Bombay High Court
Siddhivinayak Audhyogik Vasahat ... vs Smt. Laxmibai Tukaram Naik And Ors on 30 August, 2016
Bench: R.D. Dhanuka
ppn 1 sa-29.16(j).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.29 OF 2016
Siddhivinayak Audyogik Vasahat )
Maryadit, Ozar (Mig), Tal-Niphad, )
Dist-Nashik. ) .. Appellant
(Original Plaintiff)
Versus
1. Murlidhar Vedu Jadhav (deceased) )
through his legal heirs )
a) Sampat Murlidhar Jadhav ig )
Age-Major, Occu-Labourer )
b) Smt.Chandrabhagabai Fakira Boke )
Age-43, Occu-Labourer )
Both R/o at Bhagat Singh Nager, )
Ozar (Mig), Tal-Niphad, Dist-Nashik. )
2. Changdeo Rambhau Ghumre )
Age-Major, )
Occu-Agriculture and Business, )
R/o at 201/205, Presidency, )
Gadkari Chowk, Old Agra Road, )
Nashik. )
3. Kondaji Murlidhar Borade )
Age-60, Occu-Agriculture & Service )
R/o at Sane Guruji Nagar, )
Nashik Road, Nashik. )
4. Rambhau Kacharu Gawale )
Age-Major, )
Occu-Agriculture and Business, )
R/o at Hanumanwadi, Panchavati, )
Nashik. )
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5. Shivram Sukhdeo Ahire )
Age-Major, Occu-Doctor, )
R/o at 14, Narhari Apartment, )
Parijat Nagar, Nashik. )
6. Gurudeep Dattatraya Waghchoure )
Age-30, Occu-Agriculture, )
R/o at 504, Ravivar Peth, Nashik. )
7. Yasholaxmi Construction Limited )
Represented through its Director, )
Rajendra Babulal Malu )
Age-50, Occu-Business, )
R/o at 218, Azad Road, 8th Lane, )
Jaysingpur, Dist-Kolhapur.
ig ) .. Respondents
(Original Defendants)
ALONG WITH
SECOND APPEAL NO.311 OF 2016
Siddhivinayak Audyogik Vasahat )
Maryadit, Ozar (Mig), Tal-Niphad, )
Dist-Nashik. ) .. Appellant
(Original Plaintiff)
Versus
1. Smt.Laxmibai Tulshiram Naik )
Age-Major,Occu-Labour & Household)
2. Pramila Laxman Dhule )
Age-Major,Occu-Labour & Household)
Both R/o at Ozar (Mig), Tal-Niphad, )
Dist-Nashik. )
3. Changdeo Rambhau Ugale )
Age-60, Occu-Agriculture, )
R/o at 204/205, )
The Presidency Gadkari Chowk, )
Old Agra Road, Nashik. )
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4. Kondaji Murlidhar Borade )
Age-70, Occu-Agriculture & Service )
R/o at Sane Guruji Nagar, )
Nashik Road, Nashik. )
5. Rambhau Kacharu Gawale )
Age-70, )
Occu-Agriculture and Service, )
R/o at Hanumanwadi, Panchavati, )
Nashik. )
6. Shivram Sukhdeo Ahire )
Age-50, Occu-Doctor, )
R/o at 14, Narhari Apartment, )
Parijat Nagar, Tal & Dist. Nashik. )
7. Gurudeep Dattatraya Waghchoure )
Age-40, Occu-Agriculture & Business)
R/o at 504, Ravivar Peth, Nashik. )
8. Yasholaxmi Construction Limited )
Private Limited Company, Jaysingpur,)
Dist-Kolhapur. )
9. Rajendra Babulal Malu )
Age-60, Occu-Agriculture & Business,)
R/o at Azad Road, 8th Lane, )
Jaysingpur, Dist-Kolhapur. ) .. Respondents
(Original Defendants)
---
Mr.R.A.Thorat, Senior Advocate a/w Ms.Aditi Naikare a/w Mr.M.M.
Mahajan i/by Mr.Anilkumar Patil for the appellants.
Mr.Simil Purohit a/w Mr.Manish Doshi i/by M/s.Vimadalal & Co. for
the respondent no.7 in Second Appeal No.29 of 2016 and for the
respondent nos.8 and 9 in Second Appeal No.311 of 2016
---
CORAM : R.D. DHANUKA, J.
DATE : 30th August 2016
ppn 4 sa-29.16(j).doc
Judgment :-
. By this second appeal filed under Section 100 of the Code
of Civil Procedure, 1908, the appellant (original plaintiff) has impugned
the order and judgment dated 1 st August 2015 passed by the learned
District Judge-2, Niphad, Nashik dismissing the Regular Civil Appeal
No.82 of 2012 filed by the appellant. The appellant had impugned the
judgment and decree dated 15th September 2009 passed by the Civil
Judge, Senior Division, Niphad, Nashik in Special Civil Suit No.54 of
2002 filed by the appellant inter alia praying for specific performance
of the agreements dated 15th August 1990 and 15th November 1999 in
respect of the suit property i.e. land bearing Gat No.2509 situated at
village Ozar, Tal.Naiphad, Dist.Nashik (Hereinafter referred to as the
Suit Property). The parties are described in later part of the judgment
as they were described in the proceedings before the trial Court.
2. Both the parties have agreed that the facts in both the matters
are identical. I am summarizing the facts in Second Appeal No.29 of
2016.
3. It was the case of the plaintiff that the plaintiff was the
owner and in possession of the land bearing Gat Nos.2610, 2612 and
2614 which were adjoining to the suit property. The suit property is
owned by the defendant no.1 along with other co-owners. It was the
case of the plaintiff that the defendant no.1 agreed to sell the suit
property to the plaintiff on 15th August 1990 for consideration of
Rs.5,04,000/- and entered into a writing with the plaintiff by accepting
earnest amount of Rs.5,000/-. According the plaintiff, the defendant
ppn 5 sa-29.16(j).doc
no.1 had executed an agreement in favour of the Chief Promoter of
Siddhi Vinayak Industrial Estate. It was the case of the plaintiff that the
names of the deceased mother of the defendant no.1 and his absconding
brother by name Waman were entered in 7/12 extract. The defendant
no.1 agreed to get their names removed from the record of the rights
and to execute a registered sale deed in favour of the plaintiff. It was
the case of the plaintiff that since the suit land was 'Inam' land, as per
the provisions of Restoration of Lands to Tribal Act, a permission
was required from the Government before selling such Inam land. The
defendant no.1 was admittedly a tribal.
4. It was the case of the plaintiff that as per the terms and
conditions of the said agreement dated 15 th August 1990, the defendant
no.1 failed to obtain necessary permission from the Government though
he had received huge amount from the plaintiff under the sale deed
dated 15th August 1990 and the plaintiff and the defendant no.1 entered
into a new agreement on 15th November 1999 by reproducing earlier
terms and conditions recorded in the agreement dated 15 th August 1990.
According to the plaintiff, the plaintiff had already paid a sum of
Rs.1,89,150/- to the defendant no.1 from 15 th August 1990 till 15th
November 1999.
5. It was the case of the plaintiff that since the defendant no.1
did not obtain any permission from the Government and did not execute
the sale deed in favour of the plaintiff, the plaintiff filed a suit (Special
Civil Suit No.52 of 2002) in the Court of Civil Judge, Senior Division
inter alia praying for specific performance of the agreements dated 15 th
August 1990 and 15th November 1999 or in the alternative for damages
ppn 6 sa-29.16(j).doc
and for refund of the amount paid by the plaintiff to the defendant no.1.
During the pendency of the suit, the defendant no.1 entered into an
agreement for sale along with other co-owners in favour of the defendant
nos.2 to 6 and put them in possession of the suit property after obtaining
necessary permission from the competent authority and by executing the
sale deed. The defendant no.1 resisted the said suit by filing his written
statement and denied the execution of the alleged agreement for sale
dated 15th August 1999 in favour of the plaintiff. The defendant no.1
also denied the receipt of any amount from the plaintiff under the said
agreement. It was the case of the defendant no.1 that the defendant no.1
belonged to tribal caste. According to the defendant no.1, the description
of the property mentioned in the plaint was not sufficient to identify the
suit property. It was the case of the defendant no.1 that he was not the
absolute owner of the suit land and other co-owners were not authorised
to execute any alleged agreement in favour of the plaintiff. It was the case
of the defendant no.1 that the suit property was owned by more than
30 persons of tribal family and could not be sold without prior sanction
of the Government.
6. The defendant nos.2 to 6 also resisted the suit by filing a
separate written statement and pointed out that the defendant no.1
along with other co-owners had executed a registered sale deed in respect
of suit property in their favour on 4th December 2004. It was the case of
the defendant nos.2 to 6 that the defendant no.1 and the other co-owners
had executed an agreement on 20th November 2000 in their favour for
sale of the suit land. It was alleged that all the co-owners of the suit
property had agreed to sell the land to Shri Ghumare for Rs.75,00,000/-
which was prevailing market rate of the suit property. It was the case of
ppn 7 sa-29.16(j).doc
the defendant nos.2 to 6 that they were bonafide purchasers of the suit
land and had purchased the suit property after making due enquiry in
respect of title of the land i.e. by issuing public notice in daily newspaper.
7. It was the case of the plaintiff that the defendant nos.2 to 6
executed a sale deed in favour of the defendant no.7 in respect of the
suit property on 16th June 2009. The defendant no.7 was not impleaded
as a party-defendant in the civil suit but was impleaded in the appeal
filed by the plaintiff. The learned trial Judge framed 10 issues for
determination. The plaintiff examined eight witnesses before the learned
trial Judge. The defendant no.1 examined the witnesses. The defendant
nos.2 to 6 also examined the witnesses.
8. The learned trial Judge by a judgment and order dated 15th
September 2009 dismissed the claim for specific performance of the
agreements. The learned trial Judge however decreed the alternate relief
claimed by the plaintiff i.e. by way of refund of earnest amount of
Rs.1,94,150/- paid by the plaintiff with interest @6% p.a. from the date
of filing of the suit till its full realisation.
9. Being aggrieved by the said judgment and decree dated 15th
September 2009, the plaintiff filed an appeal (Regular Civil Appeal No.
82 of 2012) before the learned District Judge-2. By an order and
judgment dated 1st August 2015 passed by the learned District Judge-2,
the said appeal came to be dismissed. Being aggrieved by the said order
and judgment dated 1st August 2015, the plaintiff filed this second appeal
under Section 100 of the Code of Civil Procedure, 1908.
ppn 8 sa-29.16(j).doc
10. Mr.Thorat, learned senior counsel for the plaintiff invited my
attention to the copy of the plaint, notes of evidence, separate compilation
filed before this Court, Agreements, findings rendered by the learned
trial Judge and also the appellate Court. It is submitted by the learned
senior counsel that since the copy of the agreement dated 15 th August
1990 entered into between the plaintiff and the defendant no.1 was
missing, the parties had entered into an agreement dated 15 th November
1999 on the same terms and conditions except few modifications. He
submits that since the suit property was an Inam land, the said property
could be sold only after sanctioning from the Government. The plaintiff
had taken such responsibility under the agreement dated 15 th November
1999 and had agreed to bear such expenses for obtaining such land. He
submits that the plaintiff claims to be in possession of the suit property
under the agreement dated 15th November 1999. There were no major
changes in the agreement dated 15th November 1999. He submits that
the said agreement dated 15th November 1999 was proved by the plaintiff
before the learned trial Judge.
11. It is submitted by the learned senior counsel that the finding
of the learned trial Judge on issue no.2 was inconsistent with the issue
no.1. He submits that on one hand, the learned trial Judge has rendered
a finding that the plaintiff had proved that on 15 th August 1990, the
defendant no.1 had accepted a sum Rs.5,000/- as an earnest money and
thereafter accepted some amounts towards the said transaction and on the
other hand, has held that the plaintiff had failed to prove that the
defendant no.1 had executed an agreement to sell in its favour on 15 th
August 1990 for an amount of Rs.5,04,000/-.
ppn 9 sa-29.16(j).doc
12. It is submitted by the learned senior counsel that though the
plaintiff had produced original agreement dated 15th November 1999,
the learned trial Judge has erroneously rendered a finding that the
plaintiff had failed to prove execution of the sale agreement dated 15th
November 1999. He submits that the though plaintiff was all throughout
ready and willing to perform its part of the obligation under the
agreement, the learned trial Judge however erroneously held that the
plaintiff had failed to prove that it was ready and willing to perform its
part of the obligation under the agreement.
13.
It is submitted by the learned senior counsel that the learned
trial Judge had granted alternate relief of refund of the amount paid by
the plaintiff to the defendant no.1, which presupposes that the amount
was paid by the plaintiff to the defendant no.1 under the agreement for
sale which existed and was proved by the plaintiff before the learned
trial Judge.
14. It is submitted by the learned senior counsel that the finding
of the learned trial Judge as well as the appellate Court on the issue of
limitation is also totally erroneous and perverse. He submits that the
second agreement was entered into on 15th November 1999 whereas the
suit for specific performance was filed by the plaintiff in the year 2002
i.e. prior to the date of expiry of three years from the date of the said
agreement.
15. It is submitted by the learned senior counsel that the
defendant nos.2 to 6 and the defendant no.7 were not bonafide
purchasers without notice and could not claim right, title and interest in
ppn 10 sa-29.16(j).doc
the suit property in view of those transactions having taken place during
the pendency of the proceedings filed by the plaintiff.
16. It is lastly submitted by the learned senior counsel that even
if it was held that the defendant no.1 was only one of the co-owner of
the suit property along with other co-owners, in view of the fact that the
defendant no.1 had admittedly executed the agreement for sale in respect
of the entire property in favour of the plaintiff, the learned trial Judge
ought to have passed a decree for specific performance at least in respect
of the share of the defendant no.1 on the suit property.
17. Mr.Purohit, learned counsel for the respondent no.7 invited
my attention to the findings recorded by the learned trial Judge and also
by the appellate Court. He submits that admittedly, the suit land was an
Inam land and thus could not have sold without prior permission from
the Government. He submits that the defendant no.1 admittedly was not
the sole owner in respect of the suit property but the same was owned by
several co-owners. The defendant no.1 along with other co-owners after
obtaining permission from the Government sold the said suit property to
the defendant nos.2 to 6. The defendant nos.2 to 6 in turn has sold the
suit property to the defendant no.7 for consideration. The sale deed
entered into in favour of the defendant no.7 by the defendant nos.2 to 6
was duly registered.
18. It is submitted by the learned counsel for the defendant no.7
that admittedly the plaintiff had failed to produce the alleged original
agreement dated 15th November 1999 before the learned trial Judge. He
ppn 11 sa-29.16(j).doc
submits that the plaintiff had admittedly applied for specific performance
of the alleged agreements dated 15th August 1990 and 15th November
1999 before the learned trial Judge which was not permissible. He
submits that the learned trial Judge had rightly rendered a finding that
there was vast variance in the pleadings and evidence led by the
plaintiff. He submits that since the plaintiff had propounded both the
documents, the onus was on the plaintiff to prove the existence and
contents of those two alleged agreements.
19. It is submitted by the learned counsel for the defendant no.1
that even if the first agreement was executed between the plaintiff and
the defendant no.1 in the year 1990, the plaintiff had not been able to
demonstrate before the learned trial Judge that during the period between
1990 and 1999, any steps were taken by the plaintiff under the said
alleged agreement. Not a single letter has been produced by the plaintiff
on record showing any steps having been taken during the period
between 1990 and 1999 by the plaintiff. He submits that even if the said
agreement dated 15th November 1999 was treated as proved, even under
the said agreement, the responsibility was on the plaintiff to take an
appropriate permission from the Government for transfer of the land
and that also at its own cost which the plaintiff failed admittedly. He
submits that even during the period between 1999 and 2002, the plaintiff
did not take any steps under the said alleged agreement of 1999 except
issuing a notice in the year 2001. He submits that the plaintiff has to
prove its readiness and willingness to comply with its part of the
obligation under the alleged agreement prior to the date of filing of the
suit, during the pendency of the suit and till decree is passed.
ppn 12 sa-29.16(j).doc
20. It is submitted by the learned counsel for the defendant no.7
that though the defendant no.7 had issued a public notice before
purchasing suit property from the defendant nos.2 to 6 in the newspaper
having wide circulation inviting objections, the plaintiff did not raise
any objection. He submits that the defendant no.7 was thus bonafide
purchaser without notice.
21. In so far as the submission of the learned senior counsel for
the plaintiff that the learned trial Judge ought to have passed a decree at
least in respect of the share of the defendant no.1 is concerned, it is
submitted by the learned counsel that admittedly the plaintiff did not
apply for decree for part of the property and did not comply with the
conditions prescribed under Section 12 of the Specific Reliefs Act, 1963.
22. It is submitted by the learned counsel for the defendant no.7
that the learned trial Judge has considered all the issues and all criteria
required to be fulfilled before passing a decree for specific performance
including the existence of the agreement, readiness and willingness on
the part of the plaintiff and the discretionary powers of the Court for
granting specific relief under the provisions of the Specific Reliefs Act,
1963. He submits that the findings recorded by the two Courts are not
perverse and cannot be interfered with by this Court under Section 100
of the Code of Civil Procedure, 1908.
23. Mr.Thorat, learned senior counsel for the plaintiff in
rejoinder submits that the plaintiff had relied upon two agreements
before the learned trial Judge. The learned trial Judge relied upon the
second agreement. He submits that there was no bar from granting
ppn 13 sa-29.16(j).doc
specific performance in respect of the two documents. He submits that
the plaintiff has not taken any benefit of the clause recording possession
of the Plaintiff under the said agreement dated 15 th November 1999. It
is submitted that during the period between 1990 and 1992, the
defendant no.1 had removed the names of other co-sharers and more
particularly on 19th January 2001. He submits that the plaintiff had
already paid 1/3 amount of the agreement as consideration agreed to be
paid to the defendant no.1. The finding rendered by both the Courts
are perverse and a decree for specific performance of the agreement
ought to have been granted by the learned trial Judge.
24. There is no dispute that the plaintiff did not produce the
alleged original agreement dated 15th August 1990 before the learned
trial Judge alleging that the same was missing and was not available
with it. The plaintiff did not produce any document on record before
the learned trial Judge showing any steps alleged to have been taken by
the plaintiff between 15th August 1990 and 15th November 1999. I am
not inclined to accept the submission of the learned senior counsel for
the plaintiff that the agreement dated 15th November 1999 was similar
to the earlier agreement dated 15th August 1990. Even according to the
agreement dated 15th November 1999, the responsibility was of the
plaintiff to take steps to apply for permission from authority before sale
of the Suit Property. In the said agreement dated 15 th November 1999,
it is also alleged for the first time that the plaintiff was in possession of
the suit property which was even according to the plaintiff was not
recorded in the alleged agreement dated 15 th August 1990. In my view,
the learned trial Judge has rightly recorded a finding that there were
ppn 14 sa-29.16(j).doc
inconsistencies and contradictions in the pleadings and the documents
produced by the plaintiff about the amounts paid by the plaintiff and
about the other terms and conditions alleged to have been agreed upon.
25. It is not in dispute that the suit property did not absolutely
belong to the defendant no.1 but he had 1/6 share in the total land which
came into 6 H 72 R. There was no proper identification of the suit land
between the parties in the agreement dated 15th November 1999. The
learned trial Judge has rightly rendered a finding that there was no
evidence on record produced by the plaintiff that the alleged original
agreement dated 15th August 1990 was lost and was not traceable and
did not apply for permission for leading secondary evidence. Admittedly,
the plaintiff did not lead any secondary evidence.
26. The learned trial Judge took cognizance of the facts which
were proved by the defendants that they were bonofide purchasers
without notice. Inspite of notices issued by the defendant nos.2 to 6
before purchase of the suit property, no objection was raised by the
plaintiff. Admittedly, there was no partition of the property between
the co-sharers of the land in question. After considering the entire
evidence in a great detail by the learned trial Judge, it is held that in the
facts and circumstances of the case, the learned trial Judge could not have
granted discretionary relief of specific performance in favour of the
plaintiff. The learned trial Judge accordingly directed the defendant
no.1 to pay an amount of Rs.1,94,150/- with interest @6% p.a. from the
date of filing of the suit till its full realization and rejected the prayer
for specific performance of the agreement.
ppn 15 sa-29.16(j).doc
27. The appellate Court has also framed three points for
determination and has rendered a finding that the plaintiff had failed to
prove that it was ready and willing to perform its part of the agreement
and that the plaintiff was entitled to the relief of declaration that the
sale deed executed in favour of the defendant nos.2 to 6 by the defendant
no.1 was illegal, null and void and was not binding upon it. The appellate
Court has also rendered detailed reasons while rendering various findings
of fact in favour of the defendants.
28.
A perusal of the record clearly indicates that the plaintiff
neither produced the alleged oral agreement dated 15th August 1990 nor
sought any permission to lead secondary evidence to prove the said
alleged agreement. The plaintiff also could not have proved the alleged
steps taken between 1990 and 1999. There were vast variances between
the pleadings filed by the plaintiff and contents of the agreement dated
15th November 1999. The plaintiff did not take any steps even according
to the clauses mentioned in the agreement dated 15th November 1999.
29. The learned trial Judge, in my view, has rightly considered
the entire evidence including documentary evidence and has held that
the plaintiff had failed to prove the alleged agreement dated 15 th
November 1990. Both the Courts below have also taken into
consideration the subsequent events i.e. agreement already entered into
by the plaintiff in favour of the defendant nos.2 to 6 in respect of the suit
property who were bonafide purchasers. The defendant nos.2 to 6 in
turn had executed a sale deed in favour of the defendant no.7. Since the
plaintiff could not prove its readiness and willingness and existence of
ppn 16 sa-29.16(j).doc
the alleged agreement dated 15th August 1990, the learned trial Judge
was justified in refusing to exercise discretion to grant discretionary
relief in view of Section 20 of the Specific Reliefs Act, 1963.
30. In my view, there is no merit in the submission of the learned
senior counsel that the findings recorded by the learned trial Judge are
inconsistent or contradictory. A perusal of the order passed by both the
Courts indicates that though the onus was on the plaintiff to prove that
the alleged agreement existed and that the plaintiff was all throughout
ready and wiling to perform its part of the obligation under the alleged
agreement dated 15th November 1999 or the alleged agreement dated 15 th
August 1990, the plaintiff failed to prove the readiness and willingness.
The learned trial Judge and the appellant Court considered all the
ingredients which are required for passing a decree of specific
performance under the provisions of the Specific Reliefs Act, 1963. The
plaintiff had failed to satisfy the mandatory condition for grant of
specific performance in all respect.
31. It is not in dispute that the suit land was an Inam land and
thus could not have been sold without prior permission from the
Government. Admittedly no such permission was obtained by the plaintiff
from the Government when the agreement dated 15th August 1990
alleged to have been executed or the agreement dated 15th November
1999 was executed. The defendant no.1 along with other co-owners
had subsequently obtained the permission from the Government before
selling the suit property to the defendant nos.2 to 6. Though the
defendant no.7 had issued a public notice before purchasing suit property
from the defendant nos.2 to 6 in the newspaper having wide circulation
ppn 17 sa-29.16(j).doc
inviting objections, the plaintiff did not raise any objection.
32. In so far as the submission of the learned senior counsel for
the plaintiff that even if the defendant no.1 was not exclusive owner
of the entire suit property, the trial Court could have granted relief of
specific performance at least in respect of the share of the defendant
no.1 in the suit property is concerned, admittedly, the plaintiff did not
apply for decree in respect of the share of the defendant no.1 by
complying with the requisite conditions provided under Section 12 of
the Specific Reliefs Act, 1963. No decree for part of the property thus
could be granted by the trial Court. Mr.Thorat, learned senior counsel for
the plaintiff agreed before this Court that no such relief was sought by
the plaintiff against the defendant no.1 nor any submission in that regard
was made before any of the Courts below. In my view, there is thus no
merit in this submission of the learned senior counsel for the plaintiff.
33. In my view, the plaintiff who sought specific performance
had to prove that it was ready and willing to perform its part of the
obligation under the agreement for purchase of the immovable property
which readiness and willingness shall be continuous from the date of
execution of the agreement till the date of decree. Unless and until the
plaintiff proves continuous readiness and willingness on its part which
is a condition precedent for grant of specific performance, no decree for
specific performance can be granted by the Court.
34. In my view, the findings of facts recorded by the learned
trial Judge and also the appellate Court are recorded after considering
oral and documentary evidence led by both the parties which are not
perverse and thus such findings of facts cannot be interfered with by this
ppn 18 sa-29.16(j).doc
Court under Section 100 of the Code of Civil Procedure, 1908.
35. In so far as the Second Appeal No.311 of 2016 is concerned,
Mr.Thorat, learned senior counsel for the plaintiff submits that the facts
of this appeal are identical to the facts in Second Appeal No.29 of
2016. He however submits that only additional submission which the
plaintiff seeks to make for consideration of this Court in that appeal is
that though this Court had granted permission to the plaintiff to lead
secondary evidence before the trial Court and though an attested
photocopy of the alleged agreement dated 25th August 1990 was produced
by the plaintiff, the learned trial Judge disbelieved the said photocopy.
36. A perusal of the order passed by the learned trial Judge
clearly indicates that the plaintiff failed to prove the alleged agreement
dated 25th August 1990. The witness examined by the plaintiff had
admitted in the cross-examination that there was no documentary
evidence to show that the original agreement for sale was in possession
of late Vinayak Kadam and that no notice was issued to the family
members of deceased Promoter of the society i.e. Mr.Vinayak Kadam to
produce the original agreement for sale dated 25th August 1990. The
learned trial Judge, in my view, has rightly rejected this submission of
the plaintiff.
37. In my view, thus there is no merit in the additional
submission made by the learned senior counsel for the plaintiff in so far
as the Second Appeal No.311 of 2016 is concerned. For the reasons
already recorded by this Court while dealing with the facts and
submissions made in Second Appeal No.29 of 2016, in my view, the
Second Appeal No.311 of 2016 is also devoid of merit. No substantial
ppn 19 sa-29.16(j).doc
question of law has arisen in any of the aforesaid appeals. Both the
appeals are totally devoid of merits. The findings recorded by two Courts
below are concurrent findings of facts which are not perverse and thus
cannot be interfered with by this Court under Section 100 of the Code of
Civil Procedure, 1908.
38. I therefore pass the following order :-
(a) Second Appeal Nos.29 of 2016 and 311 of 2016 are dismissed.
(b) There shall be no order as to costs.
ig R.D. DHANUKA, J.
