C/FA/1499/2001 JUDGMENT DATED: 25/02/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/FIRST APPEAL NO. 1499 of 2001

With

CIVIL APPLICATION NO. 1 of 2001

In R/FIRST APPEAL NO. 1499 of 2001

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE DEVAN M. DESAI

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Approved for Reporting Yes No

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USHABEN USHAKANT SHUKLA & ANR.

Versus

SUDHABEN DEVENDRAKUMAR PATEL & ORS.

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Appearance:

MR MANISH M KAUSHIK(5048) for the Appellant(s) No. 1.1

DELETED for the Defendant(s) No. 2,3

MR TATTVAM K PATEL(5455) for the Defendant(s) No. 1

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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

Date : 25/02/2026

ORAL JUDGMENT

1.The present First Appeal is filed under Section 96 of the

Code of Civil Procedure, by the appellant – original defendant No.

2, challenging the judgment and decree dated 26.02.2001, passed

by the City Civil Court at Ahmedabad in Civil Suit No. 9 of 1995.

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2.Heard learned advocate Mr. Manish Kaushik for the

appellants and learned Senior Advocate Ms. Trusha Patel with

learned advocate Mr. Tattvam Patel for the respondents.

3.The brief facts of the case are as under:

3.1The plaintiff wanted to buy suit property, which is

situated in Sub-plot No. 1A of, Mahagujarat Saurabh

Cooperative Housing Society Limited, near Ankur,

Naranpura, Ahmedabad. The property is consisting of

ground floor and first floor with open space surrounding

construction. The three shops are occupied by tenants.

Plaintiff had agreed to purchase suit property with sitting

tenants. The sale price was fixed at Rs.5,50,000/- plus

Rs.50,000/- to be paid to society towards transfer fees.

Plaintiff paid an amount of Rs.25,000/- and Rs.1,75,000/- by

way of demand drafts in favour of defendant No. 1. Plaintiff

further paid an amount of Rs.3,50,000/-. Defendant No. 1

issued receipts in favour of plaintiff. The possession of

ground floor and open land was handed over to the plaintiff

and writing to that effect was executed by defendant. On

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28.12.1994, defendant No. 2 issued a public Notice for title

clearance. Thereafter, plaintiff filed a suit, praying for specific

performance and further sought relief of possession of first

floor of the suit property together with a relief of permanent

injunction, restraining defendants from transferring or

alienating the suit property in any manner, whatsoever.

Plaintiff further sought for a relief of permanent injunction

restraining defendants from interfering with the possession of

the open land and the ground floor portion of the suit

property. Defendant Nos. 1 and 2 appeared and filed written

statements at Exhibit – 13 and Exhibit – 15, respectively, and

contested suit. Plaintiff filed affidavit in lieu of examination-in-

chief at Exhibit – 37. Plaintiff examined witnesses, Devendra

Kumar Patel at Exhibit – 49, a tenant, Vishnu Bhai Narayan

Das Patel at Exhibit – 54 and, Yogesh Shivala Shah, an

officer of Madhupura Mercantile Co-operative Bank at Exhibit

– 61. Defendant No. 1 did not lead any evidence. Defendant

No. 2 filed affidavit in lieu of examination-in-chief at Exhibit –

74 and examined Mahendra Kumar Atmaram Patel,

secretary of the Society at Exhibit – 95. Defendant No. 3 filed

affidavit in lieu of examination-in-chief. Following issues were

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framed at Exhibit – 31:

“1. Whether the plaintiff proves that the defendants

are the owner of the suit premises?

2. Whether the plaintiff proves that the she has

entered into an agreement with the defendant to sell

the suit premises?

3. Whether the plaintiff proves that he has paid full

consideration to the defendants and obtained the

possession of the suit premises except a shop and

the first floor?

4. Whether the plaintiff is entitled for the specific

performance and other ancillary reliefs?

5. Whether defendant No. 1 proves that the suit is

barred by limitation?

6. Whether the defendant No. 2 proves that this Court

has no jurisdiction to try and entertain the suit?

7. Whether the defendant No. 2 proves that she is the

absolute owner of the suit premises and defendants 1

and 3 have no right title interest over the suit

premises?

8. What order and decree?”

After considering the evidence on record, learned Trial

Court decreed the suit and further ordered defendant to

make application to the Collector for the permission within

one month and to execute a sale deed in favour of plaintiff

within one month from the receipt of the permission.

3.2Being aggrieved and dissatisfied with the judgment and

decree, the appellant – original defendant No. 2 has filed the

present First Appeal.

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4.Learned advocate of the appellants submitted that there is

no pleading on behalf of the plaintiff claiming that the original

defendant No. 1 was acting as an agent of present appellant,

neither any issue to that effect was framed by the learned Trial

Court, nor any evidence was led by plaintiffs regarding the same.

However, the learned Trial Court decreed the suit by holding that

original defendant No. 1 was acting as an agent of the present

appellant. The present appellant has not received any amount of

sale consideration from the original plaintiff nor has she signed any

payment receipt. The appellant has claimed to be the owner of the

suit property and the issue qua the ownership of suit property is

held in favour of the appellant. There was no pleading or case

made by the original plaintiff with regard to any distinction between

the ownership of the plot and the ownership of superstructure. The

suit was for specific performance based on an oral agreement

concerning the suit property as described in the plaint. The

appellant asserted her ownership right over the suit property, and

the learned Trial Court held that she is the owner of the suit

property. This finding has not been challenged by the original

plaintiff.

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5.Learned advocate for the appellants further submitted that, in

her cross-examination at Exhibit – 37, the appellant stated that she

had not made any enquiry with the society regarding ownership

before purchasing the property. She has further admitted that she

has not made any enquiry with the village records as to whether

the property had been sold by original defendant Nos. 1 and 3 to

the present appellant, nor whether her name had been entered in

the panipatrak. Likewise, the husband of the plaintiff, in his cross-

examination at Exhibit – 49, admitted that he came to know about

the fact that original defendant Nos. 1 and 3 have sold the property

in question to the present appellant only after the filing of the suit.

When the original plaintiff and her husband, themselves were

unaware of the ownership of the present appellant prior to the

purchase, the plaintiff’s claim that original defendant No. 1 was

acting as an agent of the present appellant cannot be considered

bona fide or genuine contention and it is clearly an afterthought. In

her cross-examination, she has admitted that she was aware that

a member cannot sell the land without the permission of the State

Government, and also admitted that she had made no enquiry with

the Collector’s office or the society. Therefore, no question arises

of any agreement being executed between the parties regarding

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sale and purchase of suit property. And for this reason also, it

cannot be said that there was concluded contract between the

parties.

6.It is submitted by learned advocate for the appellants that it

is settled proposition of law that the burden of proving the

existence of a concluded oral agreement lies on the plaintiff. From

the evidence on record, the original plaintiff has failed to prove the

agreed amount of sale consideration. Except above, no other

submissions were canvassed by learned advocate for the

appellants.

7.Per contra, learned Senior Advocate for the respondent –

plaintiff has supported the judgment and decree and contended

that the plaintiff, who was a gynecologist, intended to purchase the

suit property as her father-in-law was residing next to the suit

property. Therefore, she agreed to purchase the suit property with

sitting tenants on the ground floor for a total consideration of

Rs.5,50,000/-, plus Rs.50,000/- towards transfer fee. The plaintiff

paid the full agreed amount of consideration along with

Rs.10,000/- to defendant No. 1 towards transfer fee. It is submitted

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that Plot No. 1A was originally allotted to Ushakant Shukla by the

Society on 12.10.1980. Upon the death of Ushakant Shukla, an

application was submitted by the defendants and Hemaben –

daughter of the appellant, to the Society for including the name of

defendant No. 1 – Rajiv Ushakant Shukla as a member in place of

the deceased member. The Society passed a resolution on

14.06.1981 and mutated the name of defendant No. 1 in its

records as member of the society. Though a sale deed was

executed by the children of deceased Ushakant Shukla in favour of

defendant No. 2 on 29.03.1985, the said sale deed pertained only

to the superstructure standing on Plot No. 1A and not the land

beneath it. Defendant No. 3, in his oral deposition, has admitted

that the sale was only for the superstructure. It is further contended

that, despite execution of the sale deed, the land beneath the

superstructure remained joint property of all defendants, and

defendant No. 1 was administering and managing the suit property

and accepting money on behalf of all family members. The shop

situated on the front side of the ground floor was let out to

Vishnubhai Patel by defendant No. 1, with whom a rent note dated

05.05.1986, Exhibit – 56, was executed, and rent receipts were

also issued by defendant No. 1. A Memorandum of Understanding

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dated 30.03.1993, Exhibit – 105, was executed by defendant No. 1

– Rajiv Shukla in favour of Balakrishna Shah, pursuant to which

the first-floor construction came into existence in the year 1993. A

banakhat was executed by all the defendants in favour of Rajesh

Parikh at Exhibit – 75, wherein it was specifically mentioned that

the land stood in the name of defendant No. 1 in the Society

records. Subsequently, a cancellation deed dated 11.09.1993,

Exhibit – 76, cancelling the said banakhat, came to be executed,

and it is contended that the amount paid by the plaintiff as

consideration was utilized for making payment to Rajesh Parikh

towards such cancellation.

8.It is further contended that the plaintiff examined a witness

from Madhupura Mercantile Cooperative Bank at Exhibit – 61,

whose deposition establishes that the amount of consideration was

credited in the bank account of defendant No. 1. The said witness

also produced pay-in slip at Exhibit – 64 evidencing such credit.

Defendant No. 1, despite being a crucial witness, did not enter the

witness box to deny the facts pleaded by the plaintiff, including the

oral agreement of sale, acceptance of consideration, execution of

rent agreement, and handing over of possession.

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9.It is further submitted that, as part performance of the oral

agreement, the defendants handed over possession of the ground

floor along with the open land of the suit property to the plaintiff,

while the first floor, which was constructed only in 1993, was

retained by the defendants. After handing over possession of the

ground floor, the defendants shifted their residence to the first

floor. It is submitted that Ushaben has never instituted any suit

seeking recovery of possession of the ground floor, nor has she

lodged any criminal complaint against the plaintiff, which clearly

indicates that the possession handed over to the plaintiff was

never treated as unlawful.

10.Learned Senior Advocate for the respondents further submits

that Rajiv Shukla, managing the property, has neither challenged

the impugned judgment by filing any appeal nor entered the

witness box to contest the plaintiff’s case. In view of the admitted

facts and depositions of defendant Nos. 1 and 3, it is contended

that Ushaben cannot now assert that Rajiv Shukla had no authority

to enter into the transaction with the plaintiff.

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11.It is further submitted that the sale deed dated 29.03.1985

related only to the superstructure on the ground floor, and since

the first floor was not in existence at that time, Ushaben cannot

claim any right or interest therein.

12.It is further contended that, subject to obtaining necessary

permission, a decree for specific performance can lawfully be

passed, as there is no statutory prohibition against entering into an

agreement to sell. Reliance is placed upon the judgment of the

Hon’ble Supreme Court in Civil Appeal arising out of SLP (C)

No. 29462 of 2019, decided on 15.02.2024, which reiterates that

such agreements can be specifically enforced in the absence of

any legal bar. Except above, no other submissions were

canvassed by learned Senior Advocate for the respondents.

13.I have considered the submissions canvassed by the learned

advocates for the parties and also perused the record and

proceedings. The case of the plaintiff is that the suit property

bearing sub-plot number 1A consists of a ground floor and a first

floor, which was orally agreed to be purchased by the plaintiff from

the defendants for a total consideration of Rs.5,50,000/-. The

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plaintiff paid Rs.25,000/- by way of a pay order and, Rs.1,75,000/-

by way of a demand draft dated 10.09.1993 and 11.01.1993,

respectively, and thereafter paid Rs.3,50,000/- in cash on

11.09.1993 to defendant No. 1 – Rajiv Ushakant Shukla.

Defendant No. 1 issued receipts regarding acceptance of money

from the plaintiff. Thus, according to the plaintiff, the entire amount

of consideration was paid to Defendant No. 1. Even on 21.11.1994

and 25.11.1994, the plaintiff made payments of Rs.5,000/- each to

the defendant towards transfer fees. When a public notice dated

30.12.1994 came to be published by defendant No. 2 - Ushaben

Ushakant Shukla, the plaintiff found that execution of sale deed

has been refused by defendants. Therefore, on 02.01.1995, the

plaintiff replied to the said notice, and filed the suit for specific

performance together with other reliefs. Defendant No. 1 has filed

written statement but has neither cross-examined the plaintiff nor

led any oral evidence. In defence, defendant No. 2 has denied the

claim of specific performance and also denied the alleged sale

transaction. It is the case of defendant No. 1 that defendant No. 2

is not the owner of the suit property, and in the absence of a

written contract, no relief of specific performance can be granted.

Defendant No. 1 has denied her signatures on Exhibit – 39 to

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Exhibit – 44, which are the receipts of sale consideration and the

writing regarding handing over possession of the ground floor of

the suit property. Defendant No. 2, in her written statement, has

taken a similar stand and has contended that by a registered sale

deed (Exhibit – 77) dated 21.08.1985, she is the owner of the

constructed property. The said sale deed, Exhibit – 77, was

executed by defendant Nos. 1 and 3, the daughter of defendant

No. 2. Since defendant No. 1 had no authority to sell the suit

property, the plaintiff has no right to claim specific performance of

the alleged oral agreement. It is also a grievance raised by the

learned advocate for the appellants that in the pleadings, the

plaintiff has not come out with a case that defendant No. 1 was the

agent of defendant No. 2, and being an agent, defendant No. 1

has accepted sale consideration from the plaintiff.

14.Learned Senior Advocate for the respondent – original

plaintiff has relied upon the documents and the evidence and has

contended that the suit property was initially a land which was

allotted to Ushakant Shukla by Mahagujarat Saurabh Cooperative

Housing Society Limited. Upon the application, after the death of

Ushakant Shukla, all the defendants, made a request to the

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society to mutate the name of defendant No. 1 – Rajiv Ushakant

Shukla, as a member of the Society. A resolution came to be

passed by the Society accepting the application, and thereafter,

defendant No. 1 was recorded as a member in the society records.

It appears from the record that an MOU dated 30.03.2003 was

executed by defendant No. 1 in favour of one Balkrishnaji Shah for

the development of the property in question, more particularly the

portion above the ground floor. Exhibit – 75 is an agreement to sell

dated 11.09.1993 executed by all the defendants in favour of

Rajesh Madhavlal Parekh. It is an admitted fact, which culls out

from the cross-examination of defendant No. 2, that said

agreement to sell came to be cancelled by all the defendants vide

Exhibit – 76. The execution of both these documents has been

admitted by defendant No. 2. Defendant No. 1, by executing a rent

note dated 05.05.1986 (Exhibit – 56) in favour of one Vishnubhai

Narandas Patel, who has deposed the fact that defendant No. 1

was accepting rent from him and that rent receipt (Exhibit – 57)

and other rent receipts were issued by defendant No. 1. This

evidence is sufficient to hold that defendant No. 1 was managing

the property and all defendants accepted that the plot below super-

structure, though sold defendant No. 1, all the defendants

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remained joint owners of plot. The super-structure was also

managed by defendant No. 1.

15.It is important to observe that, undisputedly, Exhibit – 77, the

sale deed executed in favour of defendant No. 2 – is for the

superstructure standing on sub-plot number 1A. Thus, on the date

of the sale deed and thereafter, defendant No. 2 became the

owner of the superstructure, whereas the land beneath the

superstructure stood in the name of defendant No. 1 in the society

records. This Court was informed that even today, the name of

defendant No. 1 continues to stand as a member of the Society in

the society records. It is also important to observe that, pending

the first appeal, original defendant Nos. 1 and 3, namely Rajiv

Ushakant Shukla and Sanjeev Ushakant Shukla, have expired and

were deleted from the array of parties by the appellant.

Undisputedly, defendant No. 1, whose name stands as a member

in the society records, has not challenged the judgment and

decree passed in favour of the plaintiff. Defendant No. 3 has also

not challenged the impugned judgment and decree. Only

defendant No. 2 has challenged the judgment and decree.

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16.It appears from the evidence on record that defendant No. 1

was managing and administering the suit property, and possession

of the ground floor portion of the suit property was handed over to

the plaintiff by executing a writing (Exhibit – 42) on 11.09.1993. On

10.09.1993, defendant No. 1 also executed an irrevocable General

Power of Attorney (Exhibit – 79) in favour of the plaintiff. The said

irrevocable Power of Attorney also affirms handing over of

possession of the ground floor portion to the plaintiff and, the

plaintiff was given possession until return thereof and was further

permitted to sell or transfer the property to any other party. The

ground floor portion consists of a residential portion as well as

three rented shops. The plaintiff was also permitted to collect rent

from those tenants and to seek possession from them if so

desired. Even in the agreement to sell (Exhibit – 75) executed by

the defendants in favour of Rajesh Madhavlal Parekh, the plot is

described as an undivided plot. Thus, upon scrutinizing the

evidence available on record, one aspect becomes clear, that plot

No. 1A stands in the name of defendant No. 1 as a member of the

Society, and the superstructure standing on the said sub-plot was

transferred by way of a sale deed in favour of defendant No. 2 but

virtually defendants being family members accepted the suit

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property being joint and defendant No. 1 was permitted to manage

the suit property. Except for bare denials by defendant No. 2 in her

oral deposition, nothing has been proved by defendant No. 2. As

against this, the witness of Madhpura Mercantile Cooperative Bank

(Exhibit – 61) has not only produced the pay-in slips of the bank

account of Defendant No. 1 but has also produced a statement

dated 01.09.1993 (Exhibit – 64). Upon perusal of these evidences,

it is established that amounts of Rs.1,75,000/- and Rs.25,000/-

were credited in the said account of defendant No. 1, and

thereafter, on 15.09.1993, an amount of Rs.1,41,000/- was

debited. On 11.09.1993 (Exhibit – 76), a deed of cancellation of

the agreement to sell, was executed between the defendants and

Rajesh Madhavlal Parekh. This evidence is sufficient to arrive at

the conclusion that, out of the amount of Rs.1,75,000/- which was

accepted by defendant No. 1, an amount of Rs.1,41,000/- was

paid in clearing the repayment of the earnest money paid by

Rajesh Madhavlal Parekh.

17.The tenant, Vishnubhai Narandas Patel, in his deposition,

Exhibit – 54, has stated that he is tenant of one of the shops on the

ground floor of suit property since 1986. Original rent note dated

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01.02.1986 was retained by defendant No. 1. According to said

witness, defendant No. 1 was accepting rent and rent receipts

were issued by defendant No. 1. Rent was paid by said tenant to

defendant No. 1 by cheques. In the society records, name of

defendant No. 1 is running since 14.06.1981. This fact is revealed

from Exhibit – 97, which is a resolution. From the oral deposition of

defendant Nos. 2 and 3, it appears that heirs of deceased

Ushakant Shukla never objected regarding mutation of name of

defendant No. 1 as a member of Society and never objected when

defendant No. 1 was dealing with the suit property. Hence,

defendant No. 1 undisputedly managed the suit property which he

did all throughout till filing of the suit. The heirs of deceased

Ushakant Shukla also, by implied consent, permitted defendant

No. 1 to manage the suit property including super-structure.

Defendant No. 1 has accepted rent from tenants and also

accepted full consideration from plaintiff. And defendant No. 1,

very conveniently, chose neither to cross-examine the plaintiff nor

to lead any oral evidence. Thus, a valid adverse inference can be

drawn that defendant No. 1 has accepted the case set up by

plaintiff. Denials made in written statement, without any oral

evidence in support of such denial is not denial of fact asserted by

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plaintiff. Moreover, defendants have not filed any proceedings

against the plaintiff for the recovery of possession of ground floor

of Plot No. 1A.

18.A finding is deemed to be perverse if it is so unreasonable

that no reasonable person could have reached it. If two views are

possible based on evidence, the Appellate Court should not

substitute its own views for that of the lower Court, even if the

lower Court’s view is not the only possible one. Thus, considering

the facts and overall evidences, I do not find any reason to

interfere with the judgment passed by the learned Trial Court. In

light of the aforesaid, the present Appeal is dismissed. No order as

to costs. Record and Proceedings be sent to the concerned Court /

Tribunal forthwith.

19.In view of the disposal of the main matter, the connected

Civil Application does not survive and the same is disposed of

accordingly.

(D. M. DESAI,J)

MUSKAN

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