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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.394 OF 2015
Haribhau Shyamrao Tabhane
[since dead through LR's]
1] Rajesh Haribhau Tabhane,
Aged about 42 years,
Occ: Service, R/o Gopal Nagar,
Near SRPF Water Tank, Nagpur.
2]
Pramod Haribhau Tabhane,
Aged about 40 years,
Occ: Business, R/o Gopal Nagar,
Near SRPF Water Tank, Nagpur.
3] Mrs. Ujawala Ashin Kharat,
Aged 38 years, Occ: Household,
R/o Kolar Road, Bhopal.
4] Mrs. Geeta Abhishek Raut,
Aged 36 years, Occ: Household,
R/o Shilpa Society, Manish Nagar,
Nagpur.
5] Mrs. Harshala Satish Khobragade,
Aged about 34 years, Occ: Service,
R/o Ujjwal Nagar, Nagpur. ....... APPELLANTS
...V E R S U S...
R-1 is deleted as
1] Gopikabai Vitthalrao Kamble,
per Reg. (J) Aged Adult, Occ: Nil, R/o Takli Sim,
order dtd. Tah. Hingna, Dist. Nagpur.
18/2/16.
2] Maroti Vitthalrao Kamble,
Aged Adult, Occ: Nil,
R/o Takli Sim, Tah. Hingna,
Dist. Nagpur.
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3] Sureh Vitthalrao Kamble,
Aged Adult, Occ: Nil,
R/o Takli Sim, Tah. Hingna,
Dist. Nagpur.
4] Manohar Vitthalrao Kamble,
Aged Adult, Occ: Nil,
R/o Takli Sim, Tah. Hingna,
Dist. Nagpur.
5] Smt. Usha wd/o Ramesh,
Aged Adult, Occ: Nil,
R/o Takli Sim, Hingna Road,
Nagpur.
6]
Mrs. Suman Madhukar Sahare,
Aged Adult, Occ: Not Known,
R/o Telipura, Hinganghat,
Tah. Hinganghat, Dist. Wardha.
7] Mrs. Chhaya Satpaise,
Aged Adult, Occ: Not Known,
Mithubhai Satpaise, Lalganj,
Nagpur. ....... RESPONDENTS
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Shri N.S. Deshpande, Advocate for Appellants.
Shri A.G. Gharote, Advocate for Respondents.
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CORAM: R.K. DESHPANDE, J.
st OCTOBER, 2016.
DATE: 21
ORAL JUDGMENT
1] The trial court dismissed Regular Civil Suit
No.1158/2007 for specific performance of contract and the counter claim has been allowed directing the plaintiffs to deliver the vacant possession of the suit land to the defendants within a ::: Uploaded on - 25/10/2016 ::: Downloaded on - 26/10/2016 00:32:08 ::: sa394.15.J.odt 3/5 period of three months. This decision of the trial court, dated 30.12.2008 was the subject-matter of Regular Civil Appeal No.87 of 2009, which has been dismissed by the lower Appellate Court on 30.03.2015. Hence, the original defendants are before this Court in this second appeal against the concurrent findings of fact.
2] The specific performance of contract was claimed in respect of the oral agreement said to have entered into in the year 1978. According to the plaintiffs, on 30.03.1978 land admeasuring 5.12 acres was sold by one Vitthal the predecessor in title of the defendants to the plaintiffs for total consideration of Rs.5000/-.
The plaintiffs alleged that at that time itself it was agreed that the sale-deed in respect of another 4.20 acres of land shall be executed in favour of the plaintiffs for total consideration of Rs.5140/-.
The original vendor Vitthal died on 28.08.1981. The plaintiffs filed Regular Civil Suit No.1158 of 2007 for specific performance of contract after issuing notice dated 13/14.11.2006. The plaintiffs also claimed that they were in possession of the suit property by way of part performance of contract.
3] Both the courts below are concurrent in holding that the agreement with Vitthal has not been established for the sale of ::: Uploaded on - 25/10/2016 ::: Downloaded on - 26/10/2016 00:32:08 ::: sa394.15.J.odt 4/5 the suit property. There is no evidence on record showing any payment in furtherance of any such agreement to Vitthal. Both the courts below have recorded the finding that the sale-deed dated 30.03.1978 did not contain any recital that the sale-deed in respect of the 4.20 acres of land shall be executed in future for consideration of Rs.5140/-.
4] The reliance was placed upon two receipts (i) dated 02.03.1983 showing payment of Rs.500/- at Exh-47 to the defendants and another Exh-49 dated 11.04.1983 evidencing the payment of Rs.1000/-. It is urged that both these payments were made in compliance with the obligation on the part of the plaintiffs. The courts below have held that all these receipts are denied and the payment has not been proved. Undisputedly, the payments were not made to Vitthal with whom the alleged agreement was entered into. The courts below have held the plaintiffs have failed to establish that they were put in possession of the suit property by way of part performance of contract and it is also the finding recorded that taking advantage of the injunction granted on 13.12.2007 the plaintiff was dispossessed the defendant.
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5] The view taken by the courts below is a possible view
of the matter. It does not give rise to any substantial question of law. The arguments are advanced as if this Court is hearing the civil suit and in spite of seeking adjournment on 18.10.2016 for taking instructions after the matter is heard, the time of Court is wasted without even formulating any substantial question of law.
The second appeal is, therefore, dismissed with the costs of Rs. 15,000/- to the respondents and the trial court should see that the decree for possession passed in a counter claim is executed within one month from today.
6] Shri Deshpande, at this stage submits that the protection of possession shall be granted by this Court be extended for a further period of six weeks is hereby rejected.
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