High Court
Legal Reasoning
189.2010SA.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.SECOND APPEAL NO. 89 OF 2010 Dharmaraj S/o Rambhau Chikne Age : 51 years, Occ : Agri., R/o Gangawadi, U/v Talwada, Tq. Gevrai, Dist. Beed. ..APPELLANT -VERSUS-1.Asaram s/o Kashinath Jadhav age : 33 years, Occ : Agril., R/o Gangawadi, U/v. Talwada, Tq. Gevrai, Dist. Beed. 2.Motiram s/o Kashinath Jadhav Age : 42 years, Occ : Agril, R/o Gangawadi, U/v Talwada, Tq. Gevrai, Dist. Beed. 3.Shantabai w/o Kashinath JadhavAge : 52 years, Occ : Agri., R/o As above. 4.Savitribai w/o Baburao Kadam Age : 43 years, Occ : Agril., R/o Limbgaon, Tq. & Dist. Beed. ..RESPONDENTS ...Advocate for appellant : Mr. M.M. Patil (Beedkar) Advocate for Respondent Nos.1 to 4 : Ms.Rekha Chaudhari h/f Mr. S. S.Chaudhari …CORAM :ROHIT W. JOSHI, J. RESERVED ON : 18.03.2025PRONOUNCED ON : 25.06.2025PJUDGMENT :1.The present second appeal arises out of a suit for specific 289.2010SA.odtperformance of contract filed by the present appellant in which therespondents had filed a counter claim for possession. The suit forspecific performance filed by the appellant came to be dismissed andthe counter claim for possession filed by the respondents came to bedecreed. First Appeal preferred by the appellant, being Regular CivilSuit No.1136/1996 is also dismissed. In such circumstances, thepresent second appeal is filed challenging the said concurrent decrees.The appeal is admitted vide order dated 13th April, 2011 on thefollowing substantial questions of law :- "i)Whether the counter claim filed by the presentrespondents was maintainable in view of provisions ofOrder 23 Rule 3-A of the Code of Civil Procedure ? ii)Even if the plaintiff in its written statement had nottaken the plea of limitation, whether the Court should nothave considered the same in view of Section 3 of the IndianLimitation Act, 1963 ? iii)Whether the plaintiff in the facts and circumstancesof the case is entitled for the relief of specificperformance ?" 2.The respondents are owners of the suit property, which isan agricultural land bearing survey no.94/A2 admeasuring 5 acres and47 gunthas. The suit property is ancestral property of the defendants.The plaintiff claims that he had entered into an oral agreement of salewith respect to suit property with late Kashinath Jadhav, father of 389.2010SA.odtdefendant nos.1 and 2, husband of defendant no.3 and son ofdefendant no.4 for a valuable consideration of Rs.13,000/- onauspicious day of Gudi Padwa i.e. on 08.04.1978. The plaintiff claimsthat he had paid earnest amount of Rs.1,000/- at the time of agreementand was placed in possession of the suit property. He claims thatbalance amount of Rs.12,000/- which was to be paid at the time ofexecution and registration of sale deed was paid although the sale wasnot executed and registered since the vendor Kashinath was sufferingfrom tuberculosis and was in need of money for his treatment. Heclaimed that Kashinath was trying to disturb his possession over the suitproperty, and therefore, a suit for perpeptual injunction was institutedby him against Kashinath, being Regular Civil Suit No.238/1978 inwhich compromise decree was passed on 26.06.1978. 3.It will be pertinent to mention here that Kashinath expiredon 17.11.1981. During the life time of Kashinath his sons i.e. defendantnos.1 and 2 filed a suit for partition and separate possession, beingRegular Civil Suit No.865/1980. In the said suit, the present plaintiffwas arrayed as defendant no.4. Apart from Kashinath, presentdefendant no.3 and three other purchasers of different properties wereparties to the said suit for partition. The learned trial court haddismissed the suit for partition holding that all alienations including thetransactions between Kashinath and present plaintiff were for legal 489.2010SA.odtnecessity and that the purchasers including the present plaintiffs hadmade payment of consideration to Kashinath. In the appeal preferredby defendant nos.1 and 2 (plaintiffs in the said suit), the decree passedby the learned trial court was reversed holding that alienations werewithout legal necessity and accordingly, the decree for partition andseparate possession came to be passed. The present appellant and otherpurchasers had filed two separate second appeals before this Court,which are decided simultaneously by a separate judgment. 4.The learned trial court has disbelieved the case of theplaintiff regarding agreement inter se between plaintiff and deceasedKashinath, consequently the payment of earnest money and balancesale consideration is also disbelieved. As regards, compromise decree inRegular Civil Suit No.238/1978, it is held that the same is obtained bypracticing fraud. The learned trial court has also recorded that theagreement was hit by provisions of the Maharashtra Resettlement ofProject Displaced Persons Act, 1976. Accordingly, the suit was dismissedand counter claim for possession was decreed. Although, issue withrespect to limitation is not framed, the learned trial court has discussedthe aspect of limitation elaborately in paragraph 7 of the judgment. It isheld that according to the plaintiff, Kashinath during his life time wasthreatening to dispossess plaintiff, and therefore, Regular Civil SuitNo.271/1978 was required to be filed. This according to the learned 589.2010SA.odttrial court indicated refusal on the part of Kashinath to execute the saledeed. The trial court has held that the limitation of three years for filingsuit for specific performance of the contract commenced in the year1978 itself. The learned trial court has further held that the suit forpartition was filed by sons of Kashinath i.e. defendant nos.1 and 2 andin that suit, Kashinath had filed written statement supporting the causein the plaint, which again clearly indicated that he was disputing theagreement, which also gives rise to cause of action. 5.As regards, the learned first appellate court, it hasconcurred with the findings recorded by the learned trial court and hasdismissed the appeal accordingly. In such circumstances, the presentsecond appeal came to be filed, wherein aforesaid substantial questionsof law are framed. Question No.(ii) :- 6.Section 3 of the Limitation Act, 1963 imposes an obligationon every court to dismiss a suit, which is barred by limitation, althoughlimitation may not have been set up as a defence. The question oflimitation is a mixed question of law and facts. Therefore, inquiry onfacts is necessary to decide the issue of limitation. Since inquiry on factsis essential, it is necessary to have a look at the rival pleadings and 689.2010SA.odtevidence led by the parties. In the present case, however, it is apparentfrom the plaint averments itself as also from the contentions canvassedby the plaintiff that after entering into agreement of sale on08.04.1978, that vendor, Kashinath tried to disturb his possession, as aconsequence of which, a suit being Regular Civil Suit No.238/1978 wasfiled by the plaintiff seeking decree for perpetual injunction againstKashinath for protection of his possession. In the said suit, acompromise decree came to be passed on 26.06.1978 i.e. on very dayon which the suit was filed. Thereafter, during life time of Kashinath,suit for partition and separate possession, being Regular Civil SuitNo.865/1980 was filed by defendant nos.1 and 2, who are sons ofKashinath. Kashinath and his wife were arrayed as defendant nos.1 and2 in the said suit. The plaintiff has alleged that the suit was filed byminor sons of Kashinath in collusion with him and his wife. Kashinathhad filed written statement against the plaintiff who is defendant no.4in the said suit. Kashinath has expired on 17.11.1981. Thus, there wasrefusal on the part of Kashinath to honour the agreement during hislifetime i.e. prior to 17.11.1981. This refusal is the starting point oflimitation. The refusal is in the year 1978 and 1980. The plaintiff, whois defendant no.4 in the suit for partition, was aware about this. Thesuit for specific performance is filed in the year 1987. Since the date forexecution of sale deed was not fixed, the refusal to abide by theagreement will be starting point of limitation. The suit is not filed 789.2010SA.odtwithin a period of three years from the refusal and is clearly barred bylimitation. The fact that the suit is barred by limitation is apparent fromplaint averments, which refer to the earlier compromise decree as wellas the suit for partition and collusion between deceased Kashinath andpresent defendant nos.1 to 3, who are plaintiff nos.1 and 2 anddefendant no.2 in the said suit. The substantial question of law is thusanswered in favour of respondents and against the plaintiff. Question No. (iii):- 7.Since question of law pertaining to limitation is answeredagainst the appellant, substantial question of law No.(iii) will also haveto be answered against him in view of the fact that the suit was barredby limitation. It will be pertinent to mention that in the earlier suit forpartition and separate possession filed by defendant nos.1 and 2, theallegations with respect to fraud and non-payment of consideration areheld to be not proved. However, it is not necessary to elaborate furtheron this aspect since the question of limitation is answered against theplaintiffs. Question No.(i):- 8.As stated above, a compromise decree was passed inRegular Civil Suit No.238/1978, the contention of defendant nos.1 to 3is that the said compromise decree was obtained by practicing fraud. 889.2010SA.odtThe learned trial court has recorded a finding on the said issue infavour of the defendants. Based on this finding, the decree forpossession in respect to the suit property was passed in the counterclaim filed by the defendants. 9.As regards compromise decree in Regular Civil SuitNo.238/1978, it must be noted that the defendants are not parties tothe said suit. The compromise decree is not for specific performance ofcontract and it also does not speak about the protection of possession ofplaintiff under Section 53A of the Transfer of Property Act. It is a simpledecree for perpetual injunction according to which Kashinath hasagreed not to dispossess plaintiff without due process of law. 10.Kashinath himself could not have filed a suit claiming thatcompromise decree was obtained by fraud. The defendants as his legalrepresentatives also cannot raise the said issue. However, thedefendants are claiming right over the suit property in their individualcapacity by stating that the suit property was an ancestral land whereinthey had independent right as coparceners by birth. In view of clearstand of the defendants claiming clear right over the suit property, itwas open for them to challenge the compromise decree. The bar underOrder XXIII Rule 3A of Code of Civil Procedure will not be applicablehaving regard to the nature of property in which the defendants can 989.2010SA.odtclaim independent right. 11.Even if, it is assumed that defendants cannot challenge thecompromise decree, still they will be entitled for decree for possession.It is undisputed that alleged agreement between plaintiff and Kashinathwas an oral agreement. It is undisputed that the agreement has notculminated in the sale deed. The suit for specific performance filed byplaintiff is liable to be dismissed as time barred. Protection underSection 53A cannot be claimed by the plaintiff since the allegedagreement is not a written agreement. The ownership of defendantscannot be disputed. The plaintiff can avoid decree for possession onlyon succeeding in obtaining decree for specific performance of contractor by seeking shelter under Section 53A. The plaintiff is not entitled toa decree for specific performance of contract as also to seek shelterunder Section 53A of the Transfer of Property Act. Compromise decreein the earlier suit will also not come to the rescue of plaintiff since it isa matter decree for specific performance not for protection ofpossession under Section 53A of the Transfer of Property Act.Consequently, even if the substantial question of law is answered infavour of plaintiff and compromise decree is maintained, the decree forpossession which is granted in the counter claim is inevitable. It isreiterated that compromise decree is for perpetual injunction againstforcible dispossession.
Decision
1089.2010SA.odt12.In view of the answers to the substantial questions of lawgiven above, second appeal deserves to be dismissed and is dismissedaccordingly with costs.13.Civil Application, if any, stands disposed of. [ROHIT W. JOSHI]JUDGEsga/