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2014 DIGILAW 805 (BOM)

Fatima Bi Ali Kazi v. M. A. Rashid

2014-03-26

S.B.SHUKRE

body2014
JUDGMENT 1. Heard learned Counsel for the appellant and learned Counsel for respondents no. 1, 3 and 4. None for respondent no. 2. 2. Learned Counsel for the appellant submits that both the Courts below have committed a serious error of law by examining the case of the appellant/plaintiff from a different perspective. He submits that it was never the case of the appellant that the appellant had entered into a contract with the original owner, M/s Zuari Real Estate Company Pvt. Ltd. for purchase of the suit-plot. He has submitted that it was the case of the appellant/plaintiff that she had made an agreement with respondent no. 1/defendant no. 1 who represented to her that he was developing the property of which suit-plot was the part after having entered into an agreement for purchase of the property with the owner and that he had right and authority to transfer the suit-plot and, therefore, the appellant made payment of price of the suit-plot to respondent no. 1. He also submits that payment was accepted by respondent no. 2 acting as the Manager of the original owner who issued a receipt, acknowledging the receipt of money. He further submits that it was also the case of the appellant that thereafter the appellant was in possession of the suit-plot. 3. The learned Counsel has further submitted that the trial court, on the basis of the evidence of both the parties, held that the appellant could not be said to be the lawful owner of the suit property, though it held that she was in physical possession of the suit-plot. He further submits that the first appellate Court wrongly held that the appellant was not entitled to protection in terms of Section 53-A of Transfer of Property Act. The learned Counsel has further submitted that the learned District Judge-1 examined the case from another angle and wrongly held that the appellant/plaintiff failed to prove her ownership in respect of plot No. 12 (suit-plot) and dismissed the appeal. 4. The learned Counsel has further submitted that the learned District Judge-1 examined the case from another angle and wrongly held that the appellant/plaintiff failed to prove her ownership in respect of plot No. 12 (suit-plot) and dismissed the appeal. 4. With these submissions, learned Counsel for the appellant argues that this case involves a substantial question of law with regard to the entitlement of the appellant to seek declaratory relief to protect her possession in view of Section 53-A of Transfer of Property Act and also the legality and correctness of finding of both the Courts below recorded in respect of the fact that the appellant is not the lawful owner of the suit-plot. 5. On the other hand, the learned Counsel for respondents no. 1, 3 and 4 opposed the admission of the appeal and submitted that this appeal involves no substantial question of law which would require consideration by this Court. In support of his argument he has taken me through the judgment of the learned District Judge-1, South Goa, Margao delivered on 02.08.2013. He has submitted that basically the agreement for sale allegedly entered with respondent no. 1 by the original owner was not produced by the appellant and there was also no agreement of sale having been entered by the appellant with the original owner, M/s Zuari Real Estate Company Pvt. Ltd. and under such circumstances, no perversity or error of law can be found with the finding recorded by the learned District Judge-1. He also submits that if there was no agreement between the parties, the appellant cannot be protected under Section 53-A of Transfer of Property Act and this is what the learned District Judge has held in his Judgment and decree. 6. Learned Counsel has further submitted that as regards the contention that appellant had entered into an agreement with respondent no. 1 which according to the appellant was an oral agreement, the appellant has miserably failed to prove the same as the very foundation of the said contention was one receipt allegedly issued by respondent no. 1 in favour of the appellant, which infact was issued by respondent no. 2 and respondent no. 1 had denied any nexus with respondent no. 2. He has further submitted that respondent no. 2 was the manager of the original owner and respondent no. 1 had got nothing to do with respondent no. 2. 1 in favour of the appellant, which infact was issued by respondent no. 2 and respondent no. 1 had denied any nexus with respondent no. 2. He has further submitted that respondent no. 2 was the manager of the original owner and respondent no. 1 had got nothing to do with respondent no. 2. Therefore, even on the basis of the said receipt, it cannot be said that there was any oral agreement entered into between the appellant and respondent no. 1 in respect of the sale of the suit-plot, so submits the learned Counsel. 7. On going through the judgment of the first appellate Court, it is seen that the learned District Judge-1 has found that if it was the case of the appellant that there was an agreement between the appellant and respondent no. 1 in respect of the sale of the property, some evidence in that regard should have been produced on record, and it was not produced. According to the appellant, there was no agreement in writing and it was in oral terms and this fact has been proved by one receipt issued by respondent no. 2. But, respondent no.1 has denied having any nexus with respondent no.2 and admittedly, respondent no.2 was the Manager of the original owner. It is not known in which capacity, respondent no. 2 issued the receipt, whether it was under the authority given to him by the original owner or in his individual capacity. But, the original owner has not been made a party to the suit and, therefore, it cannot be said as to whether or not respondent no.2 had any authority to make any transaction on behalf of the original owner in favour of the other persons including the appellant. The learned District Judge has also found that there is no agreement of sale between original owner and the appellant and, if this is so, the appellant would not be entitled to claim any protection under Section 53-A of Transfer of Property Act. It is also important to note that the appellant did not claim any relief in the suit demanding specific performance of the alleged agreement for purchase of the suit-plot made with respondent no. 1. It is also important to note that the appellant did not claim any relief in the suit demanding specific performance of the alleged agreement for purchase of the suit-plot made with respondent no. 1. In these circumstances, findings recorded by the appellate court as well as trial Court regarding failure of the appellant to prove her entitlement to the reliefs claimed cannot be viewed as perverse or giving rise to any question of law, much less substantial question of law. This can be particularly seen from the observations of the first appellate Court made in it's impugned judgment. 8. The relevant observations of the learned District Judge-1 appear in paragraphs 19,20,24,27 and 28, which are reproduced as under: “19. The only document on which the plaintiff has relied is a receipt dated 29.1.2001 allegedly issued by Luis D’Souza as Estate Manager. Vide said receipt, the defendant No. 2 has allegedly acknowledged the receipt of sum of Rs. 62,500/- as full payment towards sale of plot No. 12. There is however, absolutely no evidence to show that defendant No. 2 had any authority to receive any money on behalf of M/s Zuari Real Estate Company Pvt. Ltd. or that he represented said company in said transaction. As discussed hereinabove, even the Sale Deed in favour of the purchasers referred to herein above, was executed by the Director of said company. 20. There is therefore, no evidence to show that the defendant No. 1 had entered into an agreement with the owner or that defendant No. 2 had any authority to represent the company i.e. owner of said property and to enter into agreement for sale on behalf of the owner. 24. The plaintiff wants to invoke Section 53-A of Transfer of Property Act to claim title and possession over the property. For invoking this provision, there should be an agreement between the owner and the purchaser. In case an agreement was executed between the owner of said property M/s Zuari Real Estate Company Pvt. Ltd. and the plaintiff and plaintiff was put in possession of plot No. 12, the plaintiff could have invoked said section. 27. Proviso to Section 34 of the Specific Relief Act reads as under:- “Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.” 28. 27. Proviso to Section 34 of the Specific Relief Act reads as under:- “Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.” 28. Proviso to said section stipulates that where plaintiff is able to seek further relief then a mere declaration of title, omits to do so, court shall not grant declaration.” 9. From the above observations, it can be found that the learned District Judge has reconsidered the entire case and even corrected the errors committed by the Trial Court in recording a finding in relation to the appellant being in possession of the suit property. This exercise so carried out by the first appellate Court is entirely based upon the evidence available on record and it has not been shown to me that the same is the result of the non-consideration of any material evidence or is based upon any extraneous material. Therefore, I see no error of law nor any error of jurisdiction on the part of the learned District Judge-I. The appeal does not give rise to any substantial question of law and, therefore, it deserves to be dismissed summarily at this stage only. 10. The appeal stands dismissed with no order as to costs.