High Court · 2024
Legal Reasoning
(1) SA-345.2021 & 346.2021.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD SECOND APPEAL NO. 345 OF 2021Akhileshwar Singh s/o Mangal Singh Age : 52 yrs, occ : business R/o Row House No.9, Sara Vrundavan, Balaji Nagar, Wadgaon Kolhati, Waluj, AurangabadAppellant Versus1.Mevalal Bhagwat YadavAge : 52 yrs, occ : householdR/o Plot No. RX-6/2/11, VilasHousing Society, Bajaj Nagar, MIDC, Waluj, Aurangabad.2.Anjali w/o Mevalal YadavAge : 39 yrs, occ : householdR/o as above.3.Shaikh HabibAge : major, occ : service (Constable)Police Station, Waluj M.I.D.C.Aurangabad4.I.C.I.C.I. Bank through Bank Manager, Adalat Road, AurangabadRespondentsWITHSECOND APPEAL NO. 346 OF 20211.Akhileshwar Singh s/o Mangal Singh Age : 52 yrs, occ : business R/o Row House No.9, Sara Vrundavan, Balaji Nagar, Wadgaon Kolhati, Waluj, Aurangabad2.Urmila w/o Akhileshwar SinghAge : 49 yrs, occ : householdR/o as above.AppellantsVersus
Legal Reasoning
(2) SA-345.2021 & 346.2021.odt1.Mevalal Bhagwat YadavAge : 52 yrs, occ : householdR/o Plot No. RX-6/2/11, VilasHousing Society, Bajaj Nagar, MIDC, Waluj, Aurangabad.2.Anjali w/o Mevalal YadavAge : 39 yrs, occ : householdR/o as aboveRespondents...Mr. Vinod I. Thole, Advocate for appellants in both appeals.Mr. S.S. Thombre, Advocate holding for Mr. P.D. Jarare, Advocate for respondent Nos.1 and 2 in both appeals....CORAM :SANDIPKUMAR C. MORE, J.Judgment reserved on : 25 JULY 2024Judgment delivered on :15 OCTOBER 2024.COMMON JUDGMENT :1.The dispute between the contesting parties in boththese appeals is in respect of the same subject-matter i.e.Row House No. 9 located in Sara Vrundawan at Waluj at GutNo. 16/P, Wadgaon Kolhati, approximately admeasuring 931sq.ft. (hereinafter referred to as the “suit house”). Further,this Court has also framed substantial questions of lawcommonly in respect of both the appeals. Further, thecontesting parties to the present dispute are also same inboth the appeals. Therefore, both these appeals are taken upfor disposal by common judgment though both the learned (3) SA-345.2021 & 346.2021.odtCourts below have decided these two proceedings separately.Further, the contesting parties are referred by their firstnames to avoid ambiguity as they have filed suits against eachother in the learned trial Court.2.One Akhileshwar has filed Special Civil Suit No.574/2011 against Mevalal, Anjali and others for specificperformance of contract which has been dismissed by thelearned Civil Judge (Senior Division), Aurangabad i.e. thelearned trial Court under the judgment and order dated17.11.2015. An appeal bearing Regular Civil Appeal No.75/2016 filed by Akhileshwar against the said judgment hasalso been dismissed by the learned first appellate Court i.e.Ad hoc District Judge-3, Aurangabad under judgment andorder dated 11.10.2019. As such, Second Appeal No. 345 of2021 is against the concurrent findings of both the learnedCourts below.3.As against this, plaintiffs Mevalal and Anjali havefiled Special Civil Suit No. 257/2013 for possession of the suithouse which has been decreed by the learned trial Courtunder judgment and order dated 17.11.2015. An appealagainst the said judgment filed by Akhileshwar before thelearned first appellate Court bearing Regular Civil Appeal No. (4) SA-345.2021 & 346.2021.odt1/2016 is also dismissed vide judgment and order dated11.10.2019. Thus, Second Appeal No. 346 of 2021 is also filedagainst concurrent findings of both the learned Courts below.4.The background facts are as under :Plaintiff Akhileshwar filed Special Civil SuitNo.574/2011 against Anjali, Mevalal and others for specificperformance of contract by contending that on 08.09.2006Mevalal and Anjali agreed to purchase suit house from SaraBuilders under an agreement to sale for the consideration ofRs. 8,75,000/-. At that time they also availed loan of Rs.6,50,000/- from ICICI Bank. According to Akhileshwar,Mevalal and Anjali took monetary help from him to payinstallments of Sara Builders. After construction of the suithouse, due to financial crisis, Mevalal asked Akhileshwar topay remaining balance of Sara Builders as well asinstallments of ICICI Bank and in lieu of the same, theyrequested Akhileshwar to purchase the suit house. SinceAkhileshwar was a business-man and it was difficult for himto obtain loan, he decided to purchase the suit house in thename of Mevalal and Anjali. Akhileshwar deposited all theinstallments with Sara Builders till 31.01.2008. Mevalal andAnjali also received possession of the suit house in the same (5) SA-345.2021 & 346.2021.odtmonth and immediately they handed over the same toAkhileshwar. Thus, since 14.01.2008 Akhileshwar is inpossession of the suit house.5.Thereafter on 09.06.2008 Anjali and Mevalalexecuted an agreement for sale on stamp paper of Rs. 100/-in favour of Akhileshwar thereby admitting Akhileshwar’sdeposit of an amount of Rs. 2,25,000/- with Sara Buildersand undertaking of payment of installments of loan amount ofICICI Bank. Akhileshwar also deposited an amount of Rs.40,000/- towards insurance of the suit house. Then on15.11.2008 Sara Builders executed sale deed in favour ofMevalal and Anjali which was handed over by them toAkhileshwar. Then Akhileshwar deposited installments withICICI Bank upto 28.11.2011. Thus, Akhileshwar claimed thathe deposited the amount of Rs. 2,65,938/- with SaraBuilders, paid the loan of ICICI Bank to the tune ofRs.3,43,475/-, LIC Housing Finance amount of Rs. 55,825,deposited an amount of Rs. 27,253/- in the personal accountof Mevalal, paid an amount of Rs. 1,00,000/- vide DemandDraft on 30.03.2011, cash amount of Rs. 1,00,000/- on27.12.2010 and an amount of Rs. 1,50,000/- on 20.09.2011by cash to Mevalal. Thus, Akhileshwar is claiming that he (6) SA-345.2021 & 346.2021.odtpaid excess amount of Rs. 4,32,078/- to Mevalal and Anjaliwhich is to be merged in the loan account of ICICI Bank.Thereafter in the month of November 2011 Akhileshwarrequested Mevalal and Anjali to execute the sale deed in hisfavour, but they avoided for the same. Therefore, Akhileshwarhad to file Special Civil Suit No. 574 of 2011 for specificperformance.6.Mevalal and Anjali vide their written statementresisted the said suit. They claimed that they never executedany agreement for sale on 09.06.2008 in favour ofAkhileshwar. They denied all the adverse allegations madeagainst them by Akhileshwar and came out with a case thatAkhileshwar had in fact prepared forged document ofagreement of sale. According to them, crime is also registeredby them against Akhileshwar under Sections 420, 468, 471,120-B read with Section 34 of the Indian Penal Code, wherebyR.C.C. No. 1109 of 2012 was registered. As such, they prayedfor dismissal of the suit. The trial Court, after conducting thetrial, dismissed the suit and appeal filed thereon byAkhileshwar has also been dismissed.7.On the other hand, Mevalal and Anjali have also (7) SA-345.2021 & 346.2021.odtfiled Special Civil Suit No. 257 of 2013 against Akhileshwar forpossession of the suit house by contending that Akhileshwarwas their tenant. Akhileshwar resisted the said suit byreiterating the contents of his plaint in Special Civil SuitNo.574 of 2011 and thereby prayed for dismissal of the suit.However, the learned trial Court allowed the said suit ofMevalal and Anjali and directed Akhileshwar to hand overpossession of the suit house to them. Akhileshwar filedappeal against the said decree of the learned trial Court, butthe same has been dismissed. As such, both these secondappeals are against the concurrent findings of both thelearned Courts below.8.Learned Counsel for the appellant Akhileshwarvehemently argued that both the learend Courts below havedefinitely erred in discarding the suit of Akhileshwar anderroneously granted the suit for possession filed by Mevalaland Anjali. According to him, Mevalal in his suit forpossession had in fact claimed that Akhileshwar was histenant, but the said suit was wrongly tried by Civil Judge,Senior Division despite being a rent suit. He submitted thatthe learned trial Court was not having any jurisdiction to trythe rent suit. According to him, Mevalal failed to establish (8) SA-345.2021 & 346.2021.odtthe fact that he had in fact paid the amount to Akhileshwarwho, in turn, deposited it with Sara Builders. He pointed outthat the learned trial Court has failed to appreciate theevidence on record which has definitely led to the inference infavour of Akhileshwar that there was an agreement to saleexecuted by Mevalal in respect of the suit house. He pointedout that damages could not have been awarded in landlordand tenant suit and the learned trial Court, despite claiminglandlord-tenant relationship by Mevalal, gave him possessionof the suit house on the basis of his title.9.On the contrary, learned Counsel for Mevalal andAnjali supported the judgments in both the suits passedpassed by learned trial Court as well as learned first appellateCourt and submitted that there is no need to re-appreciatethe evidence as the findings of both the learned Courts beloware based on the evidence on record. He placed reliance onthe following judgments :(i)Kammana Sambamurthy (D) by LRs vs KalipatnapuAtchutamma & ors, AIR 2011 SC 103(ii)A.H. Mistry & Co. vs Awadh Narayan Singh Shiv NayakSingh & ors, MANU/MH/0760/2010(iii)Sultan & ors vs Ganesh & ors, AIR 988 SC 716(iv)Abdulla Bin Ali & ors vs Galappa & orsAIR 985 SC 577 (9) SA-345.2021 & 346.2021.odt(v)Bal Krishna & ors vs Das & ors, AIR 2008 SC 1786(vi)Shobha Satyanarayan Birla vs Janabi Parshuram PawarMANU/MH/0146/2004(vii)Sant Lal Jain vs Avtar Singh, AIR 1985 SC 857(viii)A.C. Arulappan vs Ahalya Naik, AIR 2001 SC 2783(ix)Havovi Kersi Sethna vs Kersi Gustad SethnaMANU/MH/0066/2011(x)Haribhau Baliram Shende & ors vs Pramod WasudeoraoRakshamwar & ors, AIR BOM 2; 2021(xi)Mundri Lal vs Sushila Rani and another2007 AIR (SCW) 5962(xii)Kashinath Gosavi Patil vs Govala Vyankanna Tatayya1995 (1) Mh.L.J. 861.10.Heard rival submissions. Also perused impugnedjudgments alongwith record and proceedings.11.Admittedly, this Court vide order dated 23.08.2021has framed the following substantial questions of lawcommon in both these appeals :A) Whether Second Appeal No.346 of 2021 is maintainable inview of Dattatraya Krishna Jangam vs Jairam Ganesh Gore,reported in AIR 1965 Bombay 177 ?B) Whether the Civil Judge Senior Division had jurisdiction todecide Special Civil Suit No.257 of 2013 wherein the plaintiffscontended the relationship of landlord and tenant andwhether the provisions of Maharashtra Rent Control Act areapplicable to the suit premises ?C) Whether Special Civil Suit No.257 of 2013 was for seekingeviction of tenant under the provisions of Maharashtra Rent (10) SA-345.2021 & 346.2021.odtControl Act or it was suit for possession on the basis of title ?D) Whether the plaintiffs in Special Civil Suit No.257 of 2013were entitled to get possession and damages as prayed ?E) Whether the plaintiff in Regular Civil Suit No.75 of 2016had proved that defendants No.1 and 2 therein had enteredinto agreement to sell the suit property on 09-06-2008 in hisfavour?F) Whether the said plaintiff was and is ready and willing toperform his part of the contract ?G) Whether the plaintiff therein was entitled to the relief ofspecific performance of the contract or alternatively theCourts below ought to have granted refund of the amountpaid by him towards the mitigation of loan taken bydefendant No.1 ?H) Whether the Judgment and decree in both the casespassed by the Courts below are perverse and requireinterference by this Court ?12.It is significant to note that the learned trial Courtas well as learned appellate Court, both have given negativefinding to the claim of Akhileshwar that Mevalal and Anjalihad agreed to sell the suit house to him for consideration ofRs. 8,75,000/- and accordingly the agreement of sale dated09.06.2008 was executed. Further, it is found by both thelearned Courts below that Akhileshwar could not establishthe fact of making additional payment of Rs. 4,32,078/-, andtherefore, he was not entitled to the relief of specificperformance of the said contract. On going through theevidence on record as well as impugned judgments, it is (11) SA-345.2021 & 346.2021.odtclearly evident that both the learned Courts below havediscussed the evidence of Akhileshwar in support of thealleged agreement to sale dated 09.06.2008 and thereafterfound that the same is not convincing. It appears thatAkhileshwar has examined PW-2 Jaikumar as well as PW-3Gulab for proving execution of the said agreement of sale atExh.100. However, on going through the evidence of PW-2Jaikumar, it is evident that he was running a Tea Stall at therelevant time in front of Jain Casta Company, Aurangabadwhere Akhileshwar, Mevalal and Gulab used to visitfrequently. Though he deposited that on 09.06.2008agreement of sale (Exh.100) was executed and he also signedthe same, but it has come on record that the said Tea Stallwhich was in front of Jain Casta Company wherein Mevalalwas in service and the said company was closed in the year2001 and thereafter Mevalal was in service at Nashik andPune. Further, there is no record of existence of said TeaStall of Jaikumar after closing of Jain Casta Company. Thus,the evidence of Jaikumar that Akhileshwar and Mevalal hadcome to his tea stall on the day of agreement of sale i.e.09.06.2008 and executed the document, is not at allconvincing. Moreover, PW-2 Jaikumar as well as PW-3 Gulabhave stated about execution of agreement of sale only between (12) SA-345.2021 & 346.2021.odtAkhileshwar and Mevalal. However, at that time Anjali wasalso joint owner of the suit house, but nothing is there onrecord as to why the said agreement of sale was executed inabsence of Anjali. Moreover, there is nothing on record toshow that Anjali was having it’s knowledge and had impliedlyconsented for the same. Thus, both the learned Courts belowhave concurrently discarded the evidence of PW-2 Jaikumarand PW-3 Gulab.13.Further, it appears that PW-4 Sahebrao Shelke isexamined by Akhileshwar to prove the factum of payment toMevalal on varous occasions, but this witness in his cross-examination has clearly admitted that he had no knowledgewith regard to any house transaction between Akhileshwarand Mevalal. He further admitted that he had not seen anyparticular document to show that Akhileshwar was havingthe aforesaid amounts which he paid to Mevalal. Thus, theevidence of Akhileshwar adduced in respect of execution ofagreement of sale (Exh.100) and in respect of additionalexcess payment, is not at all convincing, and therefore, it isdiscarded by both the learned Courts below by assigningproper reasons. Thus, the evidence definitely shows thatAkhileshwar failed to prove execution of agreement of sale in (13) SA-345.2021 & 346.2021.odtrespect of the suit house in his favour by Mevalal. Further,Akhileshwar has also failed to establish the fact of makingpayment to Mevalal towards consideration of suit house.Readiness and willingness is also missing on the part ofAkhileshwar, and therefore, claim of specific performanceappears to be rejected by both the learned Courts belowproperly on the basis of evidence.14.Learned Counsel for Akhileshwar has raisedsubstantial question of law about the jurisdiction of learnedtrial Court in granting decree of possession despite it wasclaimed by Mevalal that Akhileshwar was his tenant. However,for that purpose if the judgment of the learned trial Court inSpecial Civil Suit No.257 of 2013 is seen, then it appears thatthe learned trial Court, based on the observation of theHon’ble Apex Court, has come to the conclusion that whenthe defendant has denied relationship of landlord and tenant,then the Court can pass decree of possession on the basis oftitle. Here also though Mevalal has failed to establish thelandlord-tenant relationship between himself andAkhileshwar, but when it is not disputed that he had alreadybecome owner, then as per the aforesaid observation thedecree directing Akhileshwar to hand over possession of suit (14) SA-345.2021 & 346.2021.odthouse to Mevalal on the basis of title, is definitely legal andpassed with jurisdiction. It is to be noted that the learnedtrial Court as well as learned first appellate Court haveconcurrently observed that the learned trial Court was havingjurisdiction to pass the decree of possession on the basis oftitle. Thus, the substantial question of law formulated to thateffect is already answered satisfactorily by both the learnedcourts below.15.It is extremely important to note that the Hon’bleApex Court has settled the issue in respect of scope of secondappeal. It has been observed that if the findings of both thelearned Courts below are based on proper appreciation ofevidence, then re-appreciation of evidence by the High Courtis not permissible unless the findings by both the learnedCourts below are perverse. In the present two proceedingsboth the learned Courts below, after proper appreciation ofevidence on record, have held that Akhileshwar miserablyfailed to establish that Mevalal had executed agreement ofsale in his favour and Akhileshwar had in fact paid partconsideration of the suit house. This fact has been clearlyestablished due to certain admissions on the part of thewitnesses of Akhileshwar. Further, the maintainability of the (15) SA-345.2021 & 346.2021.odtsuit filed by Mevalal for getting the decree of possession isalso supported by the observation of the Hon’ble Apex Courtthough Mevalal had claimed that Akhileshwar is his tenant.Therefore, the substantial questions of law formulated by thisCourt as aforesaid, are already answered satisfactorily orsome of them appeared to be not involved actually.Considering all these aspects, there is no need to discuss thejudgments relied upon by the learned Counsel for Mevalaland Anjali. Hence, both the Second Appeals being devoid ofmerit, stand dismissed and disposed of accordingly.(SANDIPKUMAR C. MORE, J.)VD_Dhirde