High Court

Legal Reasoning

1918-ca-7583-2014.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD918 SECOND APPEAL NO. 484 OF 20141.Bhaurao Jayaram Hinge (deceased)1-ASmt. Dwarkabai Bhaurao HingeAge : 73 years, Occu : Household1-BSau. Vijaya Ashok BhamreAge : 56 years, Occu : Medical Practitioner1-CVikasrao Bhaurao HingeAge : 54 years, Occu : Service1-DSau. Vaishali Nitin DeoreAge : 49 years, Occu : ServiceAll R./o. 44/C Samtanagar,Savedi, Ahmednagar District Ahmednagar2.Pushpa Shivajirao Patil.Age : 61 years, Occu: Household,R/o. Krushi Mahavidyalaya, Pune3.Ramesh Pandurang Purkar,Age : 54 years, Occu: Agriculture4.Walmik Gangadhar Purkar,Age : 52 years, Occu : Agriculture,5.Vishnu Sakhahari Purkar.Age : 47 years, Occu: AgricultureR/Nos.3 to 5 R/o Visapur,Tq. Yeola, District Nashik6.Raju Shridhar Gaikwad,Age : 47 years. Occu : Service,R/o. Krushi Vidyapeeth Rahuri,Tq. Rahuri, Dist. Ahmednagar.7.Manisha Himmatrao Patil,Age: 61 years. Occu : Household,R/o. Krushi Mahavidyalaya, Badnapur, 2918-ca-7583-2014.odtTq. Badnapur, Dist Jalna8.Indubai Devidas Salunke,Age : 62 years, Occu : Household,R/o. Savkar Wadi, Malegaon,Tq. Malegaon, Dist. Nashik9.Bhagwan Sakharam Aher,Age : 67 years, Occu : Service’R/o. Malegaon, Tq. Nandgaon, Dist. Nashik10.Laxman Manik Akubattin,(deceased)10-ASmt. Minakshi Laxamn AkubattinAge : 59 years, Occu : Household.10-BVinayak Laxman AkubattinAge : 28 years, Occu : Service10-CVishal Laxman AkubattinAge : 26 years, Occu : ServiceR. Nos. 10-A to 10-CR/o. 21/A, ShramiknagarPipline Road, Savedi,Ahmednagar, District Ahmednagar11.Manik Irayya Akubattin (deceased)Through his legal heirs11-A Laxman Manik Akubattin,Age-57 years, Occu Service11-BAshok Manik AkubattinAge:55 years, Occu : Service11-CChandrabhaga Manik Akubattin,Age : 85 years Occu : Household11-DShridhar Manik Akubattin,Age 47 years, Occu : Business11-EAnant Manik Akubattin,Age 49 years, Occu : Service, 3918-ca-7583-2014.odt11-A to 11-D R/o. Shramiknagar,Pipeline Road, AhmednagarR.No.11-E R/o. Sangamner Court,Tq. Sangamner, District Ahmnednagar12.Hiralal Ramayya Akubattin,Age - 57 years, Occu : Service13.Dhananjay Ramayya AkubattinAge : 47 years, Occu : Service,Nos.12 and 13 R/o. Shramiknagar, Savedi, Ahmednagar....APPELLANTSVERSUS1.Ramesh Gallaya Battin,Age : 60 years, Occu : Service2.Sau. Parvati Ramesh Battin,Age : 56 years, Occu : Household,Both r/o. Satbhai Mala, Delhi Gate,Ahmednagar, Dist. Ahmednagar3.Smt. Tarabai Rangnath Gore, (Abated as per order dated 07.02.2018)Age : 66 years, Occu : Household,4.Murlidhar Rangnath Gore,Age : 47 years, Occu : Business5.Sujata Rangnath Gore, (Dismissed as per order dated 07.02.2018)Age 31 years, Occu EducationNos.3 to 5 R/o. Near State Bank of IndiaSavedi Ahmednagar.6.Shankar Malayya Anmal,Age 72 years, Occu- Business.R/o. Behind of Asha Talkies Ahmednagar.7.Chandrakant Ramavya Bojja,Age : 60 years, Occu : ServiceR/o. Simla Panchwati, Pipeline Road,Ahmednagar. District Ahmednagar 4918-ca-7583-2014.odt8.Minakshi Sudarshan Galpelli,Age : 57 years, Occ. Service,R/o. Pipeline Road,Ahmednagar,District Ahmednagar9.Padma Arjun Gapeli,Age : 40 years, Occ. Household,10.Sangita Ramesh Galpell,Age 52 years, Occ- ServiceR. Nos. 9 to 10 R/o. Siddhartha NagarAhmednagar, district Ahmednagar11.Ramdas Piraji AmrutwarAge 52 years, Occu : Service,R/o. Samalwada, Delhi gate,Ahmednagar, Dist. Ahmednagar.12.Nirmala Pentavya Adep,Age : 62 years, Occu : HouseholdR/o. Asha Talkies, Ahmednagar13.Ganesh Narayan Bhartal (deceased)13-ASaraswati Ganesh Bhartal,(Dismissed as per order dtd.28.03.2016)Age 75 years, Occu Household,13-BJyoti @ Munni Ganesh Bhartal,(Dismissed as per order dtd.28.03.2016)Age 43 years, Occu Household,13-CSanjay Ganesh Bhartal,Age 34 years, Occ BusinessR.Nos. 13-A to 13-C R/o,. Jangubhai TalimTophkhana, Ahmednagar13-DRaju Ganesh Bhartal,Age : 47 years, Occu : BusinessR/o. 59 New Pacha Peth,Solapur. District Solapur14.Shobha Chandrakant Pedram, (Dismissed as per order dated 28.03.2016)Age : 52 years, Occu. Household 5918-ca-7583-2014.odtR/o. Datta Mandir,Tophkliana, Ahmednagar15.Sudhakar Vyankatesh Sambhar,Age 55 years, Occu Service,R/o. 409, Satbhai Lane, Ahmednagar16.Shashikala Balkrushna Naral.Age – 53 years, Occu – ServiceR/o. 24/4, Asha Housing Society,Behind T.V. Center, Ahmednagar17.Prakash Chandrayva AnmalAge-52 years, Occu-BusinessBehind Asha Talkies Ahmednagar.18.Dattatraya Rajaram Gulapelli,Age : 52 years, Occu Tailor,R/o. Shramik Janta NagarSavedi Ahmednagar19.Shankarrao Narsayya Kodam,Age-53 years, Occu-ServiceR/o. Shramik Janta NagarSavedi, Ahmednagar.20.Shobha Shankar Kodam,Age – 47 years, Occ-Household,R/o. Shramik Janta Nagar,Savedi, AhmednagarR.Nos.18 to 20 through General Power of Attorney HolderShashikant Shantaram Pawar,Age-54 years, Occu-ServiceR/o. Bagroja Hudco, Ahmednagar21.Vishnu Gauramya BhandariAge- 65 years, Occ. Nil.R/o. Ambar Apartment,New State Bank of India,Savedi, Ahmednagar...RESPONDENTS 6918-ca-7583-2014.odt…Mr. Mr. V. D. Son, Senior Counsel a/w. Mr. A. D. Sonkawade andMr.Ashwin V. Hon, Advocate for AppellantMr. V. R. Dhorde Advocate for Respondent Nos.1 and 2.WITHCIVIL APPLICATION NO. 7583 OF 2014 IN SA/484/2014...CORAM :ROHIT W. JOSHI, J.DATE :19th MARCH, 2025ORAL JUDGMENT :1.The present appeal is preferred by original defendant Nos.24 to32. Plaintiffs are respondent Nos.1 and 2 in the present appeal. Theparties will hereinafter be referred as plaintiffs and defendants. Theplaintiffs have filed a Civil Suit being Regular Civil Suit No.524 of 2002against defendant Nos.1 to 32 inter alia claiming that defendant Nos.1to 23 were owners of a land bearing survey No.2/1B/2 situated atBhistbag locality of Ahmednagar City situated within the local limits ofMunicipal Council of Ahmednagar totally admeasuring around twoacres. The plaintiffs claimed that defendant Nos.2 and 3 had enteredinto agreement of sale dated 01.07.1989 with them. As per the plaintiff,the agreement between plaintiffs and defendant Nos.2 and 3 was thatthe entire land would be converted for non-agricultural use over whicha lay out will be carved out and the plots which would fall to the shareof defendant Nos.2 and 3 would be sold to the plaintiffs. Theseagreements of sale are at Exhibits-87 and 88. However, subsequently, 7918-ca-7583-2014.odtdefendant Nos.1 to 23 have sold the entire land to defendant Nos.24 to32 vide registered sale deed dated 10.04.2002.2.In view of the aforesaid, the plaintiffs preferred the aforesaid suitinter alia claiming a declaration that that the sale deed dated10.04.2002 executed by defendant Nos.1 to 23 was illegal with respectto the share of defendant Nos.2 and 3 and was accordingly not bindingon them. In addition, the plaintiffs also sought a decree for partitionand separate possession by claiming that the share of defendant Nos.2and 3 in the suit property be allotted to them. A relief of perpetualinjunction restraining defendant Nos.24 to 32 from creating third partyinterest was also prayed. The learned Trial Court has decided the suitvide judgment and decree dated 28.09.2007. The learned Trial Courthas dismissed the suit on the ground that the plaintiffs did not file asuit for specific performance of contract as also that the plaintiffscannot claim any right over any portion in the suit property on the basisof the agreements i.e. Exhibits-87 and 88.3.Aggrieved by the dismissal of the said suit, the plaintiffs filed anappeal being Regular Civil Appeal No.256 of 2007. The learned FirstAppellate Court has partly allowed the appeal holding that the saledeed dated 10.04.2002 was not binding on the plaintiffs to the extent 8918-ca-7583-2014.odtof share of defendant Nos.2 and 3 which was agreed to be transferredto the plaintiffs vide agreements at Exhibits-87 and 88. On suchdeclaration being granted, the learned First Appellate Court alsogranted an injunction restraining defendant Nos.24 to 32 fromalienating or creating any third party interest over the undivided shareof defendant Nos.2 and 3 in the suit property. It will be pertinent tomention here that the learned First Appellate Court has not granteddecree for partition and separate possession which was claimed by theplaintiffs in the suit.4.Aggrieved by the reversing judgment and decree by the learnedFirst Appellate Court, defendant Nos.24 to 32 have filed the presentSecond Appeal which is admitted vide order dated 26.07.2017 on thefollowing substantial questions of law :-(i) Whether original defendant nos.2 and 3, who had undividedshares in the suit property ad-measuring 73.34 R, had a right tosell any specific property to the original plaintiffs ?(ii) Whether the suit for partition, separate possession anddeclaration as claimed was maintainable in the absence of therelief for specific performance of the agreements of saleexecuted by original defendant nos.2 and 3 in favour of theplaintiffs ?(iii) Whether the original plaintiffs were entitled to claim anyright, title or interest in respect of the property, which is notspecifically described and particularly the area and boundariesthereof, on the basis of the agreements of sale ? (iv) Whether plaintiffs entitled to the relief of declaration, thatthe sale deed dated 10.04.2002 executed by defendant nos.1 to23 in favour of defendant nos.24 to 32 is not binding on them,though no objection was raised to the said sale transaction even 9918-ca-7583-2014.odtafter publication of a notice calling for objections in thenewspaper prior to execution of the sale deed ? (v) Whether the judgment and decree passed by the firstappellate Court granting the reliefs of declaration andinjunction are perverse ?5.The agreement between plaintiffs and defendant Nos.2 and 3 isadmittedly an unregistered document. It is also not in dispute that theplaintiffs were not placed in possession of the suit property. In that viewof the matter, the plaintiffs cannot invoke doctrine of constructivenotice against defendant Nos.24 to 32 as provided under Section 3 ofthe Transfer of Property Act. In view of the fact that constructive noticecannot be attributed to defendant Nos.24 to 32 coupled with the factthat plaintiffs had not sought relief of specific performance of contract,in my considered opinion question of law at Sr.(iv) needs to beanswered in favour of the appellants i.e. defendant Nos.24 to 32.6.Admittedly, even according to the plaintiffs they had merelyentered into an agreement of sale which by virtue of Section 54 of theTransfer of Property Act will not create any interest or charge over thesuit property. It is also undisputed that they had not sought relief ofspecific performance of contract. The plaintiffs has prayed for adeclaration that sale deed executed by defendant Nos. 2 and 3 in favourof defendant Nos.24 to 32 along with defendant Nos.1 and 4 to 23 wasnot binding on them to the extent of undivided share of defendant 10918-ca-7583-2014.odtNos.2 and 3 and sought perpetual injunction against defendant Nos.24to 32 from creating third party interest over the suit property. Theplaintiffs are thus seeking a negative relief of injunction rather thanseeking positive relief of specific performance of contract. Grantingsuch an injunction is prohibited by Section 41(h) of the Specific ReliefAct. If the plaintiffs wanted to enforce any right over the suit property itwas necessary for the plaintiffs to file a suit for specific performance ofcontract. Although, the property was undivided and share of defendantNos.2 and 3 i.e. vendors of the plaintiffs was not earmarked, theplaintiffs could have included a prayer for partition and separatepossession in the suit for specific performance of contract in view ofSection 22 of the Specific Relief Act. Having regard to the manner inwhich the suit is framed and filed and particularly having regard to theprayers made in the suit, in my considered opinion the suit was notmaintainable. The suit was liable to be dismissed on this ground alone.7.I am of the considered opinion that question of law at Sr.(ii) and(iii) need to be answered in favour of the appellant and against therespondents in view of the reasons above.8.As regards substantial question of law (i), it is well settled that aperson having undivided share in an immovable property cannot sellany specific portion of the immovable property, even though he may 11918-ca-7583-2014.odtsell his undivided portion without any demarcation of the portion.However, it appears in the present matter that the defendant Nos.2 and3 did not enter into agreement with the plaintiffs with respect to anyspecified portion. They had entered into agreement with respect toplots that were to be allotted to them in the suit property afterdevelopment of layout. However, since, the suit is held to be notmaintainable in view of answer to the other questions, no furtherdiscussion is required on this question.9.In view of the above discussion, the judgment and decree passedby the learned First Appellate Court is legally unsustainable, theplaintiffs are not entitled to the reliefs sought in the plaint and the suitfiled by them liable to be dismissed.10.In that view of the matter, Second Appeal is allowed. Judgmentand decree dated 07.02.2014 passed by the learned District Judge-5Ahmednagar in Regular Civil Appeal No.256 of 2007 is quashed and setaside and judgment and decree dated 28.09.2007 passed by the learnedJoint Civil Judge, Senior Division, Ahmednagar in Regular Civil SuitNo.524 of 2002 is confirmed. Parties to bear their own cost.[ROHIT W. JOSHI J.] Narwade/