High Court

Legal Reasoning

SA-521-2023-final.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 521 OF 2023Prabhu s/o Gangaram GadeAge: 65 years, Occu. Agri.,R/o. Gandhi Nagar, Biloli, Tq. Biloli,Dist. Nanded … APPELLANT (Orig. Defendant)VERSUSKadaji s/o Vishwanath TuturwadAge: 43 years, Occu. Agri.,R/o. Singarwadi, Tq. Bhokar,Dist. Nanded… RESPONDENT (Orig. Plaintiff).…Mr. Yogesh P. Deshmukh, Advocate for appellant Mr. Avinash R. Borulkar, Advocate for respondent .…CORAM: Y. G. KHOBRAGADE, J.RESERVED ON : 10th APRIL 2024PRONOUNCED ON : 19th APRIL 2024O R D E R :- 1.By present appeal under Section 100 of the Code ofCivil Procedure, the Appellant is challenging the judgment anddecree dated 17.07.2023, passed by the learned first appellateCourt in first appeal bearing R. C. A. No. 24 of 2018, thereby 1 of 14 (( 2 ))SA-521-2023-finalconfirmed the Judgment and Decree dated 18.08.2018, passed by thelearned Joint Civil Judge, J. D., Bhokar in Suit bearing R.C.S. No.18of 2012 (Old R.C.S. No. 3 of 2011) and thereby dismissed Exh.16counter claim of the appellant/defendant for perpetual injunctionover the suit land. Facts of the case in hand is summarized as under - 2.The present Appellant is the original Defendant and theRespondent is the original plaintiff. 3.The plaintiff filed a suit thereby praying specificperformance of agreement to sell and perpetual injunction. Theplaintiff contended that the defendant was indebted and he was inneed of money. Therefore, the defendant approached him at his houseat Shringarwadi, Tq. Bhokar and gave proposal to sell his agriculturalland bearing Gat No. 98/2 admeasuring 3H. 09R situated atSomthana (Patti Bhokar), Tq. Bhokar, Dist. Nanded (hereinafter to bereferred as suit property). According to plaintiff, the defendant hadagreed to sell suit land for consideration of Rs.3,90,000/-.Accordingly, he paid Rs.2,00,000/- as earnest money in presence ofone Shri Rameshwar Budhane, R/o Raikhod. Defendant is the 2 of 14 (( 3 ))SA-521-2023-finalmaternal uncle of plaintiff. Plaintiff was cultivating suit land for theyear 2003 and 2005 on the basis of registered contract. Subsequently,on 17.06.2010, an agreement to Sell was executed between him anddefendant at Shingarwadi, Taluka Bhokar, District Nanded, inpresence of witnesses namely Shri Uttam Mahadu Mane, NarsingaMaroti Karewad and Laxman Maroti Aralwad and Nagnath MarotiKaralwad.4.Plaintiff pleaded that in the year 2009, he already paid Rs.2,00,000/- as earnest money on oral request of the defendant and atthe time of execution of agreement to sell, he again paidRs.1,40,000/- to the defendant. The plaintiff agreed to pay remainingconsideration amount of Rs. 50,000/- at the time of execution ofRegistration of sale-deed after receiving necessary documentsincluding non-encumbrance certificate from the concernedauthorities, till 2010. In the month of November 2010, the plaintiffmake telephonic call to the defendant for execution of sale-deed andoffered to receive balance consideration amount of Rs.50,000/-, butthe defendant deliberately avoided to execute registered sale-deed ofthe property in his favour. 3 of 14 (( 4 ))SA-521-2023-final5.The plaintiff further alleged that, on 25.12.2010, thedefendant had been at his house and meeting was arranged in whichShri Maroti Gyanoba Konke r/o Kakandi, Nagnath Maroti Karalwadr/o Raikhod, Balaji Govind Bankawad r/o Kandhar, Poshatti PirajiUrudwad r/o Ballal and Rameshwar Budhme r/o Raikhod with UttamMahadu Mane, Narsinga Maroti Karewad and Laxman MarotiAralwad r/o Shingarwadi, were present. However, the defendantrefused to execute registered sale-deed in favour of the plaintiff.Thereafter, on 31.12.2010, the plaintiff has issued a legal notice andcalled upon the defendant to execute sale-deed in his favour byaccepting balance consideration amount, but the same returnedunserved with endorsement ‘defendant was not found’ at the givenaddress.6.The plaintiff further alleged that he is ready and willingto perform his part of agreement and ready to pay balanceconsideration amount of Rs.50,000/-, but the defendant denied toperform his part of agreement. He is in possession of the suitproperty since 2003, which has been certified by the Talathi,Somthana, who prepared panchanama. The plaintiff apprehended 4 of 14 (( 5 ))SA-521-2023-finalthat the defendant will not perform his part of agreement and isintending to alienate the property, hence, prayed for perpetualinjunction restraining defendant from alienating the suit property anddispossessing him from the suit property.7.The defendant filed written statement at Exh.12 anddenied plaintiff’s claim. The defendant admitted relation withplaintiff. The defendant contended that he the is owner and inpossession of the suit property. The defendant denied about executionof agreement to sell on 17.06.2010 and accepting of amount in theyear 2009. The defendant further denied about acceptance of earnestmoney. He further denied reducing of agreement in writing on stamppaper in presence of witnesses and holding of meeting on 15.12.2010.He also denied about service of legal notice. 8.The defendant filed cross objection (Exh.16) and claimedthat, the plaintiff was looking after agricultural operation of the suitproperty and was drawing agricultural income. In the year 2010, hewas sick, hence, he had asked the plaintiff to manage the suitproperty, but the plaintiff with ill intention to grab the suit property,issued legal notice and claimed about specific performance of 5 of 14 (( 6 ))SA-521-2023-finalagreement dated 17.06.2010. According to the defendant, saidalleged agreement is false and bogus and he was never in need ofmoney, so also, he never proposed the plaintiff to purchase suitproperty, hence, prayed for dismissal of suit. 9.On the basis of rival pleadings of both the sides as wellcounter claim and it’s Written Statement filed by the plaintiff, thelearned trial Court framed the Issues at Exh.33.10.In order to prove the issues, the plaintiff examinedhimself as PW-1 at Exh.50, PW-2 Nagnath s/o Maroti Karalwad atExh.84, PW-3 Narsinga Maroti Karewad at Exh.88, PW-4 KondibaMaroti Aralwad at Exh.96. The Plaintiff relied on documentaryevidence i.e. 7/12 extract of suit land at Exh.53, Suit land Map atExh.54, application of plaintiff to Talathi for taking entry in register 7-B at Exh.55, possession panchanama for the year 2010-11 preparedby Talathi at Exh.56, report of 7-B register entry sent by Talathi toTahsildar, Bhokar at Exh.57, copy of register 7-B for the year 2010-2011 at Exh.58, copy of envelope of legal notice issued to defendantis at Exh.122, original agreement of sale dated 17.06.2010 is atExh.89. 6 of 14 (( 7 ))SA-521-2023-final11.The defendant also filed his evidence affidavit at Exh.80and examined DW2 Datta Ramjo Jangwad, who filed evidenceaffidavit at Exh.104. Both the witnesses have undergone cross-examination conducted on behalf of the plaintiff.12.After conclusion of trial, on 18.08.2018, the learned trialCourt passed the judgment and decree directing the plaintiff todeposit balance consideration amount of Rs.50,000/- within thirtydays and further directed the defendant to execute registered sale-deed in favour of the plaintiff in respect of land Gat No.98/2 to theextent of 3 H. 09 R, situated at Somthana, Taluka Bhokar, DistrictNanded, within a period of sixty days. However, counter claim of thedefendant came to be dismissed.13.Being aggrieved by the same, the defendant filed anappeal bearing R.C.A. No. 24 of 2018. On 17.07.2023, the learnedfirst appellate Court passed the impugned judgment and decree andthereby dismissed the appeal. 14.Heard both the sides at length. 7 of 14 (( 8 ))SA-521-2023-final15.The learned Counsel appearing for the appellantvehemently canvassed that the plaintiff’s suit is based on unregisteredagreement to sale. Therefore, suit of the plaintiff is hit by Section 17of the Registration Act. Therefore, the learned trial Court as well asthe learned first appellate Court ought to have dismissed the suit,however, both the Courts below failed to consider the legal provisionsof law, hence, impugned judgment and decree liable to quash and setaside. 16.The learned Counsel for the appellant further canvassedthat, the alleged agreement to sale was not proved by the testimonyof witnesses, which leads not to enforce the contract as per Section 14(c) of the Specific Relief Act, 1963, though, unregistered agreementcan be used for collateral purpose. However, the learned Courts belowfailed to consider the provisions of Section 14 (c) of the SpecificRelief Act, 1963. 17.The learned Counsel appearing for the appellant furthercanvassed that, the evidence of present respondent/ Ori. plaintiff andof witnesses are not consistent with the pleadings, so also, there is 8 of 14 (( 9 ))SA-521-2023-finalvariance in evidence of the plaintiff’s witnesses about payment ofearnest money. He further canvassed that the plaintiff failed to proveexecution of Agreement. Therefore, both the Courts below ought tohave refuse to grant of discretionary relief under Section 20 of theSpecific Relief Act. Therefore, both the Courts below ought to haveheld that, the alleged agreement was not executed by the presentappellant/ori. defendant. However, both the Courts below recordedillegal and perverse findings, hence, prayed for quashing and settingaside of same. 18.In support of these submissions, the learned Counselappearing for the appellant placed reliance on the case of GaneshShet Vs. Dr. C. S. G. K. Shetty and others – (1998) 5 SCC 381.19.Per contra, Mr. Borulkar, learned Counsel appearing forthe present respondent/ori. plaintiff supported the concurrentfindings of both the Courts below. He submitted that, on 17.06.2010,an agreement to sale Exh.89 was executed in presence of panchas i.e.PW2, PW3 and the plaintiff paid Rs.1,40,000/- to the Defendant atthe time of execution of agreement Exh.89, in which, previouspayment of Rs.2,00,000/- as earnest money has not been described 9 of 14 (( 10 ))SA-521-2023-finaland the Defendant singed said Agreement in presence of the abovesaid witnesses. 20.Though, the defendant has denied receipt of earnestmoney of Rs.2,00,000/- as well as of Rs.1,40,000/-, but the defendantfailed to challenge the transaction, so also, merely the Agreement tosell is unregistered it does not looses its sanctity and it is admissiblein evidence because, under Agreement to sell the title of suit propertynot been passed in favour of the plaintiff. Therefore, registration ofAgreement To Sell is not compulsory. Both the Courts below haveconcurrently held that, the plaintiff proved execution of agreement tosell by examining the attesting witnesses and the plaintiff is entitledto get the sale-deed executed in his favour. Therefore, no substantialquestion of law is involved in present second appeal, hence, prayedfor dismissal of appeal.21.Having regard to the rival submissions of both the side, Ihave gone through the entire record. The case of the plaintiff is basedon Exh.89 agreement to sell dated 17.06.2010. The PW1 plaintiff,PW2 Nagnath Karalwad and PW3 Narsinga Karewad, categoricallydeposed in their evidence that on 17.06.2010, an agreement to sell 10 of 14 (( 11 ))SA-521-2023-finalExh.89 was executed by the defendant in favour of the plaintiff inrespect of the suit land. The evidence of PW2 and PW3 shows thatthey were present and they have put their signatures at the bottom ofExh. 89 agreement to sell, as a witness. The plaintiff has provedcontents of Agreement Exh.89. These witnesses were cross examined,but nothing has been solicited to disprove contents of agreement andsignature of the Defendant. Though, Defendant has denied theexecution of Agreement Exh. 89 and disputed his signature, however,the defendant has not examined the Handwriting expert to disprovehis signature. Per contra the P. W. 2 & 3 deposed putting of signatureby the defendant in their presence. As per terms and conditions ofAgreement to sell Exh.89, the Defendant agreed to sell the suit landbearing Gat No.98/2 admeasuring 3 H. 9 R. in consideration ofRs.3,90,000/-. The plaintiff paid Rs. 2,00,000/- in the year 2009 tothe Defendant/vendor. On 17-08-2010, the Defendant accepted Rs.1,40,000/- at the time of execution of Agreement Exh. 89, which is incorroboration with evidence of P. W. 2 & 3. 22.No doubt, as per the terms and conditions of Exh.89, theregistered document sale-deed supposed to be executed in the monthof November 2010 after accepting the remaining amount of 11 of 14 (( 12 ))SA-521-2023-finalRs.50,000/-. The recital of Exh. 89 itself proves that thedefendant/vendor delivered possession of the suit property to theplaintiff. Merely, the plaintiff and witnesses have not given descriptionof denominations of the currency paid to the defendant it does notmean that Agreement Exh. 89 was not executed. 23.Needless to say that, defendant has denied entering intoan agreement with the plaintiff. Therefore, burden lies upon thedefendant to prove his defence by leading substantial evidence. Theevidence of the witnesses clearly shows that the defendant himselfpurchased stamp paper to reduce the Agreement in writing and hehas visited to the plaintiff’s house. The stamp paper on which anAgreement to Sell Exh. 89 was reduced itself proves that thedefendant has himself purchased the stamp paper on 10.06.2010 andexecuted it on 17.06.2010. The signature of the defendant onVakalatnama as well as on affidavit is compared by the learned trialCourt and it was held that when the defendant denied aboutexecution of agreement to sell and preparation of said agreementbeing false and bogus, in that event, the defendant could have takencriminal action against the plaintiff for forging his signature, but no 12 of 14 (( 13 ))SA-521-2023-finalsuch legal action was initiated and no police complaint was lodgedeven after getting knowledge of the said agreement. 24.It is an admitted fact that, the Exh. 89 Agreement is notRegistered as per the provisions of Registration Act. However, it issubmitted that under the agreement to sale, title of property does notpasses and unregistered document can be impounded as per Section35 of the Stamp Act. Since, Agreement to Sell Exh. 89 does notconvey title of the property hence, it is admissible in evidence toprove intention of the parties for execution of Agreement. 25.On perusal of the impugned judgment and decree of boththe Courts below, it prima-facie appears that, both the Courts belowconsidered oral as well as documentary evidence available on recordand concurrently held that, as per the recital of agreement to sellExh.89, the plaintiff paid Rs.2,00,000/- in the year 2009 to thedefendant and again on 17.06.2010 plaintiff paid Rs.1,40,000/- tothe defendant in presence of witnesses. The defendant agreed toexecute sale-deed in favour of the plaintiff in the month of November2010 after accepting outstanding balance amount of Rs.50,000/-. Thepleadings as well as evidence led by the plaintiff proves that, he was 13 of 14 (( 14 ))SA-521-2023-finalready and willing to perform his part of agreement in the month ofNovember 2010, but the defendant failed to perform his part ofagreement. The plaintiff has shown his willingness to payRs.50,000/- at the time of execution of sale-deed, but the defendantdid not perform his part of contract. Therefore, it was held that theplaintiff is entitled to the decree of specific performance of contract aswell as perpetual injunction as he is already in possession of the suitproperty. Hence, the findings recorded by both the Courts below arebased on the oral as well documentary evidence and no perversity orillegality is found in the same. No any substantial question of law isinvolved, hence, appeal is hereby dismissed.26.In view of above, pending Civil Application No. 12637 of2023 is also disposed off. No order as to cost.[ Y. G. KHOBRAGADE, J. ]SMS 14 of 14