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)