Rama Dagadu Mirge vs Phulsing Tikaram Meher And Anr
2016 Latest Caselaw 1816 Bom

                                                        SA No. 779/99 & Anr.
                                         1




                                                                           
                      IN THE HIGH COURT AT BOMBAY
                  APPELLATE SIDE, BENCH AT AURANGABAD




                                                   
                          SECOND APPEAL NO. 779 OF 1999
                                        WITH
                         CIVIL APPLICATION NO. 5739 OF 1999.
                                        WITH
                         CIVIL APPLICATION NO. 5740 OF 1999.




                                                  
     1        Rama S/o Dagadu Mirge,
              (Deceased through his LRs.)




                                       
     1A       Dwarkabai W/o Rama Mirage
              Age: 75 years, Occ: Agriculture,
              R/o Shivajinagar, Near Hotel Dewas
                             
              Sillod, Tal. Sillod, Dist. Aurangabad.

     1B       Sheshrao S/o. Rama Mirge,
                            
              Age: 52 years, Occ: Agriculture,
              R/o Shivajinagar, Near hotel Dewas,
              Sillod Tal. Sillod, Dist. Aurangabad.

     1C       Subhash S/o Rama Mirge,
      

              Age: 30 years Occ: Agriculture,
              R/oShivajinagar, Near Hotel Dewas,
   



              Sillod Tal Sillod, Dist. Aurangabad.

     1D       Raghunath S/o. Rama Mirge,
              Age: 40 years, Occ: Agriculture,





              R/o. Shivajinagar, Near Hotel Dewas,
              Sillod Tal Sillod, Dist. Aurangabad.

     1E       Keshrao S/o Rama Mirge,
              Age: 49 years, Occ: Agriculture,
              R/o Shivajinagar, Near hotel Dewas,





              Dist. Aurangabad.

     1F       Sitaram S/o Rama Mirge,
              Age: 46 years, Occ: Agriculture,
              R/o Shivajinagar, Near Hotel Dewas,
              Sillod Tal Sillod, Dist. Aurangabad.

     1G       Mahadu s/o. Rama Mirge,
              Age 46 years, Occu. Agriculture,
              R/o. Shivajinagar, Near Hotel Dewas,




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                                                       SA No. 779/99 & Anr.
                                         2




                                                                         
              Dist. Aurangabad.

     1H       Shivaji S/o Rama Mirge,




                                                 
              (deceased) through L.Rs.

     1H1 Nandabai W/o. Shivaji Mirge,
         Age: 40 Years, Occ: Agriculture,
         R/o Sisarkheda, Tal Sillod,




                                                
         Dist. Aurangabad.

     1H2 Renukabai W/o. Santosh Dhotre,
         Age 20 years, Occu: Agriculture,




                                     
         R/o. Sisarkheda, Tal Sillod,
         Dist. Aurangabad.
                             
     1H3 Bhagwan S/o. Shivaji Mirage,
         Age 40 years, Occu: Agriculture,
         R/o. Sisarkheda, Tal. Sillod,
                            
         Dist. Aurangabad.

     1I       Dhondiba W/o. Govindrao Kalate,
              Age 55 years, Occu: Household,
              R/o. Biyakhed, Tal. Sillod,
      

              Dist. Aurangabad.
   



     1J       Kamlabai W/o. Kautik Khomane,
              Age 27 years, Occu. Household,
              R/o. Bharadi, Tal. Sillod,
              Dist. Aurangabad.





     1K       Baburao S/o. Rama Mirge,
              Age 34 years, Occu. Agriculture,
              R/o. Sisarkheda, Tal. Sillod,
              Dist. Aurangabad.                  ....Appellants.





                      Versus


     1.       Phulasing S/o. Tikaram Meher,
              Deceased through L.Rs.

     1-A      Mathurabai Phulasing Bohare
              Age:58 years, Occu: household,
              R/o Adgaon Wadi, Tq. Phulambri,
              District Aurangabad.




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                                                       SA No. 779/99 & Anr.
                                           3




                                                                         
     1-B      Dhondubai Abalusing Chungade
              Age: 56 years, Occu: Household,




                                                 
              At Post Talani, Tq. Sillod,
              District Aurangabad.

     1-C      Ushabai Subhash Bedwal,
              Age: 52 years, Occu: household.




                                                
              R/o Galle Borgaon,
              Tq. Khultabad, Dist. Aurangabad.

     1-D       Naginabai Bansising Bedwal




                                      
              Age:48 years, Occu: Household,
              R/o Palasgaon, Tq. Kannad,
              district Aurangabad.
                             
     1-E      Nandabai Tarachand Nimwal
              Age: 45 years, Occu: Household,
                            
              R/o Ganeshpur, Post Chincholi
              Tq. Kannad, Dist. Aurangabad.

     1-F      Mahadu Phulsing Meher,
              Age: 40 years, Occu: Service,
      


     1-G      Supdu Phulsing Meher
   



              Age: 36 years, Occu: Agri.

     1-H      Sajjan Phulsing Meher
              Age: 33 years, Occu: Agri.





     1-I      Gendabai Phulsing Meher,
              Age; 75 years, Occu: Household,

              1-F to 1-I R/o Upaliwadi,
              Tq. Sillod, Dist. Aurangabad.





     2.       Harachand S/o Hiraman Meher,
              Age: Major, R/o & Occu:
              As above                           ....Respondents.


     Mr. K.C. Sant, Advocate for appellants.
     Mr. A.D. Kasliwal, Advocate for respondent Nos. 1A to 1-I & 2.




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                                                         SA No. 779/99 & Anr.
                                         4




                                                                           
                                       WITH
                           SECOND APPEAL NO. 781 OF 1999




                                                   
     1        Rama S/o Dagadu Mirge,
              (Deceased through his LRs.)

     1A       Dwarkabai W/o Rama Mirage




                                                  
              Age: 75 years, Occ: Agriculture,
              R/o Shivajinagar, Near Hotel Dewas
              Sillod, Tal. Sillod, Dist. Aurangabad.




                                       
     1B       Sheshrao S/o. Rama Mirge,
              Age: 52 years, Occ: Agriculture,
              R/o Shivajinagar, Near hotel Dewas,
                             
              Dist. Aurangabad.

     1C       Subhash S/o Rama Mirge,
                            
              Age: 30 years Occ: Agriculture,
              R/oShivajinagar, Near Hotel Dewas,
              Sillod Tal Sillod, Dist. Aurangabad.

     1D       Raghunath S/o. Rama Mirge,
      

              Age: 40 years, Occ: Agriculture,
              R/o. Shivajinagar, Near Hotel Dewas,
   



              Sillod Tal Sillod, Dist. Aurangabad.

     1E       Keshrao S/o Rama Mirge,
              Age: 49 years, Occ: Agriculture,





              R/o Shivajinagar, Near hotel Dewas,
              Sillod, Tal. Sillod,
              Dist. Aurangabad.

     1F       Sitaram S/o Rama Mirge,
              Age: 46 years, Occ: Agriculture,





              R/o Shivajinagar, Near Hotel Dewas,
              Sillod Tal Sillod, Dist. Aurangabad.

     1G       Mahadu S/o. Rama Mirge,
              Age 46 years, Occu: Agriculture,
              R/o. Shivajinagar, Near Hotel Dewas,
              Sillod Tal Sillod,
              Dist. Aurangabad.

     1H       Shivaji S/o Rama Mirge,




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                                                       SA No. 779/99 & Anr.
                                         5




                                                                         
              (deceased) through L.Rs.

     1H1 Nandabai W/o. Shivaji Mirge,




                                                 
         Age: 40 Years, Occ: Agriculture,
         R/o Sisarkheda, Tal Sillod,
         Dist. Aurangabad.

     1H2 Renukabai W/o. Santosh Dhotre,




                                                
         Age 20 years, Occu: Agriculture,
         R/o. Sisarkheda, Tal Sillod,
         Dist. Aurangabad.




                                     
     1H3 Bhagwan S/o. Shivaji Mirage,
         Age 40 years, Occu: Agriculture,
         R/o. Sisarkheda, Tal. Sillod,
                             
         Dist. Aurangabad.

     1I       Dhondabai W/o. Govindrao Kalate,
                            
              Age 55 years, Occu: Household,
              R/o. Biyakhed, Tal. Sillod,
              Dist. Aurangabad.

     1J       Kamlabai W/o. Kautik Khomane,
      

              Age 27 years, Occu: Household,
              R/o. Bharadi, Tal. Sillod,
   



              Dist. Aurangabad.

     1K       Baburao W/o. Rama Mirge,
              Age 34 years, Occu. Agriculture,





              R/o. Sisarkheda, Tal. Sillod,
              Dist. Aurangabad.                  ....Appellants.

                      Versus





     1.       Phulasing S/o. Tikaram Meher,
              Deceased through his L.Rs.

     1-A      Mathurabai Phulasing Bohare
              Age:58 years, Occu: household,
              R/o Adgaon Wadi, Tq. Phulambri,
              District Aurangabad.

     1-B      Dhondubai Abalusing Chungade
              Age: 56 years, Occu: Household,




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                                                       SA No. 779/99 & Anr.
                                            6




                                                                         
              At Post Talani, Tq. Sillod,
              District Aurangabad.




                                                 
     1-C      Ushabai Subhash Bedwal,
              Age: 52 years, Occu: household.
              R/o Galle Borgaon,
              Tq. Khultabad, Dist. Aurangabad.




                                                
     1-D      Naginabai Bansising Bedwal
              Age:48 years, Occu: Household,
              R/o Palasgaon, Tq. Kannad,
              District Aurangabad.




                                           
     1-E      Nandabai Tarachand Nimwal
              Age: 45 years, Occu: Household,
                             
              R/o Ganeshpur, Post Chincholi
              Tq. Kannad, Dist. Aurangabad.
                            
     1-F      Mahadu Phulsing Meher,
              Age: 40 years, Occu: Service,

     1-G      Supdu Phulsing Meher
              Age: 36 years, Occu: Agri.
      


     1-H      Sajjan Phulsing Meher
   



              Age: 33 years, Occu: Agri.

     1-I      Gendabai Phulsing Meher,
              Age; 75 years, Occu: Household,





              1-F to 1-I R/o Upaliwadi,
              Tq. Sillod, Dist. Aurangabad.

     2.       Harachand S/o Hiraman Meher,
              Age: Major, R/o & Occu:





              As above                           ....Respondents.


     Mr. K.C. Sant, Advocate for appellants.
     Mr. A.D. Kasliwal, Advocate for respondent Nos. 1A to 1-I & 2.

                                        CORAM : T.V. NALAWADE, J.
                                        DATED : 25th April, 2016.




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                                                        SA No. 779/99 & Anr.
                                         7




                                                                          
     JUDGMENT :

1) The appeals are filed against judgment and decree of

Regular Civil Appeal Nos. 283/1991 and 284/1991, which were

pending in the Court of Joint District Judge, Aurangabad. Regular

Civil Suit No. 30/1989 was filed by Phulsing, respondent of the

present appeals for relief of declaration and for relief of

possession of the suit property in the Court of Civil Judge, Junior

Division, Sillod. After filing of this suit, Rama, present appellant

filed R.C.S. No. 137/1989 in the same Court for relief of specific

performance of contract. Rama had contended in that suit that

the suit property of R.C.S. No. 30/1989 was in his possession and

Phulsing had agreed to sell this property for lawful consideration

and most of the consideration was paid by him to Phulsing. The

Trial Court had dismissed the suit of Phulsing filed for relief of

possession and it had decreed the suit of Rama, which was filed

for relief of specific performance of contract. The District Court

has set aside the decision given by the Trial Court in both the

aforesaid suits. The suit of Rama is dismissed and the suit of

Phulsing is decreed by the District Court. Both the sides are

heard.

2) Phulsing is owner of Survey No. 45/2, admeasuring

11 Acres 3 Gunta situated at village Upali-Wadi, Tahsil Sillod. It is

SA No. 779/99 & Anr.

the case of Rama that under agreement of sale Phulsing had

agreed to sell 5 Acres portion to him for consideration of Rs.

6,001/- and the agreement was executed by Phulsing on

21.1.1975. It is the case of Rama that on the date of agreement,

out of Rs. 6,001/- he had paid Rs. 3,000/- as a part of

consideration and the possession was handed over to him by

Phulsing. It is the case of Rama that on 12.2.1975, in presence of

witnesses, he gave amount of Rs. 2,701/- to Phulsing and Bharna

Pavti was executed by Phulsing in his favour. It is the case of

Rama that in aforesaid way, out of the total consideration of Rs.

6,001/-, he had paid Rs. 5,701/- to Phulsing and he was ready

and willing to pay remaining amount of Rs. 300/- to Phulsing. It is

contended that on 12.2.1975 itself, he had offered to give

remaining amount also, but Phulsing had voluntarily refused to

accept the remaining consideration with malafide intention. It is

his case that Phulsing had assured that he would execute

registered sale deed whenever demanded by Rama.

3) It is the case of Rama that Phulsing then filed R.C.S.

No. 30/1989 and made false contentions and denied the

existence of such agreement and so, cause of action took place

for him. It is his case that he issued legal notice to Phulsing and

asked him to execute the sale deed, but Phulsing refused to

SA No. 779/99 & Anr.

execute the sale deed. It is his case that he was ready and

willing to perform his part of contract. It is his case that on the

basis of documents executed in his favour by Phulsing, his name

is entered in the revenue record and so, the relief of specific

performance of contract needs to be given to him.

4) It is the case of Phulsing that defendant has no

concern with the suit property. It is contended that defendant is

rich and influential person of village Shiraskheda and he has evil

eye on the suit property. It is contended that behind his back,

defendant joined hands with revenue officer and got entered his

name in the revenue record of the suit property in the year

1975. It is contended that in the year 1985, he came to know

about this mutation and then he filed proceeding before revenue

authority to challenge that mutation. It is his case that he had

not executed any document in favour of Rama, but on the basis

of false record created, Rama got his name entered in the

revenue record and in the year 1985 Rama dispossessed him.

The relief of possession was claimed on the basis of aforesaid

contentions of Phulsing.

5) On the basis of aforesaid pleadings, issues were

framed in both the suits by the Trial Court. The evidence was

SA No. 779/99 & Anr.

recorded in the suit filed by Rama for relief of specific

performance. It appears that the disputed documents were sent

to hand writing expert along with specimen thumb impressions

of Phulsing. Hand writing expert gave opinion that the thumb

impression appearing on the agreement tally with the specimen

thumb impressions of Phulsing. The expert could not give

definite opinion in respect of Bharna Pavati.

6)

The title of Phulsing over land Gat No. 45/2 is not

disputed. Relevant revenue record is there. Substantive evidence

is given by Phulsing that he had not made any agreement with

defendant Rama and he had not handed over possession to

Rama. He has given evidence that behind his back, Rama got

mutated his name in the revenue record and so, revenue

proceeding was filed by him against Rama in the year 1985. He

has given evidence that as he is owner, the decree of possession

of 5 Acres portion needs to be given to him. He examined one

Sandu to support the contention that about 5 to 6 years prior to

date of deposition i.e. in the year 1985 Rama took possession

forcibly.

7) As against aforesaid evidence, Rama gave evidence

that for consideration of Rs. 6,001/-, Phulsing agreed to sell the

SA No. 779/99 & Anr.

suit property and on the date of the agreement i.e. 21.1.1975

amount of Rs. 3,000/- was given by him in presence of two

witnesses and agreement was executed by Phulsing. He has

given evidence that on subsequent date, he had offered the

remaining amount of Rs.3,001/-, but Phulsing returned Rs. 300/-

by saying that he would take that amount at the time of

execution of sale deed. He has given evidence that Bharna Pavti

was executed on that day by Phulsing in his favour. He

examined Madhavrao Shejul, a witness of both agreement and

Bharna Pavati to prove the execution and in his evidence, these

documents are proved as Exhs. 41 and 42. One witness Punjaji

Navale is examined by Rama to show that he is in possession.

8) The Trial Court had held that the suit of Phulsing was

not within limitation as the possession was given by him to

Rama under aforesaid agreement and the suit was not filed

within 12 years. The Trial Court had held that the suit of Rama

was within limitation and it was held that as most of the

consideration was paid by Rama, he had shown his readiness

and willingness and so, he was entitled to get the decree of

specific performance of contract. The Trial Court had further held

that Rama was entitled to protection of provision of section 53-A

of Transfer of Property Act. All these findings are set aside by the

SA No. 779/99 & Anr.

First Appellate Court. The District Court has held that Rama has

failed to prove that agreement was executed in his favour by

Phulsing. It is further held that suit of Rama was not within

limitation. After giving such findings, the District Court gave the

decree of possession to Phulsing. By the order dated 6.1.2003,

this Court admitted both the present appeals on following

substantial questions of law.

SECOND APPEAL NO. 779 OF 1999

(i) Whether on the pleadings and the material

brought on record by the present appellant the first

Appellate Court was right in holding that the appellant

was not always ready and willing to perform his part of

contract and as such is not entitled to decree for

specific performance of contract ?

(ii) Whether the suit is barred by limitation ?

SECOND APPEAL NO. 781 OF 1999

(i) Whether the appellant is entitled to retain his

possession over the suit land by resorting to the

provisions of Section 53-A of the Transfer of Property

Act ?

(ii) Whether the suit of the respondent is barred by

time under Article 65 of the Limitation Act, 1963 and

was liable to be dismissed ?

SA No. 779/99 & Anr.

9) It is true that there can be oral agreement of sale of

immovable property. When purchaser wants to use the provision

of section 53-A of the Transfer of Property Act, in view of the

wording, the condition given in section 53-A, the agreement

needs to be in writing. When the agreement is in writing, it

needs to comply the conditions laid down by the Stamp Act and

also Indian Registration Act. As per the provisions of Bombay

Stamp Act, necessary stamp duty needs to be paid by

purchasing general stamp and writing the agreement on general

stamp. It also needs to be kept in mind that revenue stamp used

for affixing it on receipt is different than the general stamp.

When title is shown to be transferred in a document, it needs to

be treated as a sale deed and necessary stamp duty under the

Stamp Act needs to be paid on the basis of consideration of the

transaction. Further, in view of the provisions of Transfer of

Property Act and Indian Registration Act, such document needs

to be registered. If necessary stamp duty is not paid in respect of

the document, which is used as sale deed, such document needs

to be impounded by the Court when Court comes across such

document in view of section 34 of the Bombay Stamp Act. If the

party in whose favour the document is executed wants to use

the document in the Court or for other purpose, he needs to

SA No. 779/99 & Anr.

make payment of stamp duty and he also needs to make

payment of penalty. Authority is created under the Stamp Act to

ascertain the penalty and on the basis of that order the stamp

duty and penalty needs to be paid. Only after payment of the

stamp duty and the penalty, such document can be used in the

Court. If the transaction is written after making payment of

proper stamp duty the document needs to be registered if the

document is to be used as sale deed. Though it is true that such

document can be used for collateral purpose, if there is other

defect like non payment of the stamp duty, such document

cannot be used for collateral purpose also. The wording of

section 53-A of the Transfer of Property Act shows that there is

no relaxation to the condition of payment of stamp duty under

this provision. This provision needs to be kept in mind before

accepting it in the evidence.

10) The defendant has denied the execution itself of

both the documents Exhs. 41 and 42. At the time of appreciation

of such evidence, other circumstances like illiteracy of Phulsing,

who has denied execution also needs to be kept in mind. Both

the documents bear the thumb impressions. In the suit, Rama

wanted to use Exh. 41 as agreement of sale, but general stamp

duty was not paid on Exh. 41. If the transaction was to be in

SA No. 779/99 & Anr.

writing, it was necessary to make the payment of stamp duty by

purchasing general stamp and the document ought to have been

written on such stamp. No explanation is given as to why such

stamp was not purchased. In view of the provisions of section 34

of the Bombay Stamp Act, it was the duty of the Court to

impound the document. That was not done. On this point, two

reported cases were cited by the learned counsel for Rama and

they are mentioned at proper place. Here only it needs to be

observed that no procedure was followed to make the document

admissible in evidence by Rama. Exh. 42 is described as Bharna

Pavati and it shows that in previous document dated 21.1.1975

the suit property was sold to Rama. Thus, by using these two

documents, Rama wanted to show that he has actually

purchased suit property from Phulsing. The mutation enty made

in favour of Rama, a copy of which is produced at Exh. 49 shows

that Rama had represented to the revenue authority that he had

purchased the property. Thus, Rama had used this document as

document of sale transaction. In mutation, it was informed that

the property was purchased for consideration of Rs. 5,700/-. The

sale transaction, according to Rama, was of Rs. 6,000/-. Thus,

apparently, he had no intention to pay remaining consideration.

11) The two reported cases on which the learned counsel

SA No. 779/99 & Anr.

for Rama placed reliance are as under :-

(i) AIR 1961 SUPREME COURT 1655 [Javer

Chand and Ors. Vs. Pukhraj Surana],

(ii) 2014 (5) Mh.L.J. 807 [Mahendra s/o.

Mahadeo Deshbratar Vs. Kailash s/o. Bhauraoji Chandankhede].

This Court has carefully gone through the facts of the two

reported cases. The facts were totally different and there the

execution was admitted. In the present matter, execution is not

admitted. In view of this circumstance, the documents were

required to be proved and before proving of the execution, it was

the duty of the Court to impound the document. Thus, the

observations made in the two reported cases are of no help in

the present matter.

12) There is no specific pleading in the written statement

as to why Rama did not take steps for enforcing contract of sale

when in the written statement itself it is mentioned that Phulsing

avoided to accept the remaining amount of Rs. 300/- with

malafide intention. There is one more circumstance like in the

year 1985, Phulsing had started revenue proceeding to

challenge the mutation made in favour of Rama. Thus, in the

year 1985, it was within the knowledge of Rama that Phulsing

had no intention to execute the sale deed. In spite of that

SA No. 779/99 & Anr.

circumstance, suit was not filed within three years. It is already

observed that by using mutation No. 49, Rama wanted to prove

that he became owner. Thus, he had no intention to get specific

performance of the contract from Phulsing. From the contents of

written statement, it can be said that for about 18 years, no

steps were taken by Rama for getting executed the sale deed

even when according to him, Phulsing had refused to accept the

remaining consideration ig with malafide intention. These

circumstances also create doubt about the case of Rama that he

had paid amount of Rs. 2,700/- subsequent to the execution of

Exh. 41. In the evidence, first time Rama tried to say that the

remaining consideration was to be paid at the time of execution

of sale deed, but due to absence of specific pleading and due to

the circumstance like getting mutation, Exh. 49, such case

cannot be accepted and believed. Thus, the suit of Rama was

not within limitation and the District Court has not committed

any error in giving such finding.

13) The aforesaid circumstances and the conduct of

Rama further show that he was not ready and willing to perform

his part of the contract. If he had got the possession after

making payment of only Rs. 3,000/-, it was necessary for him to

take initiative and show that he was ready and willing to perform

SA No. 779/99 & Anr.