TaxTMI 
TaxTMI 
2017 (11) TMI 1994
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....ed by Ratanbai, the respondent No. 1 and wife of respondent No. 2 are attesting witnesses. Thus since inception, the respondent Nos. 1 and 2 were not only fully aware of the execution of the said sale deed but were the consenting parties also. 3. He further submits that the respondents have filed the present suit stating therein that by a sale deed dated 3.5.1956, the suit property was purchased by their mother, Ratanbai and their grandmother, Jhumabai. Thereafter, Jhumabai had executed a Will in favour of Ratanbai regarding her share in the suit property and Jhumabai had expired. Thus, Ratanbai became the sole owner of the suit property. It is further claimed that Ratanbai had executed a Will with respect to the suit property in favour of the respondents and another brother Padam Kumar. It is further stated that the petitioner by playing fraud got executed a registered sale deed in her favour from Ratanbai with respect to the suit property. It is further claimed that after death of Ratanbai and according to her Will, the respondents are the owners of the suit property. The respondents have paid fixed court-fees on the plaint instead of ad valorem court-fees. 4. Learned senio....
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....s from the date of execution of sale deed. Hence the suit is certainly barred by time and for determination of the said issue no oral evidence is required because execution of sale deed and witnessing thereto by the respondents is neither in dispute nor is disputed. 9. Thus, the undisputed facts reveal that plaintiff No. 1 himself was a witness to the sale deed in question. The wife of the plaintiff No. 1 was again witness to the sale deed in question which was executed on 23.1.2010. A certified copy was also obtained by them on 16.7.2010 and undisputedly, the civil suit has been filed on 3.2.2016. 10. This Court in the case of Leeladhar and others v. Anwar Patel (Civil Revision No. 275/2011 on 8.3.2016) in paragraph No. 6 to 25 has held as under: "6. The first ground raised in the application preferred under Order VII rule 11 CPC was that the so called agreement was executed on 10.6.1985 and the land in question was sold to the defendants No. 1, 2 and 3 in the year 1995 and the suit was filed in the year 2011 for declaring the sale deed as null and void. It was further stated that in light of the judgment delivered in the case of Suraj Lamp and Industries Pvt. Ltd. ....
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....reliance upon a judgment delivered by this Court in the case of Karim Bhai v. State of Maharashtra and others, reported in ILR 2009(3) 3167. 11. On the other hand, Shri Assudani has vehemently argued before this Court that such an application under Order VII rule 11 of the CPC is not at all maintainable. He has argued that the Order II rule 2 will not operate as a bar in respect of the second suit is in respect of cancellation of sale deed. It has also been vehemently argued that in light of the section 53 of the Transfer of Property Act on account of part performance of contract and also on account of factum of possession which was deliver to the plaintiff, the plaintiff is certainly having a right and interest in the property. Hence, the moment the plaintiff came to the knowledge of the sale deeds, he has filed civil suit in the year 2011 immediately praying cancellation of sale deed and therefore, in light of section 53-A of the Transfer of Property Act, the civil suit is very much maintainable. 12. Shri Assudani has placed reliance upon judgments delivered in the case of Chetak Constructions Ltd. Indore v. Om Prakash and others, reported in 2002(5) MPLJ 129, S....
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....ny law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule; Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. Sections 53-A and 54 of the Transfer of Property Act: [53-A. Part performance -Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furth....
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....y is a "person interested to deny" a title adverse to the title of someone who is not in existence, and whom, if in existence, he would be a trustee. 41. Injunction when refused-An injunction cannot be granted- (a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings; (b) to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate, to that from which the injunction is sought; (c) to restrain any person from applying to any legislative body: (d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter; (e) to prevent the breach of a contract the performance of which would not be specifically enforced; (f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance; (g) to prevent a continuing breach in which the plaintiff has acquiesced; (h) when equally efficacious relief can certainly be obtained by any other usual mode of proc....
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....n [2012(2) MPLJ 683], wherein the this Court in paragraphs No. 7 and 8 has held as under: "7. The condition precedent for applicability of section 53-A of the Transfer of Property Act are firstly, that there should be a contract to transfer for consideration any immovable property; secondly, that the contract should be in writing and its terms can be ascertained with reasonable certainty; thirdly, that the transferee in part-performance of the contract has taken possession of the property or any part thereof or if he is already in possession, he continues in possession in part-performance of the contract; fourthly, that the transferee has done some act in furtherance of the contract; and fifthly, that the transferee has performed or is willing to perform his part of the contract, Besides that, a party relying on section 53-A of the Transfer of Property Act has to plead and prove the readiness and willingness on its part to perform the contract. 8. From perusal of paragraph 3(ka) of the written statement, it is apparent that defendants instead of filing the suit for specific performance of the contract, had initiated proceedings before the revenue Court for acquisi....
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.... 18. It cannot be disputed that the respondent No. 1 has filed a previous suit i.e. C.O.S. No. 5-A/2011 before the XIII Civil Judge Class- I, Indore and during the pendency of the said suit the present suit was filed. It has been argued by learned counsel for the respondent No. 1 that the relief prayed in the present suit is different from the previous suit. The question is, when the suit property and claim of the respondent No. 1 is the same, why was the relief prayed in the present suit not claimed/prayed in the previous suit, while the same could have been and should have been claimed in the previous suit and if the same was not claimed or omitted to be claimed, the subsequent suit would be clearly hit by the provisions of Order II rule 2 CPC. In view of the aforesaid provision of law, present suit is clearly barred by law and hence, the plaint is liable to be rejected. 19. The provisions of Order VI rule 4-A of CPC are mandatory in nature and it is clear from the bare perusal of the suit, it is clear that mere no necessary pleadings which are mandatorily required to be made in the plaint. Thus failure to comply with the aforesaid mandatory provisions of law would ....
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....e the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title of the property may be affected and secure extracts/copies duly certified." 21. It is also clear that the present suit filed in the year 2011 to challenge the sale deeds of the year 1995 i. e. after 16 years is clearly barred by time, while the period of limitation is only 3 years. It is also not in dispute that the petitioners' name in the revenue record were also recorded in the year 1995. Thus, the suit filed by the respondent No. 1 is clearly barred by limitation as has been held by this Court in the case of Nanhi Bai v. Govind Rao, reported in 2006(111) MPWN 88 as under: "9. Regarding substantial question of law No. (h) : The gift deed is dated 6.2.1976 and the suit for its cancellation has been filed by the plaintiff on 6.4.1986. Under Article 59 of the Indian Limitation Act, t....