Shri R.R. Deshpande learned Counsel for the respondents submits that prayer itself would show that plaintiff should have prayed for specific performance and when he makes a prayer for mandatory injunction the suit ought to be held to be hit by provisions of Clause (h) of Section 41 of the Specific Relief Act. Section 41(h) reads as follows:
41(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. {Para 7}
8. There cannot be any dispute with the proposition that where equally efficacies relief can be had injunction cannot be granted. The law is well settled that mofussil pleadings are to be interpreted liberally. While doing so mere reading of the prayer clause would not do. The prayer clause will have to be read in the context of the pleadings and then interpreted to hold whether the relief is in fact one for injunction or specific performance. If the plaint is read as a whole it would be very clear that plaintiffs essentially filed suit for conveyance of the plots in favour of the plaintiffs which defendants had agreed to convey. Thus what plaintiffs essentially want is conveyance of plots in their favour.
9. If the prayer is read in this context it would be clear that plaintiffs demanded the execution of the sale deed in their favour. Even while passing a decree for specific performance the Court would have even otherwise directed execution of the sale deed in favour of the plaintiff. Such a direction even in a suit for specific performance by the Court is nothing less than a mandate. The prayer clause in the instant case at the most could be said to be not very happily worded but the purport of the relief is one to seek specific performance. Simply because the words mandatory injunction are used it is not as such a suit for mandatory injunction but a suit for specific performance. The bar of Clause (h) would not apply in such cases.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Second Appeal No. 448 of 1996
Decided On: 07.10.2009
Shrikant Gopalkrushna Tare and Ors. Vs. Vasant Nagorao Mahalley and Ors.
Hon'ble Judges/Coram:
C.L. Pangarkar, J.
Citation: MANU/MH/1151/2009,2010(1) ALLMR 114
1. This appeal is preferred by the original plaintiffs who lost in the first appellate Court. The facts giving rise to the appeal are as follows:
Plaintiffs and defendants mutually agreed to purchase field Survey No. 93/3 of village Lohara district Yavatmal from one Sonabai. Each of the plaintiffs and defendants contributed a sum of Rs. 4546/- towards the consideration. The sale deed was however obtained in the name of defendants 1 to 5. In order to evidence this arrangement an agreement was executed on 15.04.1982 between plaintiffs and defendants. It was agreed that each of the plaintiffs and defendants i. e. 11 persons would have equal share in the said field. It was agreed that the suit field should thereafter be converted to non agricultural use. It was also agreed that after the said field is converted to non agricultural use, all the plots will be equally distributed among the plaintiffs and defendants. Accordingly the said field was converted into a non agricultural land. Another agreement was executed on 07.05.1990 under which it was agreed that each of the plaintiffs would be entitled to get three plots out of the said layout and the remaining three plots would be sold and a piece of one acre of land was also agreed to be sold. It was also agreed that the consideration obtained from sale of one acre of land would be distributed equally amongst the plaintiffs and defendants. Defendants also got executed a letter of consent from plaintiffs on 04.05.1990 to that effect. Accordingly the plaintiffs were paid Rs. 8484/towards the consideration of sell of one acre of land. The plaintiffs called upon the defendant No. 1 to execute the sale deed in respect of plot Nos. 24 to 31 and 43 in favour of plaintiffs. Defendants failed. Hence the suit.
2. Defendants 1 to 8 filed their Written Statement which is infact a very cryptic written statement. They have denied all adverse allegations. The defendant No. 1 admits receipt of notice from plaintiff dated 13.05.1991. According to defendants the plaintiffs failed to pay revenue tax which was payable and therefore the sale deed could not be executed. It was next contention of the defendants that the suit for injunction as filed by the plaintiffs is not maintainable and plaintiffs should have claimed specific performance of contract.
3. Learned Judge of the trial Court found that plaintiffs were entitled to execution of the sale deed in their favour and he directed the defendants to do so. Feeling aggrieved thereby defendants preferred an appeal before the District Judge. Learned District Judge found that suit was not maintainable on two counts. First, that the transaction in suit was a benami transaction and two, the plaintiffs should have claimed specific performance instead of an injunction. Holding so he allowed the appeal and dismissed the suit.
4. Appeal was admitted initially on the following substantial question of law:
Whether the appellate Court could ignore the admission of defendant No. 1 in letter dated 13.05.1991 and also in the Written Statement about the ownership of the plaintiffs of the plots?
However after hearing the parties substantial questions of law were reformulated as follows:
1. Whether the suit is hit by provisions of Section 41(h) of the Specific Relief Act inasmuch as the plaintiffs ought to have claimed specific performance of contract?
2. Was the first appellate Court justified in holding that suit was hit by the provisions of Benami Transaction (Prohibition Act 1988)?
5. I have heard the learned Counsel for the appellants and the respondents.
6. Learned Judge of the first appellate Court has set aside the decree mainly on the above grounds. He finds that suit for specific performance ought to have been filed instead of one for mandatory injunction. The prayer clause in the plaint reads as follows:
PRAYER: It is therefore, most humbly prayed that, this Hon'ble Court may graciously be pleased to pass a decree of mandatory injunction directing the defts. to execute the sale deeds of plot No. 24 to 31 and 43 from layout plan of field Sr. No. 93/3 of village Lohara in favour of the plffs. before, selling any other plot/plots of layout of fields SR. No. 93/3 of Lohara to any other person. Cost of the suit may be saddled on the defts.
7. Shri R.R. Deshpande learned Counsel for the respondents submits that prayer itself would show that plaintiff should have prayed for specific performance and when he makes a prayer for mandatory injunction the suit ought to be held to be hit by provisions of Clause (h) of Section 41 of the Specific Relief Act. Section 41(h) reads as follows:
41(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust.
8. There cannot be any dispute with the proposition that where equally efficacies relief can be had injunction cannot be granted. The law is well settled that mofussil pleadings are to be interpreted liberally. While doing so mere reading of the prayer clause would not do. The prayer clause will have to be read in the context of the pleadings and then interpreted to hold whether the relief is in fact one for injunction or specific performance. If the plaint is read as a whole it would be very clear that plaintiffs essentially filed suit for conveyance of the plots in favour of the plaintiffs which defendants had agreed to convey. Thus what plaintiffs essentially want is conveyance of plots in their favour. I particularly reproduce here paras 9 and 10 of the plaint also.
9. Inspite of the plaintiffs demand the defendants did not executed the sale deed of plot No. 24 to 31 and 43 on the contrary by dt/13/5/1991 they have given the threats to sale the said plot to the vendees by breaking the agreement. Thus, the plffs. Issued a notice dt/24/6/1991 to the defdts. Through their Advocate Shri A.N. Gajbhiye, and informed them that the defts. are selling the plots to the vendees without conveying the plots as agreed to the plffs. The defts. No. 1 replied the said notice on 29/6/1991 and deft. No. 3 to 7 submitted and acknowledge the same reply by their notice dt/2/7/1991. The defts. Denied the contentions of the plffs. From these notices of the defts. It is crystal clear that for either of the reason they want to commit the breach of agreement and thus they want to commit the breach of agreement and thus they are not inclined to execute the sale deeds of plot No. 24 to 31 and 43 in favour of the plfs. The defts conduct appears to defrauds the plffs. and therefore, they are selling the plot by committing the breach of agreement. Infact, all the amounts of Revenue Taxes and assessment are paid in cash to the deft. No. 1, but fraudulently he is denying the same.
10. That, the plffs. Are entitled to get the sale deeds of plot No. 24 to 31 and 43 executed from the defts. As of right and the defts. Are under obligations to execute the sale deeds in favour of the plffs. and thus the plffs. Have prima facie good case and balance of convenience lies in their favour and against the deft. If, the mandatory injunction is not issued against the defdt. Ordering them to execute the sale deeds of plot No. 24 to 31 and 43 before selling any plot to others it will cause a breach of agreement and consequently will result in causing irreparable loss to the plffs.
9. If the prayer is read in this context it would be clear that plaintiffs demanded the execution of the sale deed in their favour. Even while passing a decree for specific performance the Court would have even otherwise directed execution of the sale deed in favour of the plaintiff. Such a direction even in a suit for specific performance by the Court is nothing less than a mandate. The prayer clause in the instant case at the most could be said to be not very happily worded but the purport of the relief is one to seek specific performance. Simply because the words mandatory injunction are used it is not as such a suit for mandatory injunction but a suit for specific performance. The bar of Clause (h) would not apply in such cases.
10. Shri R.R. Deshpande learned Counsel for the respondents had relied on a decisions to advance a proposition that suit for injunction was not maintainable where specific performance relief was available. First decision is reported in Kumud Ranjan Banerjee v. Mahabendra Banerjee MANU/WB/0080/1974 : AIR 1974 Calcutta 342. Proposition that is laid down in this decision is that where a relief of possession is available and is not claimed in suit for injunction and declaration the suit is hit by provisions of Section 34 of the Specific Relief Act. This case therefore has no bearing in the case at hand. Next decision on which he relies is reported in Dayalu Narayan Swamy v. Kanika Ramaswamy Dora and Ors. MANU/OR/0010/1976 : AIR 1976 Orissa 31. It is held that upon extinguishment of mortgage due to operation of law the mortgagor is supposed to file a suit for possession instead of one for injunction. In the case at hand essentially execution of the sale deed was demanded by such prayer which is essentially a relief for specific performance. The other decision on which reliance was placed is reported in Rajendra Kumar v. Mahendra Kumar Mittal and Ors. MANU/UP/0009/1992 : AIR 1992 Allahabad 35. In this case plaintiff had merely sought an injunction restraining the defendant from alienating the suit property instead of seeking relief of specific performance. On facts this case also has no bearing. Identical is the ratio in MANU/PH/0041/1991 : AIR 1991 Punjab and Haryana 194 as well as 1998 (1) Civil LJ 1991. None of the above decision have a bearing on the case at hand since I find that plaintiff is essentially claiming specific performance and not an injunction as such. Prayer is not couched in proper words. Court cannot non suit the plaintiff for the reason that pleadings are not happily worded. It must look into entire pleadings and then interpret as to what relief plaintiff is essentially and eventually claiming. In the circumstances I find that the instant suit is not hit by Clause (h) of Section 41 of the Specific Relief Act.
11. This takes me to consider the next question with regard to the benami transaction. The suit property was admittedly purchased by 11 persons by equally contributing towards consideration but sale deed was taken in the name of 5 persons only. It is therefore clear that those persons in whose favour the sale deed was executed had contributed towards consideration. It is not that plaintiffs alone paid the consideration but obtained the sale deed in defendants name. Essential ingredient of benami transaction is that the real owner must contribute the entire consideration. It was a simple case of obtaining the sale deed in the name of few though large members have contributed. Parties always intended that each one of the contributor would be joint owner to the equal extent. That is so evident from agreement Ex. 42. Further defendants had not raised a plea of benami at all in their pleadings. In the absence of such a plea being raised no issue in fact could arise. In a decision reported in Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah MANU/SC/1161/1996 : Judgment Today 1996 (4) S.C. 725, Supreme Court holds that the question whether sale is benami or not is a question of fact. If it is question of fact then such a question cannot be raised for the first time in Second Appeal. Further if the grounds of appeal before the District Court are seen it would be clear that in those grounds of appeal such a plea was not at all raised. Learned Judge of the First Appellate Court therefore had erred in holding the transaction to be a benami transaction and dismissing the suit. In the circumstances substantial questions of law are answered and the appeal deserves to be allowed. Appeal is allowed. Judgment and decree passed by the First Appellate Court is set aside and that of trial Court restored. Plaintiff shall however not be able to execute the decree unless and until they pay Court fee as is payable in a suit for specific performance. Respondents shall pay costs throughout.
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