Bombay High Court
Randhir S/O Govinda Shende And ... vs Yeshwant S/O Namaji Wasnik on 21 April, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.213 OF 2014
APPELLANTS: 1. Randhir s/o Govinda Shende, Aged
about 28 years, occ: Cultivation, R/o
Kachurwahi, Tq. Ramtek, Distt. Nagpur.
2. Smt. Pramila w/o Ashok Chauhan, Aged
about 35 years, occupation:Household,
R/o Kachurwahi, Tq. Ramtek, Distt.
Nagpur.
3. Smt. Nirmala w/o Ashok Bharne, Aged
about 40 years, Occupation: household,
ig R/o Kandri (Mansar), Tahsil Ramtek,
District Nagpur.
4. Smt. Punnashila w/o Vilas Meshram,
Aged about 28 years, Occupation:
Household, R/o Banuri (Nagardhan),
(All L.Rs of Gondia s/o Gopala Shende)
-VERSUS-
RESPONDENT: Yeshwant s/o Namaji Wasnik, Aged
about 70 years, Occ: Not known, R/o
Mathni, Tq. Mouda, District Nagpur.
Shri G. T. Ramteke, Advocate for the appellants.
Shri S. G. Karmarkar, Advocate for the respondent.
CORAM: A.S. CHANDURKAR, J.
DATED: 21
st APRIL, 2016.
ORAL JUDGMENT :
1. The appellants are the original defendants who have
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challenged the decree for specific performance passed by the trial
Court which has been affirmed by the appellate Court.
2. It is the case of the respondent that pursuant to an
agreement dated 8-12-2003, the predecessor of the appellants -
Govinda had agreed to sell his share from Khasra No.229 to the
extent of 0.53R to the respondent for a consideration of
Rs.1,25,000/-. An amount of Rs.25,000/- was paid and the sale
deed was to be executed by 31-3-2004. As the sale deed was not
executed, the respondent issued notice on 17-3-2005 as well as
10-11-2005 to the appellant. Thereafter, the suit for specific
performance came to be filed.
3. The case of the appellant before the trial Court was
that the property in question belonged to Govinda and his two
brothers and that there was no partition amongst them. The
agreement itself was denied by the appellants.
4. The trial Court after considering the evidence on
record held that the agreement dated 8-12-2003 had been duly
proved. The respondent had paid an amount of Rs.25,000/- as
earnest money and had also sought to have the land partitioned
between Govinda and his two brothers. It was further held that as
per the document at Exhibit-33, the share of Govinda to the extent
of 53 R had been carved out. After finding that the respondent
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was ready and willing to perform his part of the agreement, the
suit came to be decreed.
The appellate Court after re-appreciating the evidence
confirmed the aforesaid finding.
5. Shri G. T. Ramteke, the learned Counsel for the
appellants submitted that the land in question was owned by
Govinda and his two brothers. In absence of any partition of the
said property, the decree for specific performance could not have
been passed. He further submitted that the plaintiff was not cross-
examined before the trial Court and, therefore, there was no
proper opportunity to the appellants to defend the case. It was,
therefore, submitted the decree for specific performance is liable to
be set aside.
Shri S. G. Karmarkar, the learned Counsel for the
respondent supported the impugned judgment. He further
submitted that the findings recorded by the trial Court and the
appellate Court were based on the evidence on record not
requiring any interference.
6. Having heard the respective Counsel and having
perused the impugned judgments, it can be seen that the
respondent has succeeded in proving the agreement at Exhibit-33
The trial Court in para 5 of its judgment has observed that the
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share of Govinda in 53R land was carved out by mentioning the
boundaries of the same. It is also to be noted that Khasra No.319,
admeasures 1.59 HR and the agreement was with regard to 0.53 R
land only. The evidence further indicates that the respondent had
proved that he was ready and willing to perform his part of the
agreement. The appellate Court after considering the evidence on
record referred to the deposition of Ranvir Shende, son of Govinda
at Exhibit-46 and his admission in his cross-examination regarding
execution of the said agreement.
7. From the aforesaid, it is clear that the decree for
specific performance has been passed after considering the entire
evidence on record. The second appeal does not give rise to any
substantial question of law.
8. The second appeal is dismissed. No costs.
JUDGE
//MULEY//
