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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No.543 of 1991
1. Smt. Anjanibai widow of
Mahadeo Pragat,
aged about 35 years,
resident of Plot No.7,
near Ram Mandir,
Ayodhyanagar,
Nagpur.
2. Harihar son of Mahadeo Pragat,
aged about 39 years,
3. Damu son of Mahadeo Pragat,
aged about 32 years,
4. Pramod son of Mahadeo Pragat,
aged about 21 years,
5. Dattau son of Mahadeo Pragat,
aged about 18 years,
.....Legal heirs of Org. Deft. No.1.
all residents of Plot No.7,
near Ram Mandir,
Ayodhyanagar, Nagpur. ..... Appellants
Versus
1. Gajanan son of Vithobaji Kharwade,
.....Org. Plaintiff,
since dead, through his legal
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heirs :
1.1 Prakash son of Gajanan Kharwade,
adult,
1.2 Rajesh son of Gajanan Kharwade,
adult,
1.3 Sau. Madhuri wife of Mahesh
Dahale [Madhuri daughter of
Gajanan Kharwade]
all residents of Sharda
Chowk, Garoba Maidan,
Nagpur.
2. Afsarali son of Mir Hasanali,
....Org. Deft. No.2.
....Deleted on 16th March, 2002.
3. Shaukatali son of Mir Hasanali,
....Org. Deft. No.3,
since dead, through his
legal heirs :-
1. Mir Akhtar Ali son of Mir Hasan
Ali,
aged about 40 years,
2. Majhar Ali son of Mir Hasan
Ali,
aged about 43 years,
[Lunatic], represented by
the Legal Representative No.1,
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3. Ashfaq Ali son of Mir Hasan
Ali,
adult,
4. Azhar Ali son of Mir Hasan
Ali,
adult,
5. Mir Kaisar Ali son of Mir Hasan
Ali,
.....Deleted as per Court's order
dated 14th July, 2017.
all residents of Mir Manjil,
Araba Wada, Mahal, Nagpur. ..... Respondents
*****
Mr. S. D. Harode, Adv., for appellants.
Mr. S. R. Deshpande, Adv., for respondent nos. 1 (1) to 1 (3) -
legal heirs of the plaintiff.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 22nd December, 2017 ORAL JUDGMENT:
01. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 was admitted by framing the following substantial question of law :-
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sa543.91 4 "Whether in view of the finding of the first appellate Court that there was agreement in favour of the appellant on 27th January, 1968, the respondent was not entitled for to possession on the basis of sale-deed dated 5th June, 1968?"
02. The appellants are the legal heirs of the original defendant no.1. Respondent Nos. 1 (1) to 1 (3) are the legal heirs of the original plaintiff. It is the case of the original plaintiff that he is the owner of Plot No.7 admeasuring about 1500 sq. ft. This plot was purchased by the plaintiff on 5th June, 1968 from one Mir Hasan Ali for a consideration of Rs.1,000-00. The plaintiff was accordingly put in possession of the same. In March, 1979, when the plaintiff intended to erect a construction on the said land, he found that the defendant no.1 was attempting to make some construction thereon. He, therefore, on 15th February, 1980 gave a notice to the defendant no.1 calling upon him to pull down the structure and hand over possession to him. As same was not done, the plaintiff on 24th September, 1980 filed suit for ejectment and possession of the suit property. He also sought damages for illegal use and occupation.
03. In the Written Statement filed by the defendant no.1, the case of the plaintiff was denied. According to the defendant no.1, Mir ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:56:30 ::: sa543.91 5 Hasan Ali had entered into an agreement on 27th January, 1968 with one Bhagwatibai wife of Champalal for selling Plot Nos. 6 and 7 for a consideration of Rs. 2680-00. On 3rd May, 1968, an amount of Rs.1200/- came to be paid to the vendor and hence on 5th July, 1968, said Mir Ali executed sale-deed of Plot No.7 in favour of her close relative Brijlal Banode. According to the defendant no.1, said Bhagwatibai had been placed in possession of Plot No.7 when the agreement took place and thereafter on 5th July, 1968, the possession was handed over to the purchaser. Thereafter, on 6th April, 1979, said Brijlal Banode executed a sale-deed in favour of defendant no.1 with regard to Plot No.7 for a consideration of Rs.4500/- and also handed over possession. The defendant no.1 thereafter started construction on the suit plot. It was, therefore, prayed that as the defendant no.1 had a valid title, the suit was liable to be dismissed.
04. The parties led evidence before the trial Court. By judgment dated 18th December, 1984, the trial Court dismissed the suit. The appeal filed by the original plaintiff, however, was allowed and the suit came to be decreed. Being aggrieved, the legal heirs of the original defendant have preferred this appeal.
05. Shri S. D. Harode, learned counsel for the appellants, ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:56:30 ::: sa543.91 6 submitted that on 27th January, 1968, the vendor - Mir Hasan Ali had entered into an agreement for sale of Plot Nos. 6 and 7 in favour of Bhagwatibai. Earnest amount of Rs. 200/- was paid and said Bhagwatibai was put in possession. Thereafter, in May, 1968, further amount of Rs.1200/- was paid to the said vendor. Though it was mentioned in the agreement that the sale-deed was to be executed by 26th March, 1968, part consideration was accepted in May, 1968. This indicated that the agreement was subsisting and pursuant thereto on 5th July, 1968, Plot No.7 was sold to the nominee of Bhagwatibai - Brijlal Banode. The defendant no.1 on 6th April, 1979 having purchased the suit property from said Brijlal Banode, it was not open for the plaintiff to claim that he had got a valid title to the suit property. The claim of the plaintiff that on 5th June, 1968, he had purchased Plot No.7 from Mir Hasan Ali cannot be accepted. No objection was raised by the plaintiff from 1968 till filing of the suit for objecting to the possession of Bhagwatibai, Brijlal Banode and thereafter the defendant no.1. He referred to the evidence on record as well as exhibited documents and submitted that the agreement between Mir Hasan Ali and Bhagwatibai being executed prior in time to the sale-deed of the plaintiff, the plaintiff did not have any valid title to the suit property. It was, therefore, submitted that the appellate Court committed an error in decreeing the suit.
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06. Shri S. R. Deshpande, learned counsel for the respondent nos. 1 (1) to 1 (3) - legal heirs of the plaintiff, supported the impugned decree. According to him, mere fact that on 27th January, 1968, the plaintiff's vendor had entered into an agreement with Bhagwatibai was not sufficient to confer any right on the defendant no.1. The agreement dated 27th January, 1968 stipulated that the transaction was to be completed till 26th March, 1968. The same was not done. Payment of Rs.1200/- in May, 1968 was not towards earlier agreement dated 27th January, 1968. He submitted that in the sale-deed dated 5th July, 1968, there was no reference to the aforesaid agreement dated 27th January, 1968. Similarly, Brijlal Banode was not concerned with that agreement. The plaintiff was put in possession on 5th June, 1968 and all taxes were paid by the plaintiff from 1968 to 1980. The necessary mutation entries showing plaintiff's name as owner of the property were also taken. Though Bhagwatibai was examined as a witness by the defendants, the initial agreement dated 27th January, 1968 or the subsequent sale-deed dated 5th July, 1968 was not referred to her. The agreement in question was always disputed by the plaintiff and the appellate Court after considering the entire evidence on record rightly decreed the suit.
07. I have heard the learned counsel for the parties at length ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:56:30 ::: sa543.91 8 and I have perused the records of the case.
08. The agreement dated 27th January, 1968 [Exh.68] is between Mir Hasan Ali and Bhagwatibai. Plot Nos. 6 and 7 were agreed to be purchased by Bhagwatibai for a consideration of Rs. 2650/-. Rs. 200/- were paid as earnest amount and sale-deed was to be executed by 26th March, 1968. This agreement does not refer to possession of the suit property being handed over to Bhagwatibai. Similarly, it mentions that M/s. M.H. Patle & Company through Mir Hasan Ali had agreed to sell these two plots to Bhagwatibai. There is an endorsement of Rs.1,200/- being further paid to the vendor. The sale-deed dated 5th July, 1968 [Exh.69] is between Mir Hasan Ali and Brijlal Banode. Same is for a consideration of Rs.500/- with regard to Plot No.7. It is witnessed by one Champalal Jaiswal who is said to be the husband of Bhagwatibai. However, there is no reference in this sale-deed to the earlier agreement dated 27th January, 1968 at Exh.68. Prior thereto, on 5th June, 1968, the plaintiff purchased Plot No.7 from Mir Hasan Ali. The document at Exh.53 is an application moved by the plaintiff for having his name mutated in the records pursuant to that sale-deed. This application is dated 6th September, 1970. On that basis, name of the plaintiff was mutated as per notice at Exh.55. As per document at Exh.58, taxes were paid from 1st April, ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:56:30 ::: sa543.91 9 1968 to 31st March, 1980.
09. It is on the basis of the aforesaid evidence that the appellate Court found that the sale-deed in favour of the plaintiff being executed prior in time entitled the plaintiff to the relief. By virtue of that sale- deed, vendor Mir Hasan Ali did not have any title to execute the further sale-deed on 5th July, 1968. It is to be noted that sale-deed dated 5th June, 1968 in favour of the plaintiff has not been subjected to challenge by the defendant no.1. The only premise on which the defence is raised is that prior to the plaintiff's sale-deed, there was an agreement dated 27th January, 1968 by the vendor with Bhagwatibai. Once it is found that sale-deed dated 5th July, 1968 does not refer to earlier agreement dated 27th January, 1968, then the basis for that defence loses its legal force. The reason for Mir Hasan Ali to first enter into an agreement with Bhagwatibai and then again selling Plot No. 7 on 5th July, 1968 to the vendor of defendant no.1 has not been explained. Considering the fact that title had passed over in favour of the plaintiff on 5th June, 1968, by virtue of sale-deed at Exh.52 the plaintiff has been rightly found entitled for possession of the suit property on that basis. The subsequent sale-deed at Exh.69 having been executed by Mir Hasan Ali when he had no title to the suit property, therefore, cannot defeat the claim of the plaintiff. ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:56:30 :::
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10. In view of aforesaid, the substantial question of law is answered against the appellant. The judgment of the appellate Court decreeing the suit stands confirmed. Second Appeal is, therefore, dismissed with no order as to costs.
Judge
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