High Court

Legal Reasoning

(1) sa-612-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADSECOND APPEAL NO.612 OF 2023WITHCIVIL APPLICATION NO.15196 OF 2023INSECOND APPEAL NO.612 OF 2023Pappu Yakub Khan,Age: 40 years, Occu: ConstructionR/o: Ward No.1, Millatnagar,Shrirampur, Tq. Shrirampur,Dist. Ahmednagar...Applicant(Orig. Plaintiff)VersusIqbal Hamid Khan,Age: 63 years, Occu: Business,R/o: Ward No.1, Millatnagar,Shrirampur, Tq. Shrirampur,Dist. Ahmednagar...Respondent(Orig. Defendant) …Mr. A. B. Chormal, Advocate for Applicant.Mr. R. R. Karpe, Advocate for Respondent.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 25th MARCH, 2025.ORDER:- 1.The appellant/original plaintiff impugns judgment and decreedated 01.12.2022 passed by District Judge, Shrirampur in RegularCivil Appeal No.17/2017, thereby upholding judgment and decreedated 23.03.2017 passed by Civil Judge, Senior Division,Shrirampur in Regular Civil Suit No.370/2012. (Hereinafter,parties are referred to by their original status for the sake ofconvenience and brevity).2.The appellant/plaintiff instituted Regular Civil SuitNo.370/2012 contending that his sister is wife of defendant. As (2) sa-612-2023.odtsuch, he is brother-in-law of defendant. As per defendant’sdemand, plaintiff advanced him total amount of Rs.1,60,000/-. Thedefendant failed to repay amount, hence agreed to sell suit plotno.14 admeasuring 291 sq. mtrs. from CTS No.2179 situated atShrirampur. According to plaintiff, defendant executed agreementto sale in presence of Notary and handed over possession ofproperty to him with assurance to execute sale deed. The plaintiffraised construction of four rooms on plot alongwith shed. He is inoccupation of property and regularly paying taxes. Since defendantfailed to execute sale deed, legal notice dated 30.10.2021 wasissued calling upon him to perform his part of contract, which hasbeen falsely replied by him. Hence, present suit for specificperformance of contract with alternate prayer for refund of amountof Rs.1,60,000/- alongwith interest @ 18% per annum.3.The defendant refuted claim by filing written statement, soalso filed counter claim for possession. The defendant disputedexecution of agreement dated 06.09.2001 and contended that suitproperty was purchased by him under registered sale deed dated02.05.2001 from Yogesh Madhukar Sonawane. Since then he wasin possession of plot as owner and fixed wall compound.Thereafter, he constructed rooms and tin shed. The plaintiff ownsplot no. 13, which is adjacent suit plot no. 14, owned by thedefendant. On plaintiff’s request, he was permitted to use (3) sa-612-2023.odtdefendant’s property, which was vacant. In view of closerelationship, plaintiff was permitted to use the same. However,when defendant was in need of property and he asked plaintiff tohand over possession, plaintiff refused to do so and raised falseclaim as regards to agreement to sale.4.The Trial Court framed issues based on pleadings of parties,recorded evidence and finally dismissed suit of plaintiff anddecreed counter claim of defendant. In result directed plaintiff tohand over possession of suit property to defendant. Aggrievedplaintiff filed Regular Civil Appeal No.17/2017 before DistrictJudge, who has concurred with the findings recorded by the TrialCourt. Eventually, dismissed Appeal.5.Mr. Chormal, learned Advocate appearing for appellantsubmits that Appellate Court erroneously framed point forconsideration as to limitation, although such an issue was notframed by Trial Court. The Appellate Court recorded finding thatsuit of plaintiff is barred by limitation. He further submits thatalternate prayer of plaintiff regarding recovery of money couldhave been considered. According to him, in counter claim forrecovery of possession of suit property, issue of limitation wasrequired to be framed, but Trial Court omitted to frame it. Mr.Chormal would submit that evidence on record is sufficient toestablish that notarized agreement to sale was executed by (4) sa-612-2023.odtdefendant. Eventually, he seriously objects findings recorded byCourts below and urges to admit appeal.6.Per contra, Mr. Karpe, learned Advocate appearing forrespondent submits that plaintiff has miserably failed to proveexecution of agreement to sale, so also payment of Rs.1,60,000/- todefendant. He would point out that plots of plaintiff and defendantare adjacent to each other. The plaintiff is owner of plot no.13,whereas defendant owns plot no.14. The plaintiff is trying toestablish his right over property of defendant, which was given inhis possession because of close relationship. Mr. Karpe submitsthat concurrent findings of facts have been recorded by Courtsbelow holding that plaintiff failed to establish execution ofagreement to sale. The counter claim is allowed and direction isissued to plaintiff to hand over possession of suit property todefendant.7.Having considered submissions advanced, it can be observedthat thrust of plaintiff’s claim is based on alleged agreement to saleplaced at Exhibit-62. It is a notarized document. The plaintiff inhis cross-examination admits that agreement to sale was notnotarized at Shrirampur. He relied upon evidence of PW-3-Advocate N. B. Shaikh from Shrirampur. However, PW-3 admitsthat document has been notarized at Aurangabad. He admits thatwithout identification of parties, he notarized the document at (5) sa-612-2023.odtExhibit-62 as per say of witnesses. He admits that defendant wasnot before him. He could not bring on record notary register of theyear 2001 saying that same has been destroyed. The defendanthas specifically denied to have put signature on document beforeNotary. Therefore, merely document is notarized, it does not havesanctity under law.8.So far as payment of Rs.1,60,000/- by plaintiff to defendant,no evidence is pressed into service that would bring on recordparticulars of such payment. The PW-2 i.e. brother of plaintiffentered into witness box to support plaintiff on aforesaid aspect,but he admits that no amount was paid in his presence. Nodocumentary evidence regarding payment or particulars like dateor amount paid have been established. Admittedly, such paymentwas not in pursuance to any agreement to sale, but earlier dues issaid to be adjusted towards consideration against agreement tosale. There is inconsistency as regards to the purpose of payment ofamount to defendant by plaint.9.Although defendant denied signature on document atExhibit-62, plaintiff has not made any attempt to prove the sameeither by way of comparison with admitted signature or gettingexpert evidence. The Appellate Court observed that Stamp Paperwas purchased at Aurangabad, whereas parties are residing at (6) sa-612-2023.odtShrirampur. There is no explanation for such discrepancies. BothCourts on appreciation of evidence, discarded plaintiff’s case asregards to execution of document.10.Apart from aforesaid aspects, agreement to sale is alleged tohave been executed on 06.09.2001 and suit is filed on 08.11.2012i.e. after 11 years and 2 months. No explanation is coming forwardas to why plaintiff was silent for all these years. If he had alreadyparted with consideration amount, he would have insisted forexecution of sale deed, but no such evidence explaining delay ininstituting proceeding for specific performance is coming forward.11.In light of aforesaid factual scenario, when both Courts haveconcurrently held that plaintiff failed to prove agreement to saleand fact that suit for specific performance of contract is institutedafter 11 years, plaintiff is certainly not entitled for decree forspecific performance. Both Courts declined to exercise discretion infavour of plaintiff for adequate reasons recorded in orders. Hence,no substantial question of law arises for consideration in thisSecond Appeal. Consequently, Second Appeal stands dismissed.12.In view of dismissal of Second Appeal, pending CivilApplication stands disposed of. (S. G. CHAPALGAONKAR)JUDGEDevendra/March-2025