Bombay High Court
Shantilal Baktwarmal Jain Lrs ... vs Mana Samadhan Koli Lrs Dhana Lrs ... on 23 November, 2016
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.44 OF 2016
Shantilal Baktwarmal Jain APPELLANTS
(Since deceased, through LRs)
1. Vinodkumar Shantilal Jain,
Age - 62 years, Occ - Agriculture
2. Pramodkumar Shantilal Jain,
Age - 47 years, Occ - Household
3. Saroj Chandanmal Redasani,
Age - 49 years, Occ - Household
Appellants No.1 and 2
R/o Kakasheth Chowk, Bhadgaon,
District - Jalgaon,
No.3 R/o Akashwani Chowk,
Near Venkatesh Temple,
Jalgaon
VERSUS
1. Mana Samadhan Koli RESPONDENTS
(Since deceased through LRs)
1. Dhana Mana Koli
(Since deceased through LRs)
1A. Anusayabai Dhana Koli
Age - 65 years, Occ - Household
R/o Koliwada, Bhadgaon,
District - Jalgaon
1B. Rajendra Dhana Koli
Age - 50 years, Occ - Labour
R/o Yashwant Nagar, Bhadgaon,
Taluka - Bhadgaon, District - Jalgaon
1C. Pradeep Dhana Koli
Age - 38 years, Occ - Labour
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R/o Yashwant Nagar, Bhadgaon,
Taluka - Bhadgaon, District - Jalgaon
1D. Sharad Dhana Koli,
Age - 35 years, Occ - Labour
R/o Yashwant Nagar, Bhadgaon,
Taluka - Bhadgaon, District - Jalgaon
1E. Kailash Dhana Koli,
Age - 30 years, Occ - Labour
R/o Yashwant Nagar, Bhadgaon,
Taluka - Bhadgaon, District - Jalgaon
1F. Mangala Bhivsan Koli,
Age - 53 years, Occ - Household
R/o C/o Shri Bhivsan Chindha Koli
At Ujwal Colony, Bhadgaon,
Taluka - Bhadgaon, District - Jalgaon
1G. Shobhabai Dnyaneshwar
(Suryawanshi) Koli,
Age - 65 years, Occ - Household
C/o Dnyaneshwar Hari Suryawanshi (Koli)
R/o Alibagh Police Head Quarter,
Raigad, Taluka - Raigad
District - Alibag
2. Laxman Mana Koli
(Since deceased through LRs)
2A. Indubai Laxman Koli
Age - 73 years,
2B. Vijay Laxman Koli
Age - 50 years, Occ - Nil
Both r/o Koliwada,
Marathi School Bhadgaon,
District - Jalgaon
2C. Deepak Laxman Koli
Age - 44 years, Occ - Police Constable
B. No.1022, Shani Peth Police Station,
Jalgaon
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2D. Lalita Vasant Borse,
Age - 45 years,
R/o c/o Mulher, Taluka - Satana,
District - Nashik
2E. Seema Dipak Thakare,
Age - 40 years,
R/o C/o Deepak Arjun Thakre,
R/o Paras, Taluka - Balapur
District - Akola
3. Maschinder Mana Koli
Age - 69 years,
R/o Near Marathi School,
Koliwada, Bhadgaon,
Taluka - Bhadgaon, District - Jalgaon
4. Bhagwan Mana Koli
(Sicne deceased through LRs)
4A. Mangala Bhagwan Koli
Age - 50 years,
4B. Sanjay Bhagwan Koli
Age - 30 years,
4C. Sunil Bhagwan Koli
Age - 24 years,
4D. Ajay Bhagwan Koli
(Since deceased by LR Mother
respondent No.4A)
Nos.4A to 4D r/o at Near Marathi School,
Koliwada, Bhadgaon,
Taluka - Bhadgaon, District - Jalgaon
5. Santosh Mana Koli (Wagh)
Age - 48 years,
R/o Turbe, Belapur Road,
Police Line, Building No.1
Room No.1,
District - Thane
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.......
Mr. Dhananjay B. Thoke, Advocate for the appellants
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 23rd NOVEMBER, 2016
ORAL JUDGMENT :
1. Heard learned advocate for the appellants finally.
2. Learned advocate for the appellants vehemently contends
that the primary reason for which the suit and the appeal have
been dismissed, is that the suit has been held to be outside the
period of limitation. He submits that while in 1972, the
agreement had been reduced into writing and the plaintiff had
been put in possession of the suit land till 1978, when his
dispossession from the land has taken place, cause of action had
arisen and in the circumstances, having regard to Article 54 of
the Limitation Act, which speaks of running of period of limitation
from the date mentioned in the agreement for performance or if
no such date is mentioned from the date of notice of refusal, the
suit ought to have been considered to be within the period of
limitation. He wants to place construction that the plaintiff
allegedly had been dispossessed in 1978, period of seeking
specific performance started running since 1978 and the suit
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having been filed in 1980, the same was within limitation. He
further submits that apart from aforesaid, evidence sufficiently
bears out that the document in fact had been executed and
there is no proper evidence coming in rebuttal of the same. He,
therefore, urges this court to indulge into his request to admit
the second appeal and allow the same granting decree of specific
performance of agreement executed in 1972.
3. Although, learned advocate has quite earnestly argued the
case as aforesaid, perusal of the judgments rendered by the two
courts, thus far, have been concurrent in giving finding about
that not only the suit being outside the period of limitation, but
also there is refusal to grant decree on the ground of that there
cannot be said to be any execution of document of agreement of
sale.
4. Succinctly stated, the case of the plaintiff - appellants is
that an area of five Are land from survey No.33/4 situated at
Bhadgaon was agreed to be sold by original defendant for a
consideration of Rs.500/-, after seeking necessary permission
and further that the land was adjacent to the land owned by the
plaintiff. The land also has fallen apart from the land of the
defendant due to intervening road. On 14 th April, 1972,
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possession of the land had been given to the plaintiff under the
agreement and sale deed was to be executed after obtaining
necessary permission and despite request, the defendant had
not completed formalities for permission and had dillydallied
execution of sale deed on one or the other pretext, particularly
that the plaintiff has already been in possession. It is further
averred that the defendant, however, in 1976-77 had forcibly
took away produce grown by the plaintiff in suit land. So was the
case in subsequent year and finally the plaintiff has been
dispossessed in 1978. Thus, cause of action had arisen.
5. The respondents - defendants, had however, denied the
averments in the plaint and execution of document.
6. Both the courts have concurred on appreciation of
evidence that it cannot be said that there had been any
execution of agreement of sale. The first appellate court has
considered that the plaintiff had not entered the witness box
instead he had sent his son, who had no personal knowledge
about transaction. So was the case in respect of other witness,
who purportedly deposed in support of the plaintiff. It has
emerged on record that said witnesses had been working with
the plaintiff.
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7. Perusal of the judgments also depicts that no particulars as
to nature of permission required and the authority from which
permission is required has come forth. Apart from that, it
emerges that in 1976-77 itself according to the plaintiffs'
contention, the crop had been forcibly taken away by the
defendants, which averment runs counter to the interest of the
plaintiff, for that would be deemed to be a notice of refusal to go
on with the performance of agreement.
8. Appreciation by courts below has not been shown to be
perverse.
9. In the circumstances, the second appeal does not appear
to give rise to any substantial question of law. The same, as
such, stands dismissed.
10. In view of dismissal of the second appeal, the civil
application does not survive and stands disposed of.
[SUNIL P. DESHMUKH, J.]
drp/sa44-16
