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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 110 OF 2002
Ajabrao Marotrao Radake,
aged about 65 years, Occ. Agriculturist,
R/o. Bhaji Bazar Chowk, Amravati,
Tq. And Distt. Amravati ...... APPELLANT
...VERSUS...
1. Bhalchandra Vitthalrao Deshpande,
aged about 63 years, Occ. Service,
R/o. Mudholkar Peth, Amravati,
Tq. And Distt. Amravati.
2. Smt. Vimal Prabhakar Bangale,
aged about 66 years, Occ. Household,
R/o. Bandra West, Bombay.
3. Madhukar Vitthalrao Deshpande,
aged about 64 years, Occu. Service,
R/o. Ville Parle, Bombay.
4. Smt. Gayatra Kamlakar Nande,
aged about 64 years, Occ. Service,
R/o. Shankar Nagar, Amravati,
Tq. And Distt. Amravati...... RESPONDENTS
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Shri R.L.Khapre, counsel for Appellant
Shri P.R.Agrawal, counsel for Respondent nos. 1 to 4
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CORAM: R. K. DESHPANDE, J.
th DATE : 15 MARCH, 2017 .
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ORAL JUDGMENT
1] The trial Court partly decreed the Special Civil
Suit No. 63 of 1988 on 30.06.1994 for possession of the suit field and enquiry into the mesne profit. The lower appellate Court has dismissed the Regular Civil Appeal No. 190 of 1994 on 07.12.2001. Hence, the original defendant is before this Court in this second appeal.
2] Undisputedly, the plaintiffs were the owners of the suit property and the defendant claimed protection of possession on the basis of the agreement to sell dated 22.12.1975 at Exh.39. The Courts below are concurrent in holding that the defendant has failed to establish the possession over the suit property by way of part performance of contract. According to the Courts below, the defendant was in possession of the suit property on the basis of the orders dated 17.05.1978 and 31.08.1978 at Exh.45. The Courts have held that the defendant has failed to establish readiness and willingness on his part to perform the contract by making payment of balance amount of consideration of Rs.12,250/- to get the sale deed executed. ::: Uploaded on - 16/03/2017 ::: Downloaded on - 17/03/2017 01:05:17 :::
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3] On 15.07.2005, this Court passed a reasoned
order framing two substantial questions of law, which are
reproduced below.
[1] Whether the possession of present appellant
of suit field is or is not in pursuance of
agreement for sale dated 22.12.1975 and therefore, in part performance of the said agreement?
[2] Whether provisions of Section 53-A of Transfer of Property Act are attracted in such circumstances?
4] Shri Khapre, the learned counsel appearing for the appellant has invited my attention to the agreement dated 22.12.1975 at Exh.39, which contains a recital that the defendant was put in possession of the suit property, which is 3 acres and 18R of land in Survey No. 28. According to him, though the total consideration payable was shown in the agreement to be of Rs.17,250/-, it was at the rate of Rs.5,000/- per acre, intending thereby to work out the total consideration actually payable upon the actual area in possession of the defendant. He submits that the Court Commissioner was appointed who has measured the land and it is found that the defendant was in possession of ::: Uploaded on - 16/03/2017 ::: Downloaded on - 17/03/2017 01:05:17 ::: 4 sa110.02.odt 2 acres 18R of land and not 3 acres and 18R of land, as was stipulated in the agreement.
5] Shri Khapre further submits that the agreement itself recites the payment of earnest amount of Rs.5,000/- to the plaintiffs and the balance, therefore, remained to be paid was of Rs.4,250/- on the basis of area of 2 acres and 18R of land actually found in possession of the defendant. He submits that the Courts have wrongly rejected a plea raised by the defendant that an amount of Rs.5,000/- was paid from time to time to the plaintiffs and the defendant had incurred expenditure of Rs.2,000/- for recovering possession of the suit property from the tenants. He, therefore, submits that out of total consideration payable of Rs.12,250/-, the defendant had actually paid an amount of Rs.12,000/- and he was ready and willing to pay the balance amount of consideration to get the sale deed executed. He submits that the Courts below ought to have, therefore, held that the defendant is entitled to protection of possession under Section 53-A of the Transfer of Property Act.
6] Coming to the substantial question of law at
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Sr.No.[1] framed by this Court, the perusal of the agreement at Exh.39 shows that the defendant was put in possession of 3 acres and 18R of land, which defendant had agreed to purchase it from the plaintiffs. In para 2 of the written statement, the specific stand taken by the defendant is reproduced below;
"2.............................. It is denied that the suit land was in possession of the plaintiff Umabai on 22.12.75. The price of the land was to be paid by this defendant as per the exact measurement of the area that would be available at the time of execution of the sale deed. It is denied that the defendant was placed in possession of that land by the plaintiff Umabai on 22.12.1975. The recital in the agreement of sale about delivery of possession after doing exact measurement is totally incorrect and false."
In para 12 of the written statement, the defendant took the stand as under;
"12.............................................. The defendant was not placed in actual possession of the agreemented area of 3 acres 18 gunthas of land but the land was less by about 1 acre and it is thus submitted that the defendant came in possession of about 2 acres 18 gunthas of land only and I.e in the month of August, 1978".
7] The oral evidence of the defendant is in conformity with the aforesaid pleadings. It, therefore, becomes apparent that on the date when the agreement was entered into between the parties on 22.12.1975, neither the plaintiff was in actual physical possession of 3 acres and 18 ::: Uploaded on - 16/03/2017 ::: Downloaded on - 17/03/2017 01:05:17 ::: 6 sa110.02.odt gunthas of land, nor was in a position to deliver it to the defendant. The defendant got the possession of the land, as has been stated by him, by spending an amount on litigation in the month of August, 1978, that too only to the extent of 2 acres and 18 R of land. The defendant could not secure the possession of remaining 1 acre of land, out of 3 acres and 18R of land agreed to be purchased by him. It is, thus apparent from the defendant's own stand that it was not the actual possession of 3 acres and 18R of land which was handed over to him by the plaintiff on the date of entering into an agreement, but he came in possession of 2 acres and 18R of land in the month of August, 1978.
8] In view of above, the finding recorded by the appellate Court that the defendant took possession of 2 acres and 18R of land in the month of August, 1978 and was, therefore, not entitled to protection of part performance of contract, cannot be faulted with and the substantial question of law at Sr.No. [1] has to be answered holding that the possession of the defendant was not pursuant to the agreement dated 22.12.1975 at Exh. 39.
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9] On the substantial question of law at Sr.No. [2]
regarding the proof of readiness and willingness on the part of the defendant to perform his part of the contract, the Courts are concurrent in holding that the defendant has failed to establish it and hence, he is not entitled to protection under Section 53-A of the Transfer of Property Act. The consideration agreed for sale of 3 acres and 18R of land determined under the agreement was of Rs.17,250/-. It is not in dispute that the defendant has not shown his readiness and willingness to pay the entire consideration, the reason being that the actual area is found to be less by 1 acre by the defendant and he wanted deduction for the same. 10] The portion of written statement in para 2 reproduced earlier indicate the stand of the defendant that the price of the land was to be paid by the defendant as per the exact measurement of the area that would be available at the time of execution of the sale deed. Shri Khapre, the learned counsel appearing for the appellant does not dispute the fact that such a condition is not found in the agreement at Exh.39. He was, therefore, asked to point out a definite portion from the oral evidence led by the defendant to ::: Uploaded on - 16/03/2017 ::: Downloaded on - 17/03/2017 01:05:17 ::: 8 sa110.02.odt establish such fact. Shri Khapre has invited my attention to the following portion in para 1 of the deposition of the defendant.
".................. This agreement was came to be registered on that date. I agreed to purchase 3 acres 18 gunthas of land Rs.5000/- per acre. .........."
He has further invited my attention to the following portion in the examination-in-chief of the defendant.
".............. As per the rate which was agreed at the time of agreement, the price of 2 acres 18 gunthas comes to Rs.12,500/-. I paid Rs.5,000/- from the day of agreement, remaining Rs.5,000/- lateron as stated earlier and thus, made payment of Rs.10,000/- and I incurred expenses of Rs.2,000/- to prosecute and defend the Court cases. Umabai is responsible for those expenses. I am ready to pay balance of Rs.500/- to the plaintiff and take sale deed from them. ......................"
Except this evidence, he could not point out any other evidence in support of his plea.
11] In my opinion, it is not the evidence of defendant that in view of uncertainty of area to be purchased, the rate was to be determined as per the area found to be in actual possession of the defendant. It is also not the evidence that the total consideration actually payable depended upon the actual area to be found in possession of the defendant. It is not the evidence that the price of the land was to be paid by ::: Uploaded on - 16/03/2017 ::: Downloaded on - 17/03/2017 01:05:17 ::: 9 sa110.02.odt the defendant as per the exact measurement of the area that would be available at the time of execution of the sale deed. 12] The Courts below have recorded the finding of fact that the defendant has failed to establish the payment of Rs.5,000/- and incurring of expenditure of Rs.2,000/- on the litigation. Shri Khapre, the learned counsel admits that there is no receipt of payment of Rs.5,000/- produced on record, apart from the earnest amount of Rs.5,000/-. He also could not point out any evidence of incurring of expenditure of Rs.2,000/- on the litigation and this is what the finding recorded by the Courts below. In view of this, it has to be held that the defendant has failed to discharge the burden of proving readiness and willingness on his part to perform the contract by making payment of balance amount of consideration of Rs.12,250/- either on 12.04.1976 which was the date agreed for execution of sale deed or thereafter till the filing of the suit. The provision of Section 53-A of the Transfer of Property Act is not at all attracted in the present case. The substantial question of law at Sr.No. [2] is answered accordingly.
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For the reasons stated above, the second
appeal is dismissed.
JUDGE
Rvjalit
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