos. 24 to 31 and 43 in favour of plaintiffs.
Defendants failed. Hence the suit.
2. Defendants 1 to 8 filed their Written Statement which is
infact a very cryptic written statement. They have denied all
adverse allegations. The defendant No.1 admits receipt of notice
from plaintiff dated 13.05.1991. According to defendants the
plaintiffs failed to pay revenue tax which was payable and therefore
the sale deed could not be executed. It was next contention of the
defendants that the suit for injunction as filed by the plaintiffs is not
maintainable and plaintiffs should have claimed specific
performance of contract.
3. Learned Judge of the trial Court found that plaintiffs were
entitled to execution of the sale deed in their favour and he directed
the defendants to do so. Feeling aggrieved thereby defendants
preferred an appeal before the District Judge. Learned District
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Judge found that suit was not maintainable on two counts. First,
that the transaction in suit was a benami transaction and two, the
plaintiffs should have claimed specific performance instead of an
injunction. Holding so he allowed the appeal and dismissed the
suit.
4. Appeal was admitted initially on the following substantial
question of law:
Whether the appellate Court could
ignore the admission of defendant No.1 in
letter dated 13.05.1991 and also in the
Written Statement about the ownership ofthe plaintiffs of the plots?
However after hearing the parties substantial questions of
law were reformulated as follows:
1. Whether the suit is hit by provisions
of Section 41(h) of the Specific Relief Act
inasmuch as the plaintiffs ought to haveclaimed specific performance of contract?
2. Was the first appellate Court
justified in holding that suit was hit by the
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7(Prohibition Act 1988)?
5. I have heard the learned counsel for the appellants and
the respondents.
6. Learned Judge of the first appellate Court has set aside the
decree mainly on the above grounds. He finds that suit for specific
performance ought to have been filed instead of one for mandatory
injunction. The prayer clause in the plaint reads as follows:
“PRAYER: It is therefore, most
humbly prayed that, this Hon’ble Court may
graciously be pleased to pass a decree ofmandatory injunction directing the defts. to
execute the sale deeds of plot no.24 to 31 and43 from layout plan of field Sr.No. 93/3 of
village Lohara in favour of the plffs. before,
selling any other plot/plots of layout of fields
SR.No. 93/3 of Lohara to any other person.
Cost of the suit may be saddled on
the defts.”
7. Shri R. R. Deshpande learned counsel for the respondents
submits that prayer itself would show that plaintiff should have
prayed for specific performance and when he makes a prayer for
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mandatory injunction the suit ought to be held to be hit by
provisions of clause (h) of Section 41 of the Specific Relief Act.
Section 41(h) reads as follows:
“41(h) when equally efficacious relief
can certainly be obtained by any other usual
mode of proceeding except in case of breach of
trust.”
8. There cannot be any dispute with the proposition that
where equally efficacies relief can be had injunction cannot be
granted. The law is well settled that mofussil pleadings are to be
interpreted liberally. While doing so mere reading of the prayer
clause would not do. The prayer clause will have to be read in the
context of the pleadings and then interpreted to hold whether the
relief is infact one for injunction or specific performance. If the
plaint is read as a whole it would be very clear that plaintiffs
essentially filed suit for conveyance of the plots in favour of the
plaintiffs which defendants had agreed to convey. Thus what
plaintiffs essentially want is conveyance of plots in their favour. I
particularly reproduce here paras 9 and 10 of the plaint also.
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“9. Inspite of the plaintiffs demand the
defendants did not executed the sale deed of
plot no.24 to 31 and 43 on the contrary by dt/-
13/5/1991 they have given the threats to sale the
said plot to the vendees by breaking the
agreement. Thus, the plffs. Issued a notice dt/-
24/6/1991 to the defdts. Through their Advocate
Shri A. N. Gajbhiye, and informed them that the
defts. are selling the plots to the vendees
without conveying the plots as agreed to the
plffs. The defts. no.1 replied the said notice on
29/6/1991 and deft. no. 3 to 7 submitted and
acknowledge the same reply by their notice dt/-
2/.7/1991. The defts. Denied the contentions of
the plffs. From these notices of the defts. It is
crystal clear that for either of the reason they
want to commit the breach of agreement and
thus they want to commit the breach of
agreement and thus they are not inclined to
execute the sale deeds of plot no. 24 to 31 and 43
in favour of the plfs. The defts conduct appears
to defrauds the plffs. and therefore, they are
selling the plot by committing the breach of
agreement. Infact, all the amounts of Revenue
Taxes and assessment are paid incash to the
deft. No.1, but fradulently he is denying the
same.
10. That, the plffs. Are entitled to get
the sale deeds of plot no. 24 to 31 and 43
executed from the defts. As of right and the
defts. Are under obligations to execute the sale
deeds in favour of the plffs. and thus the plffs.
Have prima facie good case and balance of
convenience lies in their favour and against the
deft. If, the mandatory injunction is not issued
against the defdt. Ordering them to execute the
sale deeds of plot no.24 to 31 and 43 before
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selling any plot to others it will cause a breach of
agreement and consequently will result in
causing irreperable loss to the plffs.”
9. If the prayer is read in this context it would be clear that
plaintiffs demanded the execution of the sale deed in their favour.
Even while passing a decree for specific performance the Court
would have even otherwise directed execution of the sale deed in
favour of the plaintiff. Such a direction even in a suit for specific
performance by the Court is nothing less than a mandate. The
prayer clause in the instant case at the most could be said to be not
very happily worded but the purport of the relief is one to seek
specific performance. Simply because the words mandatory
injunction are used it is not as such a suit for mandatory injunction
but a suit for specific performance. The bar of Clause (h) would not
apply in such cases.
10. Shri R. R. Deshpande learned counsel for the respondents
had relied on a decisions to advance a proposition that suit for
injunction was not maintainable where specific performance relief
was available. First decision is reported in Kumud Ranjan Banerjee
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Vs. Mahabendra Banerjee AIR 1974 Calcutta 342. Proposition that is
laid down in this decision is that where a relief of possession is
available and is not claimed in suit for injunction and declaration
the suit is hit by provisions of Section 34 of the Specific Relief Act.
This case therefore has no bearing in the case at hand. Next
decision on which he relies is reported in Dayalu Narayan Swamy
Vs. Kanika Ramaswamy Dora and others AIR 1976 Orissa 31. It is
held that upon extinguishment of mortgage due to operation of law
the mortgagor is supposed to file a suit for possession instead of one
for injunction. In the case at hand essentially execution of the sale
deed was demanded by such prayer which is essentially a relief for
specific performance. The other decision on which reliance was
placed is reported in Rajendra Kumar Vs. Mahendra Kumar Mittal
and others AIR 1992 Allahabad 35. In this case plaintiff had merely
sought an injunction restraining the defendant from alienating the
suit property instead of seeking relief of specific performance. On
facts this case also has no bearing. Identical is the ratio in AIR 1991
Punjab And Haryana 194 as well as 1998(1) Civil LJ 1991. None of
the above decision have a bearing on the case at hand since I find
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that plaintiff is essentially claiming specific performance and not an
injunction as such. Prayer is not couched in proper words. Court
cannot non suit the plaintiff for the reason that pleadings are not
happily worded. It must look into entire pleadings and then
interpret as to what relief plaintiff is essentially and eventually
claiming. In the circumstances I find that the instant suit is not hit
by Clause (h) of Section 41 of the Specific Relief Act.
11.
This takes me to consider the next question with regard to
the benami transaction. The suit property was admittedly
purchased by 11 persons by equally contributing towards
consideration but sale deed was taken in the name of 5 persons
only. It is therefore clear that those persons in whose favour the
sale deed was executed had contributed towards consideration. It
is not that plaintiffs alone paid the consideration but obtained the
sale deed in defendants name. Essential ingredient of benami
transaction is that the real owner must contribute the entire
consideration. It was a simple case of obtaining the sale deed in the
name of few though large members have contributed. Parties
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always intended that each one of the contributor would be joint
owner to the equal extent. That is so evident from agreement Ex. 42.
Further defendants had not raised a plea of benami at all in their
pleadings. In the absence of such a plea being raised no issue in
fact could arise. In a decision reported in Heirs of Vrajlal J. Ganatra
Vs. Heirs of Parshottam S. Shah Judgment Today 1996(4) S. C. 725,
Supreme Court holds that the question whether sale is benami or
not is a question of fact. If it is question of fact then such a question
cannot be raised for the first time in Second Appeal. Further if the
grounds of appeal before the District Court are seen it would be
clear that in those grounds of appeal such a plea was not at all
raised. Learned Judge of the First Appellate Court therefore had
erred in holding the transaction to be a benami transaction and
dismissing the suit. In the circumstances substantial questions of
law are answered and the appeal deserves to be allowed. Appeal is
allowed. Judgment and decree passed by the First Appellate Court
is set aside and that of trial Court restored. Plaintiff shall however
not be able to execute the decree unless and until they pay Court fee
as is payable in a suit for specific performance. Respondents shall
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pay costs throughout.
JUDGE
svk
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