ARAVIND KUMAR, C.J.

1. This first appeal is directed against the judgment and decree passed in Special Civil Suit No.167 of 1984 dated 23.10.2000 whereunder suit filed for specific performance of Agreement of Sale dated 27.12.1974 came to be dismissed.

BRIEF BACKGROUND OF THE CASE:

2. The parties are referred to as per their rank in the trial court.

3. Plaintiff claiming to be a cooperative society registered under the Gujarat Cooperative Housing Societies Act sought for a decree of specific performance being passed in its favour contending inter alia that property bearing Survey Nos.37 and 39 situated at village Thaltej, Taluka Daskroi, District Ahmedabad, admeasuring 2-Acres and 29-Gunthas and 4-Acres and 38- Gunthas respectively belonged to first defendant which is a trust registered under the Bombay Public Trusts Act (for short, ‘BPT Act’) and defendant Nos.2 to 8 are its trustees. It was further contended that defendants had executed an Agreement for Sale dated 18.08.1966 in favour of Pramukhlal Jivanlal Parikh and Ambalal Ishvarlal Prajapati. Said Pramukhlal Jivanlal Parikh as well as the Trust executed an Agreement of Sale dated 21.09.1970 in favour of Gangaram Bhaskarrao Pavde. Said Gangaram Bhaskarrao Pavde assigned his rights in favour of a partnership firm M/s.Jalpa Traders through its partner Mukundbhai Chimanlal Shah. One of the trustees Mr.Kunjbiharilal Madhavlal Bhagwat is said to have executed an Agreement to Sell dated 08.05.1972 in favour of the partnership firm Jalpa Traders through its partner Mukundbhai Chimanlal Shah and he had also previously executed an Agreement dated 03.04.1972. As such, Jalpa Traders claimed all rights under the Agreement to Sell acquired by it. The said rights of Agreement of Sale which was acquired by Jalpa Traders came to be assigned by the said firm through its partners in favour of M/s.Chhaganlal and Company vide Agreement to Sell dated 23.11.1973, who entered into an Agreement of Sale in favour of the plaintiff society to sell the land under the Agreement of Sale dated 27.12.1974, under which agreement plaintiff society is said to have paid a sum of Rs.15,000/- to M/s.Chhaganlal and Company. Plaintiff also claimed that a sum of Rs.25,000/- is paid on 20.05.1975 and Rs.5,000/- on 15.12.1978 and in all Rs.45,000/- was paid to said Chhaganlal & Company. Plaintiff claimed that all trustees of the defendant trust have agreed to continue the Agreement of Sale dated 27.12.1974 executed by M/s.Chhaganlal and Company and at the first instance, the agreed price was Rs.3.25 per sq.meter and it was agreed to be revised upwards by Rs.2 per sq.meter totaling to Rs.5.25 per sq.meter. It is also contended that while assigning all rights over the said land in favour of the plaintiff society by the defendants, all the defendants have executed their writings over the Agreement to Sell dated 27.12.1974 and on 18.04.1976 vacant and peaceful possession of the land (hereinafter referred to as ‘suit schedule property’) agreed to be sold in favour of plaintiff society was handed over to the plaintiff.

4. It is further contended by the plaintiff that defendant trust had received a sum of Rs.20,001/- towards consideration by Cheque dated 21.10.1982 which has been duly accepted that it was in lieu of Cheque dated 11.08.1982 owing to certain mistake in the said cheque. It is also contended that further sum of Rs.5,500/- was paid towards sale consideration on 30.12.1982 and a sum of Rs.5,000/- paid on 04.06.1983 by cheque drawn on Ahmedabad District Cooperative Bank. Thus, plaintiff society claimed that in all it had paid Rs.30,501/- to the defendant trust.

5. Plaintiff also claimed that one Shri Babaji Bapuji had been as appointed on 01.10.1976 as Watchman for the suit schedule property after obtaining possession and a sum of Rs.4,800/- was paid to him by Chhaganlal and Company and same had been refunded by plaintiff to Chhaganlal and Company. Plaintiff als claimed a sum of Rs.4,800/- was paid on 25.09.1978 and on 16.12.1978, further sum of Rs.4,800/-, Rs.5,300/- on 10.06.1980 and Rs.5,300/- on 17.06.1981. Thus, in all a sum of Rs.25,000/- was claimed to have been paid to the said Babaji Bapuji by the plaintiff society. It is further contended that plaintiff society appointed Shri Jagbahadur Lagbadahur Thapa as Watchman on monthly salary and presently Rs.400/- is paid to him towards his salary. It is contended that a room has been constructed for the residence of said watchman and as such, plaintiff claimed to be in possession of the suit schedule property.

6. Plaintiff has contended that it was desirous of constructing houses for its members and as such had got a layout plan drawn by the Engineer which plan was also duly signed by the trustees. Plaintiff has contended that defendant trust had also filed an application before the Charity Commissioner seeking permission to sell the suit land as required under Section 36 of the BPT Act. Plaintiff also contended that defendants have filed Form No.1 at Gandhinagar as per Section 20 of the Urban Land (Ceiling and Regulation) Act seeking exemption from the provisions of said law wherein it is specifically mentioned that defendant has proposed to sell the suit land to the plaintiff.

7. Contending that defendant No.1 trust was attempting to dispose of the suit land to someone else owing to price escalation and there is likelihood of plaintiff being disturbed of possession and despite being told by the plaintiff to execute the sale, said demand is not being complied by defendant and as such, plaintiff initially instituted a Civil Suit No.210 of 1983 for perpetual injunction which was withdrawn with permission on 17.07.1984 and the present suit was filed on the same day i.e. on 17.07.1984 seeking for specific performance of the Agreement of Sale dated 27.12.1984.

8. On service of suit summons, defendant Nos.1 to 4 and 6 appeared and filed their written statement denying the averments made in the plaint except to the extent expressly admitted thereunder. It was contended that similar suit had been filed earlier and it has been withdrawn and therefore the present suit was barred by res judicata. It was also contended that present suit was barred by limitation. It was specifically contended that suit is not maintainable as per Section 51 of BPT Act since written permission from the Charity Commissioner for filing of the suit was not obtained and on this ground suit was liable to be dismissed. It was also contended that Charity Commissioner is a necessary and proper party to the suit as contemplated under Section 51(3) of the BPT Act and for non-joining of necessary party, the suit is liable to be dismissed. Contending that under Section 80 of the BPT Act, the Civil Court does not have jurisdiction to hear and adjudicate the suit, defendants sought for its dismissal.

9. It was also contended that defendants had entered into Banakhat – Agreement to Sell the sit land to Pramukhlal and Ambalal but later on the trust and Pramukhlal made another Banakhat – Agreement to Sell in favour of Gangaram Pavde which agreement was not duly signed by all the trustees. It was further contended that in the earlier Agreement to Sell entered into by the trust with Pramukhal and Ambalal, it did not contain the signature of Ambalal and as such, the said Banakhat – Agreement to Sell was pleaded to be not legal. Denying the fact that Gangaram Pavde had transferred his Banakhat rights to third party, the plaintiff has been put to strict proof of the same. It is further contended that from amongst the trustees of the first defendant trust, one of the trustees on advise of the plaintiff had entered into Agreement to Sell in favour of Mukundbhai on behalf of Jalpa Traders on 08.05.1972. This Agreement to Sell was signed by Mr.Kunjbihari who had not been authorized by all the trustees to enter into such agreement. Hence, contending that trust is not responsible or answerable for such transaction and denying that Kunjbihari being the Managing Trustee of the trust or having any such unilateral power to enter into Agreement of Sale, they have denied said agreement. The agreement dated 03.04.1972 was also pleaded not to be in the knowledge or not being in the knowledge of defendants and plaintiff was put to strict proof of the same. The right of Jalpa Traders transferring their Banakhat rights, defendants pleaded their lack of personal knowledge as also the right of Chhaganlal and Company transferring their Banakhat rights in favour of the plaintiff. The contention raised by the plaintiff in the plaint in this behalf has been denied and plaintiff has been put to strict proof of the same. The fact of possession having been delivered to the plaintiff by the trustees is also denied. The execution of the document with regard to possession of the suit schedule property having been delivered to the plaintiff is also denied by the defendants. It was contended that one Mr.Anubhai Premchand was claiming to be the tenant and the dispute in this regard was pending before the Revenue Tribunal. The Banakhat – Agreement to Sell between Chhaganlal and Company and M/s.Jalpa Traders on 13.11.1973 about delivery of vacant possession is denied. It was specifically denied that plaintiff was put in possession of the suit lands.

10. Plaintiff was put to strict proof with regard to affixure of signature of defendants with regard to layout plan. However, defendants admitted to have made an application before the Charity Commissioner for selling the suit land and filing the form before the ULC authorities.

11. It is also contended that defendant is a public trust registered under BPT Act and without obtaining permission to sell, the suit schedule property cannot be sold to any private person and this fact is well within the knowledge of the plaintiff. Hence, the alleged delivery of possession of suit schedule property in favour of plaintiff came to be denied. It was contended that suit land is in possession of the tenants and case was pending before the Revenue Tribunal. Hence, it was contended that plaintiff was not in possession of the suit land.

12. The defendants denied the plaintiff’s claim of having made any oral demand for executing the sale and contended that there is no direct contact between the plaintiff and defendants to sell the suit schedule land. Contending that the trust cannot sell the land to the plaintiff, as it does not have permission and defendants are also not bound to sell the suit schedule land. It was specifically contended that all the trustees have not affixed their signatures and there is no legal contract between plaintiff and defendants qua the suit land. On these grounds amongst others pleaded in the written statement, they sought for dismissal of the suit. Defendant No.5 and 15 have filed their written statements as per Exhibits-54 and 126 respectively. Subsequently, 15th defendant was ordered to be deleted and accordingly 1st defendant has been deleted. The Charity Commissioner has not filed any reply. No other defendants have filed their written statement. Hence, based on the pleadings of the parties, the learned Trial Judge framed ten (10) issues for determination. Learned Trial Judge has answered issue No.1 in the affirmative and issue Nos.2, 8(a), 9 and 10 partly affirmative. Issue Nos.3 to 8 in the negative.

13. In order to substantiate the averments made in the plaint, one Shri Babulal got himself examined as only witness on behalf of the plaintiff. His deposition has been marked as Exhibit-49. No witnesses were examined on behalf of plaintiffs. On appreciation of oral and documentary evidence, learned trial Judge by judgment and decree dated 23.10.2000 partly decreed the suit and directed defendant Nos.1 to 8 and defendant No.14 to refund sum of Rs.25,000/- plus Rs.40,000/- to the plaintiff with interest at 12% per annum from the date of receipt of judgment and dismissed the prayer for specific performance. The relief of perpetual injunction sought for has been rejected and the interim order which had been granted on Exhibit-5 application came to be revoked. Hence, this appeal.

14. We have heard the arguments of Shri Yatin Oza, learned Senior Counsel appearing for the appellant and Shriyuths Shalin Mehta, Mehul S. Shah and Devang Nanavati, learned Senior Advocates alongwith Shriyuths Brijesh Trivedi, N.M.Kapadia and B.M.Mangukiya, learned advocates for contesting respondents.

14.1. It is the contention of Mr. Yatin Oza, learned Senior Advocate appearing for the appellant that Trial Court had committed a serious error in not considering the pleadings in proper perspective. He would contend that learned Trial Judge ought to have appreciated the fact that none of the defendants had tendered any oral evidence in support of their pleadings and as such the suit ought to have been decreed as prayed for. He would contend that trial judge erred in arriving at a conclusion that there is no existence of agreement of sale in favour of the appellant warranting a decree of specific performance by completely ignoring the fact that Trial Court itself has accepted that plaintiff had proved that part of sale consideration had been paid by the plaintiff to defendant No.1 trust which would itself indicate the existence of an agreement of sale.

14.2. He would also contend that if there had been no intention on the part of the appellant and respondent No.1 trust to act upon the said agreement of sale, no steps could have been taken by defendant No.1 as well as by the appellant and the very fact that requisite permission from the concerned authorities having been filed not being in dispute was itself sufficient to arrive at a conclusion that there was existence of an agreement of sale and there was no intention on the part of plaintiff and defendant No.1 not to act upon said agreement.

14.3. He would also contend that in part performance of the agreement of sale, possession of the suit land had been handed over to the plaintiff and as such defendant No.1 is precluded from taking contrary stand in this Appeal. He would submit that oral testimony of the plaintiff’s witness would get support from the documentary evidence tendered and same has been completely ignored by the Trial Court and the ones which have been considered is not accepted without any reasons being assigned and as such there is no justification for the learned Trial Judge to have arrived at a conclusion that plaintiff was not in possession of the suit schedule property.

14.4. He would elaborate his submissions by contending that learned Trial Judge erred in arriving at a conclusion that agreement of sale Exhibit 194 through which the interest possessed by Chhaganlal & Company was transferred to plaintiff was not having signatures of all the trustees of respondent No.1 trust would be of no consequence since way back in the year 1978, i.e. on 11.11.1978, a resolution had been passed by trust which conclusively disclosed that defendant No.1 had consented to the sale transaction in favour of Chhaganlal & Company and thereafter in favour of the appellant, subject to permission being obtained from the Charity Commissioner and as such any stand taken contrary to the same either by defendant No.1 or by other trustees is of no consequence.

14.5. He would contend that had it been the case of the appellant not being ready and willing, it would not have affected the payment of part consideration and plaintiff would not have moved the authorities for obtaining various permissions under provisions of various statutes, nor would it have deployed its watchman for the purpose of maintaining the suit land. He would also contend that the provisions of Sections 50 and 51 of the Gujarat Public Trusts Act, 1951 would not be attracted to the facts on hand as defendant No.1 trust is not a public trust. He would also contend that provision contained under Section 36A of the Gujarat Public Trusts Act, 1951 is applicable only to transfer by way of sale, mortgage or release and not to a transaction of agreement of sale which is distinct and different from that of transaction of sale. Hence, he contends that question of obtaining prior permission would not arise. He would also contend that the documents produced along with civil applications seeking for additional evidence would clearly disclose the existence of agreement of sale Exhibit 194 between plaintiff and defendant No.1 and by referring to various documents produced along with the plaint which though produced had not been exhibited but referred to in the deposition of plaintiff’s witness to contend that all the trustees except defendant No.7 had filed application under Section 36 of the Gujarat Public Trusts Act, 1951 before the Charity Commissioner seeking permission to sell the suit schedule property to the plaintiff which itself was sufficient to hold that there was an agreement of sale executed by defendant No.1 in favour of the plaintiff. He would draw the attention of the Court to the agreement of sale marked as Exhibit 194 to contend that pursuant to the said agreement executed in favour of plaintiff executed by the said Chhaganlal & Company which had been endorsed by 5 trustees and subsequently ratified on 18.4.1976 by 4 trustees and as such there being a clear evidence to said effect, there was no impediment for the Trial Court to have decreed a suit as sought for. He would also contend that as per the said endorsement dated 18.4.1976 made by defendant No.1 trust and its trustees, the possession of the suit schedule property was handed over to the plaintiff and in furtherance of the same, defendant No.2 on behalf of defendant No.1 trust had filed Form No.1 before Urban Land Ceiling Authority seeking exemption for selling the suit scheduled land. He would also draw the attention of the Court to the document dated 28.8.1978 issued by the District Panchayat whereunder permission had been granted to the plaintiff to purchase the suit land. By inviting the attention of the Court to the order dated 20.10.1978 passed by the Revenue Department rejecting the application seeking exemption under Sections 19 and 20 of the Urban Land Ceiling Act, he would contend that same would reflect that there was an agreement of sale in favour of the plaintiff. He would further contend that defendant No.1 trust had passed a resolution on 11.11.1978 resolving to sell the suit land to the plaintiff, which resolution was duly signed by defendant Nos.2 to 4 and 6 which would evident that there was an agreement of sale and this when read along with Exhibit 205 to 207 would clearly evidence the fact of there being an agreement of sale between plaintiff and defendant.

14.6. He would contend that even assuming and accepting that only few trustees have signed the agreement of sale then also appellant would be entitled to seek specific performance and mere non-execution of the agreement of sale by other trustees would not render the agreement of sale invalid. He would contend that when Form No.1 was filed before the Urban Land Ceiling Authority for exemption, same was not objected to by any other trustee and thus, defendant No.2 was held to be authorised to act for and on behalf of other trustees. Insofar as finding recorded by the Trial Court with regard to advance money of Rs.45,000/- paid to defendant No.14, he would submit that said defendant itself admitted in the written statement filed to the said effect and as such finding of the Trial Judge requires to be set aside. He would also contend that plaintiff has complied with the terms and conditions of the agreement Exhibit 194 and has paid Rs.25,001/- to defendant No.1 as per the agreed terms viz. within 6 months. On account of defendants having not denied this fact, he prays for adverse inference being drawn against the defendants.

14.7. Insofar as possession of the suit schedule property is concerned, he would submit that even in the application filed by the trustees before various statutory authorities, they admit that plaintiff was in possession of the suit property and even otherwise Trial Judge failed to consider the question of possession being immaterial while adjudicating the suit filed for specific performance of agreement of sale (Exhibit 194).

14.8. He would also contend that permission under Section 36 of the Gujarat Public Trusts Act, 1951 not being there on record was the reason for dismissing the suit and same is contrary to the principles laid down by this Court in AIR 1984 GUJ 145 and the judgment of the Hon’ble Apex Court in 2020 SCC OnLine SC 825. he would contend that even otherwise subsequent application can be filed and in view of subsequent law viz. Urban Land Ceiling Act having been repealed, question of obtaining permission under ULC Act did not arise.

14.9. On the issue of readiness and willingness, he would submit that very fact that plaintiff has complied with all terms and conditions of the agreement would indicate its continuous readiness and willingness having been exhibited by the plaintiff. He would contend that very fact that appellant has agreed to pay the revised rates to the trustees; and has paid consideration towards the defendant trust as well as defendant No.14 as agreed to Exhibit 194 is a mirror to the fact that the appellant / plaintiff has been ready and willing to perform his part of the contract. He would also contend that though plaintiff has not stated in actual words and stated to the effect that he is ready and willing, the very fact that the plaintiff is ready to pay the balance consideration as stated in the prayer would suffice for this Court to arrive at a conclusion that plaintiff has been ready and willing to perform his part of the contract. Non-consideration of these vital aspects has resulted in miscarriage in administration of justice.

14.10. Mr.Yatin Oza, learned Senior Counsel appearing for the appellant would contend that interlocutory applications filed for production of additional evidence be allowed and the documents produced along with the said application be admitted in evidence. He would also contend that no time limit has been fixed for filing of an application for additional evidence. He would also contend that some of the documents have come into existence subsequent to the filing of the present appeal and as such this Court can take note of subsequent events. He would also contend that some of the documents which are prior to the filing of the appeal were not in the custody of the appellant and appellant had no knowledge as appellant was not a party in the proceedings held by the Charity Commissioner and as such these documents could not have been produced at earlier point of time. He would submit that even otherwise for substantial cause the documents can be taken on record and some of the documents being public documents, this Court should adopt liberal approach in receiving the same by way of additional evidence.

14.11. He would further contend that Explanation-II of Section 16(c) will have no application. He would contend that Section 114 of the Gujarat Public Trusts Act which is analogous to Section 80 of the Bombay Public Trusts Act will have no application inasmuch as no Civil Court has decided any issue and as such a conditional decree can be passed by this Court. He would contend that escalation of the price would not be a ground on which plaintiff can be denied the relief of specific performance and he would draw the attention of the Court to the judgment of Hon’ble Apex Court in the matter of Nirmal Anand Vs. Advent Corporation Private Limited reported in (2002) 8 SCC 146 [LQ/SC/2002/1023] . Hence, he has prayed for Appeal being allowed. In support of his submissions, he has relied upon following judgments :

(1) (2005) 1 SCC 172 [LQ/SC/2004/1234] – J.P. Srivastava & Sons Pvt. Ltd. vs. Gwalior Sugar Co. Ltd. And Ors.

(2) AIR 1930 Mad 476 [LQ/MadHC/1929/219] – Sultan Mahomed Rowther vs. Muhammad Esur Rowther and Ors.

(3) AIR 1952 P&H 234 – Shankar Das Rup Lal vs. Governor – General in Council.

(4) (1970) 2 SCC 386 [LQ/SC/1970/136] – Jugraj Singh and Anr. Jaswant Singh & Ors.

(5) 2018 (1) Mh.L.J. 259 – LIC of India versus Digvijaysingh Gangasingh.

(6) (1999) 3 SCC 573 [LQ/SC/1999/267] – Vidhyadhar v. Manikrao and Anr.

(7) (1927) 29 BOM LR 1392 – Sardar Gurbaksh Singh vs. Gurdial Singh.

(8) 2021 SCC OnLine SC 802 – Jitendra Singh vs. State of MP and Ors.

(9) (2001) 7 SCC 698 [LQ/SC/2001/2043] – Adcon Electronics Pvt. Ltd. Versus Daulat and Anr.

(10) AIR 1984 Guj. 145 [LQ/GujHC/1984/133] – Shah Jitendra Nanalal Ahmedabad vs. Patel Lallubhai Ishverbhai Ahmedabad and Ors.

(11) 2020 SCC Online SC 825 – Ferrodous Estates (Pvt.) Ltd. Versus P. Gopirathnam.

(12) (2002) 5 SCC 481 [LQ/SC/2002/642 ;] – Nirmala Anand versus Advent Corporation (P) Ltd.

(13) (1977) 3 SCC 179 [LQ/SC/1976/511] – Govindbhai Gordhanbhai Patel and Ors. vs. Gulam Abbas Mulla Allibhai & Ors.

(14) 2020 SCC Online SC 825 – Ferrodous Estates (Pvt.) Ltd. Versus P. Gopirathnam.

(15) (1969) 3 SCC 120 [LQ/SC/1969/420] – Nathulal vs. Phoolchand.

(16) (1999) 6 SCC 337 [LQ/SC/1999/716] – Syed Dastagir vs T.R. Gopalakrishna Setty.

(17) Civil Appeal No. 5110 of 2021 – Sughar Singh vs. Hari Singh (Dead) through Lrs. & Ors.

(18) (1970) 3 SCC 140 [LQ/SC/1970/401] – R.C. Chandiok and Anr. vs. Chuni Lal Sabharwal and Ors.

(19) CO 40 of 2018 – Bimal Chandra Mukhopadhyaya vs. Pashupati Sengupta & Ors.

(20) 2019 (132) ALR 640 – Jamal Ahmad Khan vs. Shamim Jahan.

(21) (2001) 10 SCC 619 [LQ/SC/2000/1491] – State of Rajasthan versus T.N. Sahani.

(22) (2012) 8 SCC 148 [LQ/SC/2012/578] – Union of India vs. Ibrahim Uddin and Anr.

(23) (2001) 9 SCC 245 – Badami Devi and Anr. Ambuja Raghavan.

(24) (1992) Supp (2) SCC 623 – Ramesh kumar v. Kesho Ram.

(25) (2015) 1 SCC 677 [LQ/SC/2002/680] – Wadi v. Amilal & Ors.

(26) 2022 SCC Online SC 292 – Sanjay Singh versus State of Jharkhand.

(27) (2001) 10 SCC 619 [LQ/SC/2000/1491] – State of Rajasthan versus T.N. Sahani.

(28) AIR 1963 SC 1526 [LQ/SC/1963/38] – K. Venkataramian v. Seetharama Reddy.

(29) IDMC Erstwhile Indian Dairy Machinery Company Ltd. vs. Mohini Pressuram Tilwani – CA NO. 2 of 2019 in LPA No. 1225 of 2019 in SCA No. 10252 of 2018.

(30) 2005 (1) ALT 212 – Sridevgamma v. K. Shivaraj and Ors.

(31) AIR 1994 HP 172 [LQ/HimHC/1994/1] – Mehar Chand and Others versus Lachhmi and Ors.

(32) (2013) 10 SCC 758 [LQ/SC/2013/801] – Kaliya versus State of MP.

(33) (2016) 16 SCC 482 – Rakesh Mohindra vs. Anita Beri and Ors.

(34) (2000) 6 SCC 735 [LQ/SC/2000/1199] – Marwari Kumhar and Ors. Versus Bhagwanpuri Guru Ganeshpuri and Anr.

(35) 1993 Mh.L.J. 588 – Abaji Daulata Yadav since deceased by his heirs and Others versus Dhondiram Jagedevrao Yadav and Ors.

(36) AIR 1972 HP 19 [LQ/HimHC/1971/29] – M/s. Lim & Co. vs. K.M. Sayeed.

(37) 2022 SCC Online 351 – Premlata @ Sunita vs. Naseeb Bee and Ors.

(38) LPA No. 1153 of 1998 – Legal Heirs of deceased Mithabhai Mavjibhai vs. State of Gujarat.

(39) 2010 SCC Online Guj. 8105 – Patel Motibhai Galbabhai vs. Patel Dahiben Valjibhai & Ors.

(40) Civil Appeal No. 2095 of 2022 – P. Ramasubbamma vs. V. Vijayalakshmi & Ors.

14.12. Mr.Shalin Mehta, learned Senior Counsel appearing for the 6th defendant has contended that agreements dated 18.08.1966, 21.09.1970, 08.05.1972 and 03.04.1973 as well as agreement dated 13.11.1973 which has been referred to in Exhibit 194 were never produced and marked as exhibits and as such the very basis on which plaintiff seeks specific performance has not been proved, question granting decree for specific performance does not arise. He would also contend that plaintiffs have never demanded defendants for execution of Sale Deed and would draw the attention of the Court to paragraph 12 of the written statement filed by defendant Nos.1 to 4 and 6. He would submit that after rejection of the application by the Charity Commissioner no steps were taken by plaintiffs. He would contend that in the instant case there were three rejections namely on 27.10.1970, the Charity Commissioner accorded permission to sell the suit schedule property within a fixed time. Subsequently, by order dated 26.02.1986 it rejected the application filed by Vitthal Mandir Trust, against which two revisions were filed namely one by the trust which was subsequently withdrawn and another revision by Bansilal Amritlal Parikh which came to be dismissed on merits on 13.06.2001 which was confirmed in Special Civil Application No.7360 of 2001. He would contend that trustees are also pujaris and they have a hereditary right. He would contend that terms and conditions of the agreement of sale dated 27.12.1974 (Exh-194) are not fulfilled by the plaintiff and hence specific performance ought to be rejected. He would contend permission as required under Section 36 has not been obtained from the Charity Commissioner for sale of suit schedule property; time limit as contemplated under agreement dated 30.11.1973 is not adhered to; plaintif was not possessing money as agreed to be paid under Exhibit 194 and this is evident from the audit report Exhibit 36.

15. He would submit that obtaining prior permission under Section 36 is mandatory and till filing of the suit and even as on date no such permission has been obtained from the Charity Commissioner by the plaintiff.

16. He would submit that plaintiff had earlier filed a suit No.210 of 1983 and withdrew the same without any opportunity to institute fresh suit. He would contend that plaintiff has never whispered a word about readiness and willingness. He would also submit that plaintiff who had to aver and prove that he has performed or has been always ready and willing to perform has not been averred and proved. He would contend that ULC permission has been rejected and proof of payment of advance amount has not been proved by the plaintiff. Hence, he has prayed for dismissal of the Appeal. In support of his submissions, he has relied upon the following judgments :

(i) 2021 Law Suit (SC) 601 – K. Karuppuraj versus M. Ganesan.

(ii) 2022 Law Suit (SC) 62 - Shenbagam and others vs. K.K.Rathinavel.

17. Shri Mehul Suresh Shah, learned Senior Counsel appearing for 3rd defendant would submit that there is no cause of action for the suit and the one alleged in the plaint is without any basis and same is liable to be rejected. He would also contend that Exhibit 194 is a contingent contract and cannot be enforced. By contending that subsequent event is to be taken note of by relying upon the judgment of Hon’ble Apex Court in the matter of Pasupuleti Venkateswarlu vs. The Motor & General Traders reported in (1975) 1 SCC 770, [LQ/SC/1975/124] he prays for application for additional evidence filed being allowed. Contending that permission to sell the suit schedule property was not there and same has not been obtained by plaintiff. He would contend that there are no pleading in the plaint with regard to readiness and willingness and plaintiff has also admitted under Exhibit 208 which is an audit report of the plaintiff society for the period 01.01.1984 to 30.06.1985 that closing balance as on 1985 was only Rs.724.70ps. which would indicate that plaintiff society do not have any money, muchless the balance amount of consideration being available or possessed by it.

18. He would submit that a duty is cast on the Court to protect the public property. In support of his submission, he has relied upon 1978 GLR 661 and (2007) 7 SCC 482 [LQ/SC/2007/913] .

19. He would submit that plaintiff had examined only one witness as per the examination-in-chief Exhibit 49 and said witness had no authority and he had been removed from the membership of society even as on the date he tendered the evidence, he was not a member of the plaintiff society. He has relied upon following citations in support of his submission.

(1) 2021 SCC OnLine SC 147 – Asha John Divianathan vs. Vikram Malhotra.

(2) (2019) 19 SCC 42 [LQ/SC/2019/1500] – Narayanamma and Another vs. Govindappa and Others.

(3) 2010 (4) GLR 3562 – Prabodhkumar Maganbhai Patel vs. Modasa Kadva Patidar Chhatralaya and Others.

(4) 2005 SCC OnLine Bom 706 – Janardan s/o Ramchandra Bute (Wanjari) vs. Ganapati Devasthan, Tahsil Deoll.

(5) 2020 (3) Mh. L.J. 323 – Avinash Kishorchand Jaiswal and Another vs. Shri Rammandi Deosthan, Pavnar and Others.

(6) (2006) 7 SCC 470 [LQ/SC/2006/775] – M. Meenakshi and Others vs. Metadin Agarwal (Dead) By LRs and Others.

(7) Civil Appeal No.150 of 2022 (SC) – Shenbagam and Others vs. K.K. Rathinavel.

(8) Civil Appeal No.9124 of 2018 (SC) – Jagjit Singh (D) through LRs vs. Amarjit Singh (D) through his LRs.

(9) (2020) 3 SCC 280 [LQ/SC/2020/187 ;] – C.S. Venkatesh vs. A.S.C. Murthy.

(10) (2019) 3 SCC 704 [LQ/SC/2019/20] – Kamal Kumar vs. Premlata Joshi and Others.

(11) (2019) 19 SCC 415 [LQ/SC/2019/281] – Mehboob-Ur-Rehman (Dead) through LRs vs. Ahsanul Ghani.

(12) 1978 GLR 661 – Hamumiya Bachumita vs. Mehdihusen Gulamhusen.

(13) (2007) 7 SCC 482 [LQ/SC/2007/913] – A.A. Gopalkrishnan vs. Cochin Devaswom Board and Others.

(14) 1996 SCC OnLine P&H 548 – Punjab State Coop. Bank Ltd. vs. Milkha Singh and Another.

(15) (2015) 13 SCC 579 [LQ/SC/2014/1329] – Baluram vs. P. Chellathangam and Others.

20. Shri Brijesh Trivedi, learned counsel appearing for the 4th defendant would contend that plaintiff has not pleaded and proved readiness and willingness. He would submit that no issue has been framed by the Trial Court in this regard and no evidence has also been tendered. In support of this proposition, he has relied upon AIR 2022 Online SC 998 and 2022 (1) JT 344.

21. By relying upon the judgment of the Hon’ble Apex Court in the case of Khasgi (Devi Ahilyabai Holkar Charities) Trust, Indore & Anr. Versus Vipin Dhanaitkar & Others reported in 2022 Law Suit (SC) 854, he would contend that property of public trust cannot be sold without obtaining permission. He would also contend that there is no error in the judgment and decree passed by the Trial Court and plaintiff having failed to prove his capability to mobilize funds, the discretionary relief which has not been granted requires to be affirmed. On the issue of possession of the suit schedule property, he would contend that the Trial Court has recorded a clear finding that plaintiff is not in possession but defendant is in possession of the suit scheduled proceeding which would not call for interference. Hence, he prays for dismissal of the appeal. In support of his submission, he has relied upon following citations:

(i) 2022 LawSuit (SC) 62 - Shenbagam and others vs. K.K.Rathinavel.

(ii) AIR OnLine 2022 SC 998 - U.N. Krishnamurthy (since deceased) Thr. Lrs. Versus A.M. Krishnamurthy.

(iii) 2022 Law Suit (SC) 854 - Khasgi (Devi Ahilyabai Holkar Charities) Trust, Indore & Anr. Versus Vipin Dhanaitkar & Others.

22. Shri N.M. Kapadia, learned counsel appearing for 5th defendant would draw the attention of the Court to the written statement filed by defendant Nos.1, 4 and 6. He would submit that from the date of alleged agreement of sale till filing of the suit, no demand has been made by the plaintiff and plaintiff has failed to prove its readiness and willingness throughout. He would submit that plaintiff’s evidence has to be discarded by trial court and rightly so, inasmuch as said witness had already resigned as a member of the society on 13.09.1999 and by relying upon the resolution dated 13.09.1999 passed by the plaintiff society, he prays this Court should also ignore the evidence of the plaintiff witness. He would also draw the attention of the Court to the finding recorded by the Trial Court on issue Nos.2 and 3 to contend that plaintiff has made false statements at four places and plaintiff’s witness did not produce authorization to represent the plaintiff or file the suit or depose before the Court. He would submit that a specific defence has been taken by the 5th defendant in paragraph 2 of the written statement and as such, the evidence tendered by the plaintiff cannot be looked into by this Court. By relying upon the judgment of the Hon’ble Apex Court in Man Kaur (Dead) by Lrs. vs. Hartar Singh Sangha reported in (2010) 10 SCC 512 (paragraph 17), he would submit that only person with personal knowledge could have deposed about the transaction and present witness Mr.Babulal is not a signatory to Exhibit 194 and none of the persons who have witnessed the execution of Exhibit 194 have entered the witness-box. Hence, he would contend that evidence of Babulal need not be looked into.

23. He would also contend that there is no pleading to the effect that Kunjbihari Bhagwat was the only trustee and he was authorized to sign on behalf of all the trustees. In the absence of pleading no amount of evidence will help the party. In support of this proposition, he has relied upon the judgment in the case of Biraji Alias Brijraji and another vs. Surya Pratap and others reported in (2020) 10 SCC 729 [LQ/SC/2020/763] . He would also contend that plaintiff is guilty of suppression of facts namely it has not whispered a word in the pleadings about the application filed under Section 36 having been rejected and hence, plaintiff is not entitled for discretionary relief namely specific performance. In support of said submission, he has relied upon the judgment of the Hon’ble Apex Court in Bhaskar Laxman Jadhav and others vs. Karamveer Kakasaheb Wagh Education Society and others, reported in (2013) 11 SCC 531 [LQ/SC/2012/1105] . He would contend that the conduct of the plaintiff disentitles it to any relief and by drawing the attention of the Court to the order dated 05.03.1992 passed in CRA No.141 of 1987 as per the Exhibit 134 to contend that even after direction issued, plaintiff had obtained 49 adjournments and as such, he prays for rejection of the appeal. He would contend that when Gujarat Revenue Appellate Tribunal in Appeal No.TGNAA.33 of 1986 had affirmed the order of the Charity Commissioner, who had refused to grant permission to sell the property, question of granting conditional decree does not arise. Hence, he prays for rejection of the appeal. In support of his submission, he has relied upon following judgments:

(1) N. Vijaya Kumar vs. Smt. Y.N.Leelavanthi – Judgment dated 05.05.2020 in Regular First Appeal No.1627 of 2014 passed by Karnataka High Court, Bengaluru Branch.

(2) (2010) 10 SCC 512 [LQ/SC/2010/1072] – Man Kaur (Dead) by Lrs. vs. Hartar Singh Sangha.

(3) (2007) 12 SCC 175 [LQ/SC/2007/1001] – Rozan Mian vs. Tahera Begum and others –

(4) (2013) 11 SCC 531 [LQ/SC/2012/1105] – Bhaskar Laxman Jadhav and others vs. Karamveer kakasaheb Wagh Education Society and others –

(5) Anubhai Premchand Shah vs. Vithoba Mandir Through its trustees and others – Order dated 21.04.1992 passed in Special Civil Application No.4656 of 1990.

(6) (1975) 1 SCC 770 [LQ/SC/1975/124] – Pasupuleti Venkateswarlu vs. The Motor & General Traders.

(7) (1997) 7 SCC 297 [LQ/SC/1997/1184] – Jaipur Development Authority vs. Kailashwati Devi (Smt.).

(8) (1985) 1 SCC 251 [LQ/SC/1984/316] – Variety Emporium vs. V.R.M. Mohd. Ibrahim Naina.

(9) (2016) 13 SCC 124 [LQ/SC/2016/767] – Union of India vs. K.V.Lakshman and others.

(10) (2008) 8 SCC 511 [LQ/SC/2008/902] – North Eastern Railway Administration, Gorakhpur vs. Bhagwan Das (Dead) by Lrs.

(11) (2018) 6 SCC 574 [LQ/SC/2018/599] – Y.P.Sudhanva Reddy and others vs. Chairman and Managing Director, Karnataka Milk Federation and others.

(12) (2008) 5 SCC 444 [LQ/SC/2008/1109] – Lachhman Singh (Deceased) Through Legal Representatives and others vs. Hazara Singh (Deceased) Through Legal Representatives and others.

(13) (2004) 10 SCC 507 [LQ/SC/2004/412] – Jayramdas and Sons vs. Mirza Rafatullah Baig and others.

(14) (2011) 15 SCC 692 [LQ/SC/2009/1790] – Radhakrishna Dharmartha Private Trust and others vs. Parmanand Soni (Dead) By Lrs.

(15) (2020) 10 SCC 729 [LQ/SC/2020/763] – Biraji Alias Brijraji and another vs. Surya Pratap and others.

(16) (2019) 9 SCC 495 [LQ/SC/2019/1449] – Sri Ganapathi Dev Temple Trust vs. Balakrishna Bhat Since Deceased by His Legal Representatives and others.

(17) (1994) 1 SCC 1 [LQ/SC/1993/933] – S.P.Chengalvaraya Naidu (Dead) By Lrs. vs. Jagannath (Dead) by Lrs. and others.

(18) Appeal Suit No.1052 of 1997 – Judgment dated 03.12.2019 rendered in case of Dr.K.Ananda Rao vs Andhra Evangelical Lutheran.

(19) Appeal No.TEN.A.A. 33 of 1986 – Judgment dated 13.06.2001 rendered by Gujarat Revenue Tribunal in the case of Bansidhar Amritlal Parikh vs. Yadavrao Madhavrao Bhagvat.

(20) Special Civil Application No. 7360 of 2001 – Bansidhar Amritlal parikh vs. Ranchhodbhai Visabhai Desai and Others.

(21) Special Civil Application No. 9962 of 2004 – Harjibhai Karamsibhai Desai vs. Swami Abhinnatmanand.

24. Mr.Devang Nanavati, learned Senior Advocate appearing for applicant in Civil Application No.3 of 2018 would contend that applicants are the holders of agreement of sale dated 18.08.1966 for which the Charity Commissioner had granted permission and claims to be necessary and proper party to the present proceedings as the suit schedule property for which the applicants have initiated proceedings for specific performance. Hence, he prays for the application being allowed. He has relied upon following judgments : -

(i) (2007) 10 SCC 82 [LQ/SC/2007/1204] – Sumtibai and Others versus Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) Through Mankanwar (Smt.) W/o Parasmal Chordia (Dead) and Others.

(ii) (2010) 7 SCC 417 [LQ/SC/2010/618] - Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited and others.

25. Mr. Mangukiya, learned counsel appearing for respondent Nos.1, 12 and 13 would contend that respondent No.1 is a juristic person and acts of human agency does not bind the trust. He would submit that trustees and trust have fiduciary relationship. He would also contend that suit schedule property is an agricultural land and plaintiffs/purchasers are not agriculturists and the transaction in question is hit by Section 63 of the Gujarat Tenancy and Agricultural Lands Act. He would submit that Section 36 and Section 80 of the Trusts Act bars Civil Court’s jurisdiction to grant any relief, as also Sections 10, 11 an 14 of the Specific Relief Act. He would contend that there is no pleadings in the plaint that transaction is for the benefit of trust and trustees had acted bonafide in the interest of trust. He would contend that in the memorandum of appeal, there is no mention about the finding of the Trial Court being erroneous or incorrect.

26. He would also elaborate his submissions by contending that neither the bye-laws of the plaintiff society have been produced nor the resolution. He would submit that the provisions of Order VI Rule 14 and 15 has not been complied and the plaint presented is not in accordance with Order XXIX. Hence, he prays for dismissal of Appeal. In support of his submissions he has relied upon following judgments : -

(1) AIR 2022 SC 3361 [LQ/SC/2022/846 ;] – U.N. Krishnamurthy (since deceased) Thr. Lrs. Versus A.M. Krishnamurthy.

(2) Civil Appeal No. 150 of 2022 & 2022 (2) SCALE 56 - Shenbagam and others vs. K.K.Rathinavel.

(3) AIR 2020 SC 3413 [LQ/SC/2020/204 ;] – Atma Ram v. Charanjit Singh.

(4) 1994 AIR 853; 1994 SCC (1) 1 – S.P. Chengalvaraya naidu vs. Jagannath.

(5) 1978 GLR 661 - Hamumiyan V.Bachumiyan.

(6) (2007) 7 SCC 482 [LQ/SC/2007/913] – A.A. Gopalkrishna v. Kochin Devasthanam.

(7) 2005 SCC Online Bom 706 – Janardan v. Ganapathi Devasthanam.

(8) 2010 (4) GLR 3562 – Prabodhkumar v. Modasa Kadva Patidar.

(9) (2006) 7 SCC 470 [LQ/SC/2006/775] – M. Meenakshi & Ors. vs. Metadin Agarwal (D) by Lrs. & Ors.

(10) (1997) 1 GLR 547 – Najmudin I. Bharmal and Ors. v. Charotar Gramoddhar Sahakari.

27. By way of reply arguments, Shri Yatin Oza, learned Senior Counsel appearing for the appellant has contended that there is an endorsement in Exhibit 194 of possession of suit schedule property having been delivered to the plaintiff and as such proving the contents of Exhibit 194 does not arise. By referring to Exhibit 205, he would contend that trustees (three trustees) have consented for sale of suit schedule property in favour of the plaintiff. According to him, when defendants have agreed and admitted that they have consented for sale of suit schedule property, they cannot take any contrary stand in this Appeal. He would rely upon Exhibit 205 to 207 to contend that all trustees have declared that all four trustees have signed and have given approval to the agreement of sale Exhibit 194 by filing an application filed before the Charity Commissioner dated 16.04.2001.

28. He would also submit that defendant Nos.2 to 6 having gone before the Charity Commissioner seeking permission to compromise and admitting thereunder that they would be willing to execute the Sale Deed, they cannot now contend that there are no pleadings with regard to readiness and willingness. He would draw the attention of the Court to Civil Application No.2 of 2014 and Civil Application No.6 of 2022 to contend that plaintiffs have admitted to have filed application before the Charity Commissioner agreeing and willing to sell the suit schedule property in favour of plaintiff. Shri Oza, learned Senior Counsel would contend since ULC Act has been repealed, the order of rejection of ULC authorities would be of no consequences and in support of his submission, he has relied upon 2020 SCC Online 825.

29. By relying upon the judgments reported in 2022 SCC Online (SC) 351 and (2016) 14 SCC 161, [LQ/SC/2016/965] he would contend that defendants cannot be allowed to take contradictory stands namely having taken a stand before the Charity Commissioner agreeing to sell the suit schedule property in favour of the plaintiff cannot now contend and try to find holes in the plaint to stave off the claim of plaintiff. He would also contend that endorsement made on 18.04.1976 in Exhibit 194 by defendants would clearly go to show that possession of the suit schedule property was delivered to plaintiff. He would also submit that issue regarding readiness and willingness was not framed and Court below had committed an error in recording a finding on the said aspect without framing an issue. In reply to the argument of Mr.Mangukiya that the suit is hit by Order II Rule 2, he relies upon the judgment of the Hon’ble Apex Court in (2004) 11 SCC 219 [LQ/SC/2004/645] . In reply to the argument that Exhibit 194 is hit by Section 63 of the Gujarat Tenancy and Agricultural Lands Act, he would contend that Clause (c) of the Section 63 was inserted with effect from 1977 namely by Act 30 of 1977 and Section 64A then prevailing permitted sale of agricultural property in favour of a cooperative housing society and this provision was deleted only from 1987 namely by Act 21 of 1987 and as such, he prays for rejection of the contentions raised by the respondents and prays for appeal being allowed.

30. Having heard the learned advocates appearing for the parties we are of the considered view that following points would arise for our consideration :

(i) Whether the applications filed for additional evidence in Civil Application Nos. 2 of 2007, 3 of 2007, 2 of 2014, 3 of 2014, 1 of 2015, 2 of 2022, 3 of 2022, 4 of 2022, 5 of 2022 and 6 of 2022, deserve to be allowed or rejected

(ii) Whether Civil Application No. 1 of 2016 filed by 5th respondent under section 151 CPC and order 14 Rule 2(2) of CPC and Section 46 of Bombay Public Trust Act, 1950 deserves to be allowed or dismissed

(iii) Whether Civil Application No. 1 of 2022 filed by appellant for deletion of respondent no. 2 to 10 from the Appeal appeal deserves to be allowed or rejected

(iv) Whether Civil Application No. 3 of 2018, filed by the proposed respondents for being impleaded as respondents in First Appeal deserves to be allowed or dismissed

(v) Whether Civil Application No. 7 of 2022 filed by the appellant deserves to be allowed and as such proposed applicants are to be impleaded as respondents 16 and 17 or it is to be rejected

(vi) Whether the judgment and decree passed in Special Civil Suit No. 167 of 1984 deserves to be set aside or confirmed or to be varied

(vii) Whether the court below has properly evaluated the evidence both oral and documentary tendered before it in proper perspective or it suffers from any infirmity whatsoever calling for interference

(viii) Whether what order

31. During the pendency of the present appeal, several applications for additional evidence, production of documents to bring Legal representatives, condoning the delay in filing such applications, framing of preliminary issue, impleading of certain parties, deleting of respondent Nos. 2 to 10 have been filed. In fact, it would not be out of context to refer at this juncture itself that some of the applications have been filed without even specifying the provisions of law. For the purposes of convenience, we have tabulated the said interlocutory applications hereinbelow:

Sr. No.	Particulars
1.	CA No.1/2007 (Renumbered as CA No.6547/2007) – Whereunder 9 documents have been sought for being produced. This Court by order dated 12.4.2022 dismissed the said application as not pressed, since learned counsel appearing for the appellant who had filed the said application had made a submission to the said effect.
2.	CA No.2/2007 (Old CA No.6594/2007) filed by respondent No.5 herein seeking for production of 12 documents. None of the documents are originals or certified copies.
3.	CA No.3/2007 (Old CA No.9391/2007) filed by respondent No.5 herein seeking for production of 9 documents. None of the documents are originals or certified copies.
4.	CA No.2/2014 (Old CA No.6097/2014) filed by respondent No.5 herein seeking for production of 4 documents. None of the documents are originals or certified copies. Shri Yatin Oza, learned Senior Counsel appearing for the appellant has submitted that he has no objection for allowing this application.
5.	CA No.3/2014 (Old CA No.8385/2014) filed by No.5 herein seeking for production of 4 documents. Though none of the documents are certified copies, subsequently along with affidavit dated 30.7.2022, the third document viz. certified copy of the order dated 9.1.2004 passed in Appeal No. CIT(A)-I CC.1(I)/24.2.2003 by CIT (Appeals) has been tendered.
6.	CA No.1/2015 (Old CA No.7389/2015) filed by respondent No.5 herein seeking for production of the order dated 13.6.2001 (photocopy) passed by Gujarat Revenue Tribunal in Appeal No.TEN A.A 33/1986. Subsequently, the applicant by affidavit dated 11.2.2022 has tendered certified copy of said order dated 13.6.2001.
7.	CA No.2/2015 (Old CA No.7388/2015) filed by the applicant seeking for being impleaded. The said application has been dismissed vide order dated 13.8.2018 and it has reached finality.
8.	CA No.1/2016 (Old CA No.12486/2016) filed by respondent No.5 herein under Section 151 and Order 14 Rule 2(2) of CPC and Section 46 of the Bombay Public Trusts Act, 1950 to frame preliminary issue regarding maintainability of suit / appeal on the ground of absence of permission under Section 36 of the Bombay Public Trusts Act, 1950, the prayer for specific performance does not survive.
9.	CA Nos.1 and 2/2018 filed by applicant for condoning the delay in bringing the legal heirs of deceased respondent No.6.1 (Shri Kishor Sankhyari Bhagwat) and to bring the legal representatives. These applications have been allowed vide order dated 2.5.2018 and legal heirs of deceased respondent No.6 have been brought on record as respondent Nos.6.1.1 to 6.1.4.
10.	CA No.3/2018 filed by the proposed respondents seeking for impleadment as party respondents in the First Appeal without invoking provisions of law and claiming that they had filed an application for impleading in Regular Civil Appeal No.27/2006 and they have interest in the suit schedule property.
11.	CA No.1/2022 filed by appellant herein for deletion of original respondent Nos.2 to 10 from the appeal.
12.	CA No.2/2022 filed by appellant herein for production of additional evidence viz. to mark the documents as exhibits which are produced along with the plaint – list of documents as Mark 3/1 to 3/3, 3/5, 3/6, 3/8, 3/9, 129/16, 129/32, 129/33, 129/34. The applicant has also sought for production of 6 documents as morefully described in paragraph 4 of the application. All these documents are photocopies. In fact, document Nos.3 to 6 have come into existence subsequent to the impugned judgment and decree. Further, it requires to be noticed that these documents viz. 3 to 6 have been produced by respondent No.5 along with Civil Application No.6447/2007 (New CA No.1/2007 which has been dismissed as not pressed vide order dated 12.4.2022.
13.	CA No.3/2022 filed by appellant herein for production of scheme dated 6.6.1989 framed by the Charity Commissioner, Gujarat which is a photocopy and not accompanied by original or certified copy. However, this very document has also been produced by respondent No.5 herein along with CA No.6794/2007.
14.	CA No.4/2022 filed by respondent No.5 herein under Order 41 Rule 27 and Order 11 Rule 14 of CPC for production of 9 documents, out of which document Nos.1 to 5 and 8 have come into existence subsequent to the impugned judgment and decree passed by the Trial Court.
15.	CA No.5/2022 filed by appellant herein under Order 41 Rule 27 of CPC read with Order 11 Rule 5 of CPC and Section 107(2) of CPC for direction to respondent No.15 to produce the order dated 16.9.1991 passed by Joint Charity Commissioner, Ahmedabad in Inquiry Case No.30/85.
16.	CA No.7/2022 filed by appellant herein under Order 1 Rule 10 of CPC read with Section 107(2) of CPC for impleading Shri Jatin Rameshchandra Jalundhwala and Dr. Malay Rameshbhai Mahadeviya on the ground that they have been appointed as trustees of defendant No.1 trust by the Charity Commissioner vide order dated 29.11.2021.

FINDINGS OF THE TRIAL JUDGE :

32. On the basis of pleadings of the parties, learned trial Judge has framed the following issues : -

“(1) Whether the plaintiff proves that plaintiff society is duly registered under the Gujarat Cooperative Societies Act

(2) Whether the plaintiff proves that the earnest deed of the suit land was executed by M/s. Chhaganlal and Company, in their favour and the defendants have also given their consent in this respect

(3) Whether the plaintiff proves that they have paid the amount of Rs.45,000/- to M/s.Chhaganlal and Company and the defendant trust as contended in para 1 of the plaint

(4) Whether the plaintiff proves that on the day of filing of the present suit they are in possession of the suit lands

(5) Whether the plaintiff proves that the defendants are trying to take away the possession of the suit land from them and also trying to transfer the suit lands in favour of other persons

(6) Whether the defendant proves that the suit of the plaintiff is bad for non-joinder of necessary party

(7) Whether the defendant No.1 to 6 proves that this Court has got no jurisdiction to try this suit

(8) Whether the defendants No.1 to 6 proves that the suit of the plaintiff is time barred

(8a) Whether the present suit is maintainable in view of the decree regarding the suit property in favour of defendant No.15 passed in Civil Suit No.16 of 1971 filed F.A. No.362 of 1976 of Gujarat High Court

(9) Whether the plaintiffs are entitled to get relief as prayed for

(10) What order and decree”

33. As noted above, one Mr. Babulal came to be examined on behalf of plaintiff. Learned trial Judge while adjudicating issue No. 2 & 3 has held plaintiff had failed to prove of having made payment of Rs. 30,501/- to defendant No. 1 to 8 and Rs. 45,000/- to 14th defendant. It has been further held defendants have admitted to having consented to have executed agreement of sale dated 18.04.1976 and on the ground of defendant Nos. 7 and 8 having not affixed their signatures to sale agreement, issue No. 2 has been held to have been proved partly.

34. On issue No. 3, learned trial Judge has arrived at a conclusion that plaintiffs have failed to prove the same namely having paid Rs. 45,000/- to defendant No. 14 and Rs. 30,501/- to defendant Nos. 1 to 8.

35. Issue No. 4 and 5 related to plaintiff proving its alleged possession of suit schedule property and same has been held to have not been proved by plaintiff, by arriving at a conclusion that plaintiff had failed to prove possession of suit schedule property having been delivered by 14 defendant to plaintiff. It has been further held that form 7/12 for the year 1975-76 would reflect the name of Anubhai Premchand in the columns of possession. It has also been held plaintiff has not examined the Watchman who according to plaintiff had been appointed to take care of suit schedule property. The alleged claim of plaintiff that defendants were attempting to dispossess the plaintiff from suit schedule property has been negatived by answering issue no. 5 against plaintiff and it has been further held that plaintiff had failed to prove alleged threat of defendants and their attempts to take forcible possession of suit schedule property.

36. At regards issue No. 6 to 8 it has been held in the negative by the trial Court. To prove issue no. 6, burden was cast on defendants. It was the plea of defendant that suit schedule property was in possession of a tenant. On account of document having not been tendered before trial Court, it has been held that defendants had failed to prove said issue. Issue No. 7 & 8 are also held to be not proved by defendants according to learned trial Judge on the ground that extension of time was agreed for performance of agreement of sale.

37. Insofar as issue No. 8-A which related to res judicata, it came to be held by trial Judge that plaintiff had filed an application to get itself impleaded in First Appeal No. 362 of 1976, which came to be rejected by observing that consent decree passed in Civil Suit No. 16 of 1971 would not affect the right of plaintiff vide order dated 07.07.1983 passed in Civil Appeal No. 2437 of 1983 (Exhibit 124/1) and considering said order, present suit was held to be maintainable and it was not barred by res judicata.

38. While answering issue No. 9 & 10 in the negative, learned trial Judge has observed permission of Charity Commissioner was lacking; permission from competent authority for selling agricultural land was not there; all the conditions of agreement of sale is not satisfied; plaintiff was not ready and willing to pay balance sale consideration; ULC permission was not available; on these grounds these two issues were answered against plaintiffs.

39. Having regard to the alternative prayer of refund of advance money paid by plaintiff, same has been ordered to be re-paid by defendant Nos. 1 to 8 and 14 namely Rs. 25,000/- & 40,000/- respectively with interest @ 12% p.a. from date of receipt.

40. In the aforesaid background, we proceed to adjudicate the points formulated hereinabove.

DISCUSSION AND FINDINGS

RE : POINT NO. (i)

41. These applications namely Civil Application No. 2 of 2007, 3 of 2007, 2 of 2014, 3 of 2014, 1 of 2015, 2 of 2022, 3 of 2022, 4 of 2022, 5 of 2022 and 6 of 2022 have been filed under Order 41 Rule 27 for production of additional evidence.

42. Before proceeding to adjudicate as to whether these applications are to be allowed or dismissed, it would be apt and appropriate to note the contours of consideration of such applications. It is trite law that jurisdiction of the Appellate Court would be exercised not only when Clause (a) or Clause (aa) of Sub-Rule (1) of Rule 27 of Order 41 of the code is attracted but also where such document is required by the Appellate Court to pronounce the judgment or for any other substantial cause. If such additional evidence would have a material bearing on the crucial issue arising for decision between the parties, such application would be allowed de hors the allowable deficiency, if any. If certified copy of public documents are produced and they have a bearing on the issue involved in the Appeal or the said document would throw light on the issue to be adjudicated in the Appeal, then also appellate Court would be justified in allowing the application for additional evidence. However, if the said documents would in no way espouse the cause of either of the parties or it has some remote connection which would not be necessary for arriving at ultimate conclusion, then, such documents would not be permitted to be taken on record. In the absence of plea raised, no any amount of evidence tendered would be of any use.

43. The Appellate Court has power to allow additional evidence not only if it requires such evidence “to enable it to pronounce judgment” but also for “any other substantial cause”. Though general rule is that ordinarily, the Appellate Court would not travel outside the record of the lower Court and additional evidence, whether oral or documentary is not admitted, but Section 107 of CPC carves out in exception to the General Rule and enables the Appellate Court to take additional evidence or to require such evidence to be taken, subject to such conditions and limitations as may be prescribed namely as prescribed under Rule 27 of Order 41. Circumstances under which additional evidence are adduced are; firstly – the Court from whose decree the Appeal is preferred has refused to admit evidence which ought to have been admitted [Clause (a) of Sub-Rule (1)], secondly – the parties seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence such evidence was not within the knowledge or after exercise of due diligence be produced by him at the time when the decree appealed against was passed (Clause (aa) of Sub-Rule (1)); thirdly – the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause (Clause (b) of Sub-Rule (1).

44. The scope of Sub-Rule (1) of Rule 27 of Order 41 was examined by Privy Counsel way back in 1931 in the matter of Parsotim Thakur versus Lal Mohar Thakur reported in AIR 1931 PC 143 and held by observing that provisions of Section 107 is elucidated by order 41 Rule 27 are not clearly intended to allow litigant who has been unsuccessful in the Lower Court to patch up the weak parts of his case and fill up the omissions in the Court of Appeal. The aforesaid principle was noticed by the Hon’ble Apex Court in the case of North Eastern Railway Administration, Gorakhpur vs. Bhagwan Das (Dead) by Lrs. - (2008) 8 SCC 511 [LQ/SC/2008/902] and held as under : -

“15. Again in K. Venkataramiah Vs. A. Seetharama Reddy & Ors. a Constitution Bench of this Court while reiterating the afore-noted observations in Parsotim's case (supra), pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence 'to enable it to pronounce judgment' but also for 'any other substantial cause'. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence 'to enable it to pronounce judgment', it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits.”

45. Thus, irresistible conclusion which can be drawn is, if appellate Court finds that additional evidence sought to be admitted, are necessary to pronounce judgment in a satisfactory manner, it would allow the application as otherwise it would be dismissed. The caveat on this issue would be that before considering or adjudicating the Appeal on merits, it would be apt and appropriate that such application filed for additional evidence being taken up before taking up the Appeal. Hence, we are examining these applications independently before proceedings to adjudicate the Appeal on merits.

46. In the instant case, it requires to be noticed that plaintiff has filed the suit for specific performance of agreement to sell dated 27.12.1974 (Exhibit 194). In order to substantiate their respective pleadings, applications for additional evidence have been filed by both the parties namely the plaintiff and the defendants seeking production of certain documents. It is also in this background, these applications are being considered by us.

Civil Application No. 2 of 2007.

47. This application has been filed by fifth defendant. These documents undisputedly have come into existence not only subsequent to the filing of the Suit but also subsequent to the judgment and decree passed by the trial Court. The documents which are sought to be produced are:-

Sr. No.	Document
1.	Income Tax Appellate Order dated 09.01.2004 in Appeal No. (CIT) (a)=I CC.1(I)/24.02.03 in case of Jivraj V. Desai regarding the period between 01.04.1990 to 20.10.2000 indicating transaction of the popular builders taking over the structure of appellant society.
2.	Letter dated 07.05.2007 by Suhas Bhagwat to the Assistant Commissioner of Income Tax requesting to supply certified copies of the documents regarding block assessment in connection with Jivrajbhai V. Desai.
3.	Letter dated 12.05.2006 by Suhas Bhagwat to the Assistant Commissioner of Income Tax requesting to supply certified copies of the documents regarding block assessment in connection with Jivrajbhai V. Desai.
4.	Audit reports dated 06.12.2004 for the period between 01.04.2003 to 31.03.2004 of the Vitthal Mandir Trust.
5.	Audit reports dated 26.12.2005 for the period between 01.04.2004 to 31.03.2005 of the Vitthal Mandir Trust.
6.	Audit reports dated 21.10.2002 for the period between 01.04.2021 to 31.03.2002 of the Vitthal Mandir Trust.
7.	Audit reports dated 03.09.2001 for the period between 01.04.2000 to 31.03.2001 of the Vitthal Mandir Trust.
8.	Audit reports dated 28.12.2000 for the period between 01.04.1998 to 31.03.1999 of the Vitthal Mandir Trust.
9.	Audit reports dated 28.12.2000 for the period between 01.04.1997 to 31.03.1998 of the Vitthal Mandir Trust.
10.	Audit reports dated 28.04.1998 for the period between 01.04.1997 to 31.03.1998 of the Vitthal Mandir Trust.
11.	Order framing the Scheme by the Joint Charity Commissioner dated 06.06.1989 bearing scheme application no. 17/1985 regarding Vitthal Mandir Trust giving details of the beneficiaries of Bhagwat Family members (effect of decree of the Court) (certified copy of the scheme produced on record vide separate affidavit in Civil Application).
12.	Memorandum of Understanding (MoU) recovered from Arvind Shah the accountant of Jivram Master indicating the purchase of structure of appellant society by Popular Builder dated 05.07.1998 received along with Income Tax Order. (certified copy is placed on record with Civil Suit No. 1847/04).

48. According to applicant - 5th defendant, these documents were obtained from Income Tax Department and it relates to the assessment order passed in respect of Mr. Jivraj B. Desai, audit reports relating to first defendant – trust as well as the scheme framed by Joint Charity Commissioner dated 06.06.1989 contending inter alia that these documents are necessary to establish or required to prove alleged criminal conspiracy which has been hatched by the persons in collusion with each other to grab the valuable property of the trust viz. suit schedule property.

49. By this application, the applicant also seeks production of application filed for granting permission before the Charity Commissioner under section 35 fo the Act, after entering into MoU. A perusal of the averments made in the application would indicate that in order to drive home the inter se disputes then existing amongst the trustees is sought to be placed on record as already noticed hereinabove. These documents are not only photocopies but also not certified copies. Even otherwise said documents would not be required to adjudicate the real controversy involved in the present Appeal. That apart, the applicant has failed to prove the ingredients of Sub-rule (1) of Rule 27 of Order 41 and has also failed to prove as to how these documents would have any bearing on the aspects involved in this Appeal or issues involved in the suit. Hence, we are of the considered view Civil Application No. 2 of 2007 (Old Civil Application No. 6794 of 2007) filed by defendant No. 5 deserves to be rejected and accordingly it stands rejected.

Civil Application No. 3 of 2007.

50. This is an application filed by fifth respondent seeking production of 9 documents namely following documents : -

Sr. No.	Document
1.	List of documents by the Court Commissioner dated 26.10.1989 in RCS No. 543/89 in case of Anubhai Premchand Shah v. Mittal Mandir Trust before the Civil Court, Ahmedabad Rural.
2.	Intimation by the Court Commissioner dated 24.10.89 to carry out the Court Commission in RCS No. 543/89 in case of Anubhai Premchand Shah v. Mittal Mandir Trust before the Civil Court, Ahmedabad Rural.
3.	Written statement dated 27.09.89 by the trustees of Vitthal Mandir Trust in RCS No. 543/89 in case of Anubhai Premchand Shah v. Mittal Mandir Trust before the Civil Court, Ahmedabad Rural, pleading the possession of the suit land with the trust only.
4.	Panchnama dated 24.10.89 of the suit land indication possession of Vitthal Mandir Trust in RCS No. 543/89 in case of Anubhai Premchand Shah v. Mittal Mandir Trust before the Civil Court, Ahmedabad Rural along with typed copy (certified copy is placed on record with CA 8385/14).
5.	The notice dated 21.12.2006 by the District Registrar regarding proceedings of cancellation & Liquidation of Appellant Society.
6.	Letter dated 15.10.2005 by the District Registrar Co-operative Societies (Rural) Ahmedabad by Suhas Bhagwat asking to remain present for supply of documents regarding appellant society.
7.	Report dated 30.11.2004 by the certified auditor of the appellant society for the period between 01.071999 to 31.03.2004 received under the RTI Act by Suhas Bhagwat along with the accounts and the list of members as on 31.03.2004 and the register of the members.
8.	Reply dated 16.01.2007 by the appellant society to the District Registrar Cooperative Societies.
9.	The relevant page of yellow pages indicating address of Popular Buildings at Shanti Chambers, Ashram Road, Ahmedabad.

51. The applicant who is fifth defendant before trial court has contended that in order to establish that appellant has made incorrect statement with regard to possession of suit schedule property by contending that Shri Ranchodbhai V. Desai and Harjibhai K. Desai, respondent No. 11 and 12 respectively, have stated before the Charity Commissioner in the proceedings initiated in Section 35 of the Bombay Public Trust Act and before AUDA that possession of suit schedule property is with the trust and simultaneously they had made a incorrect statement before the Charity Commissioner on subsequent occasion that the possession of the suit property is with the appellant. By relying upon the report of the Court Commissioner made in Regular Civil Suit No. 543 of 1999 they seek to displace the stand of appellant. It is also the endeavour of fifth defendant to establish before this Court that plaintiff society is changing the members and office bearers of the society and to establish the said fact and prove new members have been added to the society, this application has been filed seeking production of documents specified in the application. The issue relating to possession has to be adjudicated not only as on date of agreement Exhibit 194 but also as on date of suit. Said exercise can be done without looking into the documents sought to be produced. None of the documents are original or certified copies and for the reasons already indicated by us while disposing of Civil Application No. 2 of 2007 and for the same reasons, this application deserves to be rejected and accordingly it stands rejected.

Civil Application No. 2 of 2014.

52. This application has been filed by fifth defendant seeking production of following documents:-

Sr. No.	Document
1.	Certified copy of Application for according consent to the compromise with the appellant dated 16.04.2001 regarding present First Appeal made to the Charity Commissioner.
2.	Certified copy of the order of rejection dated 05.12.2001 by the Charity Commissioner regarding application for compromise with the appellant dated 16.04.2001 regarding presnet First Appeal made to the Charity Commissioner.
3.	Certified copy of the application for the sale of land to the appellant u/s 36 of Bombay Public Trust Act by the trustees dated 30.08.2003 to the Charity Commissioner.
4.	Certified copy of the order dated 31.01.2004 to the appellant u/s 36 of the Bombay Public Trust Act by the trustees dated 30.08.2003.

53. We have heard the arguments of Shri N.M. Kapadia, learned counsel appearing for fifth defendant and Mr. Yatin Oza, learned Senior Counsel appearing for appellant, who has submitted that he has no objection for allowing this application. A perusal of the averments made in the said application would indicate that fifth defendant intends to place on record that respondent no. 11 to 13 herein in alleged collusion with the appellant has sought permission to sell the suit schedule property and had filed an application under section 36 of the Bombay Public Trusts Act on 23.10.2000, during the pendency of the Appeal, which came to be rejected by the Charity Commissioner vide order dated 31.01.2004 and contending that it is a subsequent event which had taken place and seeking production of aforesaid four documents, this application has been filed.

54. In the light of learned Senior Counsel appearing for appellant having stated no objection this application is allowed and four documents are ordered to be marked as Exhibit 219 to Exhibit 222 and accordingly they are marked.

Civil Application No. 3 of 2014.

55. This application has been filed for production of following four documents : -

Sr. No.	Document
1.	Certified copy of Application by the trustees of the Charity Commissioner for the construction of temple and Dharmashala dated 12.10.98 under section 35 of the Bombay Public Trust Act.
2.	Certified copy of the order dated 10.02.1999 by the Charity Commissioner regarding application by the trustees to the Charity Commissioner for the construction of temple and Dharamshala dated 12.10.98.
3.	True copy of the Income Tax Appellate order dated 19.01.2004 in Appeal No. CIT(A)- ICC.1(I)/24/02/03 in case of Jivraj V. Desai regarding Block period between 01.04.1990 to 20.10.2000 indicating transaction of the Popular Builders taking over the structure of appellant society (Certified copy produced before the Civil Court in Civil Suit No. 1847 of 2004).
4.	Certified copy of the panchnama dated 24.10.89 of the suit land indication possession of Vitthal Mandir Trust in RCS No. 543/89 in case of Anubhai Premchand Shah v. Vitthal Mandir Trust before the Civil Court, Ahmedabad Rural along with typed copy.

56. By this application, fifth defendant is seeking production of aforesaid four documents contending inter alia that said documents are essential for deciding the controversy that has arisen in this Appeal. It has been contended, though permission had been granted to the trustees to construct Nursing Home, commercial complex and residence, but trustees had applied for construction of commercial units and contending that they are guilty of fraud perpetrated, they are seeking production of these documents. None of these documents have any bearing for deciding the real controversy between the parties involved in the present Appeal. Except document No. 3, which is a certified copy of the order passed by the Commissioner of Income Tax (Appeals) that too along with an affidavit dated 30.07.2022. All other three documents are not certified copies, that apart we find that these documents would not be required for adjudication of the real controversy between the parties and as such, said application stands rejected.

Civil Application No. 1 of 2015.

57. This is an application filed for production of the order dated 13.06.2007 passed by Gujarat Revenue Tribunal. Subsequently by affidavit dated 11.02.2022, certified copy has been produced which would reflect by the said order, tribunal had confirmed the order of the Charity Commissioner dated 26.02.1986 who had rejected the application filed seeking permission to sell the suit schedule property. Since one of the issue involved in the present Appeal is whether there was a permission by the Charity Commissioner under section 36 of the Gujarat Public Trusts Act to sell the suit schedule property by the first defendant trust or otherwise, we are of the considered view that said application requires to be allowed and accordingly it is allowed and the document is permitted to be marked as Exhibit 223.

Civil Application No. 2 of 2022.

58. This is an application filed for production of following documents by way of additional evidence : -

1. Photocopy of the order passed by the Charity Commissioner dated 26.06.1967.

2. Photocopy of the order dated 16.09.1991 passed by the Joint Charity Commissioner, Ahmedabad in Inquiry Case No. 30/85.

3. Photocopy of the application bearing No. 1/2001 said to have been filed by the trustees of Vitthal Mandir Trust before the Charity Commissioner (Filed on 16.04.2001).

4. Photocopy of the order dated 05.12.2001 passed in Application No. 1/2001 by the Charity Commissioner along with covering letter dated 06.12.2001;

5. Photocopy of the application No.36/59/2003 said to have been filed by trustees of Vitthal Mandir Trust before the Charity Commissioner on 30.08.2003.

6. Copy of the order dated 31.01.2004 in Application No. 36/59/2003.

59. The documents which are sought to be produced as Annexure C to F (as indicated in the Civil Application) have also been sought for being produced by the fifth respondent in Civil Application No. 2 of 2014, which has been allowed by us by order of even date hereinabove. Thus, what remains to be considered is whether documents styled as Annexure A and B are to be produced or not These are two orders which are passed by the Charity Commissioner and Joint Charity Commissioner dated 26.06.1967 and 16.09.1991 along with enclosures thereto to contend that trustees of the first defendant have given consent for agreement to sell dated 27.12.1974 (Exhibit 194) as same is reflected in the said order. Both these orders are photocopies and original or certified copies are not produced. On this ground alone, it is liable to be rejected and accordingly it stands rejected. Consequently Civil Application No. 2 of 2022 stands rejected.

Civil Application No. 3 of 2022.

60. By this application defendant intends to produce the copy of the scheme dated 06.06.1989 framed by the learned Charity Commissioner in respect of first defendant trust. On the short ground, this document was also sought to be produced by fifth respondent by Civil Application No. 2 of 2007 (Old Civil Application No. 6794 of 2007), which has already been dismissed vide order of even date referred to supra, we are of the considered view that entertaining of this application would not arise and it stands rejected. It is also noticed said document is sought for being produced along with Civil Application No.6 of 2022 and as such it would be examined when we take-up Civil Application No.6 of 2022.

Civil Application No. 4 of 2022.

61. By this application, fifth defendant has sought for production of nine documents styled as Annexure A to I. By these documents, fifth defendant seeks to buttress the arguments that structure of the plaintiff society has changed and most of the old members of the society were removed and new persons were inducted. The application filed before the Assistant District Registrar, Cooperative Society, Ahmedabad, seeking the list and members of the plaintiff society and exchange of correspondence between fifth defendant and the officials of the Corporation Department, is sought to be produced. In substance, fifth defendant intends to place reliance on the reply received from Cooperative Department to contend that old members have resigned and new members have been inducted to the plaintiff society. Undisputedly, these documents have come into existence subsequent to the filing of the suit. It is no doubt true that subsequent events can be taken note by this Court as held by the Hon’ble Apex Court in the case of M/s. Variety Emporium vs. V.R.M. Mohd. Ibrahim Naina, reported in 1985 AIR SC 207. At the cost of repetition, it requires to be noticed that applicant will have to be necessarily establish as to how the said evidence would be of any relevance for adjudication of the issue relating to the grant of decree for specific performance or not. It is not doubt true that issue of hardship or exercise of discretionary relief is concerned, same would be considered as one of the factors. However, that by itself would not be sufficient to arrive at a conclusion one way or the other. In other words, the issue relating to grant of specific performance or refusal would not hinge upon these documents and it would not be of any vital importance for this Court to adjudicate the rival claims that has been raised in this regard. Hence, we are of the considered view that these documents would not be of any relevance for adjudicating the real controversy between the parties and as such Civil Application No. 4 of 2022 stands rejected.

Civil Application No. 5 of 2022 and 6 of 2022.

62. These applications have been filed for production of documents specified therein. As could be seen from Civil Application No. 5 of 2022, plaintiff – appellant is seeking for production of copy of the order dated 16.09.1991 passed by Joint Charity Commissioner, Ahmedabad in Inquiry Case No. 30/85 and for production of application dated 12.04.2022 filed by it seeking certified copies from the Charity Commissioner. In fact these two documents have also been sought for being produced through Civil Application No.6 of 2022. On this ground, Civil Application No.5 of 2022 is dismissed.

63. Whereas, Civil Application No. 6 of 2022 is filed by appellant seeking production of two documents referred to hereinabove, as well as copy of order dated 26.06.1967 and applications filed by the trustees of the first defendant – Trust before the Charity Commissioner including the order passed thereon. Subsequently the certified copies of the application dated 12.04.2001, application dated 06.12.2001, order dated 05.12.2001 passed by the Charity Commissioner, application dated 30.08.2003 filed by the first defendant – Trust before the Charity Commissioner, the scheme dated 06.06.1989, consent terms dated 12.07.1984 executed in First Appeal No. 362 of 1976, order dated 12.07.1984 passed in First Appeal No. 362 of 1976, judgment dated 19.11.1997 passed in C.R.A. No. 1235 of 1992, order dated 14.10.2010 passed by Charity Commissioner in Revision Application No. 11 of 2005, order dated 29.11.2011 passed by Charity Commissioner, Gujarat State, Ahmedabad, application dated 29.11.2021 (Exhibit 13) and order dated 13.02.2017 and 11.01.2018 passed in First Appeal No. 1814 of 2012, judgment passed in Civil Misc. Application No. 1052 of 2010 by the City Civil Court, Ahmedabad dated 02.09.2011, order dated 31.01.2004 passed by Charity Commissioner, are only allowed and marked as Exhibit 224 to 237 since these documents would have some relevance on the controversy involved in this appeal and in the background of pleadings laid before trial court. Accordingly, Civil Application No. 6 of 2022 stands partly allowed.

RE : POINT NO. (ii)

64. Civil Application No.1 of 2016 is filed under section 151 of CPC read with Order XIV Rule 2(2) praying this Court to frame the following preliminary issues : -

“(i) Whether the Suit/Appeal is maintainable in view of the absence of and/or are rejection of application under section 36 of the Bombay Public Trust Act and also dismiss the appeal as barred by law and also by holding that cause of action does not survive and also in view of the fact the conduct of the respondents 11 to 13;

(ii) In the alternative dismiss First Appeal No. 3517 of 2000 filed by the original applicant, qua prayer of specific performance and to confirm the judgment and decree passed by the learned trial Judge in the suit.”

65. A perusal of averments made in the application would indicate fifth defendant is contending inter alia that on account of application filed under section 36 of the Bombay Public Trusts Act having been rejected, the present Appeal would be barred by Law as cause of action would not survive for consideration. This is an issue which requires to be examined in the Appeal by examining the correctness and legality of the judgment and decree passed by the trial Court, in the teeth of the pleadings and the evidence available. Hence, we are of the considered view that this application requires to be rejected and accordingly it stands rejected.

RE. POINT NO. (iii)

66. Civil Application No.1 of 2022 has been filed by the plaintiff under section 151 of CPC for deletion of respondent Nos. 2 to 10 from this Appeal on the ground that they have either resigned or have been removed from the trustship of 1st defendant. It is also stated that first defendant – trust is presently represented by the existing trustees, who are joined as respondent Nos. 11 to 13 and contending that defendant Nos. 2 to 10 namely defendants – respondents being ex-trustees are no longer proper and necessary parties in the present First Appeal. Plaintiff admit that first defendant – trust is contesting the present Appeal. It is also admitted by the applicant – plaintiff that there is dispute amongst the trustees and if it were to be so, it is for the said parties namely the 1st defendant trust and its trustees to work out their rights in appropriate Forum and in this suit for specific performance inter se dispute even if any between the trustees or between the trust and the trustees cannot be the subject matter of consideration in this Appeal, which is filed by unsuccessful plaintiff being aggrieved by judgment and decree passed dismissing the suit for specific performance and decreeing the suit for refund of money paid by it. Hence, Civil Application No. 1 of 2022 stands rejected.

RE. POINT NO. (iv)

67. Civil Application No.3 of 2018 has been filed by the legal heirs of Mr. Pramukhlal Jivanlal Parikh and Mr. Ambalal Ishwarlal Prajapati seeking for being impleaded as parties to the present appeal. Mr. Devang Nanavati, learned Senior Advocate appearing for the applicants would contend that an agreement of sale had been executed by Mr. Madhavrao Bhagwat as trustee of defendant No.1 in favour of Mr. Pramukhlal Jivanlal Parikh and Mr. Ambalal Ishwarlal Prajapati to sell the suit schedule property in their favour and permission had also been granted on 27.10.1970 by the learned Charity Commissioner for sale of suit schedule property in favour of Shardaben Chimanlal Trust. It is contended that trustees of Vitthal Mandir Trust – defendant No.1 executed an agreement of sale in favour of Mr. Mukundbhai Chimanbhai Shah (Jalpa Traders) on 3.4.1972 for selling the suit schedule property and in turn Jalpa Traders executed an agreement in favour of Chhaganlal & Company – defendant No.14 on 23.11.1973 and this was confirmed by defendant No.1 trust. It is further stated that Chhaganlal & Company executed an agreement of sale in favour of the plaintiff society on 27.12.1974. He would contend that defendant No.1 trust had also executed an agreement to sell on 23.5.1964 in favour of Mr. Manharlal Nagindas Bhandari and permission had also been granted by the Charity Commissioner on 4.6.1964 to sell the suit schedule proper in favour of Mr. Manharlal Bhadari and he had instituted a Civil Suit No.16 of 1971 against Bhagwat Family, Mr. Pramukhlal Jivanlal Parikh, Mr. Ambalal Ishwarlal Prajapati and Sharda Mandir Trust for specific performance, damages and for the permanent injunction which came to be dismissed on 17.4.1976 which was challenged in First Appeal No.362 of 1976, wherein a settlement was arrived at agreeing thereunder that in case consent terms were not acted upon, liberty being reserved to proceed with the suit. Hence, the original applicants are said to have filed SCS No.68 of 1983 for specific performance which has been dismissed on 13.9.1996 which was challenged in First Appeal No.5304 of 1996 which appeal came to be transferred to the District Court and renumbered as RA No.27 of 2006 which was then partly allowed on 19.6.2012 and remanded the matter back to the Trial Court as directed thereunder. An application filed in the said suit by the legal heirs of Mr. Pramukhlal Jivanlal Parikh and Mr. Ambalal Ishwarlal Prajapati came to be dismissed by the Trial Court on 1.10.2015 and consequently held that Special Civil Suit No.68 of 1983 had stood abated. Against the said order, Special Civil Application No.18589 of 2015 was filed challenging the order dated 1.10.2015 and same is said to be pending. Hence, contending that any judgment and decree passed in this appeal would adversely affect their interest in pending Special Civil Application No.18589 of 2015, applicants are before this Court for being impleaded / joined as parties.

68. Reiterating the contentions raised in the application and grounds urged thereunder, Mr. Devang Nanavati, learned Senior Advocate seeks for allowing the said application. In support of his submission, he has relied upon the judgment of the Hon’ble Apex Court in the case of Sumtibai and others vs. Paras Finance Co. and others [(2007) 10 SCC 82] [LQ/SC/2007/1204] and in the case of M.P. State Agro Industries Development Corporation Ltd. and Another vs. Jahan Khan [(2007) 10 SCC 88] [LQ/SC/2007/1078] . The general rule for impleadment is that the plaintiff being the dominus litis would choose the person against whom he intends to litigate and he cannot be compelled to sue a person against whom he does not seek any relief. A plain reading of sub-rule (2) of Rule 10 of Order 1 would make it explicitly clear that a court may at any stage of the proceedings either upon or even if any application, and on such terms as may appear to it to be just, direct that any person who ought to have been joined whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit, be added as party. In short, court is given the discretion to add a person as a party who is found to be necessary parties are proper parties.

The Hon’ble Apex Court in the case of Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited and Others [(2010) 7 SCC 417] [LQ/SC/2010/618] has indicated as to who would the necessary party or a proper party. It has been held as under:

“15. A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.”

69. The Hon’ble Apex Court in the case of Kasturi vs. Iyyamperumal [(2005) 6 SCC 733] [LQ/SC/2005/550] has held that following persons are to be considered as necessary parties:

(i) The parties to the contract which is sought to be enforced or their legal representatives;

(ii) Transferee of the property which is the subject matter of the contract.

70. It has also been held that a person claiming title adverse to the title of the vendor could not be impleaded. Keeping these principles in mind when we turn our attention to the facts on hand it would clearly indicate that applicants who are claiming to be the legal heirs of Mr. Pramukhlal Jivanlal Parikh and Mr. Ambalal Ishwarlal Prajapati in whose favour there was an agreement of sale are seeking to be impleaded in the present proceedings which is a suit filed by the plaintiff claiming specific performance on the strength of agreement to sell dated 27.12.1974 Exhibit 194. If at all applicants are having any right by virtue of the agreement of sale dated 18.8.1966 which they are claiming to be and espousing their cause by instituting SCS No.68 of 1983 which has also been dismissed and appeal filed thereon having abated and now pending in Special Civil Application No.18589 of 2015 they would be at liberty to work out their rights in the pending Special Civil Application and applicants are neither proper parties nor necessary parties in the present appeal, which can also be adjudicated and disposed of by answering the issues involved, even in the absence of the applicants. The inter-se dispute even if any between the applicants on the one hand and plaintiffs or defendant Nos.1 to 8 and 14 cannot be the subject matter of scrutiny or examination by this Court in the present appeal. Hence, this Court is of the considered view that Civil Application No.3 of 2018 is liable to be rejected and accordingly it stands rejected.

RE. POINT NO. (v)

71. Civil Application No.7 of 2022 under Order 1 Rule 10 of CPC read with 107(2) of CPC has been filed by plaintiffs for impleading Shri Jatin Rameshchandra Jalundhwala and Dr. Malay Rameshbhai Mahadeviya, contending inter alia that after filing of the present Appeal, respondent Nos. 2 to 10 have either resigned or have been removed and they are no longer trustees and one of the newly added trustee namely Yash Kishor Bhagwat is already on record as respondent No. 6.1.4 and proposed respondents are necessary and proper parties to these proceedings. Perusal of averments made in the application do not indicate as to how they are necessary and proper parties. Any inter se controversy or dispute between the trustees cannot be subject matter of consideration. The first defendant – trust being a party and represented by Counsel, any inter se dispute between the trust and trustees can be resolved in appropriate proceedings and in appropriate forum. Hence, without expressing any opinion on the claim made and we find that it is not necessary to issue notice to the proposed respondents as specified in the present application. Hence, Civil Application No. 7 of 2022 stands rejected by reserving liberty to the parties to work out their rights in accordance with law before proper forum.

POINT NOS. (vi) AND (vii) :

72. The issues framed by the Trial Court and adjudicated essentially revolves around these two points. The incidental points that may arise for consideration would also be formulated as and when necessary and at appropriate stage of this judgment and during the course of our discussion on these two points and while reevaluating the evidence tendered before the Court below.

73. Since above points are interlinked and finding recorded on one point is likely to overlap with other, we have taken up these two (2) points together for being adjudicated and answered.

74. Plaintiff which is a Co-operative Housing Society has brought the suit for specific performance of agreement to sell dated 27.12.1974 which document came to be marked as Exhibit 194.

75. Plaintiff has contended that it is a registered cooperative housing society and being in need of houses for its members had agreed to purchase the lands bearing Survey No. 37 and 38 measuring 2 Acre 29 gunthas and 4 Acre 38 gunthas situated at Thaltej (referred to as ‘suit schedule property’) Taluka Daskroi, Dist. Ahmedabad which belonged to or owned by first defendant. It is the case of the plaintiff that defendants had executed an agreement to sell the suit schedule property dated 18.08.1966 in favour of Mr.Pramukhlal Jeevanlal Parikh and Mr.Ambalal Ishwarlal Prajapati. It is further case of plaintiff that Mr.Pramukh Jeevanlal Parikh as well as first defendant trust executed an agreement to sell dated 21.09.1970 in favour of Mr.Gangaram Bhaskar Rao Pavde and said Mr.Gangaram Bhaskar Rao Pavde had assigned his rights in favour of a partnership firm M/s. Jalpa Traders represented by its partners Mukundbhai Chimanlal Shah. It is further case of plaintiff that trustee of the first defendant trust, Mr. Kunjbiharilal Madhavlal Bhagwat (for short hereinafter referred to as ‘Kunjbiharilal’) had executed an agreement to sell dated 08.05.1972 in favour of the said partnership firm M/s. Jalpa Traders. It is also stated that Kunjbiharilal had previously executed an agreement dated 03.04.1972 also in favour of Jalpa Traders. Hence, it was contended that all rights under agreement to sell was acquired by M/s. Jalpa Traders. The said agreement holder M/s. Jalpa Traders through its partner Mr. Mukundbhai Chimanlal Shah is said to have assigned its rights in favour of M/s. Chhaganlal & Company vide agreement to sell dated 13.11.1973. In turn, M/s. Chhaganlal & Company is said to have assigned all its rights in favour of the plaintiff – society vide agreement to sell dated 27.12.1974 (Exhibit 194), whereunder it is said to have been agreed to sell the suit schedule property for Rs. 13.25 paise per sq. yds. and received Rs. 15,000/- in cash on the date of agreement to sell. It is further stated that a further sum of Rs. 25,000/- was paid by the plaintiff on 20.05.1975 and Rs. 5,000/- was paid on 15.12.1975 and thus, in all a sum of Rs. 45,000/- is said to have been paid by the plaintiff to M/s. Chhaganlal & Company. It is further contended by plaintiffs that all the trustees of the first defendant trust agreed to continue the agreement of sale dated 27.12.1974 executed by M/s. Chhaganlal & Company. It is further pleaded that at the first instance agreed price was Rs. 3.25 paisa per sq. mtr., and same was agreed to be revised upwards by Rs. 2 per sq. mtr. totalling Rs. 5.25 per sq. mtr. while assigning all rights over the suit land in favour of plaintiff society by the defendants. It is stated in the plaint that all the defendants have endorsed their consent for the agreement to sell dated 27.12.1974. Plaintiff further pleads that on 18.04.1976, vacant and peaceful possession of the suit schedule property was handed over to the plaintiff by the defendants.

76. It is the further case of the plaintiff that first defendant has received Rs. 20,001/- towards sale consideration by cheque dated 21.10.1982 which has been duly accepted by the first defendant and same was paid in lieu of defective cheque dated 11.08.1982. It is further case of the plaintiff - society in all had paid Rs.30,501/- to the defendant trust.

77. Plaintiff also claimed after obtaining possession of suit schedule property that one Mr. Babji Bapuji, watchman was appointed to look after the security of suit schedule property after obtaining possession and he was being paid salary every month. Subsequently, one Shri Jagbahadur Lokbahadur Thapa was appointed as Watchman to take care of suit schedule property and he was residing in the room constructed in the suit schedule property. It is further case of the plaintiff that a layout plan was drawn by an Engineer Shri Kantilal R. Patel as plaintiff society was desirous of constructing houses for its members and the said plan drawn by the Engineer was signed by all the trustees of defendant trust.

78. Plaintiff has further pleaded that defendant trustees filed an application seeking permission to sell the suit schedule property before the Charity Commissioner – 16th defendant under section 36 of the BPT Act. The defendants are also said to have filed form No. 1 under section 20 of the Urban Land Ceiling Act (then prevailing), wherein it is said to have been stated specifically by the defendants that suit land was being sold to the plaintiff.

79. Plaintiff has contended that first defendant - trust was attempting to dispose of the suit land to someone else, owing to escalation in land price and it would adversely effect its rights. It was also contended that plaintiff’s possession over the suit schedule property was sought to be disturbed and attempts were made to dispossess the plaintiff from suit schedule property by posing threats. It is contended that defendants were not executing the sale deed in spite having demanded and a police complaint was lodged in that regard contending that trustees of the defendant trust are attempting to sell the suit schedule property to third party and pleading that members of the plaintiff society are middle class person and have invested huge amounts they would be put to great loss if the defendants were to sell the suit schedule property to third party or disturb plaintiff’s possession. Hence, plaintiff filed a Civil Suit No. 210 of 1983 for permanent injunction which was withdrawn on 17.07.1984 and thereafter the present suit for specific performance came to be filed.

80. On service of suit summons, defendants No. 1 to 4 and 6 appeared and have filed their written statements denying the averments made in the plaint and putting plaintiff into strict proof of the same. It has been specifically contended as noticed hereinabove, the present suit was barred by res judicata since similar suit filed earlier had been withdrawn without any valid reason. It was also contended that suit is barred by limitation; suit was not maintainable as per section 51 of BPT Act, since written permission had not been obtained from the Charity Commissioner for filing the suit. It was contended that defendant had executed an agreement to sell the suit schedule property to Mr. Pramukhlal and Mr.Ambalal and later on first defendant trust and Mr.Pramukhlal executed another agreement to sell the suit land in favour of Mr.Gangaram Pavde which agreement was not duly signed by all the trustees. It was also contended that agreement to sell entered into between first defendant and Mr.Pramukhlal and Mr.Ambalal did not contain the signature of Mr.Ambalal and as such it was not a legal and valid document. The assignment or transfer of the rights by Mr.Gangaram Pavde to third party was denied and plaintiff was put to strict proof of the same. It was contended that agreement to sell dated 08.05.1972 executed in favour of Mr.Mukundbhai on behalf of Jalpa Traders had been signed by one of the trustees namely Mr. Kunjbihari, who had not been authorized by all the trustees to enter into such agreement and as such denied that trust was answerable and also denied that Kunjbihari being the managing trustee of the trust was entiteld to enter an agreement of sale of suit schedule property. Other averments made in the plaint had also been denied as already noticed hereinabove. It was specifically denied that first defendant being a public trust registered under BPT Act, it cannot sell the suit schedule property without obtaining permission from the 17th defendant and there was no such permission granted by the Charity Commissioner. The delivery of possession of suit schedule property also came to be denied. As noticed hereinabove averments made in the plaint has been denied by these defendants. Sum and substance of the defence put forth by defendant no. 1 to 4 and 6 have already been noticed by us hereinabove.

81. In this background, when judgment passed by the trial court is looked into, it would emerge therefrom that on the issue of agreement of sale, the learned trial Judge has framed to two issues namely issue no. 2 and 3 and has answered partly in the affirmative and partly in the negative. In this process, the learned Trial Judge has recorded a finding at paragraph 7 of the judgment, the substance of which can be formatted as under.

82. The agreement to sell dated 27.12.1974 marked as Exhibit 194 has been held to have not been duly signed by all the trustees; the say of the plaintiff that Exhibit 194 reflects Rs. 5,000/- and there is no mention of plaintiff having paid 5,500/- to defendants - trustees on 30.12.1982 and no receipts are produced; there is inconsistency in the pleadings namely at one breath plaintiff has stated on oath that defendants have not filed necessary application seeking permission. Whereas in another breath, namely in the plaint they have contended necessary applications have been filed by defendants before the Charity Commissioner and they had also filed form no. 1 under the Urban Land Ceiling Law; defendant no. 7 and 8 having not affixed their signatures to Exhibit 194 and thereby the plea of the plaintiff that all the trustees of the trust having signed Exhibit 194 has been disbelieved by the trial court.

83. At the outset, it requires to be noticed that burden is on the plaintiff to prove the execution of the agreement of sale dated 27.12.1974. In the instant case, undisputedly the first defendant has not executed the agreement of sale dated 27.12.1974 in favour of the plaintiff and this is an admitted fact or in other words, plaintiff does not dispute this fact. On the other hand, witness examined on behalf of plaintiff namely Mr. Babubhai who claimed to be the Chairman of the plaintiff society has clearly admitted in his deposition that defendants no. 2 to 8 are trustees of the first defendant trust which is a trust registered under the Bombay Public Trust Act. He further deposes that defendant no. 1 to 8 executed the agreement of sale dated 18.08.1966 in favour of Mr. Pramukhlal Jeevanlal Parikh and Mr. Ambalal Ishwarlal Prajapati. It is pertinent to note at this juncture that said agreement of sale dated 18.08.1966 has not seen the light of the day. He further deposes that Mr. Pramukhlal Jeevanlal Parikh and the first defendant trust together executed an agreement of sale on 21.09.1970 in favour of one Shri Gangaram Bhaskarrao Pavde. It is pertinent to note at this juncture that said agreement of sale also has not seen the light of the day. It is further case of plaintiff that on 03.04.1972, said Shri Gangaram Bhaskarrao Pavde assigned the rights of his sale agreement in favour of a partnership firm M/s. Jalpa Traders represented by its partner Mr. Mukundbhai Chimanlal Shah. The said agreement of assignment dated 03.04.1972 has also not seen the light of the day. It is further necessary to notice at this juncture that agreement of sale executed in favour of Shri Gangaram Bhaskarrao Pavde was by Shri Pramukhlal Jeevanlal Parikh and the first defendant trust only. In other words, the other person who possessed the right by virtue of agreement of sale dated 18.08.1966 namely Shri Ambalal Ishwarlal Prajapati has not affixed his signature to the agreement of sale dated 21.09.1970. Thus, no right flowed in favour of Shri Gangaram Bhaskarrao Pavde to execute the agreement of sale or assign his rights in favour of M/s. Jalpa Traders, in respect of suit schedule property that too in respect of share of Mr.Pramukhlal Jeevanlal Parikh. Thus, what right flowed to either Jalpa Traders or Mukundbhai Chimanbhai Shah is only limited right or half of the right he possessed over the suit schedule property.

84. Be that as it may. The said Mukundbhai Chimanbhai Shah partner of M/s. Jalpa Traders is said to have executed an agreement of sale or assigned the rights which partnership firm possessed or acquired on 03.04.1972 in favour of Chhaganlal & Company under a deed of Agreement of Sale dated 23.11.1973. It is pertinent to note at this juncture that said agreement of sale has also not seen the light of the day. All these deeds, agreements or assignment deed/s have neither been tendered come before the trial Court nor it has been tendered by the plaintiff before this Court. On account of these documents having been denied in toto by defendant no. 1 to 4 and 6 in their written statement, burden cast on the plaintiff has not been discharged. However, for reasons best known, plaintiff did not produce any of these deeds or documents to prove the chain of events which culminated in execution of the subject agreement of sale dated 27.12.1974 Exhibit 194.

85. Thus, initial burden which was cast upon plaintiff has not been discharged and on this ground alone, plaintiff ought to have been non-suited.

86. Now we turn our attention to the agreement of sale Exhibit 194 dated 27.12.1974 based on which suit has been filed. This is an agreement of sale – said to have been executed by partner of M/s.Chaganlal & Co., in favour of plaintiff society and plaintiff claims same has been consented to by the 1st defendant – trust and its trustees and as such it is binding on them and they are required to execute the sale deed in favour of plaintiff. It is contended by the plaintiff that it had paid a sum of Rs. 15,000/- on the date of agreement of sale to its vendor namely Chhaganlal & Company - 14th defendant. It has been further pleaded that a sum of Rs. 20,000/- was paid on 21.10.1982 and then Rs. 5,000/- is paid on 30.12.1982. It is also claimed that another sum of Rs. 5,000/- was paid on 04.06.1983 by cheque. Thus, plaintiff claimed that in all it had paid Rs. 30,501/- to defendant trust. Whereas PW-1 claims that plaintiff in all had paid Rs. 45,000/- to M/s. Chhaganlal & Company, the 14th defendant. Whereas, averments made in the plaint is contrary to what is stated in plaint. Thus, as rightly pointed out by the trial Judge, the plea in the plaint itself is not only inconsistent but also contrary to the plea raised in the plaint as well as statement made on oath by plaintiff’s witness Mr. Babulal in his deposition.

87. Thus, plaintiff is claiming right to seek specific enforcement of agreement of sale dated 27.12.1974 (Exhibit 194). To prove said agreement one Shri Babubhai has been examined. Perusal of his examination-in-chief would indicate plaintiffs have tried to trace their right to seek specific performance based on Exhibit 194, which is an agreement of sale dated 27.12.1974 executed by the partner of M/s.Chaganlal & Co., namely Mr. Chhaganlal Girdhar Patel in favour of plaintiff society. There is a reference to agreement to sell dated 18.08.1966 said to have been executed by trustee and administrator of 1st defendant trust in favour of Shri Pramukhlal Jivanlal Ambalal and Ambalal Ishwarlal Prajapati (which document is not produced or has seen light of the day, as already observed hereinabove). Aforesaid two agreement holder namely Shri Pramukhlal and Shri Ambalal, one of them namely Shri Pramukhlal Jivanlal Ambalal along with one Shri Kunjbihari Madhavdas Bhagvat, Managing Trustee of 1st defendant trust is said to have executed an agreement of sale on 21.09.1970 in favour of Shri Gangaram Baskarrao Pavde (which document has also not seen light of the day). It is also contended that by virtue of said Banakhat dated 21.09.1970, Shri Gangaram Bhaskarrao Pavde gave away all the rights of Banakhat and assigned it to Shri Mukundbhai Chimanlal Shah, partner of M/s. Jalpa Traders on 08.05.1972 along with Shri Kunjbihari Madhavlal Bhagwat. The said M/s. Jalpa Traders is said to have executed a banakhat assigning all rights in favour of M/s. Chhaganlal & Co. Plaintiff has further pleaded by virtue of the said rights having vested with M/s. Chhaganlal & Co., they in turn have executed an agreement to sale dated 27.12.1974 (Exhibit 194) in favour of plaintiff. In order to prove the averments made in the plaint, as noticed hereinabove, plaintiff has got examined Shri Babubhai, who has stated to the following effect :

“Defendant is Vithal Mandir Trust. It is a …..xxx…… above trust. Defendants 1 to 8 execute sale agreement of the said land in favour of Pramukhlal Jivanlal Parikh and Ambalal Ishwarlal Prajapati on the date 18.08.1966. Pramukhlal Jivanlal Parikh and the trust came together and made sale agreement in favour of Shri Gangaram Bhaskarrao Pavde on the day 21.09.1970. On the day 03.04.1972, Gangaram Bhaskarrao Pavade assigns the rights of his sale agreement to Mukundbhai Chimanlal Shah, a partner of the partnership firm in the name of Messers Jalpa Traders on the basis of said sale agreement. He made sale agreement in favour of Mukundbhai Chimanlal Shah. Thereafter, all the rights has been given to Messers Chhaganlal & Co. from Shri Mukundbhai Chimanlal Shah, a partner of Messers Jalpa Traders on the day 23/11/73. On the basis of all the rights in said agreement, Chhaganlal & Co. granted all its rights and sale said land to plaintiff on the day 27.12.1974. For that, plaintiff has given Rs. 15,000/- on the same date at the time of sale agreement. Then Rs. 25,000/- is given on 20.05.1975, and then Rs. 5,000/- is given on 15.12.1978. In this way, the plaintiff has paid Rs. 45,000/- to Messers Chhaganlal & Co. The execution of the sale agreement on dated 27.12.74 has been continued by the partners of Messers Chhaganlal & Co. and all the trustees of the aforesaid defendant trust. Defendant No. 1 to 8 have given all the rights of the above land to the plaintiffs. The plaintiff is occupying the claimed land.”

87-A. Thus, comparison of the pleadings and deposition wold clearly indicate that there is inconsistencies. On one hand, in the plaint, it has been stated at paragraph 1 to the effect that plaintiff society has in all paid Rs. 30,501/- to the defendant trust, whereas witness examined on behalf of plaintiff has stated that Rs. 45,000/- is paid to M/s. Chhaganlal & Co. This inconsistency is at large and staring at face and as such, we are of the considered view that plaintiff has failed to prove the plea raised in the plaint or there has been inconsistency between the pleadings and evidence.

88. In order to prove its claim the plaintiff has examined one witness Mr.Babulal who claims that he is the chairman of the plaintiff society on the date he was deposing. He is neither signatory to the Agreement of Sale Exhibit 194 nor witness to the said document. A perusal of his deposition would indicate as though he is speaking to facts and being conversant with same or in other words, he was having personal knowledge of the facts which is otherwise. Burden is cast on the plaintiff to prove that said witness had either personal knowledge or he was informed by any one of the signatories to Exhibit 194 about the facts of which he has deposing. None of these are present in the instant case. In his examination-in-chief dated 26.09.2000, he has deposed to the following effect :

“I was doing part-time job in Chhaganlal & Co. in the year 1973 and in this manner I was connected with the said company. Mr.Chhaganlal Girdharlal Patel is the main partner of Chhaganlal & Co. I know him very well. I saw him writing frequently when I was doing part-time job in Chhaganlal & Co. and therefore, I know his signature well.”

89. Thus, the witness examined on behalf of plaintiff who was an employee of Chhaganlal & Co. had no authority to depose on behalf of the plaintiff society. That apart, there is no authorization given by the plaintiff society to Mr.Babulal to depose on behalf of the plaintiff society. There is no resolution passed by the plaintiff society authorizing Mr.Babulal to depose before the Court. There is absolutely no material to show that Mr.Babulal was a member of the plaintiff society or he was the Chairman of the plaintiff society. There is no material placed by the plaintiff to establish that as on 1974 when Exhibit 194 came into existence, Mr.Babulal was a member of the plaintiff society. On the other hand, the admission in the examination-in-chief dated 26.04.2000 which is extracted hereinabove would suggest that as on 1973, he was doing part-time job in Chhaganlal & Co. (Defendant No.14).

90. The Hon’ble Supreme Court in the case of Man Kaur (Dead) by Lrs. vs. Hartar Singh Sangha, reported in (2010) 10 SCC 512, [LQ/SC/2010/1072] has held that where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be crossexamined by the other side, a presumption would arise that the case set up by him is not correct. It is also held that only the person with personal knowledge of details of transaction can depose. It has been further held :

“17. To succeed in a suit for specific performance, the plaintiff has to prove: (a) that a valid agreement of sale was entered by the defendant in his favour and the terms thereof; (b) that the defendant committed breach of the contract; and (c) that he was always ready and willing to perform his part of the obligations in terms of the contract. If a plaintiff has to prove that he was always ready and willing to perform his part of the contract, that is, to perform his obligations in terms of the contract, necessarily he should step into the witness box and give evidence that he has all along been ready and willing to perform his part of the contract and subject himself to cross examination on that issue. A plaintiff cannot obviously examine in his place, his attorney holder who did not have personal knowledge either of the transaction or of his readiness and willingness. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient. Therefore a third party who has no personal knowledge cannot give evidence about such readiness and willingness, even if he is an attorney holder of the person concerned.

18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:

(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.

(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.

(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.

(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.

(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.

(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.

(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his `state of mind' or `conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his `bona fide' need and a purchaser seeking specific performance who has to show his `readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or `readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.”

91. The witness who had been examined on behalf of the plaintiff Mr.Babulal having no personal knowledge of the transaction (Exhibit 194) cannot be held to be a person who knew as to what transpired when the Agreement of Sale Exhibit 194 came into existence. Hence, the contention raised by the plaintiff that it had proved the contents of Exhibit 194 also cannot be digested and it has to be rejected.

92. As could be seen from the judgment and decree of the trial Court, the suit has been dismissed essentially on the following grounds :

(i) Non-availability of permission from Charity Commissioner;

(ii) Permission not obtained from ULC authorities;

(iii) All trustees have not signed the agreement of sale dated 27.12.1974 (Exhibit 194);

(iv) Readiness and willingness has not been shown or exhibited by plaintiff;

(v) Possession of the suit schedule property is not with the plaintiff or plaintiff has failed to prove said claim.

93. One of the prime contention raised by both the sides is that on account of permission from the Charity Commissioner has not been obtained, the agreement to sell Exhibit 194 cannot be enforced. In fact in the written statement filed by defendant Nos. 1 to 4 and 6, it has been contended in paragraph 12 that defendant had filed such application before the Charity Commissioner and it was rejected. It was also specifically averred in the written statement to the following effect :

“12. With regard to para no. 4 ...xxxxx... corrospondence with the defendant. The defendant in this matter are public trust registered under the Bombay Public Trusts Act and as per the provisions therein that obtaining legal permission to sell from the Government, they cannot sell such land to any private person and the plaintiff is aware of the fact very well and therefore, without obtaining such permission, the question of handing over peaceful possession does not arise. ..........xxxx.........”

94. Contention has also been raised in this regard in this Appeal also. Appeal being continuation of original proceedings and though there is no much discussion on this aspect by the learned trial Judge, we have examined the same on this issue also. In order to adjudicate the same, we are of the considered opinion that it would be necessary to extract Section 36 of the Gujarat Public Trusts Act, 1950, as applicable, and it reads as under : -

“36. (1) Notwithstanding anything contained in the instrument of trust--

(a) no sale, mortgage, exchange or gift or any immovable property, and

(b) no lease for a period exceeding ten years in the case of agricultural land or for a period exceeding three years in the case of non-agricultural land or a building.

belonging to a public trust, shall be valid without the previous sanction of the Charity Commissioner.

(2) The decision of the Charity Commissioner under sub-section (1) shall be communicated to the trustees and shall be published in such manner as may be prescribed.

(3) Any person aggrieved by such decision may appeal to the Gujarat Revenue Tribunal within thirty days from the date of its publication.

(4) Such decision shall, subject to the provisions of subsection (3) be final.”

95. Mr. Yatin Oza, learned Senior Counsel appearing for appellant has contended that even if permission sought for has been rejected, conditional decree can be passed and has pressed into service the Full Bench Judgment of this Court in the case of Shah Jitendra Nanalal Ahmedabad vs. Patel Lallubhai Ishverbhai Ahmedabad and Ors. AIR 1984 Guj. 145 [LQ/GujHC/1984/133] . A perusal of this judgmetn would indicate that in the case of Shah Jitendra, the Full Bench had formulated question no. 2 in the background of facts obtained therein and had opined as under : -

“13. In this view, in answer to the second question referred to us we hold that a conditional decree for specific performance subject to exemption being obtained under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 (Act No. 33 of 1976) is permissible. As we have said earlier, we do not propose to answer the first question as it may not be necessary. The case will be sent back.”

96. As could be seen from the above judgment, it has been held that such conditional decree can be passed subject to exemption being obtained under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 (since repealed). However, as on date of the suit ULC Act was in force and even applying the said principle, it would not detain us for too long to brush aside the contention raised by learned Senior Advocate Mr. Yatin Oza for the reasons more than one; the words and expression found in Clause (a) of sub-section (1) of Section 36 commences with non-obstante clause namely with expression “no sale, mortgage, exchange or gift of any immovable property”, would be valid without the previous sanction of the Charity Commissioner, if such immovable property belongs to a Public Trust.

97. In the instant case, the permission sought for had been rejected even according to plaintiff. The sole witness examined on behalf of plaintiff in his evidence recorded on 26.04.2000, has stated to the following effect:

“the trustees of the defendant trust applied to the Charity Commissioner for permission to sell claimed land. Copy of submitted application is represented at Exhibit 129/34. Application is signed by trustees. The application Number is 36/8/80.”

98. He has also deposed that an application under section 20 of the ULC Act had been filed seeking exemption. Nowhere he has stated that permission from ULC had been granted. Even otherwise according to contention raised by respective learned advocates appearing for parties, the Charity Commissioner rejected the permission on 26.02.1986. Against which, two Revision Applications were filed. The revision application filed by trust challenging the rejection order came to be dismissed as withdrawn. One Mr. Banwarlal Amrutlal Parikh, challenged the order of rejection passed by Charity Commissioner, resulted in its dismissal on merits on 13.06.2001. This was challenged in Special Civil Application No. 7360 of 2001, which has been dismissed on 12.03.2003. Certified copy of the order dated 13.06.2001 passed by the Gujarat Revenue Tribunal in Appeal No. TEN AA 33/1986 has been produced along with Civil Application No. 1 of 2015 (Old Civil Application No. 7389 of 2015), which has been allowed by order of even date, to be received as additional evidence and marked as Exhibit 223, it would clearly indicate that order passed by the Charity Commissioner on 26.02.1986 was affirmed. The copy of order dated 12.03.2003 passed in Special Civil Application No. 7360 of 2001 produced along with Civil Application No. 1 of 2016 (at page 50 therein) would clearly indicate that the order of Tribunal dated 13.06.2001 has also been affirmed.

99. In other words, the order of rejection passed by Charity Commissioner had attained finality or to put it differently, there is no order passed by the Charity Commissioner as required under section 36 for permitting the sale of suit schedule property by the first defendant trust which is a Public Charitable Trust.

100. The Full Bench of the High Court of Mumbai in the case of Avinash Kishorchand Jaiswal and Another vs. Shri Rammandi Deosthan, Pavnar and Others, reported in 2020 (3) Mh. L.J. 323, has held that previous sanction of the Charity Commissioner for sale of property belonging to trust is mandatory and any alienation of trust property without the same is null and void. It has been held as under :-

“8. In our view, the requirement of obtaining previous sanction of the Charity Commissioner under Section 36(1)(a) of the said Act to sell or alienate the immovable property belonging to a public trust is mandatory and the power can be exercised only on the application made under Section 36(1)(c) by a trust or the trustees, seeking authorization to dispose of such property. Any sale or alienation of an immovable property of the public trust without such sanction is null and void. While deciding such application, the Charity Commissioner has to have regard to the interest, benefit and the protection of the trust. The power cannot be exercised suo motu or on his own by the Charity Commissioner. The power to grant sanction includes power to refuse sanction on the ground that it is not in the interest and benefit of the trust and that the property needs to be protected.”

101. In the background of suit schedule property being public trust property and both the parties namely plaintiff and defendant (some of them) being ad idem on this had sought permission from the Charity Commissioner to sell the suit schedule property. Even according to the plaintiff, application had been made by trustees of defendant No.1 trust way back in the year 1980. The said application though produced along with the plaint with Mark 129/34 but not marked as exhibit would clearly indicate that for sale of suit schedule property, permission had to be obtained from the Charity Commissioner. The said permission had been sought for and had been rejected by the Charity Commissioner vide order dated 26.2.1986, confirmed by the Tribunal by order dated 13.6.2001 (Exhibit 223) and affirmed in Special Civil Application No.7360 of 2001 vide order dated 12.3.2003. Hence, we are of the considered view that the principle enunciated by the Full Bench in Shah Jitendra’s case referred to supra would be inapplicable as in the said case, it was a claim simpliciter for grant of decree of specific specific performance even when such permission having sought for had been refused.

102. Even assuming that the said principle as enunciated by the Full Bench of this Court is to be accepted, we are of the considered view that it would be applicable or operate in a situation where there is no permission sought for and such permission having not been refused. In a given case where the trust or any one else on behalf of the trust who were to apply for grant of permission under Section 36 of the Bombay Public Trusts Act, 1950 and such permission is refused, in such circumstances, it cannot be gainsaid that the conditional decree can be passed. This proposition also gets support from the authoritative pronouncement of the Hon’ble Apex Court in the case of M. Meenakshi and Others vs. Metadin Agarwal (Dead) By LRs and Others [(2006) 7 SCC 470] [LQ/SC/2006/775] .

103. In the instant case, agreement of sale dated 27.12.1974 Exhibit 194 has relied upon by plaintiff for the relief of specific performance against the defendant, on account of alleged defendants refusal to execute the sale deed. A perusal of the said agreement would clearly indicate that it has been entered into between plaintiff society and 14th defendant. Said agreement has been executed on behalf of society by its Chairman Mr.Patel Manilal Atmaram (who has not entered the witnessbox). The vendor i.e. 14th defendant who is said to have executed the said agreement in favour of the plaintiff is on the strength of agreement of sale dated 13.11.1973, which has been produced at Mark 193/1. However, same was not exhibited as already noticed hereinabove. It is agreed under the said agreement that permission of the Charity Commissioner to sell the suit schedule property has to be obtained by the “Owner”. This agreement is said to have been signed by the partner of M/s. Chhaganlal & Co. and also witnessed by Mr.Mukundbhai Chimanlal Shah and Mr.Gangarao Bhaskarrao Pavde on behalf of M/s.Jalpa Traders. However, none of them have been examined in the instant case. The agreement of sale marked as Exhibit 194 has been appended with two additional sheets and the purported first endorsement dated 18.4.1976 is said to have been signed by the trustees of 1st defendant. However, the records do not disclose as to who are all trustees of the first defendant trust at the relevant point of time. On this issue, we would be dealing at a later stage. Turning our attention back to the core issue, namely non-obtaining of the permission from the Charity Commissioner is concerned, we notice undisputedly the owner of the suit schedule property (1st defendant) had to obtain permission from Charity Commissioner to sell the suit land and in the written statement filed by defendants 1 to 4 and 6, it has been specifically contended by them that no such prior permission had been obtained by defendant trust. Plaintiff’s witness in his further examination-in-chief recorded on 29.03.2000 has also admitted this fact which is to the following effect :

“The plaintiff society xxxx land in question. As per the terms of the said agreement, necessary permissions, in order to get final sale deed registered, were required to be obtained by the defendants. The defendants had not obtained or made an application to get the necessary permission which were required to be obtained. Therefore, I had requested the defendants to obtain necessary permissions and after obtaining the same, to get the final sale deed registered, but the defendants did not take any action to obtain permissions. And if any such action has been done, the defendants had not made me aware thereof. If the defendants xxxx willing for the same.” (Emphasis supplied by us).

104. He has also deposed that trustees of the 1st defendant trust had submitted an application to the Charity Commissioner to sell the suit schedule property as per the application vide Mark-129/34 and they had also filed a declaration before the ULC authorities as per application Mark-129/35. However, for reasons best known both these documents were not marked as an exhibit. The application marked as 129/34 is a photocopy of the application submitted to the Charity Commissioner and is said to have been signed by the trustees of 1st defendant trust (not all trustees) seeking for exemption. Learned advocates appearing for both parties admit that application filed before the Charity Commissioner on 27.10.1970 (not exhibited) came to be rejected by the Charity Commissioner vide order dated 26.02.1986, against which the trust filed a revision application and same was dismissed as withdrawn. Being aggrieved by the order of rejection, Mr.Banvarilal Amrutlal Parikh had filed a revision application in Appeal No.TEN AA 33/1996 which came to be dismissed on merits on 13.06.2001 – Exhibit 223, whereunder it had been observed to the following effect :

“10. The learned advocate for the respondent xxxx before the Charity Commissioner. The person who is the proposed purchaser from the trust has no locus standi before the Charity Commissioner. The only aggrieved person can be the trust and in this case, the trust no longer wishes to proceed with the same. The trust had filed a revision application 35 of 1986 before this Tribunal. This has been withdrawn by the trust. Consequently, the trust is no longer having any grievance against the order of the Charity Commissioner.”

105. It has also been observed by the Tribunal that from the papers available on record, it is not evident as to why the properties of the trust are required to be disposed of and how the proceeds of the same would be utilized for the benefit of the trust. It has been further observed by the tribunal thus :

“18. It may be noted xxxx also has not succeeded. It may, therefore, be said that the matter is now once again wide open. It does not appear in the interest of the trust to give approval for the erstwhile agreements made by the earlier trustees, because the interest of the trust and reasonableness of the proposals of the trust have not been fully explained. The need to dispose of the property has also to be fully examined. Under the circumstances, I find that the order of the Charity Commissioner is quite proper and should not be interfered with. I therefore xxxx order.”

This would clearly indicate that permission to sell the suit schedule property sought for was not granted by the Charity Commissioner and order of rejection had attained finality.

106. Appellant – plaintiff has also made an attempt to produce certain documents during the pendency of this appeal by way of additional evidence, contending it has come into existence after the judgment and decree passed by the trial Court and during the pendency of the present appeal and said documents have a bearing on the facts of the present case. Even accepting the same for a moment and for the limited purpose of looking into the documents annexed to CA No.6 of 2022 it would clearly emerge therefrom that the Charity Commissioner rejected the application No.36/59/2003 said to have been filed by four trustees and said application having been dismissed vide order dated 31.01.2004. The application filed for such permission was on 17.04.2001 and it would indicate that same was filed on account of the proposed compromise to be entered into in the appeal, whereunder they had sought permission to sell the suit schedule property. However, said application also came to be dismissed on 31.01.2004. Thus, it would emerge from the records that undisputedly there was no permission accorded by the Charity Commissioner to sell the suit land in favour of plaintiff.

107. The Hon’ble Apex Court in the case of Narayamma and others vs. Govindappa and others – (2019) 19 SCC 42 [LQ/SC/2019/1500] has held if a decree were to be granted in favour of the plaintiff on the basis of an illegal agreement which is hit by statute, it will be rendering an active assistance by the Court in enforcing an agreement which is contrary to law. It has been further held :

“20. It could thus be seen that, although illegality is not pleaded by the defendant nor is relied upon by him by way of defence, yet the court itself, upon the illegality appearing upon the evidence, will take notice of it, and will dismiss the action ex turpi causa non oritur actio. It has been held, that no polluted hand shall touch the pure fountain of justice. It has further been held, that where parties are concerned in illegal agreements or other transactions, courts of equity following the rule of law as to participators in common crime will not interpose to grant any relief, acting upon the maxim in pari delicto potior est conditio defendetis et possidentis.

*** *** ***

28. Now, let us apply the another test laid down in the case of Immani Appa Rao (supra). At the cost of repetition, both the parties are common participator in the illegality. In such a situation, the balance of justice would tilt in whose favour is the question. As held in Immani Appa Rao (supra), if the decree is granted in favour of the plaintiff on the basis of an illegal agreement which is hit by a statute, it will be rendering an active assistance of the court in enforcing an agreement which is contrary to law. As against this, if the balance is tilted towards the defendants, no doubt that they would stand benefited even in spite of their predecessor-in-title committing an illegality. However, what the court would be doing is only rendering an assistance which is purely of a passive character. As held by Gajendragadkar, J. in Immani Appa Rao (supra), the first course would be clearly and patently inconsistent with the public interest whereas, the latter course is lesser injurious to public interest than the former.”

108. Any sale of an immovable property belonging to a public trust would be void ab-initio if sold without permission of Charity Commissioner as held by this Court in the case of Prabodhkumari Maganbhai Patel vs. Modasa Kadva Patidar – 2010 (4) GLR 3562, whereunder it has been held :

“15. At the outset, it is required to be noted and it is an admitted position that the suit property is the property of Public Trust, Shri Modasa Kadva Patidar Trust at Modasa, District: Sabarkantha which is a Trust registered under the Bombay Public Trusts Act. The aforesaid Public Trust was running the Boarding in the suit property in question and there was an open space on the front side of the Boarding upon which, the shops in question have been constructed and they are in occupation and in possession of the respective petitioners herein. Respective petitioners claim to be in possession of the disputed shops in question as alleged and claiming through respondent Nos. 2 and 3 herein as Trustees of the Trust. It is the case on behalf of the respective petitioners that respondent Nos. 2 and 3 herein as Trustees of aforesaid Trust have leased the shops in question to the respective petitioners thereby, they have become the tenant of the suit shops in question. That as the property in question belongs to the Trust registered under the Bombay Public Trusts Act, it is subject to restrictions/provisions under the Bombay Public Trusts Act. Section 36 of the Bombay Public Trusts Act creates a clear embargo/bar of transferring in any manner whatsoever the Trust property without prior sanction of the Charity Commissioner.

Section 36 of the Bombay Public Trusts Act reads as under:

36[(1)] [Notwithstanding anything contained in the instrument of trust -].

(a) no sale, mortgage, exchange or gift or any immovable property, and

(b) no lease for a period exceeding ten years in the case of agricultural land or for a period exceeding three years in the case of non-agricultural land or a building, belonging to a public trust, shall be valid without the previous sanction of the Charity Commissioner.

[(2) The decision of the Charity Commissioner under sub-section (1) shall be communicated to the trustees and shall be published in such manner as may be prescribed.

(3) Any person aggrieved by such decision may appeal to the Gujarat Revenue Tribunal within thirty days from the date of its publication.

(4) Such decision shall, subject to the provisions of subsection (3) be final.].

Therefore any sale, mortgage, exchange or gift of any immovable property and/or lease for a period exceeding 3 years in the case of non-agricultural land or a building belonging to a public trust is void ab initio. As held by this Court in the case of Huseinmiya Safimiya v. Habibsha Hasamsha Fakir reported in 1985 (2) GLR 928 any alienation of the immovable property of the public trust without express permission of the Charity Commissioner as required under Section 36 of the Act shall be invalid and is void and not binding to the Trust. Similar view has been expressed by this Court in the case of Pratik Medicines v. Board of Management reported in 2005 (2) GLH (UJ) 15 Page 26 and it is held that lease of the Trust property without prior permission of the Charity Commissioner is void ab initio. In the present case, admittedly, before alleged lease in favour of the respective petitioners admittedly prior permission of the Charity Commissioner is not obtained. On the contrary permission under Section 36 of the Act has specifically refused by the Charity Commissioner. Under the circumstances, alleged lease in favour of the respective petitioners is nullity and void ab initio. It is required to be noted that in the present case, not only there is no prior permission of the Charity Commissioner before the alleged lease in favour of the respective petitioners, there was already an application submitted by the respondent Nos. 2 and 3 alleged to be the Trustees at the relevant time when the shops in question were leased and submitted the application before the Charity Commissioner under Section 36 of the Act for post-facto permission and to regularize the lease in favour of the respective petitioners and the Charity Commissioner has dismissed the said application and refused to regularize the lease in favour of the respective petitioners and refused to grant post-facto permission under Section 36 of the Act. It is required to be noted that before the Charity Commissioner, the respective petitioners were also heard. It is also required to be noted that there were objections filed by the respondent Nos. 4 to 11 who were the Trustees of the Trust and direction was sought and the learned Charity Commissioner has while rejecting the application submitted by the respondent Nos. 2 and 3 herein claiming to be the Trustees of the Trust at the relevant time when there was a lease in favour of the respondent petitioners, has specifically observed that respondent Nos. 2 and 3 through whom the petitioners are claiming the lease in their favour and inducted the petitioners, were not the trustees of the Trust. There is a specific finding given by the Charity Commissioner that respondent Nos. 2 and 3 who have alleged to have leased the shops in question in favour of the petitioners had no authority to lease the suit property belonging to the public trust. That the learned Charity Commissioner after hearing the parties not only dismissed the application submitted for post facto permission under Section 36 of the Act but has also allowed the objections submitted by the respondent Nos. 4 to 11 herein Trustees of the Trust and has directed the Trustees of the Trust to get back the possession after following due process and report to the Charity Commissioner within 60 (sixty) days. It is required to be noted that the order passed by the Charity Commissioner was challenged by the respective petitioners before the Gujarat Revenue Tribunal by way of revision application and the said revision application is dismissed and the order passed by the Charity Commissioner has become final.

Thus the alleged lease in favour of the respective petitioners is not only hit by Section 36 of the Bombay Public Trusts Act and is a nullity and void ab initio but as observed by the Charity Commissioner, the same was by the persons i.e respondent Nos. 2 and 3 who were not the Trustees on the PTR of the Trust and that they had no Authority to lease shops in question/premises in question on behalf of the Trust. Therefore, the rights of the respective parties have been adjudicated upon by the Charity Commissioner who is the only Competent Authority under the provisions of the Bombay Public Trusts Act. Under the scheme and provisions of the Bombay Pubic Trusts Act, Charity Commissioner is the only Competent Authority to decide the dispute with respect to the property of the public trust.

18. Now to appreciate the aforesaid submissions, it is required to be noted that admittedly, the property in question belong to the public trust. For any dispute with respect to the property belonging to the public Trust only Charity Commissioner has the jurisdiction under the Bombay Public Trust Act. Not only that but even with respect to the lease of the property belonging to the public trust, prior sanction of the Charity Commissioner is must as required under Section 36 of the Act. Except the Charity Commissioner, no other Authority or Court has any jurisdiction with respect to the Trust property. As per Section 80 of the Bombay Public Trusts Act, no Civil Court has jurisdiction to decide and deal with any question which is by or under Public Trust Act to be decided or dealt with by any officer or authority under the Bombay Public Trusts Act or in respect of which decision or order such officer or authority has been made final and conclusive.”

109. A plain reading of Section 36 of BPT Act would indicate that for sale of property owned by a public trust the condition precedent is previous sanction. Hence, expost facto sanction cannot be obtained after the sale transaction as it is not a sanction in the eye of law and it would not be valid. Such grant of prior sanction is not technical or procedural, but it affects the very right of the trust and the public who have interest in the suit property. Hence, the agreement of sale cannot be valid unless there is a previous sanction. In fact the Hon’ble Apex Court in the case of Minakshi and other vs. Metadin Agarwal reported in (2006) 7 SCC 470 [LQ/SC/2006/775] has held conditional decree cannot be granted when the permission is applied and rejected. It has been further held:

“17. The competent authority under the 1976 Act was not impleaded as a party in the suit. The orders passed by the competent authority therein could not have been the subject-matter thereof. The Plaintiff although being a person aggrieved could have questioned the validity of the said orders, did not chose to do so. Even if the orders passed by the competent authorities were bad in law, they were required to be set aside in an appropriate proceeding. They were not the subject matter of the said suit and the validity or otherwise of the said proceeding could not have been gone into therein and in any event for the first time in the Letters Patent Appeal.

39. Furthermore, Section 20 of the Specific Relief Act confers a discretionary jurisdiction upon the courts. Undoubtedly such a jurisdiction cannot be refused to be exercised on whims and caprice; but when with passage of time, contract becomes frustrated or in some cases increase in the price of land takes place, the same being relevant factors can be taken into consideration for the said purpose. While refusing to exercise its jurisdiction, the courts are not precluded from taking into consideration the subsequent events. Only because the Plaintiff-Respondents are ready and willing to perform their part of contract and even assuming that the Defendant was not entirely vigilant in protecting their rights in the proceedings before the competent authority under the 1976 Act, the same by itself would not mean that a decree for specific performance of contract would automatically be granted. While considering the question as to whether the discretionary jurisdiction should be exercised or not, the orders of a competent authority must also be taken into consideration. While the court upon passing a decree for specific performance of contract is entitled to direct that the same shall be subject to the grant of sanction by the concerned authority, as was the case in Mrs. Chandnee Vidya Vati Madden v. Dr. C.L. Katilal and Others [AIR 1964 SC 978 [LQ/SC/1963/77] ] and Nirmal Anand v. Advent Corporation (P) Ltd. And Others [(2002) 5 SCC 481] [LQ/SC/2002/642 ;] ; the ratio laid down therein cannot be extended to a case where prayer for such sanction had been prayed for and expressly rejected. On the face of such order, which, as noticed hereinbefore, is required to be set aside by a court in accordance with law, a decree for specific performance of contract could not have been granted.”

110. In the instant case the order of the Charity Commissioner rejecting the application filed under section 36 of the Act came to be passed on 26.02.1996 which has been confirmed by the Gujarat Revenue Tribunal on 13.06.2001 (Exhibit 223) and order of the Tribunal has also been confirmed by the learned Single Judge of this Court in SCA 7360 of 2001 and as such it cannot be gainsaid by the appellant that notwithstanding the orders of the Charity Commissioner refusing to grant permission to sell the suit schedule property either prior to entering into agreement to sell or during the pendency of these proceedings, yet a conditional decree of specific performance can be passed. Said contention is without merit and it is liable to be rejected and accordingly, it stands rejected. In the light of said finding recorded by us, the judgments relied upon by Mr.Yatin Oza, learned Senior Counsel appearing for the appellant would not come to the rescue of the appellant.

111. Another ground on which the learned Trial Judge has refused to grant the specific performance of the agreement to sell dated 27.12.1974 – Exhibit 194 is on the ground that all the trustees of the 1st defendant trust have not affixed their signatures.

112. It is an undisputed fact that Exhibit 194 has been entered into between plaintiff and 14th defendant. It is also the contention of plaintiff that agreement of sale executed by 14th defendant in favour of the plaintiff as per Exhibit-194 have been ratified by the 1st defendant and its trustees and as such 1st defendant trust and its trustees defendant Nos. 2 to 8 bound by it. The plea raised by plaintiff in this regard is traceable to paragraph 1 of the plaint, which is to the following effect :

“1. The plaintiff society xxxx by the defendants. All the defendants have executed their writings over the agreement to sell dated 27.12.1974. Thereafter, xxxx hereinbelow.”

113. In the written statement filed by defendant Nos. 1 to 4 and 6, it has been specifically contended that defendants had earlier entered into an agreement to sell the suit property with Shri Pramukhlal and Shri Ambalal, who in turn had entered into another Banakhat – Agreement to Sell on 21.09.1970 in favour of Shri Gangaram Pavde and in the said agreement all the trustees have not signed. It was further pleaded that in the agreement of sale entered into between the 1st defendant trust with Shri Pramukhlal and Shri Ambalal, it did not contain the signature of Mr.Ambalal. The defendants have specifically denied of Mr.Gangaram Pavde having assigned his rights in favour of M/s.Jalpa Traders under agreement dated 03.04.1977. It was also specifically pleaded that agreement to sell the suit schedule property on 08.05.1972 has been entered into by one trustee only in favour of Jalpa Traders and admittedly the said agreement did not contain the signatures of all the trustees and the burden which was cast on the plaintiff to prove that the sole trustee Mr.Kunjbihari Madhavlal Bhagwat having been authorized by all other trustees has not been proved or in other words, this factual aspect has remained in vacuum. Mr. Yatin Oza, learned Senior Counsel appearing for the appellants has contended that Mr. Kunjbiharilal Madhavlal Bhagwat was acting on behalf of all the trustees and he was authorised to sign all the documents on behalf of the trust and as such he has affixed the signature to the agreements and various applications filed before the statutory authorities. Hence, he contends that non-signing of the agreement of sale Exhibit 194 or any other document by all other trustees would not erase the value of Exhibit 194 or in other words, it can be enforced against defendant No.1 trust. Such contention cannot be accepted for reasons more than one. Firstly, there is no proof of Kunjbiharilal Madhavlal Bhagwat alone being authorised to act on behalf of defendant No.1 trust. Except said point having been canvassed during the course of arguments. In fact, there is no plea also raised in this regard. The witness examined on behalf of plaintiff also does not whisper a word on this issue. In the absence of any cogent material tendered by the plaintiff in this regard, the contention of Mr. Yatin Oza, learned Senior Counsel cannot be accepted. In the absence of pleadings, no amount of evidence will assist the parties as held by the Hon’ble Apex Court in the case of Biraji Alias Brijraji and another vs. Surya Pratap and others [(2020) 10 SCC 729] [LQ/SC/2020/763] whereunder it came to be held to the following effect:

“8. Having heard the learned counsels on both sides, we have perused the impugned orders and other material placed on record. The suit in Original Suit No. 107/2010 is filed for cancellation of registered adoption deed and for consequential injunction orders. In the adoption deed itself, the ceremony which had taken place on 14.11.2001 was mentioned, hence it was within the knowledge of the appellants- plaintiffs even on the date of filing of the suit. In the absence of any pleading in the suit filed by the appellants, at belated stage, after evidence is closed, the appellants have filed the application to summon the record relating to leave/ service of Ramesh Chander Singh on 14.11.2001 from the Rajput Regiment Centre Fatehgarh. It is fairly well settled that in absence of pleading, any amount of evidence will not help the party. When the adoption ceremony, which had taken place on 14.11.2001, is mentioned in the registered adoption deed, which was questioned in the suit, there is absolutely no reason for not raising specific plea in the suit and to file application at belated stage to summon the record to prove that the second respondent- Ramesh Chander Singh was on duty C.A.Nos.4883-4884 of 2017 as on 14.11.2001. There was an order from the High Court for expeditious disposal of the suit and the application which was filed belatedly is rightly dismissed by the Trial Court and confirmed by the Revisional Court and High Court.”

114. Thus, it would emerge from the above discussion that :

(i) The Agreement to Sell dated 21.09.1970 said to have been executed by Jivanlal Parikh and the 1st defendant, all the trustees of the 1st defendant had not affixed their signature or in other words, plaintiff has not proved the execution of said agreement or the said agreement having the signature of all the trustees of 1st defendant trust;

(ii) In the agreement to sell dated 18.08.1966 entered into between the 1st defendant with Pramukhlal Jivanlal Parikh and Ambalal Ishwarlal Prajapati the signature of Mr.Abmalal is not forthcoming;

(iii) The agreement to sell dated 08.05.1972 executed by Mr.Kunjbiharilal Madhavlal Bhagwat in favour of M/s.Jalpa Traders undisputedly did not contain the signatures of other trustees of the 1 st defendant trust.

(iv) The plaintiff has failed to prove that Kunjbiharilal Madhavlal Bhagwat alone was empowered to act on behalf of the trust or he alone was empowered to execute the agreement to sell.

115. Hence, in our considered opinion, the finding recorded by the trial Court that plaintiff had failed to prove all the trustees of 1st defendant trust have affixed their signatures to the agreement of sale dated 24.12.1972 (Exhibit 194) as well as the prior agreements under which the plaintiff is claiming right has also not been proved rightly so. In this background, it has to be necessarily held that either ratification by the new trustees of the sale agreement executed in favour of the plaintiff by either giving declaration or approving the same through any means would be of no consequence. In that view of the matter, contentions raised by the appellant in this regard cannot be accepted and it stands rejected.

116. The learned advocates appearing for the contesting defendants have vehemently contended that there is no averment made in the plaint with regard to readiness and willingness and even in the event of this Court arriving at a conclusion that reading of all the averments made in the plaint in toto would indicate such averments being there, then in such an event it has to be construed as a conditional plea and it ought not to be accepted. In fact the defendants 1 to 4 and 6 in their written statement at paragraph 14 have specifically pleaded that plaintiff has never shown any willingness nor made any demand.

117. Section 16 (c) of the Specific Relief Act would indicate that specific performance of a contract cannot be enforced in favour of a person, if he fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which he has been prevented or same has been waived by the defendant. The expression “who fails to prove” was substituted by Act 18 of 2018 and prior to the same the words – expression “must aver” was found in Section 16(c). In other words, the expression “must aver” which existed earlier was substituted by the words “who fails to prove”. This amendment has come into effect from 19.09.2018. Thus, it is incumbent upon party who wants to enforce the performance of a contract has to aver and prove that he has performed or has been always ready and willing to perform the essential terms of the contract. A plain ready of Section 16(c) of the Specific Relief Act makes it absolutely clear, that plaintiff has to plead readiness and willingness to perform the essential terms of the contract and it is a condition precedent for obtaining relief of specific performance. Plaintiff has to allege or aver and prove his “continuous” “readiness and willingness” to perform his part of the contract from the date of contract. Hon’ble Apex Court in the case of Shenbagam and others vs. K.K.Rathinavel, reported in 2022 LawSuit (SC) 62, has held : -

“29. We shall now advert to the respondent‟s conduct throughout the sale transaction. The respondent has failed to provide any documents or communication which would indicate that he called upon the appellants to perform their obligations or discharge the mortgage within the time period stipulated in the contract. Even after the expiry of the six months, the respondent did not reach out to the appellants. It is only in response to the appellants‟ legal notice that the respondent demanded performance of their obligations. Merely averring that he was waiting with the balance consideration and believed that the appellants would clear the encumbrance is insufficient to prove that the respondent-plaintiff was willing to perform his obligations under the contract.”

118. It would be of benefit to note the judgment of the Apex Court in the case of Syed Dastgir vs T.R. Gopalkrishna Seatty [(1999) 6 SCC 337] [LQ/SC/1999/716] , whereunder it has been held that readiness and willingness to perform essential terms of the contract as required to be pleaded under Section 16(c), there cannot be any specific phraseology. It has been held :

“9. So the whole gamut of issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid Section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of ones case for a relief. Such an expression may be pointed, precise, some times vague but still could be gathered what he wants to convey through only by reading the whole pleading, depends on the person drafting a plea. In India most of the pleas are drafted by counsels hence aforesaid difference of pleas which inevitably differ from one to other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test, whether he has performed his obligations one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. Same plea may be stated by different persons through different words then how could it be constricted to be only in any particular nomenclature or word. Unless statute specifically require for a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of Readiness and willingness has to be in spirit and substance and not in letter and form. So to insist for mechanical production of the exact words of an statute is to insist for the form rather than essence. So absence of form cannot dissolve an essence if already pleaded. “

119. Thus, if it could be gathered from the averments made in the plaint that averments with regard to readiness and willingness can be found, it would suffice and on account of exact words not being found, the plaintiff cannot be non-suited.

120. The Apex Court in the case of K.Kupuraj vs M. Ganeshan - AIR 2021 SC 4652 has held :

“8. It is required to be noted that as per the case of the original plaintiff, the defendant was required to evict the tenants and hand over the physical and vacant possession at the time of execution of the sale deed on payment of full sale consideration. Even in the suit notice issued by the plaintiff, the plaintiff called upon the defendant to evict the tenants and thereafter execute the sale deed on payment of full consideration from the plaintiff. Even when we consider the pleadings and the averments in the plaint, it appears that the plaintiff was never willing to get the sale deed executed with tenants and/or as it is. It was the insistence on the part of the plaintiff to deliver the vacant possession after evicting the tenants. Therefore, on the basis of the pleadings in the plaint and on appreciation of evidence, the learned Trial Court held the issue of willingness against the plaintiff. However, before the High Court, the plaintiff filed an affidavit stating that he is now ready and willing to get the sale deed executed with respect to the property with tenants and unfortunately, the High Court relying upon the affidavit in the first appeal considered that as now the plaintiff is ready and willing to purchase the property with tenants and get the sale deed executed with respect to the property in question with tenants, the High Court has allowed the appeal and decreed the suit for specific performance. The aforesaid procedure adopted by the High Court relying upon the affidavit in a First Appeal by which virtually without submitting any application for amendment of the plaint under Order VI Rule 17 CPC, the High Court as a First Appellate Court has taken on record the affidavit and as such relied upon the same. Such a procedure is untenable and unknown to law. First appeals are to be decided after following the procedure to be followed under the CPC. The affidavit, which was filed by the plaintiff and which has been relied upon by the High Court is just contrary to the pleadings in the plaint. As observed hereinabove, there were no pleadings in the plaint that he is ready and willing to purchase the property and get the sale deed executed of the property with tenants and the specific pleadings were to hand over the peaceful and vacant possession after getting the tenants evicted and to execute the sale deed. The proper procedure would have been for the plaintiff to move a proper application for amendment of the plaint in exercise of the power under Order VI Rule 17 CPC, if at all it would have been permissible in a first appeal under Section 96 read with Order XLI CPC. However, straightaway to rely upon the affidavit without amending the plaint and the pleadings is wholly impermissible under the law. Therefore, such a procedure adopted by the High Court is disapproved.

The learned Trial Court held the issue of willingness against the plaintiff by giving cogent reasons and appreciation of evidence and considering the pleadings and averments in the plaint. We have also gone through the averments and the pleadings in the plaint and on considering the same, we are of the opinion that the learned Trial Court was justified in holding the issue of willingness against the plaintiff. The plaintiff was never ready and willing to purchase the property and/or get the sale deed executed of the property with tenants. It was for the first time before the High Court in the affidavit filed before the High Court and subsequently when the learned Trial Court held the issue of willingness against the plaintiff, the plaintiff came out with a case that he is ready and willing to purchase the property with tenants. For the purpose of passing the decree for specific performance, the plaintiff has to prove both the readiness and willingness. Therefore, once it is found on appreciation of evidence that there was no willingness on the part of the plaintiff, the plaintiff is not entitled to the decree for specific performance. Therefore, in the present case, the learned Trial Court was justified in refusing to pass the decree for specific performance.”

121. A plea was raised in the aforesaid case by the defendant that plaintiff has not pleaded readiness and willingness, which was rebutted by the plaintiff. It was agreed under the agreement of sale therein that defendant would evict the tenants and hand over physical and vacant possession of the suit schedule property at the time of execution of the sale deed. This plea was considered by the Hon’ble Apex Court as plaintiff therein was not willing to obtain the sale deed with tenants. When this principle enunciated by the Hon’ble Apex Court is applied to the facts of this case and when we turn our attention to Exhibit 194 namely agreement of sale dated 27.12.1974, it would indicate that consideration of Rs.25,000/- was paid by the plaintiff to the 14th defendant (not to the 1st defendant trust) for purchasing the suit schedule property on the condition that owner (1st defendant) will have to obtain permission of the Charity Commissioner for selling the suit schedule property and title clearance certificate has to be obtained from the competent authority within six months. It was also stipulated by the plaintiff that necessary NA permission, ULC permission will have to be furnished by the vendor viz., 14th defendant or 1st defendant. These conditions stipulated under Exhibit 194 would indicate that plaintiff was only willing to purchase the suit schedule property conditionally namely if there were to be permission granted by the Charity Commissioner and other statutory permissions being available. In other words, plaintiff was not willing to purchase the suit schedule property in the absence of these permissions. As such, the principles enunciated by the Apex Court in Karuppuraj’s case referred to supra would be applicable.

122. In this background, when we look at the deposition of PW-1 it would emerge therefrom that there is not even a whisper by said witness expressing his readiness and willingness. The principles enunciated by Hon’ble Apex Court in the matter of Man Kaur (dead) by LRS vs Hartar Singh Sanga – (2010) 10 SCC 512 [LQ/SC/2010/1072] would be apposite to be quoted, wherein it has been held that if plaintiff has to prove readiness and willingness, he has to step into the witness-box and has to give evidence that he was all along ready and willing to perform. It has been further held :

“17. Section 10 of the Act deals with cases in which specific performance of contract is enforceable. It provides that except as otherwise provided in that Chapter (dealing with Specific Performance of Contracts) of the Act, specific performance of any contract may, in the discretion of the court, be enforced when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. Explanation (i) to section 10 provides that unless and until the contrary is proved, the court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. Sub-sections (2) and (5) of section 21 of the Act provide that in a suit for specific performance, if the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly; and that no compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint. Section 23 of the Act provides that a contract otherwise proper to be specifically enforced, may be so enforced, though a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same, if the court, having regard to the terms of the contract and other attending circumstances, is satisfied that the sum was named only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying money in lieu of specific performance.”

123. Plaintiff must allege and aver that he was ready and willing to perform his part of contract from date of agreement till the date of institution of the suit as held by the Hon’ble Apex Court in the case of Sandhya Rani vs Sudha Rani reported in AIR 1978 SC 537 [LQ/SC/1978/51] . In the instant case, there is not even whisper in the plaint to the said effect or averments made in the plaint does not even remotely suggest about readiness and willingness of the plaintiff either prior to the suit or at the time of institution of the suit or thereafter. The evidence of PW-1 is also silent. In totality, there is no averment found anywhere from the pleadings, for this Court to arrive at a conclusion that plaintiff has been ready and willing to perform its part of the contract and defendants had failed to perform their part of the contract. In the absence of pleadings and evidence, refusal to grant discretionary relief by the trial court cannot be found fault with and said findings have t be necessarily held as just and proper and same would not call for our interference in appellate jurisdiction. If two views are possible and the one taken by the trial Court being in consonance with material evidence available on record, this Court would not disturb such finding in exercise of appellate jurisdiction.

124. It would be further necessary to note yet another plea has been raised by Mr.Yatin Oza, learned Senior Counsel appearing for the plaintiff contending that when there is no issue in this regard framed by trial Court, there was no need or necessity for plaintiff to prove the said issue. Though said argument would look attractive at first blush, it cannot be accepted for reasons more than one. Firstly, consent cannot confer jurisdiction. Secondly, Section 16(c) being mandatory, absence of plea in the plaint and in the deposition it would not otherwise cure the glaring defect. Thirdly, plaintiff has not sought for recasting of the issues but on the other hand with open eyes, having known the defense put up by the defendants Nos.1 to 4 and 6 in their written statement at paragraph-14 has proceeded with the suit and submitted himself to the jurisdiction of the Court and called for an opinion or judgment in that regard. Fourthly, the judgment of the trial court would indicate at paragraph-11 while adjudicating issue No.9 and 10 learned Trial Judge has examined this issue and held that terms of the agreement would indicate that plaintiff had expressed or given its conditional willingness, which has already been noticed by us hereinsupra as impermissible in the teeth of judgment of the Apex Court in Karuppura’s case supra. Thus, contentions raised in this regard stands rejected.

125. While the court exercises the discretionary power for grant or refusal of a decree of specific performance, one of the paramount considerations would be the conduct of the plaintiff which would be taken into consideration. If the conduct of the plaintiff is such that which would not inspire confidence, then necessarily the discretionary power would not be exercised to grant the relief, but, on the other hand, if the plaintiff has come the court with clean hands and has played his role with utmost sincerity, necessarily the discretionary relief would be granted. The Hon’ble Apex Court in the case of Atma Ram v. Charanjit Singh [AIR 2020 SC 3413 [LQ/SC/2020/204 ;] ] has held as under:

“… … … A person issues legal notice on particular year claiming readiness and willingness and files a suit for mandatory injunction and after three years converts the said suit to specific performance suit will not be entitled to the relief of specific performance.”

126. Yet another important aspect which the court would take into consideration while considering the plea for grant of specific performance would be readiness and willingness where the balance sheet of the plaintiff does not reflect of having sufficient fund to discharge the plaintiff’s part of the contract, the discretionary relief would not be granted as held by the Hon’ble Apex Court in the case of U.N. Krishnamurthy (since deceased) Thr. Lrs. Versus A.M. Krishnamurthy [AIR 2022 SC 3361 [LQ/SC/2022/846 ;] ]. In the instant case, the plaintiff’s balance sheet as per Exhibit 208 reflects it does not possess any fund and there is negative profit and as such question of granting specific performance would not arise. Hence, point Nos. (vi) and (vii) is answered by holding that judgment and decree passed in Special Civil Suit No. 167 of 1984 deserves to be confirmed and there is no error committed by the Trial Court in dismissing the suit.

127. This Court places on record its appreciation for valuable assistance rendered by all the learned advocates who appeared in the matter and extending their cooperation for disposing of the lis which commenced in the year 1984 which is a off-shoot of an alleged agreement of sale dated 27.12.1974 (Exhibit 194).

128. For the reasons aforestated, we proceed to pass following.

JUDGEMENT

(i) Civil Application No.2/2007, Civil Application No.3/2007, Civil Application No.3/2014, Civil Application No.1/2022 and Civil Application No.2/2022 are hereby dismissed.

(ii) Civil Application No.2/2014 is allowed and documents are ordered to be marked as Exhibits 219 to 222.

(iii) Civil Application No.1/2015 is allowed and the document viz. certified copy of the order dated 13.6.2001 passed by the Gujarat Revenue Tribunal is ordered to be marked as Exhibit 223.

(iv) Civil Application No.3/2022, Civil Application No.4/2022 and Civil Application No.5/2022 are dismissed.

(v) Civil Application No.6/2022 is allowed in part and documents are ordered to be marked as Exhibits 224 to 237.

(vi) Civil Application No.1/2016, Civil Application No.1/2022, Civil Application No.3/2018 and Civil Application No.7/2022 are hereby rejected.

(vii) First Appeal No.3517/2000 is hereby dismissed and judgment and decree dated 23.10.2000 passed by the 6 th Joint Civil Judge (Senior Division) at Ahmedabad (Rural) in Special Civil Suit No.167/1984 is affirmed. No order as to costs.

(viii) Registry is directed to draw the decree accordingly.