Consumer Protection Act, 1986 (68 of 1986), Section 2(c), (d), 12, 17, 21 -- Real Estate (Regulation and Development) Act, 2016 (16 of 2016), Section 79 – Real estate development project -- Consumer Complaint – RERA dispute – Jurisdiction of -- Whether proceedings under the Consumer Protection Act, 1986 / CPA can be commenced by home buyers (or allottees of properties in proposed real estate development projects) against developers, after the commencement of the RERA – High Court held that remedies available to the respondents/ home buyers  under CPA and RERA are concurrent – In Imperia Structures Ltd.’s case, Law Today Live Doc. Id. 15624 it was held that Section 79 of the RERA Act would not in any way bar the Commission or Forum under the provisions of the Consumer Protection Act to entertain any complaint on behalf of an allottee – SLP dismissed.

(Para 1-6)

A. Real Estate (Regulation and Development) Act, 2016 (16 of 2016), Section 71(1) -- Consumer Protection Act, 1986 (68 of 1986), Section 12, 17, 21, 23 -- Pending complaints before Consumer Forums/Commission – RERA came into force – Effect on complaints -- Proviso of Section 71(1) gives a right or an option to the concerned complainant but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act.

(Para 28)

B. Real Estate (Regulation and Development) Act, 2016 (16 of 2016), Section 18, 79, 88 -- Consumer Protection Act, 1986 (68 of 1986), Section 12, 17, 21, 23 -- Consumer complaint after coming into force of RERA Act – Maintainability of -- Cases where such proceedings under the CP Act are initiated after the provisions of the RERA Act came into force, there is nothing in the RERA Act which bars such initiation -- Absence of bar u/s 79 to the initiation of proceedings before a fora which cannot be called a Civil Court and express saving u/s 88 of the RERA Act, make the position quite clear -- Further, Section 18 itself specifies that the remedy under said Section is “without prejudice to any other remedy available” -- Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act.

(Para 28)

C. Real Estate (Regulation and Development) Act, 2016 (16 of 2016), Section 18 – Buyer-seller agreement – Registration under RERA Act -- Effect of -- Construction was to be completed in 42 months -- Period had expired well before the Project was registered under the provisions of the RERA Act – Held, merely because the registration under the RERA Act is valid till 31.12.2020 does not mean that the entitlement of the concerned allottees to maintain an action stands deferred -- For the purposes of Section 18, the period has to be reckoned in terms of the agreement and not the registration -- Entitlement of the Complainants must be considered in the light of the terms of the Builder Buyer Agreements.

(Para 33)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Status Quo – Restoration of possession through police – Permissibility of -- No specific finding or opinion has been expressed as regards the factum of possession of either of the parties -- Trial Court, however, directed both the parties to maintain status quo regarding possession -- In case of violation of any ad-interim injunction, the appropriate remedy for the petitioner would be to have recourse to provisions of Order 39 Rule 2 CPC, if so advised -- In the absence of any specific and unambiguous finding regarding possession, the police cannot be directed to restore possession of the plaintiff.

(Para 8)

A. Specific Relief Act, 1963 (47 of 1963), Section 12 -- Agreement to sell with possession -- Specific recital with regard to delivery of possession in the agreement to sell signed by the parties proved -- Mere failure of plaintiff to depose about the delivery of possession in the examination-in-chief would not be sufficient for the Court to record a finding that the stand of the plaintiffs with respect to delivery of actual possession is erroneous.

(Para 9)

B. Specific Relief Act, 1963 (47 of 1963), Section 12 -- Agreement to sell with actual physical possession of specific portion out of joint land – Permissibility of -- A co-sharer in actual physical possession of a specific portion out of the big parcel of joint land is entitled to deliver possession thereof to anyone -- No doubt, sale of a specific portion or parcel of land out of joint property by a co-sharer shall be deemed to be sale of undivided share out of joint land -- However, there is no bar either in the delivery of possession of specific portion or sale thereof out of the joint land -- First Appellate Court committed material irregularity while observing that a co-sharer cannot deliver the possession of the specific portion in its possession to someone out of joint property.

(Para 10)

C. Specific Relief Act, 1963 (47 of 1963), Section 12 -- Limitation Act, 1963 (36 of 1963), Article 54 -- Delay and laches – Appellate Court finds that suit filed by the plaintiffs suffers from laches -- Defendant while filing the written statement did not allege that the suit suffered from laches -- Consequently no issue on this aspect was framed -- In the evidence no stand that the suit filed by the plaintiffs suffers from unexplained laches -- Thus, the observations made by the learned first Appellate Court are not only beyond pleadings but also beyond evidence.

(Para 11, 12)

D. Specific Relief Act, 1963 (47 of 1963), Section 12 -- Limitation Act, 1963 (36 of 1963), Article 54 -- Suit for specific performance – Limitation -- Delay and laches -- Period of limitation in a suit for specific performance do not begin to run from the date on which agreement to sell has been executed – Period of limitation would either begin to run from the date fixed for its performance or if no date or period is stipulated, then from the date the plaintiff has notice that the performance has been refused by the opposite side.

(Para 11, 13, 21)

E. Code of Civil Procedure, 1908 (V of 1908), Section 96 -- First Appeal – Setting aside of trial court judgment -- It is not appropriate for the learned first Appellate Court to set aside the judgment passed by the learned trial Court without recording definite finding or the reasons for reversing thereof after critical analysis of the reasons with reference to error in the application of law or misreading or non-reading or misconstruction of the evidence available on record.

(Para 21)

F. Specific Relief Act, 1963 (47 of 1963), Section 12 -- Limitation Act, 1963 (36 of 1963), Article 54 -- Agreement to sell – Entire sale consideration paid – Delay and laches – Ground of -- It is not appropriate for the Court to decline the relief of specific performance on the ground of laches particularly when the entire sale consideration has been paid and the suit was filed within limitation.

(Para 21)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rules 1 & 2 -- Specific Relief Act, 1963 (47 of 1963), Section 39 -- Suit for mandatory injunction -- Interim injunction to remove construction – Scope of -- Relief of mandatory injunction to direct defendant to remove the construction, cannot be granted by way of interim injunction, as it will amount to passing of decree at this stage.

(Para 13)

Specific Relief Act, 1963 (47 of 1963), Section 10, 20 -- Specific performance of agreement to sell – Substantial earnest money paid – Rs. 14 lacs paid as earnest money then it remains unexplained as to why a period of one year was fixed for payment of the balance amount which was infact a small fraction of the total sale consideration i.e. an amount of Rs. 80,000 only -- Plaintiff who was working as a commission agent could have easily paid in the very first instance and could have got the sale-deed executed – Real intention of the parties was never the sale of land but was to secure the loan -- Suit for specific performance dismissed, appeal against also dismissed – Concurrent finding of Courts below affirmed -- Appeal dismissed.

(Para 1, 2, 9-12)

Specific Relief Act, 1963 (47 of 1963), Section 41(j) – Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 8, Order 39 Rule 1 & 2, Section 151 – Constitution of India, Article 227 -- Suit for mandatory injunction – Temporary injunction – Maintainability of -- Construction of Community Hall on the instructions of State Government, which has accorded permission on the basis of resolution passed by the Gram Panchayat and the amount is being spent by the State Government – Challenge to stay declined by Courts below – Held,

-- It is well settled principle of law that in a suit for mandatory injunction, no relief of temporary injunction can be granted, which will amount to passing a decree of mandatory injunction itself.

-- A careful perusal of the plaint would show that nothing is stated that any personal right of any of the petitioners is infringed, therefore, in view of Section 41(j) of the Specific Relief Act, the suit is not maintainable.

-- The suit has not been filed in representative capacity under Order 1 Rule 8 CPC and no application has been moved seeking permission from the Court that the suit is being filed on behalf of the entire village community, therefore, it is a suit which has been filed only by nine inhabitants of the village, whereas the Community Hall is being constructed for the entire village.

-- Both the Courts below have discussed the judgments of this Court, wherein it is held that the Gram Panchayat is competent to change the user of the land in a manner it likes as well as when sufficient area of Shamlat land is available, it can be used for any other development work and injunction cannot be granted regarding change of nature of land.

-- Even a perusal of the plaint further shows that it is nowhere mentioned that the passage of the temple will be blocked, rather it is a case of Gram Panchayat that there is difference of about 400 ft. between the temple and the Community Hall.

Court found no ground to interfere with the well-reasoned orders passed by the Courts below dismissing the application for stay -- Finding no merit in the revision petition, the same is dismissed.

(Para 9-11)

A. Gift deed -- Deficiency in stamp duty – Penalty for -- Post-dated cheques – Acceptance of – Although deficiency of stamp duty was deposited through the Treasury Challan but the penalty was not deposited and only post-dated cheques were submitted -- High Court has rightly observed that facility to deposit the penalty by post-dated cheques cannot be approved.

(Para 16)

B. Gift deed -- Deficiency in stamp duty – Penalty for -- Subsequent purchaser – Liability of – Appellant being subsequent purchaser was liable to deposit the amount of penalty which was outstanding against the property and which was subject matter of the gift deed.

(Para 16)

A. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Substantial question of law -- A second appeal only lies on a substantial question of law -- If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal -- It was not open to re-agitate facts or to call upon the High Court to re-analyze or re-appreciate evidence in a Second Appeal -- Existence of a “substantial question of law” is the sine qua non for the exercise of jurisdiction under Section 100 of the CPC.

(Para 25, 26)

B. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Substantial question of law -- To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way -- To be a question of law “involved in the case”, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.

(Para 32, 33)

C. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Substantial question of law -- Principles summarised:

(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.

(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

(Para 37)

D. Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession -- A decree of possession does not automatically follow a decree of declaration of title and ownership over property -- It is well settled that, where a Plaintiff wants to establish that the Defendant’s original possession was permissive, it is for the Plaintiff to prove this allegation and if he fails to do so, it may be presumed that possession was adverse, unless there is evidence to the contrary.

(Para 46)

E. Specific Relief Act, 1963 (47 of 1963), Section 5 -- Suit for possession – A person claiming a decree of possession has to establish his entitlement to get such possession and also establish that his claim is not barred by the laws of limitation -- He must show that he had possession before the alleged trespasser got possession.

(Para 51)

F. Possession Follows Title -- Maxim “possession follows title” is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all -- The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else.

(Para 52)

G. Limitation Act, 1963 (36 of 1963), Section 3 -- Suit for possession – Limitation – Ground of -- A suit for recovery of possession of immovable property is governed by the Limitation Act, 1963 -- Section 3 of the Limitation Act bars the institution of any suit after expiry of the period of limitation prescribed in the said Act -- Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence.

(Para 53)

H. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Suit for possession -- Regular Second Appeal – Substantial question of law -- In the absence of any whisper in the plaint as to the date on which the Defendant and/or his Predecessor-in-interest took possession of the suit property and in the absence of any whisper to show that the relief of decree for possession was within limitation, the High Court could not have reversed the finding of the First Appellate Court, and allowed the Plaintiff the relief of recovery of possession, more so when the Defendant had pleaded that he had been in complete possession of the suit premises, as owner, with absolute rights, ever since 1966, when his father had executed a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit.

(Para 55)

I. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Substantial question of law -- Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal cannot satisfy the mandate of Section 100 of the CPC.

(Para 59)

A. Consumer Protection Act, 1986 (68 of 1986), Section 2(1)(o) – Apartment/ Flat developer -- Deficiency in service -- Failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency -- Expression “service” in Section 2 (1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction.

(Para 24)

B. Consumer Protection Act, 1986 (68 of 1986), Section 14(1)(e) – Apartment/ Flat developer – Unfair bargain -- Power of Consumer Courts -- Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation -- These legitimate expectations are belied when the developer is guilty of a delay of years in the fulfilment of a contractual obligation -- There has been a gross delay in the handing over of possession beyond the contractually stipulated debt -- Jurisdiction of the consumer forum to award just and reasonable compensation as an incident of its power to direct the removal of a deficiency in service is not constrained by the terms of a rate which is prescribed in an unfair bargain.

(Para 24)

C. Consumer Protection Act, 1986 (68 of 1986), Section 12 – Compensation for delayed possession – Execution of conveyance deed and handing over possession – Effect of -- Developer has undertaken to provide a service in the nature of developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora – Court did not subscribe the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make a claim for compensation for the delayed handing over of the flats.

(Para 36)

D. Consumer Protection Act, 1986 (68 of 1986), Section 12 – Delay in possession -- Re-sale of apartment by allottee – Subsequent buyer – Rights of -- Appellants transferred their title, right and interest in the apartments would not be entitled to the benefit since they have sold their interest in the apartments to third parties -- It cannot be said that the subsequent transferees suffered any agony and harassment comparable to that of the first buyers, as a result of the delay in the delivery of possession in order to be entitled to compensation.

(Para 38)

E. Consumer Protection Act, 1986 (68 of 1986), Section 12 – Purchase of Apartment/ Flat -- Amenities -- Flat purchasers cannot be left in the lurch or be told that the absence of facilities which were to be provided by the developer is compensated by other amenities which are available in the area -- Developer must be held accountable to its representation -- Representation held out by the developer cannot be dismissed as chaff -- Difficult for the court to quantify the exact nature of the compensation that should be provided to the flat buyers -- Difficulties in determining the measure of compensation cannot however dilute the liability to pay -- A developer should be held accountable to the process of law -- To allow the developer to escape their obligation would put a premium on false assurances and representations made to the flat purchasers -- Dismissal of the complaint by the NCDRC was erroneous.

(Para 43-55)

A. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Right of daughter in co-parcenary property – Effect of substitution of section 6 in 2005 – Date of birth of daughter – Father’s life status -- Relevancy of – Held, it confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities -- Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005 (the date of enforcement of Amending Act) -- Rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(Para 129)

B. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Preliminary decree passed – Final decree yet to passed or Appeal pending -- Daughter’s right as co-parcener – Held, provisions of the substituted Section 6 are required to be given full effect -- Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(Para 129)

C. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Oral partition – Effect on daughter’s co-parcenery share – Held, in view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court -- However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted -- A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

(Para 129)

D. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Daughter’s right in co-parcenary property – Speedy  disposal of -- Daughters cannot be deprived of their right of equality conferred upon them by Section 6 -- Hence, Supreme Court requested that the pending matters be decided, as far as possible, within six months.

(Para 129)

E. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Daughter’s right in co-parcenary property – Supreme Court answered the reference  and overruled the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. (2016) 2 SCC 36, the opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar, (2018) 3 SCC 343 = Law Today Live Doc. Id. 10069 = 2018 (1) L.A.R. 264 is partly overruled to the extent it is contrary to this decision.

(Para 130)

Registration Act, 1908 (16 of 1908), Section 17(2)(v) – Indian Evidence Act, 1872 (1 of 1872), Section 115 -- Memorandum of family settlement for immovable property – Registration of – Requirement of –Estoppel -- Family settlement was arrived at in 1970 and also acted upon by the concerned parties – Document dated 10.3.1988 executed between the parties was merely a memorandum of settlement – It was not required to be registered -- In any case, contesting defendants were estopped from resiling from the stated arrangement in the subject memorandum, which had recorded the settlement terms arrived at in the past and even acted upon relating to all the existing or future disputes qua the subject property amongst the (signatories) family members despite absence of antecedent title to the concerned property.

(Para 16-19)

Code of Civil Procedure, 1908 (V of 1908) -- Order 39 Rule 1 & 2 -- Injunction against co-owner -- Completion of any new construction and allowing the petitioners/defendants to even start residing therein would be against the ratio of the judgment of the Full Bench, Bachan Singh’s case, 2003 (3) RCR (Civil) 70), inasmuch as, it would definitely be detrimental to the interest of other co-owners and yet further, in any case, with the said co-owners (respondent-plaintiffs) already having instituted a suit for partition (in this very lis), obviously it is not an injunction that they are seeking in a separate suit for that purpose and therefore, during the pendency of the suit seeking partition, further construction allowed would definitely not be in the interest of other co-sharers – Impugned orders granting an injunction to the respondent-plaintiffs, upheld.

(Para 29)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Status quo -- Prima facie case – Requirement of -- Concurrent view taken by the Trial Court and First Appellate Court rejecting interim relief application of the plaintiffs – High Court in revision directed the parties to maintain status quo with regard to the suit property – High Court, however, did not advert to the finding of fact recorded by the Trial Court and the First Appellate Court – Held, High Court committed manifest error in directing the parties to maintain status quo despite the fact that no prima facie case was made out by the plaintiffs for grant of such relief – Impugned order set aside.

(Para 2-5)

Haryana Development and Regulation of Urban Areas Act, 1975 (8 of 1975), Section 3(2), 3(3) 4 and 24 -- Haryana Development and Regulation of Urban Areas Rules, 1976, Rule 4 -- Haryana Apartment Ownership Act, 1983 (10 of 1983), Section 2, 6 , 24-A -- Percentage of area under roads, open space etc. in layout plans -- Common areas and facilities -- Delicencing of area meant for residential purposes and allocating the same to commercial projects -- An ambiguous term was used in the Builder-Buyer agreement that 8.0 acre was reserved for “future development” -- It is beyond comprehension how builder himself could reserve a part of the area (8.0 acres) out of 18.98 acres for future development -- Builder acted in a manner as if he was not governed by any Enactment/Rules -- Reliance placed on Builder-Buyer agreement is absurd -- An agreement between parties cannot override the law lay down to regulate urbanization and to prevent ill-planned and haphazard development -- No justification is forthcoming for delicensing of part of the area meant for housing project for commercial purpose and a huge mall (Ambience Mall) having been allowed to be raised thereon – Rights of the residents of the housing project need to be preserved -- Held, order delicencing part of residential area for commercial purpose is without authority of law and needs to be quashed -- As regards, the illegal actions and offence, if any, made out, and possible collusion between the builder and State authorities, a separate investigation is necessary by an independent agency – Direction given to Central Bureau of Investigation to investigate the entire issue after registering a formal FIR by a team of Officers to be chosen by the Director, CBI within six weeks -- An effort shall be made to complete the entire investigation within six months and a status report be submitted in sealed cover within three months.

(Para 28-36)

Punjab Regional and Town Planning and Development Act, 1995 (11 of 1995), Section 45 -- Allotment of plot – Alternate plot -- Refund of – Alloted residential plot at a distance of 45-55 feet from Sewage Treatment Plant (S.T.P) – Not fit for human inhabitation -- Claim of PUDA of allotment on ‘as is where is basis is not tenable’ – Not possible to allot alternate plot -- PUDA is ready to return the amount with 10% deduction – Held, circumstances are totally unusual, alloted plot is not fit for residence purpose – To meet the end of justice, PUDA is directed to refund the entire amount already deposited by the petitioner without any deduction.

 (Para 8-13)

A. Specific Relief Act, 1963 (47 of 1963), Section 36, 41(h) – Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 -- Temporary injunction – Bar upon -- Section 41(h) of the Act bars the grant of injunction in case any other equally efficacious remedy is available in law -- Section 41(h) of the Act cannot come into play at the time of grant of temporary injunction.

(Para 8)

B. Specific Relief Act, 1963 (47 of 1963), Section 36, 39 – Mandatory injunction – Permanent injunction – Both prayers simultaneously – Maintainability of -- Objection regarding prayer of mandatory injunction and permanent injunction being unavailable in the same suit is being considered only to be rejected -- If a defendant has illegally occupied the property of a plaintiff and is raising construction thereupon mandatory injunction can definitely be sought to direct him to remove the construction already raised and permanent injunction can be sought to restrain him from raising construction.

(Para 9)

C. Specific Relief Act, 1963 (47 of 1963), Section 36, 41(h) – Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Co-sharer -- Temporary injunction -- Prima facie it appears that the order of partition and Rapat regarding possession have been obtained fraudulently -- Appeal is pending against ex parte order of partition – A co-sharer in exclusive possession cannot be dispossessed except by way of legal and valid partition -- Plaintiff can certainly protect infringement of his legal rights through an order of temporary injunction.

(Para 10)

A. Registration Act, 1908 (16 of 1908), Section 17 -- Registration of Will – Requirement of -- It is not mandatory to get the will registered -- Registration of the will is optional -- Therefore, an unregistered wills are also valid and enforceable.

(Para 21)

B. Registration Act, 1908 (16 of 1908), Section 17 -- Registered Will – Signature in Registrar office but not before Registrar – Effect of -- Registrar is a complete office -- Officials posted in the office of Registrar are there to assist the Registrar -- Even if the signatures of the testator and the attesting witnesses were obtained on the endorsement to be signed at the time of registration in a separate room in the presence of the officials of the Registrar and not in its presence would not be sufficient to ignore the registered testament unless it is proved that the testator and the attesting witnesses did not appear before the Registrar while acknowledging their signatures on the registered Will and accepting the correctness of the Will -- In an ideal situation, the signatures on the testament should have been taken before the Registrar, however, that itself would not be sufficient to ignore the Will, particularly when registration of the Will is not compulsory.

(Para 21)

C. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Ancestral property – Onus to prove -- Courts cannot be expected to depend upon the bald statements of the witnesses to the fact that the property is ancestral -- Plaintiff has to prove that the property was inherited by a male Hindu from his father, father's father, father's father's father -- Plaintiff has failed to discharge its onus -- Absence of positive evidence in examination-in-Chief, failure of the defendant to cross-examine the witnesses produced by the plaintiff on a particular aspect cannot be conclusive to hold that the property is ancestral.

(Para 27-28)

D. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Joint Hindu Family -- Joint Hindu Family ancestral property – Nature of -- There is a distinction between Joint Hindu Family and Joint Hindu Family ancestral property -- Merely because the family is having a joint ration card is not sufficient to hold that the property is also Joint Hindu Family ancestral property.

(Para 32)

A. Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Maintainability of suit – Relevant date -- As per settled law, maintainability of a suit is to be seen on the date of filing of the suit -- A Court in the interest of justice can mould the relief by taking note of any subsequent development taking place during pendency of the suit.

(Para 16)

B. Specific Relief Act, 1963 (47 of 1963), Section 37, 39 -- Suit for mandatory injunction and permanent injunction – Maintainability of -- Plot allotted in favour of defendant No.2 on 15.04.1983 – Contention that civil suit was filed much later i.e. on 18.01.1984 sought mandatory injunction without challenging the prior allotment by way of declaration, therefore, not sustainable – Held, merely because the plaintiffs were aware that respondent/ defendant No.2 had been issued the said letter dated 15.04.1983, would not render the suit as not maintainable, more so when possession was still with the Trust and prayer in the plaint is not only for mandatory injunction but also for permanent injunction restraining the Trust from delivering the possession of the suit land with a further restraint from issuing the sale certificate and for executing the sale deed pursuant thereto in respect of suit property.

(Para 17-21)

Allotment of flat – Non-deposit of due amount / extension of time -- Besides the initial amount of Rs. 3.86 lakhs, the petitioners did not deposit any further amount and kept disputing the demands raised by the Housing Society -- Order expelling the petitioners from the membership of the Society was affirmed by the Registrar, Co-operative Societies as well as the Principal Secretary to the State Government, and the Writ Petition filed by the petitioners was also dismissed -- On each occasion, the petitioners were granted time to deposit the balance amount, which they did not comply – Petitioners have not even complied with the order passed by Supreme Court -- After the expiry of time granted, the order of the Society expelling the petitioners had come into effect and thereafter the six flats have already been allotted to six different persons, who have deposited the requisite amounts -- Such being the factual background of this case, prayers made do not deserve to be granted.

(Para 12,13)

Open space/Garden spaces in approved Layout-plan -- Usage of -- Development plan – Change in – Permissibility of -- Open spaces are required to be left for an approval of layout or for the purpose of creating lung space for the owners of other plots where constructions are permitted -- In an approved layout, the open spaces which are left, are to be continued in that manner alone and no construction can be permitted in such open spaces – Development Plan will not divest the utility of certain plots which are reserved for open spaces in the approved layout.

(Para 23)

A. Transfer of Property Act, 1882 (4 of 1882), Section 118 (Haryana) – Oral exchange of immovable property in 1981 – Permissibility of -- Section 118 was not extended at the relevant time to State of Haryana -- Thus, the exchange of immovable property can even be oral and not required to be only through registered documents.

(Para 2, 6)

B. Land in abadi – Proof of -- In the land falling in abadi of the village, the person in possession is presumed to be owner unless proved otherwise.

(Para 8)

Specific Relief Act, 1963 (47 of 1963), Section 34 -- Suit for declaration – Onus to prove -- Non-appearance of defendant – Effect of -- Defendant did not step into witness box to controvert the assertions of the plaintiffs qua the suit property – Settled law that plaintiff has no stand on his own legs and cannot derive any benefit from the weakness of the case of defendants -- Onus of proving the title to the suit property in entirety was on the plaintiffs.

(Para 5)

Specific Relief Act, 1963 (47 of 1963), Section 16(c) -- Specific performance of agreement to sell – Readiness and willingness -- Balance amount payable was Rs.18,00,000/- -- Plaintiff has taken different stand, in one hand he claims that he has withdrawn the amount from the bank but no evidence is produced -- On the other hand, he says that he had taken loan from a commission agent -- Neither aforesaid commission agent has been examined nor any document to corroborate the aforesaid plea of loan has been produced – Still further, plaintiff in his suit claims that the defendant did not visit the office of sub-registrar on the target date, however, in cross-examination he admitted that the defendant was also present in the office of the Sub-Registrar -- Defendant served 2 notices on the plaintiff, the plaintiff did not either come forward to get the sale deed registered nor took any action for a period of 6 months – Trial Court decreed the suit, Appellate Court granted alternative relief of refund by holding that the plaintiff fails to prove that he was possessed of sufficient means to pay balance sale consideration -- No good ground to interfere, appeal dismissed.

(Para 4,9,10)

Specific Relief Act, 1963 (47 of 1963), Section 36 -- Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34 -- Suit for permanent injunction -- Change in khasra girdawari after spot inspection -- As per settled position in law, no weight can be given to correction of khasra girdawari made during pendency of civil suit involving question of possession.

(Para 1, 8)

Specific Relief Act, 1963 (47 of 1963), Section 28 -- Rescind of Agreement to sell – Locus standi of – Plaintiff filed suit for possession by way of specific performance of agreement to sell dated 23.02.2004 with further prayer for grant of permanent injunction restraining defendants from alienating the suit property except to the plaintiff – Plaintiff also challaned sale deed executed in favour of the petitioner – Application filed by the petitioner to rescind agreement to sell (23.2.2004) to which he is not a party cannot be maintained.

(Para 6-11)

A. Indian Succession Act, 1925 (39 of 1925), Section 63(c) -- Attestation of Will -- No particular form of attestation is necessary -- Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person – Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time.

(Para 12)

B. Indian Succession Act, 1925 (39 of 1925), Section 63(c) – Indian Evidence Act, 1872 (1 of 1872), Section 71 -- Will -- Other evidence – Recourse of -- Attesting witnesses i.e. advocate could not be served -- Another witness not called by defendant being husband of plaintiff -- High Court held that the Will being registered was proved in terms of section 71 of the Evidence Act --  Held, finding of the High Court is unacceptable -- Recourse to Section 71 of the Evidence Act is impermissible without examination, it would not matter if witness is husband of plaintiff – Section 71 of the Evidence Act would come into operation, once and if all the attesting witnesses deny or do not recollect the execution of the document, that is, the Will.

(Para 23)

C. Indian Evidence Act, 1872 (1 of 1872), Section 71 -- Will – Other evidence – Suspicious circumstances – Consideration of -- Will which purportedly makes the bequest, is oddly described as a Will Deed – This possibly explains why defendant had claimed in his reply, that he was the owner of the tenement even during the lifetime of the mother – There exists grave doubt whether the “Will Deed” was executed and is a “Will” as it purports to be -- Testator was an illiterate lady, testator and her family members did not understand the true nature of the document executed -- There are substantial and good reasons to legitimately suspect and question execution of the Will, which propounder of the Will, has not been able to repel and remove so as to satisfy the Court that the Will was validly executed – Held, execution of the Will has not been proved by “other evidence” in terms of Section 71 of the Evidence Act.

(Para 28)

Specific Relief Act, 1963 (47 of 1963), Section 20(2)(c) -- Agreement to sell – Sham transaction – Plea of -- Specific performance of agreement -- Discretion of court – Once it is held that the document entered was an agreement to sell and not a sham transaction, the appellants/defendant can take no benefit of Section 20(2)(c).

(Para 7)

A. Limitation Act, 1963 (36 of 1963), Section 27 --- Adverse possession -- A mere possession or permissive possession does not demonstrate spectrum of adverse possession.

(Para 5)

B. Limitation Act, 1963 (36 of 1963), Section 27 --- Adverse possession – Proof of -- A party claiming adverse possession must prove that his possession is “nec vi, nec clam, necprecario” i.e. peaceful, open and continuous and it should be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner -- It must start with a wrongful disposition of the original owner and is actual, visible, exclusive, hostile and continued over the statutory period.

(Para 5)

C. Limitation Act, 1963 (36 of 1963), Section 27 --- Adverse possession – Plea of -- Plea of adverse possession is not a pure question of law, rather it is a mixed question of law and facts -- A person who claims adverse possession, must show; (a) On what date, he came into possession; (b) What was the nature of his possession; (c) Whether the factum of possession was known to other party (d) How long his possession had continued; (e) His possession was open and undisturbed -- Plea of adverse possession has no equities rather this right has some instinct of piratical rights – The person has to plead from what date his possession became adverse, and he must disclose the necessary ingredients in his pleadings viz. date, nature of possession, factum of possession, how long they remain in possession and that their possession was open and undisputed.

(Para 7)

D. Limitation Act, 1963 (36 of 1963), Section 27 --- Adverse possession – Simultaneous plea -- Plaintiff cannot breath hot and cold in the same breath -- On the one hand, plaintiff claimed the property to be owned and possessed by him on the strength of oral purchase by his father and at the same time he has claimed the property on the strength of adverse possession -- Both the pleas cannot go simultaneously.

(Para 8)

Transfer of Property Act, 1882 (4 of 1882), Section 118 -- Exchange of School land without authority -- Validity of -- Plaintiff gifted land to School for advancement of education by registered gift deed – Principal of School orally exchanged his personal land with that of School followed by written agreement – Purported oral exchange followed by agreement, was wholly collusive and illegal transaction -- Exchange was illegal and unauthorized, since there was no Resolution passed by the Society which was running the school in favour of the President to exchange the land owned and vested in the School pursuant to the Gift Deed, which is liable to be quashed and set aside -- Jamabandis reflecting the purported exchange are quashed and set aside.

(Para 3-5)

Punjab Co-operative Societies Act, 1961 (25 of 1961), Sections 27,55,56,68,69 -- Constitution of India, Article 142 -- Allotment of plot – Grievances for possession of plot not raised – Right for possession -- Appellant has never raised a grievance that she has not been delivered possession of the plot allotted but, the facts on record, particularly on the basis of counter-affidavit of the respondents, leaves no manner of doubt that the possession of plot allotted to the appellant who is a founder member since the year 1975 has not been given to the appellant – Held, the appellants cannot be deprived of a plot allotted to her merely on the basis that she has not made any grievance in respect of possession of the plot allotted on the basis of technicities -- To do complete justice in terms of Article 142 of the Constitution, Court deemed it appropriate to direct the Registrar of Cooperative Societies, Punjab to conduct an enquiry either himself or through such officer as he may deem fit to find out;

--     whether the appellant was allotted plot by, the Administrator, and

--     that after such allotments having been set aside on 17.07.1984, whether fresh allotment was made to the appellant by the Society.

If such allotment is found to be made, the appellant would be entitled to possession of the plot of 250 sq. yards -- If it is found that the plot allotted to the appellant is not available, the Registrar or its delegate shall pass such necessary order to redress the grievance of the appellant after giving an opportunity of hearing to the affected persons -- In case, there is a suitable plot available, then the Registrar or its delegate shall allot a suitable plot.

(Para 17-19)

Hindu Succession Act, 1956 (30 of 1956), Section 10, 15, Schedule, Class 1 heir -- Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Property dispute -- Will by deceased – Execution of Will is yet to be proved – If Will is not proved, the daughter would be entitled to a share in the properties – Held, Daughters are, therefore, necessary parties to the proceedings.

(Para 11-13)

A. Mutation – Nature of -- Mutation of a property in the revenue records are fiscal proceedings and does not create or extinguish title nor has it any presumptive value on title -- It only enables the person in whose favour mutation has been ordered, to pay the land revenue.

(Para 14)

B. Hindu Succession Act, 1956 (30 of 1956), Section 14(1) – Absolute right of women – Mere possession as maintenance – Effect of -- Property gifted by owner to his second wife for her maintenance in 1950 -- Second wife continued to have rights over property only during life time of her husband – On his death, the land in dispute would devolve upon his heirs as per their entitlement and after the registered will has been upheld by the High Court and attained finality, its consequence was to follow accordingly -- Appellant (Daughter of second wife) although was holding possession but not under any of the devise referred to under explanation to Section 14(1) of the Act, 1956 and mere possession would not confer pre-existing right of possession over the subject property to claim full ownership rights after the Act, 1956 came into force by operation of law.

(Para 2,14-20)

A. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 -- Family settlement – Nature of relations -- For the purpose of family settlement, the family is not to be narrowly construed -- For the purpose of family settlement, the family is to be considered as a larger family and even if one member of the family is not closely related that would not make a family settlement bad in the eyes of law.

(Para 11)

B. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 – Registration Act, 1908 (16 of 1908), Section 17 -- Family settlement – Compromise judgment and decree – Registration – Requirement of -- Judgment and decree is not an instrument of transfer of the property -- A judgment and decree acknowledging family settlement which had been arrived at before the filing of the suit is passed on the basis of consent of the parties under Order 12 Rule 6, Civil Procedure Code, 1908 -- Once the judgment and decree is not instrument of transfer, it does not require registration.

(Para 13)

C. Registration Act, 1908 (16 of 1908), Section 17 -- Indian Evidence Act, 1872 (1 of 1872), Section 101, 114 -- Registered sale deed – Disputing payment before Registrar -- Challenge to -- Registered sale deed has a presumption of correctness and the onus is very heavy on the plaintiff to prove otherwise -- Plaintiff has failed to prove that there was no payment – A sale deed cannot be set aside on the ground that the payment of the sale consideration is not before the Sub-Registrar.

(Para 15,16)

A. Transfer of Property Act, 1882 (4 of 1882), Section 122 -- Gift deed – Valuation of -- Consideration of -- Mentioning of Rs.5,000/- in the first page, for the purpose of valuation, cannot be said to be a consideration received by the donor for executing the gift deed.

(Para 14,15)

B. Transfer of Property Act, 1882 (4 of 1882), Section 122 -- Gift deed – Non challenge to – Finding upon -- In absence of challenge to the gift deed, it is not open to record any findings on the validity of the gift.

(Para 16)

C. Code of Civil Procedure, 1908 (V of 1908), Section 100 -- High Court fell in error in re-appreciating the evidence on record to come to a different conclusion than the findings recorded by the Trial Court, in exercise of power under Section 100 of the Code of Civil Procedure -- Findings recorded by the Trial Court and the First Appellate Court are in accordance with the evidence on record, and further the High Court has misconstrued the document of gift, judgment of the High Court is liable to be set aside.

(Para 16)

Transfer of Property Act, 1882 (4 of 1882), Section 111 (a) to (h)  -- Lease – Determination of lease/tenancy -- Agreement to sell between Lessor and Lessee – Whether would ipso facto result in determination of the lease and severe the relationship of lessor and the lessee – Held, none of the conditions of Agreement provides much less in specific terms as to what will be the fate of the tenancy – None of the conditions can be construed for holding that the parties intended to surrender the tenancy rights -- A fortiori, the parties did not intend to surrender the tenancy rights despite entering into an agreement of sale of the tenanted property – Conditions set out in the agreement do not make out a case of express surrender under clause (e) or implied surrender under clause (f) of Section 111 of the TP Act – Tenancy in question between the parties did not result in determination and same remain unaffected.

 (Para 24-38)

A. Specific Relief Act, 1963 (47 of 1963), Section 16 (c) -- Readiness and willingness – Finding of fact – A finding on the issue of readiness and willingness is one of the important and relevant findings in a suit for specific performance of an agreement -- It is a finding based on facts and once it is recorded, it becomes a finding of fact -- Unless such finding is found to be against the pleadings or contrary to the evidence or the law governing the issue, it is binding on the High Court and also on Supreme Court.

(Para 21, 22)

B. Code of Civil Procedure, 1908 (V of 1908), Order 22 Rule 4(2) -- All Legal representatives – Right of -- It is a trite law that if out of all the legal representatives, majority of them are already on record and they contested the case on merits, it is not necessary to bring other legal representatives on record.

(Para 30)

C. Sale by Karta of Joint Hindu Family – Power of -- One cannot dispute the power of a Karta to sell the Joint Hindu Family property -- It is, indeed, inherent in him -- However, it is subject to certain restrictions, namely, the sale should be for the legal necessity and for the benefit of the family.

(Para 44)

A. Transfer of Property Act, 1882 (4 of 1882), Section 58 -- Mortgage deed -- Execution of -- Attesting witness of mortgage deed examined who stated about execution of mortgage deed -- Plaintiff has not adduced any reliable evidence to establish that mortgage deed was not executed by mortgagor by his free will or without any consideration -- Execution of mortgage deed proved in accordance with law.

(Para 11)

B. Registered Sale deed – Challenge to – Appreciation of oral evidence – Interference in -- Power of Appellate Court/ High Court -- Registration of the sale deed reinforces valid execution of the sale deed -- It carries a presumption that it was validly executed -- It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law – Advocate (DW-3) who has prepared the sale deed and the scribe of sale deed was having Bar experience of nine years in his evidence stated that on the instruction, he had prepared the sale deed and that sale deed was validly executed by Seller out of his free will and consent – Trial court upon consideration and weighing the evidence of Advocate and Doctor held that “…….the evidence of Shri Ahmad, Advocate is comparatively more acceptable and believable.” – Held, upon appreciation of oral evidence, when the trial court has recorded the findings that the evidence of Advocate (DW-3) is credible and acceptable, the first appellate Court and the High Court ought not to have interfered with the findings recorded by the trial court.

(Para 14-18)

C. Transfer of Property Act, 1882 (4 of 1882), Section 122 -- Oral Gift -- Mohammedan law -- Making oral gift is permissible -- Conditions for making valid oral gift under the Mohammedan law are:-

(i)  there should be wish or intention on the part of the donor to gift;

(ii)             acceptance by the donee; and

(iii) taking possession of the subject matter of the gift by the donee.

(Para 21)

D. Transfer of Property Act, 1882 (4 of 1882), Section 122 -- Oral Gift -- Mohammedan law -- Tenants were in occupation of the suit house -- Plaintiff has not proved as to how at the time of oral gift, the possession was delivered to him -- Nothing is brought on record to show any steps to get the property mutated in his name -- Nothing on record to show that pursuant to the oral gift, plaintiff collected rent from the tenants or paid house tax, water tax, etc. -- In the absence of any proof to show that the possession of the suit property was delivered to him, the oral gift relied upon by the plaintiff ought not to have been accepted by the courts below.

(Para 22)

E. Transfer of Property Act, 1882 (4 of 1882), Section 60 -- Mortgage -- Right to redemption – Extinguishment of -- Right of redemption can be extinguished as provided in proviso to Section 60 of the Transfer of Property Act -- It can be extinguished either by the act of the parties or by decree of a court -- The expression “act of parties” refers to some transaction subsequent to the mortgage, standing barred from the mortgage transaction -- One of the mortgagees has purchased the property by the sale deed and thus, she purchased the entire equity of redemption by the execution of the sale deed, the mortgage qua the appellant has merged with the sale.

(Para 31)

A. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (d) – Constitution of India, Article 141 -- Plaint to be barred by any law -- Rejection of plaint -- Expression “law” occurring in Order 7 Rule 11 (d) includes judicial decisions of the Hon’ble Apex Court -- The authoritative pronouncement of the Hon’ble Apex Court is the law of land -- The law declared by Hon’ble Apex Court under Article 141 of the Constitution of India is law of land -- Law includes not only legislative enactments but also judicial precedents.

(Para 6)

B. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (c) – Court Fees Act, 1870 (7 of 1870), Article 17(iii), Section 7 (iv)(c) -- Non-executant of deed in possession – Challenge to Transfer deed – Ad-valorem court fee -- If a non-executant who is in possession of the property seeks to get the document annulled, then he is required to pay Court as per Article 17(iii) of the Second Schedule of the Act.

(Para 9)

C. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (c) – Court Fees Act, 1870 (7 of 1870), Section 7 (iv)(c) -- Non-executant of deed not in possession – Challenge to Transfer deed – Ad-valorem court fee – If the non-executant who is not in possession of the property and he seeks not only the declaration of the instrument to be invalid, but also seeks possession thereof, then he is required to pay ad valorem Court fee as per market value under Section 7(iv) (c) of the Act.

(Para 9)

D. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (c) – Court Fees Act, 1870 (7 of 1870), Section 7 (iv)(c) -- Non-executant of deed in possession – Challenge to Transfer deed – Ad-valorem court fee -- Suit for declaration to the effect that he is owner in possession of the suit property -- Transfer deed was claimed to be sham transaction and was not binding upon the right and title of the plaintiff -- Permanent injunction was also sought, restraining the defendant from dispossessing the plaintiff – Transfer deed under challenge in the suit does not show any consideration -- Plaintiff is not required to pay ad valorem Court fee.

(Para 2, 10)

Transfer of Property Act, 1882 (4 of 1882), Section 58(c) – Indian Evidence Act, 1872 (1 of 1872), Section 92 – Sale with condition for repurchase – Sale with conditional mortgage – Oral evidence -- Recitals in the document that transfer of interest with vesting of absolute rights upon the respondents are clear indications that the document is only a sale with condition for repurchase -- Admittedly pursuant to document possession was handed over to the respondent(s) vesting on them the absolute right to enjoy the property – Document does not show that the amount of Rs.3,000/- was taken as a debt or loan; nor does the document show that the income from the land was to be appropriated towards the interest by the respondent(s) – Any oral evidence adduced in this regard cannot be looked into in view of the prohibition under Section 92 of the Indian Evidence Act.

(Para 9,10)

A. Specific Relief Act, 1963 (47 of 1963), Section 14(3)(c)(i) – Construction of building – Vague contract -- Specific performance of -- Use of vague terms in the agreement such as “first class materials”, “residential apartment of various sizes and denomination”, “etc.”, “similar condition”, and “special fittings”, while discussing the scope of work clearly shows that the exact extent of work to be carried out by the developer and the obligations of the parties, have not been clearly brought out – Parties have not clearly defined, inter alia, the nature of material to be used, the requirements of quality, structure of the building, sizes of the flats and obligations of the owner after the plan is sanctioned -- Further, agreement states that the owner shall pay the contractor costs, expenses along with agreed remuneration only after completion of the building on receiving the possession -- However, the exact amount of remuneration payable by the owner to the contractor is not to be found in the agreement -- Agreement between the parties is vague -- In such a case, specific performance cannot be granted.

 (Para 26, 27)

B. Specific Relief Act, 1963 (47 of 1963), Section 14(3)(c)(ii) – Construction of building – Compensation can be quantified -- Specific performance of -- Before granting the remedy of specific performance, we need to analyse the extent of the alleged harm or injury suffered by the developer and whether compensation in money will suffice in order to make good the losses incurred due to the alleged breach of the agreement by the owner -- Developer incurred an expenditure of Rs.18,41,000/- towards clearing outstanding dues, security deposit and development, incidental and miscellaneous expenses -- Alleged losses/damages incurred by the Plaintiff can be quantified -- In such a case, specific performance cannot be granted.

(Para 27)

Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance of contract -- Readiness and willingness – Evidence of -- Capacity to pay the balance sale consideration -- Plaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration -- Plaintiff could not produce any document to show that he had the amount with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money -- Held, plaintiff has not been able to prove his readiness and willingness on his part.

(Para 7)

Specific Relief Act, 1963 (47 of 1963), Section 14 -- Specific performance of contract -- Third party rights have been crystallized into sale deed – Sale deed executed on 27.07.2006 cannot be set aside as the suit was filed on 23.02.2008 -- Plaintiff granted refund of earnest money of Rs.50,000/- along with interest.

(Para 9)

A. Specific Relief Act, 1963 (47 of 1963), Section 20 – Constitution of India, Article 136 -- Suit for specific performance – Decree of suit -- On reading the correspondence between the parties, plaintiff has throughout been ready and willing to perform its obligations under the agreement to Sell -- Suit property is not readily capable of valuation – Monetary compensation would not suffice and be an adequate alternative to specific performance -- Plaintiff discharged the mortgage by paying a sum of Rs. 17 lakhs which was almost three times the amount of the consideration mentioned in the agreement – No substantial or grave injustice is caused to the defendants: on the contrary, the justice of the case, on facts, is in favour of the Plaintiff, and therefore, no interference under Article 136 of the Constitution of India is required.

(Para 32, 48-62)

B. Specific Relief Act, 1963 (47 of 1963), Section 20 -- Specific performance of undivided share -- If the undivided share of one of the other heirs of the property cannot be transferred, the remaining share of the other heirs certainly can be transferred.

(Para 51)

Specific Relief Act, 1963 (47 of 1963), Section 20 -- Suit for specific performance of agreement to sell immovable property -- Readiness and willingness -- Plaintiffs shown their presence in the office of the Sub-Registrar and then sent a notice to the defendant within two weeks thereafter, and the suit for specific performance having been instituted about 9 months thereafter – Held, Plaintiffs have duly proved that they were ready and willing to perform their part of the contract -- Plaintiffs having duly paid 2/3rd of the consideration money and remaining willing to pay along with stamp duty and registration charges, hence are entitled to a decree of specific performance.

(Para 21-25)

Limitation Act, 1963 (36 of 1963), Section 27, Article 65 -- Specific Relief Act, 1963 (47 of 1963), Section 36 – Limitation – Injunction – Whether demarcation of land will save limitation – Canal in question had been constructed more than 40 years ago and neither the plaintiffs nor their predecessors had ever objected to the construction of the canal either at the time of construction or at any stage during the intervening period till the demarcation proceedings referred to in the suit had taken place --  Act of the plaintiffs in issuing legal notice and getting the demarcation conducted shall not impact the bar of limitation qua the plaintiffs -- Land in question was never acquired and the construction of the canal was never assailed by any landowner, nor they ever approached any authority to lodge their protest -- However, the fact remains that the canal in question has been in existence and in active use for over four decades and defendants have rightly been deemed to be its owners by efflux of time.

(Para 13-15)

A. Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 4 -- Sale-deed  -- Challenge to -- Allegation of fraud – Pleadings -- To prove averments of fraud and misrepresentation there has to be specific pleadings.

(Para 6)

B. Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Sale-deed – Execution of – Non-encashment of cheques by Vendor – Whether sale complete -- Out of sale consideration of Rs.7,21,000/-, the appellant stated to have made payment of Rs.5,21,000/- in cash and Rs.2 lacs by banker's Cheque -- It is prerogative of the vendor to present and encash the cheque but the fact remains that the sale, as per Section 54 of the Transfer of Property Act, 1882, was complete – Sale is held to be with consideration.

(Para 6, 7)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Specific Relief Act, 1963 (47 of 1963), Section 20 -- Court Fees Act, 1870 (7 of 1870), Section 7(iv)(a) -- Suit for specific performance – Rejection of plaint -- Subsequent vendee filed counter claim for possession – Advalorem court fee – Requirement of – Suit for possession of land where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Collector's register as separately assessed permanently to such revenue, then the amount of court fee shall be computed on 10 times of the revenue so payable -- Accordingly for the relief of possession the claimant was required to pay advalorem court fee on 10 times of the land revenue of the suit land -- Term “land” is not defined anywhere in the Court Fees Act -- It should, therefore, be incorporated in the ordinary sense and cover all kinds of land regardless of the use to which it is put or may be likely to be put – Application for rejection of plaint rightly dismissed.

(Para 11-13)

A. Specific Relief Act, 1963 (47 of 1963), Section 10, 34 -- Agreement to sell immovable property -- Plaintiff did not perform his part of contract – Termination of Contract by Seller – Suit for Specific performance of agreement by Purchaser – Maintainability of suit -- Plaintiff has not sought for declaratory relief to declare the termination of Agreement of Sale as bad in law -- In the absence of such prayer by the plaintiff the original suit filed by him for grant of decree for specific performance in respect of the suit property on the basis of Agreement of Sale and consequential relief of decree for permanent injunction is not maintainable in law.

(Para 16,17,28)

B. Specific Relief Act, 1963 (47 of 1963), Section 20(1)(2) -- Agreement to sell immovable property – Time – Value of -- Suit for Specific performance of agreement by Purchaser – In a case of sale of immovable property, time is not the essence of the contract – However, if the parties agreed to a specified time in the agreement to perform their part of the contract, then time is the essence of the contract and parties shall adhere to the same -- Plaintiff did not pay the remaining consideration amount within the stipulated period of 7 months as agreed -- Date of the institution of the original suit was nearly 11 months after expiry of the limitation period stipulated in the agreement to get the sale deed executed in favour of the plaintiff – In respect of readiness and willingness on the part of the plaintiff, the court should have exercised its discretionary power under sub-sections (1) and (2) of Section 20 of the Specific Relief Act -- Plaintiff is entitled to compensation as agreed upon by him under the Agreement of Sale -- Grant of the decree for specific performance by the High Court is wholly unsustainable in law.

(Para 16,18-20, 27,28)

C. Specific Relief Act, 1963 (47 of 1963), Section 16(c), 20(1)(2), 21(2) – Agreement to sell immovable property – Consideration – Ready and willingness -- Plaintiff had not produced any document to show that he had the balance sale consideration amount to pay to the defendants to get the sale deed executed in his favour -- Further, there is nothing on record to show that the plaintiff could have made arrangement for payment of the balance consideration amount to them -- Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the original suit along with other attending circumstances and further the amount of consideration which he has to pay to the defendants must be proved by the plaintiff -- Plaintiff in a suit for specific performance must be ready and willing to carry out his part of the agreement at all material times – Plaintiff is not entitled for the decree of specific performance in respect of the suit schedule property.

(Para 21-25,28)

A. Indian Easement Act, 1882 (V of 1882), Section 52 – License – Licensee – Defendants are occupying the disputed premises on the basis of permission granted by its owners, who are the real brothers or their legal representatives, without any condition to pay any rent – Since there is no lease nor any rent deed, it is nothing more than a license, which means to give a license or permit a person to occupy when the land owner allows to do work or perform an act on the land owner’s property – Visitor has a license to enter into the property – This kind of license need not be written, signed and registered – It may be oral or it may be implied by the relationship or actions of the parties.

(Para 7)

B. Code of Civil Procedure, 1908 (V of 1908), Section 2 – Ex-parte Decree – Compromise Decree – Decree after contest – Binding effect -- A decree of a Court of law either passed after contest or passed without contest or passed ex-parte or passed on the basis of compromise or any other form is a decree, which is, by all means, binding on all the Courts.

(Para 10)

C. Code of Civil Procedure, 1908 (V of 1908), Section 2 – Compromise decree – Change of Presiding officer – Effect of -- Trial Court declared the said decree as void and non-est and is not binding upon the court -- This is obviously perverse, as the decree has been passed by the same Court -- Though, the Presiding Officer might have been changed, yet 'Court' means 'Court' and not the Presiding Officer -- In either case, the said decree was passed by a co-ordinate Bench, which has not been challenged anywhere, nor even in present suit, thus, it has attained finality.

(Para 10)

C. Indian Easement Act, 1882 (V of 1882), Section 52 – Licensee – Compromise decree – Non-registration of – Objection to -- A licensee has no right to claim that any memorandum of understanding of family settlement among the owners was not registered, and the suit filed on the basis of it earlier, was not maintainable, in which the defendants were not parties nor their right or title has been affected by that decree.

(Para 12)