Bombay High Court
Mahadeo S/O Rajaram Lonare vs Smt. Kantabai Wd/O Tulshiram Lonare And ... on 22 May, 2026
2026:BHC-NAG:7363
SA 350.18.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.350 OF 2018
APPELLANT Mahadeo S/o Rajaram Lonare Aged about
Ori. Defendant No.8
71 years, Occu. Railway Employee
(Retired) Through Power of attorney
holder Sou. Indubai w/o Mahadeo Lonare
R/o Krushi Nagar (Sulezari), Nagbhid Tq.
Nagbhid, Dist. Chandrapur.
Amendment carried 1-I. Indu Mahadeo Lonare W/o Mahadeo
out as per Court order
dt. 07.11.2025 Lonare, Aged 64, Occupation: Housewife,
R/O -Sulezari, PO: Nagbhid, Sub District:
Nagbhid, District: Chandrapur, State:
Maharashtra, PIN Code: 441205,
II. Sarita Pravin Duryodhan D/O Mahadeo
Lonare Aged-43, Occupation: Housewife,
C/O: Kashinath Govind Kapse, Gond
Mohalla, Near Police Chowki, Nagpur,
VTC: Jaripatka, PO: Jaripatka, Sub
District: Nagpur, District - Nagpur, State:
Maharashtra, PIN Code: 440014
III. Nisha Mahadeo Lonare D/O: Mahadeo
Lonare Aged 42, Occupation: Housewife,
R/O-Krushi Nagar at Sulezari PO:
Nagbhid Tah-Nagbhid, Sulezari Nagbhid
Chandrapur Maharashtra PIN Code:
441205.
IV. Madhuri Rajkumar Bhadke, D/o Mahadeo
SA 350.18.odt
2
Lonare, Aged 40 Occupation : Housewife,
C/o M.P. Joshim, behind Wasekar Petrol
Pump, Opposite Pujari building, Sindhi
Colony Ramnagar, Civil Line, Chandrapur,
Maharashtra PIN Code: 442401.
V. Sandip Mahadeo Lonare S/o Mahadeo
Lonare, Aged - 38, Occupation: Service,
R/o Krushi Nagar, at Sulezari P/O
Nagbhid, Tah. Nagbhid, Sulezari Nagbhid
Chandrapur, Maharashtra PIN
Code:441205.
RESPONDENTS 1. Smt. Kantabai wd/o Tulshiram Lonare,
Ori. Plaintiffs No.1 to
7 Aged about 72 years, Occu: Houshold,
R/o Krushi Nagar (Sulezari), Nagbhid Tq.
Nagbhid, Dist. Chandrapur.
2. Smt. Varsha w/o Vijay Ramteke Aged
about 37 years, Occu: Houshold, R/o
Sidarthnagar, Bhivapur. Tq. Bhivapur,
Dist. Nagpur.
3. Smt. Geeta W/o Garibdas Bansod, Aged
about 35 years, Occu: Houshold, R/o
Malmendha, Tq. Sindewahi, Dist.
Chandrapur.
4. Lata D/o Tulshiram Lonare, Aged about
34 years, Occu: Education.
5. Rita D/o Tulshiram Lonare, Aged about 33
years, Occu: Houshold.
6. Anand S/o Tulshiram Lonare, Aged about
30 years, Occu: Education,
SA 350.18.odt
3
7. Sunil S/o Tulshiram Lonare, Aged about
24 years, Occu: Education,
Respondents No.4 to 7 R/o Krushi Nagar
(Sulezari), Nagbhid Tq. Nagbhid, Dist.
Chandrapur.
Ori. Defendant No.1 8. Smt. Champabai wd/o Dhana Khobragade
to 7
aged about 77 years, Occu: Houshold, R/o
Ward No.6, Nagbhid, Tq. Nagbhid, Dist.
Chandrapur.
9. Yeshwanta S/o Dhana Khobragade Aged
about 56 years, Occu: Service, R/o
Siddharth Chouk, Sindewahi, Tq.
Sindewahi, Dist. Chandrapur,
Amendment carried 9-I. Prachi Yashwant Khobragade, Age 24,
out as per Court order
dt.16.10.25 R/o.: Sidharth chouk, Sindewahi, Tah.:
Sindewahi, Dist.: Chandrapur.
9-II Sakshi Yashwanr Khobragade, Age 21,
R/o.: Sidharth chouk, Sindewahi, Tah.:
Sindewahi, Dist.: Chandrapur
9-III Dakshina Yashwant Khobragade, Age 46,
R/o.: Sidharth chouk, Sindewahi, Tah.:
Sindewahi, Dist.: Chandrapur
10. Vasanta S/o Dhana Khobragade Aged
about 37 years, Occu: Agriculturist, R/o
Ward No.6, Nagbhid, Tq. Nagbhid, Dist.
Chandrapur.
11. Pramita w/o Vijay Ramteke, Aged about
57 years, Occu: Household, R/o
Vidyanagar, Bramhapuri, Tq. Bramhapuri,
SA 350.18.odt
4
Dist. Chandrapur.
12. Smt. Saroj w/o Khushabrao Meshram
Aged about 52 years, Occu: Household,
R/o Bhoisar, Mumbai.
13. Smt. Bharti w/o Charan Bhedke Aged
about 47 years, Occu: Household, R/o
Charan Bhedke, Forest Office Etapalli,
Tah. Aheri, Dist. Gadchiroli.
14. Smt. Rechalbai @ Remalbai wd/o Robert
Singh, Aged about 67 years, occu:
Household, R/o Krishna Nagar (Sulezari),
Nagbhid, Tq Nagbhid, Dist. Chandrapur.
Amendment carried I. Jaywanta Ashok Titare, R/o.: Krushi
out as per Court order
dt.07.03.2024 Nagar (Sulezari), Nagbid, Tah.: Nagbid,
Dist.: Chandrapur (441205).
II. Franscis @ bablu Robert Singh, R/o.:
Krushi Nagar (Sulezari), Nagbid, Tah.:
Nagbid, Dist.: Chandrapur (441205).
III. Bharti Yeshudas Singh, C/o.: Amar
Bhagwan Natekar, R/o.: I.U.D.P. Colony,
Beside Mahakali Mandir, Washim, Dist.:
Washim (444505).
Amendment carried 14.i.A Akash Ashok Titare Aged about 38 years,
out as per Court order
dated 19.08.2025 Occ. Labour
14.i.B Ashwini Ashok Titare Aged about 35
years, Occ. - Nurse
14.i.C Ashish Ashok Titare Aged about 28 years,
Occ Education
14.i.D Anjali Ashok Titare Aged about 24 years,
SA 350.18.odt
5
Occ.-Student All R/o Krushi Nagar
(Sulezari) Tah.Nagbhid, Dist. Chandrapur.
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Mr. S. P. Bhandarkar, Advocate for Appellants.
Mr. A. A. Dhawas a/w. Ms. Aparna Jha, Advocates for respondent Nos.1 to
7/caveator
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CORAM : ROHIT W. JOSHI, J.
RESERVED ON : 07.05.2026
PRONOUNCED ON : 22.05.2026
JUDGMENT:
1) Heard finally with consent of learned advocates for the respective parties.
2) The present appeal is preferred under Section 100 of the Code of Civil Procedure, 1908 in order to challenge judgment and decree dated 31.12.2010 passed by the learned Joint Civil Judge, Junior Division, Nagbhid in Regular Civil Suit No.6 of 2004 and judgment and decree dated 29.03.2018 passed by the learned Ad-hoc District Judge-1, Chandrapur in Regular Civil Appeal No.44 of 2011.
3) Respondent Nos.1 to 7 are the original plaintiffs. The appellant is original defendant No.8. Respondent Nos.8 to 13 are original defendant Nos.1 to 6. They are widow and SA 350.18.odt 6 children of late Dhana Khobragade. Respondent No.14 is original defendant No.7. The parties will hereinafter be referred to as "plaintiffs" and "defendants".
4) The controversy in the suit pertains to agricultural land admeasuring 0.40 H.R., being a part of land bearing old Gat No.156/1, new Gat No.50, total admeasuring around 0.81 H.R., situated at Village Sulejhari, Tahsil Nagbhid, District Chandrapur. The said property will be referred to as "suit property" hereinafter.
5) The plaintiffs had filed a suit for specific performance of contract inter alia contending that late Tulsiram Lonare, husband of plaintiff No.1 and father of plaintiff Nos.2 to 7, alongwith defendant No.7, had entered into an agreement of sale dated 11.11.1979 with late Dhana, husband of defendant No.1 and father of defendant Nos.2 to 6, inter alia agreeing to purchase the aforesaid land admeasuring 0.81 H.R. for a consideration of Rs.12,000/-. According to the plaintiffs, late Tulsiram and defendant No.7 had agreed to purchase half share each in the said land by making payment of half of the agreed sale consideration SA 350.18.odt 7 individually. According to the plaintiffs, initially on the date of agreement a sum of Rs.7,000/- was paid by late Tulsiram and defendant No.7 to the vendor late Dhana and thereafter an amount of Rs.3,800/- was paid by them on 14.04.1980. It is their case that on both these occasions late Tulsiram and defendant No.7 had paid half amount each. Thus, according to the plaintiffs, out of total sale consideration of Rs.12,000/-, Rs.10,800/- was paid to the vendor on 14.04.1980. The agreement provides that sale deed was to be executed around six months from the date of agreement.
6) It is the case of the plaintiffs that prior to 14.04.1980 the vendor had come to their house and demanded amount of Rs.1,900/- from late Tulsiram and at that time, on enquiry being made with respect to execution and registration of sale deed, he informed that certain formalities were required to be completed for which period of around 2 months will be required. The plaintiffs have stated that the vendor gave assurance to Tulsiram that since he was already placed in possession of the suit property there was no reason for him to worry about the execution and registration SA 350.18.odt 8 of sale deed. The plaintiffs have further averred that after a period of two months when the vendor was contacted again by Tulsiram, he did not behave properly with Tulsiram and asked him to contact him after a period of one month. It is further stated that after a period of around one year from the date stipulated for execution and registration of sale deed, when Tulsiram and his brother-in-law contacted the vendor (Dhana), he bluntly said that he was not ready to execute the sale deed in terms of the agreement in favour of Tulsiram and defendant No.7 due to increase in market value of the property and that he was ready to refund the amount paid by Tulsiram and defendant No.7 within a period of one year and called upon Tulsiram to vacate the suit property and return possession thereof. It is further stated that the vendor-Dhana avoided to execute and register the sale deed on one pretext or the other.
7) The above averments made in paragraph 6 of the plaint indicate that somewhere around June 1980 the vendor asked for period of 2 months to complete the transaction and thereafter period up to July 1980 to complete the transaction.
SA 350.18.odt 9 The pleadings in paragraph 6 further indicate that the vendor-Dhana refused to execute the sale deed in terms of the agreement somewhere around June 1981 and offered to return the amount and asked Tulsiram to vacate the suit property and return possession thereof to him.
8) It is further stated in paragraph 7 of the plaint that despite refusal on the part of vendor-Dhana, Tulsiram remained silent keeping in mind his status village kotwal. It is further stated in paragraph 7 that defendant No.7 assured Tulsiram that in the event of any threat to possession, they will take appropriate legal action against vendor-Dhana. It is stated that in view of the aforesaid, Tulsiram did not take any action against vendor-Dhana till his demise on 05.11.1988.
9) It will however be pertinent to state that the plaintiffs filed application for amendment of plaint vide Exhibit 109 on 29.08.2009. The said application came to be allowed vide order dated 01.10.2009 and accordingly amendment was carried out on 30.10.2009.
10) However, the affidavit of examination-in-chief of plaintiff No.1 is dated 28.11.2007. The application for SA 350.18.odt 10 amendment is filed after filing of the affidavit of examination-in-chief.
11) The plaintiffs introduced paragraph 6A in the plaint and contended that after hearing the representation of vendor-Dhana, the plaintiff was surprised with such behavior. It is stated that Tulsiram visited Dhana shortly thereafter and was given an assurance that he will definitely execute the sale deed as agreed and that since possession of the suit property is already delivered there was no need to worry. The plaintiffs have stated that the assurance to execute the sale deed was not restricted by time.
12) The plaintiffs have stated that defendant No.8 is real brother of late Tulsiram. It is stated that in November 2003 defendant No.8 retired from his service with Railways. It is alleged that in November 2003 he came with a some labourers to the suit property and started the work of laying foundation for construction of house over a portion of 3000 to 3500 square feet in the suit property. The plaintiffs have stated that when plaintiff No.1 made enquiries with respect to the said conduct, defendant No.8 informed that he had SA 350.18.odt 11 purchased the suit property from vendor-Dhana on 21.04.1980.
13) It is alleged that defendant No.8 took forcible possession of area around 3000 square feet in the suit property. The plaintiffs have amended the plaint and stated that on 17.07.2004, the plaintiff No.5 fell ill and plaintiff Nos.1,4,6 and 7 took her to hospital. It is stated that taking unfair advantage of the situation, defendant No.8 erected fencing all around the suit land except one Bandhi (0.05 H.R.,) portion abutting Nagbhid-Bramhapuri road which is in possession of the plaintiffs.
14) The plaintiffs have prayed for a declaration that they have become owners of the suit property by adverse possession or alternatively for a declaration that they are entitled to hold possession of the suit property in view of Section 53-A of the Transfer of Property Act or, in the alternative, for a decree for specific performance of contract coupled with protection of possession under Section 53-A of the Transfer of Property Act. They also sought decree of possession of the suit property against defendant No.8 and SA 350.18.odt 12 for a declaration that sale deed dated 21.04.1980 executed in favour of defendant No.8 by late Dhana is illegal, fraudulent, null and void and not binding on the plaintiffs. Apart from this, decree for perpetual injunction restraining defendant No.8 from making further construction and for mandatory injunction for removing the construction already made is also sought.
15) Defendant No.8 filed written statement opposing the suit. It is the case of defendant No.8 that the agreement dated 11.11.1979 was entered into by Tulsiram, who is his elder brother, for and on his behalf. He has stated that Tulsiram did not have the funds to purchase the suit property. His contention is that since he was not available on the date of execution of agreement, had asked Tulsiram to enter into the agreement of sale on his behalf. Defendant No.8 has stated that he has purchased the suit property vide registered Sale Deed dated 21.04.1980 along with defendant No.7 and that deceased Tulsiram and his brother-in-law Sadashiv were present at the time of execution of sale deed with respect to suit property in his favour. Sadashiv, who is brother of SA 350.18.odt 13 plaintiff No.1 and brother-in-law of Tulsiram, is attesting witness to the sale deed dated 21.04.1980 executed in favour of defendant No.8. The case of defendant No.8 is that he had allowed his brother Tulsiram and his family to reside in the suit property. He has stated that house in which the plaintiffs were residing was constructed by him.
16) Based on rival pleadings, issues were framed in the suit on which both sides led their evidence. The plaintiffs have examined plaintiff No.1 as their witness. Plaintiff No.1 filed an affidavit of examination-in-chief dated 28.11.2007 (Exhibit 88). Thereafter, in view of amendment to the plaint, additional affidavit of examination-in-chief dated 16.12.2009 came to be filed vide Exhibit 114. The contents of additional affidavit are pertaining to averments in paragraph 6A of the plaint whereby a stand is taken that after the initial dispute, Dhana had reassured Tulsiram that he will execute the sale deed in his favour without specifying any time.
17) In her cross-examination, she has stated that she was not aware about the sale deed dated 21.04.1980 executed in favour of defendant No.8. She further stated that SA 350.18.odt 14 defendant No.8 never informed her about sale deed with respect to the suit property in his favour. She further denied that defendant No.8 informed her about the sale deed in his favour in the year 2004. She stated on second occasion in the cross-examination that she was not aware as to when sale deed with respect to suit property was executed. She also stated that she was not aware as to whether reference to sale deed dated 21.04.1980 was made in her affidavit of examination-in-chief. She has admitted that name of defendant No.8 was mutated in the revenue records.
18) As regards limitation, she denied the suggestion that her husband and brother Sadashiv were aware about the sale deed dated 21.04.1980. The brother of plaintiff No.1, Sadashiv, is also examined as a witness (P.W. 2) by the plaintiffs. He is attesting witness to the sale deed dated 21.04.1980. The witness has deposed about execution of agreement dated 11.11.1979 in favour of Tulsiram and has stated that Tulsiram was placed in possession of the suit property in terms of the agreement. The witness has also stated that Tulsiram had made repeated requests to the SA 350.18.odt 15 vendor-Dhana for completing the sale transaction. He has made a positive statement that after a period of around six months from the date of execution of agreement, he had been to the vendor-Dhana alongwith Tulsiram requesting him to execute the sale deed and at that time the vendor expressed remorse for his earlier behavior and assured that he would complete the sale transaction.
19) In his cross-examination, Sadashiv (PW-2) has specifically admitted that he was aware about sale deed executed by vendor-Dhana in favour of defendant No.8. The evidence of this witness assumes significance since he is attesting witness to sale deed. There is no positive statement in the examination-in-chief that he did not inform the plaintiffs or Tulsiram about execution of sale deed dated 21.04.1980 in favour of defendant No.8.
20) The other two witnesses of the plaintiffs are examined with respect to physical possession of plaintiffs over the suit property. They have deposed that the plaintiffs were in possession of the suit property and that defendant No.8 had taken forcible possession somewhere around the SA 350.18.odt 16 year 2003.
21) Defendant No.8 entered the witness box and reiterated the contents of his written statement in the examination-in-chief. In the cross-examination, questions were put to him with respect to his salary while working with Railways, about his savings and the manner in which he arranged funds for making alleged payment of Rs.3,500/- and 1900/-. He has stated that he could not state as to when he had made payment of Rs.3,500/- to his brother Tulsiram for entering into the agreement with respect to suit property with Dhana. He has stated that the original agreement was in custody of his brother Tulsiram and that he never asked him to give the original agreement to him. He denied the suggestion that Tulsiram was in possession of the suit property in terms of the agreement. Questions were also put to him with respect to the sale consideration reflected in the sale deed dated 21.04.1980. It must be stated that although in the agreement of sale the total sale consideration is mentioned as Rs.12,000/-. The sale consideration reflected in the sale deed is Rs.10,000/-.
SA 350.18.odt 17
22) Defendant No.8 also examined defendant No.7, who is the co-purchaser. She has supported the case of defendant No.8 that defendant No.8 had given an amount of Rs.3,500/- to Tulsiram in order to enter into agreement of sale with respect to suit property on his behalf. She stated that Tulsiram and his brother-in-law Sadashiv (P.W. 2) were present when sale deed dated 21.04.1980 was executed in her favour and in favour of defendant No.8. She stated that Tulsiram was residing in the suit property as permitted by defendant No.8. In her cross-examination, she admitted that she had accompanied Tulsiram while the agreement of sale was executed. She stated that contents of the agreement were written as per statement of Dhana. She admitted that she and Tulsiram were in occupation of the suit property from the date of agreement.
23) Defendant No.8 also examined another attesting witness to the sale deed dated 21.04.1980.
24) After hearing the arguments, the learned Trial Court has decreed the suit in favour of the plaintiffs by granting a decree for specific performance of contract SA 350.18.odt 18 directing defendant Nos.1 to 8 to execute sale deed with respect to suit property in favour of plaintiffs. The learned Trial Court declared that the sale deed dated 21.04.1980 executed in favour of defendant No.8 is illegal, void and not biniding on plaintiffs. The learned Trial Court also directed defendant No.8 to deliver possession of the suit property to the plaintiffs and also passed a decree for perpetual injunction restraining the defendants from obstructing possession of the plaintiffs over the suit property. Appeal preferred by the defendant No.8 also came to be dismissed by the learned First Appellate Court.
25) These concurrent decrees are subject matter of challenge in the present second appeal. The second appeal came to be admitted vide order dated 10.04.2019 on the following substantial questions of law:-
"Whether the suit for specific performance was filed within limitation ?
Whether the pleadings in the plaint regarding fraud are sufficient as per Order VII of the Civil Procedure Code and whether such SA 350.18.odt 19 pleadings constituted fraud so as to set aside sale-deed in favour of the appellant ? Whether sale-deed Exhibit 119 dated 21-4- 1980 can be bad in law, particularly when there is consistent evidence on record that at the time of sale-deed Exhibit 119, Tulshiram the husband of plaintiff 1 and brother of plaintiff PW 2- Sadashiv were present at the time of sale-deed Exhibit 119 and PW 2-Sadashiv has signed the sale-deed as a witness ?"
AS TO SUBSTANTIAL QUESTION OF LAW 1 AND 3 Whether the suit for specific performance was filed within limitation ?
Whether sale-deed Exhibit 119 dated 21-4- 1980 can be bad in law, particularly when there is consistent evidence on record that at the time of sale-deed Exhibit 119, Tulshiram the husband of plaintiff 1 and brother of plaintiff PW 2- Sadashiv were present at the time of sale-deed Exhibit 119 and PW 2-Sadashiv has signed SA 350.18.odt 20 the sale-deed as a witness ?
26) Limitation for filing suit for specific performance of contract is prescribed under Article 54 of the Limitation Act. The limitation prescribed is of three years, the starting point of limitation being the date stipulated in the agreement for execution of sale deed or in cases where such date is not fixed, it commences from the date of refusal on the part of the vendor/defendant.
27) In the case at hand, the agreement dated 11.11.1979 states that the sale deed will be executed within a period of six months from the date of agreement i.e. on or before 11.05.1980. The limitation will therefore commence from 12.05.1980. Even if limitation is computed from the date of refusal, perusal of paragraph 6 of the plaint will indicate that the vendor-Dhana had refused to execute sale deed in favour of purchase-Tulsiram in May 1981. It is specifically stated in paragraph 6 of the plaint that somewhere around one year after the stipulated period for execution of sale deed i.e. a period of six months from the date of execution of agreement i.e. 11.11.1979, the SA 350.18.odt 21 purchaser-Tulsiram and his brother-in-law (P.W. 2) had been to Dhana-vendor with a request to complete the sale transaction and at that time the vendor bluntly refused to execute the sale deed. This statement in paragraph 6 is required to be read in conjunction with paragraph 7 of the plaint wherein the plaintiffs have stated that despite refusal on the part of vendor-Dhana, Tulsiram did not take any steps till his demise on 05.11.1988. It is stated that deceased Tulsiram did not take any action having regard to status of the vendor who was village Kotwal at the relevant time.
28) It will also be pertinent to state that after the plaint is amended in order to incorporate paragraph 6A, the plaintiffs have stated that the vendor had a quarrel with his family members and therefore he behaved rudely with Tulsiram and immediately after a period of two to three days thereafter he assured Tulsiram (purchaser) that there was no need to worry and that he will complete the transaction as promised. The plaintiffs have made a specific statement in paragraph 6A that this time the vendor-Dhana did not stipulate any time frame for completing the transaction.
SA 350.18.odt 22
29) The pleadings in paragraph 6A are incorporated after filing of the affidavit of examination-in-chief (exhibit
88) which is dated 28.11.2007. The amendment application (Exhibit 109) is filed on 29.08.2009. The plaint is amended obviously in order to address the aspect of limitation.
30) It is apparent from pleadings in paragraph 6A that the tentative period when the alleged assurance was given by vendor-Dhana to Tulsiram is not mentioned. It cannot be ascertained as to whether this assurance was given two to three days after June 1980 when the vendor was approached with request to execute sale deed on the first occasion or two to three days after June 1981, when the request made for second time. In this regard, it must be stated that in paragraph 6 of the plaint the plaintiffs have stated that initially Tulsiram had been to the vendor-Dhana with a request to execute the sale deed somewhere around June 1980 when the vendor did not behave properly and asked Tulsiram to contact him after a period of one month. It is then stated that after a period of one year i.e. in June 1981 when Tulsiram and his brother-in-law Sadashiv, (P.W. 2) had SA 350.18.odt 23 contacted vendor-Dhana for completing the sale transaction he had bluntly refused to do so. The pleadings in paragraph 6A are vague and lacking in material particulars with respect to the tentative period of alleged assurance.
31) This pleading in paragraph 6A is required to be viewed in the backdrop that P.W. 2 Sadashiv is real brother of plaintiff No.1 and brother-in-law of Tulsiram and also attesting witness to the sale deed dated 21.04.1980 executed in favour of defendant No.8. The question of alleged assurance being given by vendor in the presence of Sadashiv (PW-2) does not arise. If such assurance was given in presence of Sadashiv (PW-2) he would obviously confront the vendor about prior sale deed in favour of defendant No.8. In his cross-examination, PW-2 has specifically admitted that he was all the while aware about sale deed dated 21.04.1980 in favour of defendant No.8. There is no statement in the examination-in-chief of Sadashiv that he did not inform Tulsiram about execution of sale deed dated 21.04.1980 in favour of defendant No.8. It is most improbable that PW-2, who is brother of plaintiff No.1, did not inform her husband SA 350.18.odt 24 about execution of sale deed with respect to the suit property in favour of defendant No.8, although the same was in utter disregard to the agreement of sale dated 11.11.1979 executed in favour of his sister's husband. It is inconceivable that despite execution of sale deed dated 21.04.1980, about which Sadashiv (PW-2) was aware, he had accompanied Tulsiram to request vendor-Dhana to execute sale deed somewhere around June 1981. What is even surprising is that it is not even the case of plaintiffs that relation between Tulsiram and/or plaintiffs on one hand and Sadashiv, brother of plaintiff No.1, on the other hand were strained at any point of time. Rather, the relations appear to be cordial and therefore Sadashiv had allegedly accompanied Tulsiram with a request to the vendor to execute sale deed in terms of agreement.
32) It appears from reading of plaint that the vendor- Dhana had specifically denied to execute sale deed in favour of Tulsiram in June 1981. It also appears from the evidence that the vendor had executed sale deed with respect to suit property in favour of defendant No.8 on 21.04.1980 in SA 350.18.odt 25 presence of Sadashiv (brother of plaintiff No.1), who signed the sale deed as attesting witness and categorically admitted that he was aware about the sale deed dated 21.04.1980 all throughout. It is also a matter of record that there is no statement by P.W. 2 Sadashiv that he did not apprise Tulsiram or plaintiffs about the sale deed dated 21.04.1980. The execution of sale deed dated 21.04.1980 in favour of defendant No.8 by itself is refusal on the part of vendor- Dhana to execute sale deed with respect to suit property in favour of Tulsiram. Apart from this there is a categorical statement in the plaint about refusal to execute the sale deed somewhere around June, 1981.
33) It will also be appropriate to refer to cross- examination of plaintiff No.1 where she has stated that she was not aware about sale deed executed by vendor in favour of defendant No.8. She has again denied that defendant No.8 appraised her about the sale deed. She again denied that in the year 2003 defendant No.8 apprised her about sale deed in his favour. The statements in the cross-examination are contrary to the case set-up by the plaintiffs in the plaint with SA 350.18.odt 26 respect to knowledge regarding sale deed dated 21.04.1980. In view of the above, it must be held that plaintiff No.1 was all the while aware about the sale deed dated 21.04.1980 executed in favour of defendant No.8, particularly, since her brother is attesting witness to the said sale deed and he has unequivocally admitted that he was all throughout aware about the said sale deed.
34) In view of the overwhelming evidence on record coupled with the pleadings in the plaint itself, it is clear beyond any doubt that the claim for specific performance in the suit, which is filed on 04.02.2004, is hopelessly barred by limitation. Both the learned Courts have not adverted to the pleadings properly. Reading of plaint meaningfully clearly reveals that the prayer for specific performance is time barred. The explanation that plaintiffs were not aware about sale deed dated 21.04.1980 in favour of defendant No.8 is also falsified by categorical statement of plaintiff No.1 in her cross-examination.
35) The learned Courts have failed to appreciate that it is the case of plaintiffs that they came to know about the SA 350.18.odt 27 fraudulent sale deed in favour of defendant No.8 only in November 2003 when defendant No.8 tried to committ a trespass over a portion of suit property and upon being confronted with respect to his alleged right over the suit property, he divulged that he had purchased the same vide sale deed dated 21.04.1980. However, plaintiff No.1 has expressly denied in her cross-examination that defendant No.8 informed about the sale deed in his favour. Thus, the plaintiffs have failed to prove the allegation of concealment. The cumulative effect of this material is that plaintiffs were and during his lifetime Tulsiram also aware about the sale deed with respect to suit property in favour of defendant No.8. Both the learned Courts have failed to consider this aforesaid vital aspects while arriving at a conclusion with respect to alleged fraud by defendant No.8.
36) Substantial questions of law Nos.1 and 3 are accordingly answered in favour of the appellant/defendant No.8 and against the plaintiffs/respondent Nos.1 to 7.
AS TO SUBSTANTIAL QUESTION OF LAW 2 Whether the pleadings in the plaint regarding SA 350.18.odt 28 fraud are sufficient as per Order VII of the Civil Procedure Code and whether such pleadings constituted fraud so as to set aside sale-deed in favour of the appellant ?
37) At the outset, it must be stated that pleadings with respect to fraud, misrepresentation, coercion, etc. are required to be made in accordance with Order VI Rule 4 of the CPC. Order VI Rule 4 of CPC states that in cases of fraud, misrepresentation, etc., the pleadings must not only consist of material facts but also material particulars. It is held by a catena of decisions that issue with respect to fraud never arises for consideration unless the pleadings satisfy the mandate of Order VI Rule 4 of CPC. Reference can be profitably made to the following decisions in this regard:-
i. AIR 1951 SC 280 (Bishundeo Narain & anr.
Vs. Seogeni Rai & Jagernath)
ii. 2010 (5) SCC 104 (Saroop Singh v. Banto
and Others.)
iii. 2007 (4) Mh.L.J. 43 (Kisan Ramji Khandare
v. Kaussalyabai Gangaram Korde and Others ) SA 350.18.odt 29
38) In the present case, sale deed of the year 1980 is assailed in a suit filed in the year 2004. The explanation offered is that the plaintiffs came to know about the said sale deed only in November-2003. The plaintiffs have stated that in November 2003 defendant No.8 committed trespass over the suit property and on being asked about his right, he divulged that he had purchased the suit property vide aforesaid sale deed dated 21.04.1980. It is thereafter stated that the plaintiffs went to the office of the concerned Sub- Registrar and collected copy of the sale deed in question. It is not in dispute that brother of plaintiff No.1, who is examined as PW-2, is attesting witness to the said sale deed. The plaint also makes reference to the role played by PW-2 in paragraph 6 where it is stated that PW-2 had accompanied Tulsiram to the house of the vendor in order to make a request to execute the sale deed. Thus, the pleadings themselves show that PW-2 was aware about the agreement dated 11.11.1979 executed in favour of Tulsiram, husband of his sister. There is no pleading in the plaint that on obtaining copy of the sale deed, SA 350.18.odt 30 the plaintiffs made enquiries about the same from PW-2. This appears to be very unbelievable. The contention that Tulsiram did not press for execution of sale deed, although he had paid 90% of the sale consideration, is also difficult to believe. It is stated in the plaint that Tulsiram had paid 90% of the consideration in the year 1980 and on two occasions, the vendor (Dhana) had refused to execute sale deed. The explanation that Tulsiram did not take action only because the vendor was village Kotwal is difficult to accept. This is more so because his brother-in-law, Sadashiv (PW-2) is attesting witness to the sale deed executed in favour of his brother, i.e. defendant No.8. In cases of fraud, concealment is an essential element. If defendant No.8 was to clandestinely get sale deed with respect to a suit property registered in his favour, although his brother Tulsiram had entered into an agreement and paid the sale consideration, normally he would not take his brother-in-law, Sadashiv, as attesting witness to the sale deed. This indicates that there was no attempt to conceal the sale transaction. In the considered opinion of this Court, it was necessary for the SA 350.18.odt 31 plaintiffs to explain this circumstance, as to why, despite Sadashiv being attesting witness to the sale deed, they or Tulsiram were not aware about the said sale deed. This is a very material particular with regard to which the plaint is silent. Only reference that can be drawn is that Tulsiram and plaintiffs were all the while aware about the sale deed dated 21.04.1980 executed in favour of defendant No.8. The plaint averments thus clearly fail to make out a case of fraud.
39) Both the learned Courts have committed serious error of law in not dealing with the pleadings of the plaintiffs properly. The learned Courts should have appreciated that defendant No.8 had title deed with respect to suit property in his favour. As against this, the plaintiffs' predecessor, Tulsiram had an agreement of sale dated 11.11.1979, which is the foundation of the claim of plaintiffs. The plaintiffs claim that the sale deed dated 21.04.1980 executed in favour of defendant No.8 is obtained fraudulently. The burden of proving this fraud was upon the plaintiffs. The learned Courts have, however, wrongly shifted the burden to prove genuineness of his transaction upon defendant No.8.
SA 350.18.odt 32
40) The learned Courts should have appreciated that it is inconceivable that Tulsiram remained silent and did not convert the agreement in his favour into a sale deed during his life time, although he expired after a period of around 9 years after execution of the agreement.
41) The Courts have not even dealt with the aspect of brother of plaintiff No.1, being attesting witness to the sale deed dated 21.04.1980 in favour of defendant No.8, which is a very strong circumstance to infer genuineness of the said sale transaction and knowledge thereof to Tulsiram and the plaintiffs. The learned Courts failed to appreciate that there is no explanation from the plaintiffs for silence on the part of Sadashiv and not divulging the fact of sale deed in favour of defendant No.8, although as per the version of plaintiffs, Sadashiv was aware about the alleged agreement dated 11.11.1979 in favour of Tulsiram.
42) The learned Courts should have appreciated that pleadings of plaintiffs are not sufficient to make out a case of fraud.
43) Substantial question of law No.2 is, therefore, SA 350.18.odt 33 answered in favour of appellant/defendant No.8 and against respondent Nos.1 to 7/plaintiffs.
ADVERSE POSSESSION
44) The learned advocate for the respondent contends that the decree should not be disturbed, in as much as the plaintiffs had perfected their title over the suit property by way of adverse possession. She draws attention to the prayer clause in the plaint and contends that the principal prayer in the plaint was that the plaintiffs had perfected their title over the suit property by way of adverse possession. Faced with a situation that the plaintiffs claim to be in possession of the suit property on the basis of an agreement of sale and have stated that the vendor had promised to execute the sale- deed without fixing any time-frame, the learned Advocate for the plaintiffs contends that the possession is permissive qua the vendor, however, it is adverse qua the defendant No.8.
45) At the outset, the plaintiffs do not admit ownership of defendant No.8 over the suit property. They have also stated that they were never aware about ownership SA 350.18.odt 34 of defendant No.8 i.e. sale-deed executed in favour of defendant No.8 till November 2003. The suit is filed on 04.02.2004. Since they were not aware about the sale-deed in favour of defendant No.8, they were obviously not aware about his title over the suit property.
46) It is well settled that adverse possession is notorious possession and that in order to make out a case of title being perfected by adverse possession, it must be established that the person claiming ownership by adverse possession was holding possession for a period of 12 years or more, disputing the title of the real owner with the knowledge of the real owner, the starting point of limitation being the date of knowledge that possession is being held adverse to the title of real owner.
47) Since the plaintiffs do not admit title of defendant No.8 over the suit property, it will not be open for them to contend that they have perfected their title over the suit property by adverse possession against defendant No.8. The judgment in the case of Dagadabai (Dead) by Lrs Vs. Abbas Alias Gulab Rustum Pinjari, reported in (2017) 13 SCC 705, SA 350.18.odt 35 relied upon by learned advocate for the plaintiffs itself reiterates the settled legal principle that unless the title of the other side is admitted, plea of adverse possession cannot be taken. Likewise, since the plaintiffs claim that they were not aware about title of defendant No.8 till November, 2003, the question of their claiming adverse possession against him does not arise.
48) The contention with respect to adverse possession is rejected as such.
49) The following facts lead to an irresistible conclusion that late Tulsiram and the plaintiffs were always aware about sale deed dated 21.04.1980 executed by vendor - Dhana in favour of defendant No.8:-
i. Tulsiram did not take any steps to enforce the agreement till his demise i.e. 05.11.1988; ii. after his demise, the plaintiffs also did not take any steps for enforcement of agreement; iii. sale deed dated 21.04.1980 is executed in favour of defendant No.8, real brother of Tulsiram; iv. Sadashiv (PW-2), who is brother of plaintiff No.1 SA 350.18.odt 36 was aware about agreement dated 11.11.1979 in favour of Tulsiram, is attesting witness to the sale deed dated 21.04.1980 in favour of defendant No.8;
v. there is no statement by him in his examination-in- chief that he did not apprise the plaintiffs or deceased Tulsiram about sale deed in favour of defendant No.8; vi. Sadashiv (PW-2) admitted that he was aware about sale deed in favour of defendant No.8 ever since date of the sale deed; and vii. the plaintiff No.1 has retracted from the stand taken in the plaint that they came to know about the sale deed in favour of defendant No.8 only in November 2003, in her cross-examination.
50) The above circumstances are sufficient to infer that the sale transaction dated 21.04.1980 is not actuated by fraud as alleged. It must therefore be held that the plaintiffs are not in possession of the suit property on the basis of agreement of sale dated 11.11.1979 and the version of defendant No.8 that he permitted Tulsiram and plaintiffs to occupy the suit property will have to be accepted.
SA 350.18.odt 37
51) In the result, the second appeal is allowed as under:-
I. Judgment and decree dated 31.12.2010 passed by the learned Joint Civil Judge, Junior Division, Nagbhid in Regular Civil Suit No.6 of 2004 and judgment and decree dated 29.03.2018 passed by the learned Ad-hoc District Judge-1, Chandrapur in Regular Civil Appeal No.44 of 2011 are quashed and set aside.
II. Regular Civil Suit No.6 of 2004 decided by the learned Joint Civil Judge, Junior Division, Nagbhid is dismissed.
III. Respondent Nos.1 to 7 (plaintiffs) to bear costs of appellant/defendant No.8.
52) Since the order is pronounced during vacation and learned advocates for the respective parties are not present, office is directed to send a separate communication to the respective learned advocates on their registered email SA 350.18.odt 38 address and cell phone numbers.
(ROHIT W. JOSHI, J.) Tαɳɱαყ...