High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 380 OF 1994 WITHCIVIL APPLICATION NO. 4794 OF 1994Devidas Haribhau Jogdand (died) through LR’s… APPELLANT(Orig. Defendant)1-A)Parvatibai w/o Devidasrao JogdandAge : 80 years, Occu – Nil,R/o Taluka – District Beed1-B)Malanbai w/o Devidasrao JogdandAge : 75 years, Occu – Nil,R/o Beed(Deleted as per court order dated 26/08/2022)1-C)Pandit s/o Devidasrao JogdandAge : 60 years, Occu – PensionerR/o Beed, Taluka – District Beed(Died) through LR’s1-C-i) Shantabai w/o Panditrao Jogdand,Age : 69 years, Occu – Household,R/o. M.S.E.B. Colony, Shahu Nagar,Beed, Tq. & District Beed1-C-ii) Mahes s/o Panditrao Jogdand,Age : 38 years, Occu – Service,R/o. M.S.E.B. Colony, Shahu Nagar,Beed, Tq. & District Beed1-D)Balkrishna s/o Devidasrao JogdandAge : 45 years, Occu – Government Service,R/o. Ahmednagar, Tq. & Dist. Ahmednagar,1-E)Ambad s/o Devidasrao JogdandR/o Beed, Tq. & Dist. BeedVERSUS1.Vithal s/o Yamaji Kolpe,Age : 50 years, Occu.: Agriculture,sa380.1994.odt1 R/o. Belgaon, R/o Limbaganesh, Tq. Beed2.Nana s/o Yemaji Kolpe(Died) through LR’s2(1)Sou. Godabai Tukaram IngoleAge : 30 Yrs., Occu.: Household,r/o Somnath Wadi,Tq. & Dist. Beed.3.Deorao s/o Yemaji Kolpe(Died) through LR’s3A)Murlidhar Deorao KolpeAge : 64 Yrs., Occu.: Agri.3B)Jalindar Deorao KolpeAge : 60 Yrs., Occu.: Agri.3C)Mudhukar Deorao KolpeAge : 50 Yrs., Occu.: Agri.3D)Anusaya Sahebrao IngoleAge : 67 Yrs., Occu.: Household3E)Nilawati Popat JadhavAge : 48 Yrs., Occu.: HouseholdAll r/o Somnath Wadi, Tq. & Dist. Beed4.Dnyanoba s/o Arjuna Madve,Age : 30 Yrs., Occu. Agriculture,r/o as above5.Jeevan s/o Ambu Savant,Age : 26 Yrs., Occu. Agriculture,r/o as above6.Shankar s/o Raghu Jadhav,Age : 53 Yrs., Occu. Agriculture,r/o as above7.Sonaji Keru Jadhav(Died) Through LR’s7A)Subhash Sonaji JadhavAge : 38 Yrs., Occu. Agri.7B)Popat Sonaji JadhavAge : 30 Yrs., Occu. Agri.sa380.1994.odt2
Legal Reasoning
7C)Shrimant Sonaji JadhavAge : 25 Yrs., Occu. Agri.7D)Sunita Yogiraj Bhoite,Age : 35 Yrs., Occu. HouseholdAll r/o Somnath Wadi, Tq. & Dist. Beed.8.Yedba s/o Ganpati Kolpe,(died) through LR’s8a.Dnyanoba s/o Yedba KolpeAge : 34 Years, Occu. Agriculture,r/o Belgaon, u/v Limbaganesh, Tq. Beed.8b.Prabhu s/o Yedba KolpeAge : 45 Years, Occu. As above.8c.Sahadeo s/o Yedba Kolpe,Age : 32 Years, Occu. As above.8d.Babu s/o Yedba KolpeAge : 25 Years, Occu. As above.8e.Suman w/o Bajirao Khillare,Age : 46 Years, Occu. Household,r/o Pokhari, u/v Limbaganesh, Tq. Beed.8f.Antikabai w/o Mahadeorao MulikAge : 39 Years, Occu. Household,r/o Belgaon, u/v Limbaganesh, Tq. Beed.8g.Vaijyanta w/o Ankush Wayambhat,Age : 26 Years, Occu. Household,r/o Limbaganesh8h.Kantkabai w/o Dattu JareAge : 36 Years, Occu. Agriculture,r/o Limbaganesh9.Keshav s/o Laxman Kolpe,Age : 43 Years, Occu. Agriculture,r/o Belgaon, u/v Limbaganesh, Tq. Beed.10.Shripati Keru Shelkesa380.1994.odt3 (died) Through LR’s10A)Gorakh Shripati ShelkeAge : 45 Yrs., Occ. Agri.10B)Sharad Shripati ShelkeAge : 40 Yrs., Occ. Agri.10C)Kalyan Shripati ShelkeAge : 38 Yrs., Occ. Agri.10D)Mohan Shripati ShelkeAge : 36 Yrs., Occ. Agri.All r/o Belgaon, Tq. & Dist. Beed.11.Limba s/o Madha Shelke(died) Through LR’s11A)Sou. Ashabai Uttam MoreAge : 35 Yrs. Occu. Agri.11B)Sou. Meena Dnyandeo DandawateAge : 33 Yrs. Occu. Agri.11C)Sou. Mangala Bhaskar BhagwatAge : 31 Yrs. Occu. Agri.11D)Mahadeo Limbaji ShelkeAge : 29 Yrs. Occu. Agri.11E)Sou. Rukhminibai Limbaji ShelkeAge : 48 Yrs. Occu. HouseholdAll r/o Belgaon, Tq. & Dist. Beed.12.Kondiba s/o Mahada KolpeAge : 47 Yrs. Occu. Agriculture,r/o as above13.Babu s/o Sakharam Shelke,Age : 35 Yrs. Occu. Agriculture,r/o as above14.Bansi s/o Dattu Kolpe(Died) Through LR’s14A.Yuvraj Bansi KolpeAge : 25 years, Occu. Agril.R/o Gelgao, Tal. and Dist. Beedsa380.1994.odt4 15.Raghunath s/o Dattu KolpeAge : 30 Yrs. Occu. & r/o as above… RESPONDENTS(Orig. Plaintiffs)Mr. M. M. Patil Beedkar, Advocate for AppellantMr. M. K. Deshpande, Advocate for Respondent Nos. 1, 2A, 3A to 3E,4 to 6, 7A to 7D, 8A to 8H, 9, 10A to 10D, 11A to 11E, 12, 14A and15CORAM : R. M. JOSHI, J.RESERVED ON :31st JULY, 2025PRONOUNCED ON :6th AUGUST, 2025JUDGMENT :-1.This Appeal, filed by original defendant under Section 100 ofthe Code of Civil Procedure (for short ‘CPC’)m takes exception to thejudgment and decree dated 08/10/1984 passed by the 2nd Jt. C.J.J.D.,Beed in R.C.S. No. 424/1979, which came to be confirmed in R.C.A. No.413/1984, whereby the decree of specific performance of contract cameto be passed in favour of the plaintiffs.2.This Court by order dated 04/03/2025 framed followingsubstantial questions of law:“i) Whether the finding as regards Section 16(c) of the SpecificRelief Act, 1963 recorded by the learned Courts are perverse?ii)Was the Suit barred by limitation?iii)Whether the learned Courts have erred in grantingdiscretionary relief of specific performance to the plaintiff havingregard to his conduct?”3.The facts which led to the filing of this Appeal can benarrated in brief as under:-sa380.1994.odt5 (i)Plaintiffs, 15 in number, filed suit being R.C.S. No. 424/1979 beforeC.J.J.D., Beed for decree of specific of performance of contract of sale oflands. The suit properties as described in the plaint are Survey No. 494admeasuring 11 acres and 16 R and Survey No. 497 half share towardswestern side from 25 acres 34 R lands situated at village Limbaganesh,Tq. and District Beed. It is the case of the Plaintiffs that Defendant wasliable to pay Rs.7000/- odd amount to City Municipality, Beed in respectof some contract. Municipality moved the Collector and got the suit landsattached for the recovery of said amount as land revenue. The suitproperties were auctioned. Rakhmaji purchased the suit land bearingSurvey No. 494, whereas Khandu purchased the suit land bearing SurveyNo. 497 in provisional auction sale effected on 27/05/1963. The auctionsale was placed before the Collector for confirmation. Defendant in themeantime deposited some amount and requested the Collector to grantinstallments to pay the remaining amount. Collector granted his request.The Defendant deposited a sum of Rs.5000/- on 20/04/1964 and soughtfurther time. The time sought was refused by the Collector and theauction sale was confirmed by order dated 20/11/1964. The Defendantdeposited balance amount of Rs.2467.37 on 01/12/1964 and applied forthe Collector to set aside the sale. This Application was rejected by theCollector on 29/12/1964. The challenge to the said order in Appealbefore the Collector was unsuccessful. Further exception thereto inrevision before the State Government also could not be succeeded. Thesa380.1994.odt6 Defendant, therefore, applied to the High Court under the Article 227 ofthe Constitution of India by filing Civil Revision Application No.1675/1968. This Court by judgment dated 28/02/1972 allowed thePetition and set aside the auction sale. The Defendant was, however,directed to deposit the amount along with interest at the rate of 12% onRs.4200/- and Rs.700/- for three years. The possession of the suitproperties were directed to be restored on the payment of the saidamount along with the interest. With setting aside of the auction sale,the Defendant continued to be the owner of the suit land.(ii)It is the case of the Plaintiffs that immediately after provisionalauction of the suit property was done, Defendant wished to sale the suitproperties to get maximum market value and therefore requested thePlaintiffs to purchase the same, who agreed to the purchase theproperties. Agreement to sale (i.e. Isar Pavti) came to be executed bythe Defendant with Plaintiff Nos.1 to 13 and father of Plaintiff Nos.14 and15 sale of suit properties for total consideration of Rs.20,000/-. It isclaimed by the Plaintiffs that the paid Rs.1000/- towards earnest moneyand further amount of Rs.7280/- was also paid. The remaining amountwas to be paid at the time of execution of sale deed. It is the case ofPlaintiffs that Defendant agreed that he would deposit entire dues ofMunicipality. They further claimed that they approached to the Defendantfrom time to time but Defendant promise to fulfill the contract within asa380.1994.odt7 year. It is claimed that 23/04/1964 a registered Isar Pavti came to beexecuted by the Defendant in favour of the Plaintiffs. The shares of thePlaintiffs were also settled inter se between them. On execution of theIsar Pavti Plaintiff Nos.1 to 13 and deceased Dattu requested theDefendant to deposit whole of his dues and apply for setting asideprovisional auction sale but the Defendant did not do so. Plaintiffsclaimed that recently they came to know about the High Court’s decisionand all this time Defendant used to tell them about the pendency of theproceeding before the High Court for not executing sale deed. It isclaimed that over and above Rs.8280/- Plaintiffs have paid a sum ofRs.2720/- to the Defendant on several occasions, however, the receipt islost. The Plaintiffs claimed that on 23/10/1979 for the first time theDefendant refused to execute the sale deed and hence suit came to filedon 10/12/1979 for decree of specific performance of contract.(iii)The Defendant filed written statement denying the contentionsraised by the Plaintiffs. It is admitted that Defendant had become liableto pay Rs.7000/- plus amount to Municipality, Beed but denied theauction of the suit property. It is denied that by the Defendant that hewanted to sale the suit land to any one by private negotiations to fetchmaximum market value of suit properties. It is claimed that his mainprofession is agricultural and therefore, he never wanted to sale the suitlands. It is denied that there was any agreement to sale the suit land tosa380.1994.odt8 the Plaintiffs. It is claimed of the Defendant that the amount ofRs.7280/- was paid by the Plaintiffs to him which was to be returned byhim with interest within a period of three years from the execution of theagreement dated 23/04/1974. He denied to have received Rs.2720/- orany earnest money. In the additional statement it is claimed by theDefendant that he was and is not in the possession of the suit land. It isclaimed that the Defendant orally asked on many occasions to thePlaintiffs to accept the money back which was taken by him from thePlaintiffs but the Plaintiffs did not accept the same until the decision ofthe High Court. It is claimed that the suit filed by the Plaintiffs is timebarred and they have not entitled to receive the money of Rs.7280/-. Itis denied that the Plaintiffs demanded specific performance on20/10/1979 and hence question of refusal thereof would not arise.(iv)The learned Trial Court framed issues at Exhibit 17. On behalf ofthe Plaintiffs Nana Kolpe was examined at Exhibit 23 and evidence wasled of Babu Kale at Exhibit 25. Defendant entered into witness box andexamined himself at Exhibit 28. The learned Trial Court by passingjudgment and decree dated 08/10/1984 granted specific performance ofcontract on payment of remaining consideration of Rs.11720/- in theCourt within two months. The issue of execution of agreement to salepayment of earnest money and readiness and willingness to perform partof the contract by the Plaintiffs came to answered in favour of Plaintiffs.sa380.1994.odt9 The judgment and decree passed by the Trial Court came to bechallenged in Appeal before the District Court in R.C.A. No. 413/1984unsuccessfully, hence, this Second Appeal.4.Learned Counsel for the Defendant-Appellant submits thatthe Plaintiffs have failed to prove the cause of action of 23/10/1979 forfiling the suit and therefore suit is not filed within limitation. It is hissubmission that the agreement to sale is of year 1964, whereas the suitcame to be filed in the year 1979 and hence on the face of it, it is notfiled within limitation and hence deserves to be dismissed on the countalone. It is his further submission that once a specific date is sought tobe contended by the Plaintiffs to be cause of action, the same must beproved by leading cogent evidence. He drew attention of the Court to theevidence of witnesses examined by the Plaintiffs to contend that witnessexamined by Plaintiffs does not claim the exact date on which theDefendant has denied execution of the sale deed. It is his furthersubmission that the conduct of the Plaintiffs also disentitle the Plaintiffsfrom getting decree of specific performance of contract. It is hissubmission that though Plaintiffs have claimed that they paid Rs.2720/-to the Defendant, the said fact has not been proved before the TrialCourt. It is his submission by relying upon the judgment of the Hon’bleSupreme Court in case of Major Gen. Darshan Singh (D) By LegalRepresentatives and Another Versus Brij Bhushan Chaudhar (D) By Legalsa380.1994.odt10 Representatives, (2024) 3 SCC 489 that when the Plaintiffs made falsestatements in plaint, they are not held to be entitled for discretionaryrelief of specific performance. Reliance is also placed on the judgment incase of Lourdu Mari David and Others Versus Louis ChinnayaArogiaswamy and Others, (1996) 5 SCC 589. He drew attention of theCourt to the findings recorded by the Trial Court in respect of theagreement to sale (Isar Pavti) that the sale deed would be executed afterdecision of the High Court and after getting the possession and the saidperiod was indefinite. It is his submission that the said findings arecontrary to the documents and hence perverse. He also drew attention ofthe Court to the observations made by the Appellate Court in paragraph14 to 15 which according to him are not inconsonance with the materialon record, hence deserves to be interfered with. Thus, sum andsubstance of his contention is that since the suit is barred by limitationand as the Plaintiffs have failed to prove the cause of action so alsoreadiness and willingness to perform their part of the contract, they arenot entitled for discretionary relief of specific performance.5.Learned counsel for the Plaintiffs supported the impugnedjudgment and decree and contended that a concurrent findings of factrecorded by the Court below cannot be interfered with in exercise of thepowers under Section 100 of CPC. It is his submission that perusal of theIsar Pavti indicates that there was no time limit fixed for the specificsa380.1994.odt11 performance of the contract. It is his contention that in the facts of thecase which are sufficient to indicate that there was provisional sale andconfirmation thereof and the challenge thereto was unsuccessful till inthe revision before the State Government and it is only after the orderwas passed by the High Court, the sale was set aside with condition thatthe Defendant would pay the amount along with the interest. It is hiscontention that the cause of action of refusal of execution of sale deed isclearly spelt out in the plaint and witness has been duly examined tosubstantiate the same. It is submitted that by no stretch of imaginationin can be held that the suit is barred by limitation. In so far as readinessand willingness is concerned, pleadings and the evidence on record isreferred to. He place reliance on the judgment of the Hon’ble SupremeCourt in case of P. Daivasigamani Versus S. Sambandan, (2022) 14 SCC793.6.There is no dispute about the fact that the Defendantexecuted Isar Pavti dated 23/04/1964 in favour of the Plaintiffs. The IsarPavti indicates that shares of individual Plaintiffs in the Suit propertywere decided. There is further admission of the Defendant in respect ofreceipt of a sum of Rs.7000/- plus amount from the Plaintiffs. In thisbackdrop question arises as to whether the contention of the Defendantabout this being not a agreement to sale but money lending transactionis probable. Once execution of the Isar Pavti is not in dispute and thesa380.1994.odt12 receipt of the amount is also accepted, question arises as to what wouldthe need for the Defendant to indicate in the Isar Pavti that 15 personsi.e. Plaintiffs, would have specific shares in the suit property. In case ofloan transaction, such determination of share of each Plaintiff would havenever appeared in the document. Apart from this a question would ariseas to why the loan has been obtained from 15 different persons underone document. Similarly, case sought to be made out by Defendant thathis main occupation was Agriculturist and therefore he could not havesold suit property is not conceivable in view of admitted facts thatagainst contract with Municipality amounts was due from him. As againstthis the case of the Plaintiffs that since there was provisional auction saleof the suit property, Defendant wanted to get maximum values of thesuit property and hence agreed to sale the suit property for totalconsideration of Rs.20,000/- is more probable. On the basis of theevidence on record coupled with the pleadings with pleadings of theparties it cannot be held that this is a money lending transaction but asheld by the Court below the Defendant had agreed to sale the suitproperty to the Plaintiffs.7.The initial burden is on the Plaintiff to plead and prove thereadiness and willingness to perform their part of the contract ascontemplated by Section 16(c) of the Specific Relief Act. In this regardthere is pleading in the plaint about readiness and willingness of thesa380.1994.odt13 Plaintiffs to perform their part of the contract. There are specificpleadings in respect of the amounts being paid to the Defendant fromtime to time and that the Plaintiffs having approached to the Defendantwith the remaining amount requesting him to accept the said. There isno cross-examination of the Plaintiffs’ witness in order to indicate thatthe Plaintiffs were not ready and willing to perform their part of thecontract. Apart from this it is pertinent to note that the facts of the caseby itself indicate that as per the claim of the Defendant he approached tothe Plaintiffs for advancement of loan and which indicates their soundfinancial condition. If the Plaintiffs were in position to advance loan tothe Defendant, question of taking doubt about their readiness does notarise. Their willingness could be seen from the approach to Defendantfrom time to time and on refusal by Defendant, filing of suit immediately.Evidence led by the Plaintiffs indicates that the willingness is also shownby them approaching the Defendant for accepting the balance amount ofconsideration and to execute sale deed. Thus the finding of Trial Courtconfirmed by the Appellate Court with regard to the readiness andwillingness of the Plaintiffs to perform their part of the contract isconsistent with evidence on record and hence required no interference.8.The Defendant claims that Plaintiffs made false statementabout payment of Rs.2720/- to Defendant, as they have failed to provethe same and relying upon judgment in case of Major Gen. Darshansa380.1994.odt14 Singh (D) By Legal Representatives and Another (supra) and soughtdismissal of suit. In the instant case, the pleadings in the plaint are clearto say that amount of Rs.2720/- is paid to Defendant but receipts thereofare not available. In the facts of the case, the said statement cannot beconstrued as false, merely because Plaintiffs failed to prove the saidpayment. The Trial Court has directed Plaintiffs to pay balanceconsideration to Defendant including said amount. Thus, it can not besaid that Plaintiffs filed suit on the basis of false statement. Thejudgment cited supra therefore would not help Appellant in any manner.9.On the point of limitation it is sought to be contended onbehalf of the Defendant that the exact date of denial by the Defendant toexecute the sale deed has not been proved. In order to decide the saidissue it would be relevant at first instance to take into consideration theoverall facts and circumstances of the case. Admittedly, Defendant wasliable to pay more than Rs.7000/- to City Municipality, Beed. The saidamount was sought to be recovered as land revenue. Provisional auctionsale was effected on 27/05/1963. The agreement to sale i.e. Isar Pavticame to be executed on 23/04/1964. It is thereafter Defendant hadtaken exception to the said order of provisional sale before the Authorityand finally challenge thereto was made before this Court in Civil RevisionApplication No. 1678/1968. This Court by judgment dated 28/02/1972set aside the auction sale, however, directed Defendant to deposit thesa380.1994.odt15 amount with interest at the rate of 12% payable to the auctionpurchasers. The possession was directed to be restored to the Defendantonly on the payment of the said amount along with interest. It isadmitted fact even when the suit was filed, the possession was notobtained by the Defendant of the suit properties. 10.In the light of this facts, the Plaintiffs have specificallypleaded about they approaching to the Defendant from time to time toaccept the balance consideration and Defendant avoided the same. It isaverred that on 23/10/1979 when the Defendant for the first timerefused to execute the sale deed, suit came to be filed on 10/12/1979seeking decree of specific performance. On behalf of the Plaintiffs one ofPlaintiff came to be examined. He has stated about the Defendant beingapproached earlier and finally refusing to execute the sale deed. In thecross-examination nothing could be elicited to disbelieve the statementof the Plaintiffs.11.As far as the exact date of refusal is concerned, the samemay not be crucial in each case for establishing a cause of action.Needless to say that the Court is required to take into consideration as towhen the refusal is made and the circumstances in which it is made soalso consequences thereof rather than deciding the exact movement ofthe refusal would be relevant. As recoded above, there were proceedingsgoing on before the High Court which were not informed by thesa380.1994.odt16 Defendant to the Plaintiffs and that Plaintiffs were time and againapproaching to the Defendant for accepting balance consideration andthe Defendant avoided to do so, refusal on the part of Defendant beforefiling of the suit to execute the sale deed deserves to be accepted. In thefacts of the case it cannot be said that the Plaintiffs have deliberately notapproached to the Court for seeking decree of specific performanceearlier. Needless to say that the time is not essence of the contract incase of sale of immovable property and that there is no specific timelimit fixed for execution of the sale deed. In the peculiar facts of thecase, it could not have been possible even for Defendant to fix a specificdate for execution owing to the pendency of the proceedings initiated byhim challenging the provisional sale and thereafter the confirmed sale.Having regard to the overall facts and circumstances of the case, thisCourt finds no reason or justification to dismiss the suit being beyondlimitation.12.The pleadings of the parties and evidence on record and onconsidering overall facts of the case, the case of Plaintiffs becomes moreprobable than of the Defendant. The Hon’ble Apex Court Court has heldthat time and again unless the findings are perverse, in Second AppellateCourt would does not get jurisdiction to cause interference therein. Incase of Damodar Lal vs Sohan Devi And Ors, AIR 2016 SC 379, theHon’ble Supreme Court has held that the High Court in Second Appeal issa380.1994.odt17 not justified in upsetting the findings which are pure questions of fact.Further observed that even if the findings of fact is wrong, that by itselfwill not constitute a question of law. According to the Hon’ble SupremeCourt the wrong finding should stem out on a complete misreading ofevidence or it should be based only on conjectures and surmises and thesafest approach on perversity is the classic approach on the reasonableman’s inference on the facts. If the conclusion on the facts in evidencemade by the Court is possible, there is no perversity. In the facts of thecase, this Court also does not find any perversity in the findings recordedby the First Appellate Court. As a result of which in substantial questionsof law framed and recorded herein above, answer in negative. As a resultof this discussion, there is no reason or justification to cause interferencein the impugned judgment and order. Hence, Appeal stands dismissed.Pending Civil Application, if any, stands disposed of.( R. M. JOSHI, J. )LATER ON13.Learned Counsel for the Appellants seeks continuation ofinterim relief for a period of six weeks.14.Learned Counsel for contesting Respondents opposes the saidrequest.sa380.1994.odt18 15.Since the interim relief is in force since 1995, the same isextended for a period of six weeks.( R. M. JOSHI, J. )sspsa380.1994.odt19