Prithwiraj S/O. Rajeram Dehankar ... vs Bhanudas Shyamraoji Raut And ...
2016 Latest Caselaw 4391 Bom

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     IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                  
             CIVIL APPELLATE JURISDICTION


                       Second Appeal No.358 of 2015




                                                 
    1. Prithwiraj s/o Rajeram Dehankar,
       Aged about 69 years,




                                        
       Occuption - Agriculturist.
                             
    2. Atul Prithwiraj Dehankar,
       Aged about 35 years,
       Occupation - Agriculturist.
                            
          Both Resident of 66,
          Old Subhedar Extension,
          Nagpur, District Nagpur.                ... Appellants
      
   



         Versus





    1. Bhanudas Shyamraoji Raut,
       Aged about 75 years,
       Occupation - Agriculturist,
       R/o 23, Kukde Layout,
       Nagpur.





    2. Nishikant Kamalnath Dhole
       (Died on 24-5-2015), through 
       his legal representatives :




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            2a. Alka wd/o Nishikant Dhole,




                                                                         
            Aged about 55 years,
            Occupation - Nil.




                                                 
            2b. Vaibhav Nishikant Dhole,
            Aged about 33 years,
            Occupation - Service.




                                                
            2c. Aditya Nishikant Dhole,
            Aged about 30 years,
            Occupation - Service.




                                         
    3. Ravikant Kamalnath Dhole,
                             
       R/o Kamalpushp,
       31, New Diamond Nagar,
       Besa Road, Nagpur.
                            
    4. Kumudini Kamalnath Dhole,
       R/o Kamalpushp,
       31, New Diamond Nagar,
      


       Besa Road, Nagpur.                         ... Respondents
   



    Shri Sunil Manohar, Senior Advocate, assisted by Shri Alok Daga, 
    Advocate for Appellants.





    Shri A.S. Kilor, Advocate for Respondent No.1-Caveator.

       Coram : R.K. Deshpande, J.

Dated : 3rd August, 2016

Oral Judgment :

1. The Trial Court passed a decree for specific performance

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of contract on 1-2-2010 in Special Civil Suit No.322 of 2004.

The lower Appellate Court has dismissed Regular Civil Appeal

No.632 of 2012 on 6-4-2015. Hence, the original defendant

Nos.4 and 5, who have purchased the suit property from the

defendant Nos.1 to 3, the owners, have approached this Court in

this second appeal.

2.

The undisputed factual position is that the agreement for

specific performance was executed on 7-11-2003 by the original

defendant Nos.1 and 2 in favour of the plaintiff in respect of the

entire suit property. The defendant No.3, who is also

undisputedly the co-owner, has not signed the agreement. The

Trial Court has held that the agreement between the parties has

been established along with readiness and willingness on the part

of the plaintiff. The finding is based upon the oral evidence led

by the plaintiff and the defendant No.1, who had also entered the

witness-box. The defendant No.3 did not enter the witness-box.

The Trial Court did not deal with the aspect of binding nature of

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the agreement upon the defendant No.3. The lower Appellate

Court rejected the stand taken by the defendant Nos.4 and 5 that

the decree for specific performance could not have been passed

at least to the extent of share of the defendant No.3, who was not

signatory to the agreement on the ground that it was a common

written statement filed by the defendant Nos.1 to 3, and only the

defendant No.1 entered the witness-box. The question of

applicability of the provisions of the Bombay Prevention of

Fragmentation and Consolidation of Holdings Act, 1947 raised by

the defendant Nos.4 and 5 has also been rejected by the lower

Appellate Court.

3. In view of above, Admit, on the following substantial

questions of law :

(1) Whether the lower Appellate Court was right in rejecting the contention of the defendant Nos.4 and 5 that no decree for specific performance of contract could have

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been passed in respect of the share of the defendant No.3,

the co-owner in the suit property, particularly in the

absence of there being any evidence on record to substantiate a plea that the transaction was entered into by consent and authority of the defendant No.3?, and

(2) Whether the Courts below were required to

consider the question of applicability of Section 7 of the Bombay Prevention of Fragmentation and Consolidation

of Holdings Act, 1947 and its effect on the transaction in question?

4. Heard finally by consent of the learned counsels appearing

for the parties.

5. Obviously, the reasoning by the lower Appellate Court

that since a common written statement was filed by the defendant

Nos.1 to 3, the stand taken by the defendant Nos.4 and 5 about

binding nature of the transaction to the extent of the share of the

defendant No.3, cannot be accepted. Filing of common written

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statement by the defendant Nos.1 to 3 cannot be a ground for the

Court to refuse to consider the stand taken in respect of the share

of the defendant No.3, who is not signatory to the agreement in

question. It is open for the lower Appellate Court to draw an

adverse inference, if it is permissible in law, for the defendant

No.3 not entering the witness-box. Perusal of the stand taken in

the written statement clearly indicates that the defendant No.3 has

not consented to the agreement in question and the burden was

upon the plaintiff to prove the fact of the consent of the defendant

No.3. The finding recorded by the lower Appellate Court to that

extent cannot, therefore, be sustained and the substantial question

of law at serial No.(1) is answered accordingly.

6. On the issue of applicability and the effect of Section 7 of

the Bombay Prevention of Fragmentation and Consolidation of

Holdings act, 1947, though the lower Appellate Court framed

such a point for determination, it does not record any finding on

the merits of it. The Trial Court did not frame any issue in

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respect of it. The issue will have a bearing on the question of

enforceability of the agreement and was, therefore, required to be

gone into by the lower Appellate Court. Since the Trial Court did

not frame an issue, such an issue will have to be framed by the

lower Appellate Court, and, if necessary, to refer it to the

competent authority under the said Act for adjudication. The

lower Appellate Court has also not taken into consideration the

question as to whether a decree could have been passed for

specific performance of contract, excluding the share of the

defendant No.3, as an alternate argument. In view of this, the

judgment and order passed by the lower Appellate Court will

have to be set aside with an order of remand to decide the matter

fresh, keeping in view the observations made by this Court in this

judgment.

7. In the result, the second appeal is allowed. The judgment

and order dated 6-4-2015 passed by the lower Appellate Court in

Regular Civil Appeal No.632 of 2012, is hereby quashed and set

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aside. The matter is remitted back to the lower Appellate Court,

which shall decide the appeal in accordance with law. The

parties to appear before the lower Appellate Court on 6-9-2016.

The lower Appellate Court to decide the appeal within a period of

four months thereafter. No fresh notices shall be issued to the

parties for appearing before the lower Appellate Court. No costs.

Judge.

Lanjewar

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CERTIFICATE

"I certify that this Judgment uploaded is a true and correct copy of original signed Judgment."

Uploaded by : P.D. Lanjewar, PS

Uploaded on : 4-8-2016