Second Appeal No. 1673 of 2005. Case: Maharu s/o Gaindhal Bhoi Vs Hemraj s/o Waman Patil (died), through his legal representatives. Bombay High Court

Case Number:Second Appeal No. 1673 of 2005
Party Name:Maharu s/o Gaindhal Bhoi Vs Hemraj s/o Waman Patil (died), through his legal representatives
Counsel:For Appellant: S. P. Chapalgaonkar, Adv. and For Respondents: P. S. Paranjape, Adv.
Judges:T. V. Nalawade, J.
Issue:Specific Relief Act (47 of 1963) - Sections 9, 20; Evidence Act (1 of 1872) - Section 115
Citation:AIR 2014 BOM 124
Judgement Date:April 02, 2014
Court:Bombay High Court
 
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Judgment:

  1. The appeal is filed against the judgment and decree of Regular Civil Appeal No. 58 of 1998 which was pending in the Court of the District Judge, Jalgaon. The appeal of the present appellant, plaintiff, filed against the decision of Special Civil Suit No. 62 of 1994 which was pending in the Court of the Civil Judge, Senior Division, Amalner, is dismissed by the First Appellate Court. Relief of specific performance of contract is refused to the appellant. Both the sides are heard.

  2. The suit was filed in respect of agricultural land admeasuring 4 acres which is part of land Gut No. 100 which total admeasured at the relevant time, 17 acres and 25 gunthas. The suit portion is the northern portion of Gut No. 100/1 and in the agreement it was shown to be separated by East - West bandh from remaining portion.

  3. It is the case of the plaintiff that the defendant is owner of the suit property and he agreed to sell the suit property to the plaintiff under written agreement dated 18-5-1977. It is the case of the plaintiff that the agreed consideration was Rs. 30,000/- and on the date of agreement an amount of Rs. 17,000/- was paid by the plaintiff to the defendant. It is contended that an amount of Rs. 10,000/- was paid before the Sub Registrar and document was registered. It is contended that remaining amount of Rs. 3,000/- was to be paid to the defendant on the date of execution of sale deed. It is the case of the plaintiff that for execution of sale deed permission was necessary and the defendant was expected to take steps for taking such permission and he was also expected to take steps for division of Gut No. 100/1 in the revenue record and sale deed was to be executed within one month thereafter.

  4. It is the case of the plaintiff that he requested the defendant many a times orally to execute sale deed but the defendant avoided to do so. It is contended that notice was given in writing to the defendant on 4-4-1979 and this notice was received by the defendant. It is the case of the plaintiff that, the defendant did not reply the notice and avoided to execute the sale deed. It is the case of the plaintiff that second notice was issued on 18-8-1980. To this notice also no response was given by the defendant.

  5. It is the case of the plaintiff that he was and he has been ready and willing to perform his part of the contract. It is the case of the plaintiff that the defendant has avoided to perform his part of contact and he is not willing to perform his part of the contract. It is contended that possession of the suit land was given to the plaintiff under the aforesaid agreement and accordingly name of the plaintiff has been entered in the revenue record from 1978-79. It is contended that even division of land Gut No. 100/1 was done in the revenue record to separate the portion given in possession of the plaintiff. The plaintiff had prayed for relief of specific performance of aforesaid contract. In alternative, he had requested for relief of refund of consideration amount with interest.

  6. The aforesaid suit was given Special Civil Suit No. 5 of 1981. The defendant did not appear even after due service of summons on him. The suit was initially decreed ex parte. Execution Proceeding bearing No. 28 of 1982 was filed by the plaintiff. Then the defendant applied for setting aside the ex parte decree. The ex parte decree was set aside and the suit was given new number as Special Civil Suit No. 62 of 1994.

  7. It is the case of the defendant that there was no agreement of sale and he did not receive consideration as contended by the plaintiff. He denied that he had given possession of the suit land to the plaintiff. It is his case that behind his back by joining hands with revenue authorities, the plaintiff has created false record of Phalani of Gut No. 100/1 and he has got his name entered in the crop cultivation column.

  8. It is the case of the defendant that he has three brothers like Bhagwan, Bhimrao and Doghu. It is his case that they had ancestral property at Hanumantkhede, Tahsil Erandole. It is his case that his mother got some property from her father at Savkhede, Tahsil Amalner. It is the case of the defendant that, after demise of the mother, they succeeded to the property of their mother. It is the case of the defendant that, they treated the...

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