Bombay High Court
Haribhau Shyamrao Tabhane (Dead) ... vs Gopikabai Vitthalrao Kamble And ... on 21 October, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.394 OF 2015
Haribhau Shyamrao Tabhane
[since dead through LR's]
1] Rajesh Haribhau Tabhane,
Aged about 42 years,
Occ: Service, R/o Gopal Nagar,
Near SRPF Water Tank, Nagpur.
2]
Pramod Haribhau Tabhane,
Aged about 40 years,
Occ: Business, R/o Gopal Nagar,
Near SRPF Water Tank, Nagpur.
3] Mrs. Ujawala Ashin Kharat,
Aged 38 years, Occ: Household,
R/o Kolar Road, Bhopal.
4] Mrs. Geeta Abhishek Raut,
Aged 36 years, Occ: Household,
R/o Shilpa Society, Manish Nagar,
Nagpur.
5] Mrs. Harshala Satish Khobragade,
Aged about 34 years, Occ: Service,
R/o Ujjwal Nagar, Nagpur. ....... APPELLANTS
...V E R S U S...
R-1 is deleted as
1] Gopikabai Vitthalrao Kamble,
per Reg. (J) Aged Adult, Occ: Nil, R/o Takli Sim,
order dtd. Tah. Hingna, Dist. Nagpur.
18/2/16.
2] Maroti Vitthalrao Kamble,
Aged Adult, Occ: Nil,
R/o Takli Sim, Tah. Hingna,
Dist. Nagpur.
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3] Sureh Vitthalrao Kamble,
Aged Adult, Occ: Nil,
R/o Takli Sim, Tah. Hingna,
Dist. Nagpur.
4] Manohar Vitthalrao Kamble,
Aged Adult, Occ: Nil,
R/o Takli Sim, Tah. Hingna,
Dist. Nagpur.
5] Smt. Usha wd/o Ramesh,
Aged Adult, Occ: Nil,
R/o Takli Sim, Hingna Road,
Nagpur.
6]
Mrs. Suman Madhukar Sahare,
Aged Adult, Occ: Not Known,
R/o Telipura, Hinganghat,
Tah. Hinganghat, Dist. Wardha.
7] Mrs. Chhaya Satpaise,
Aged Adult, Occ: Not Known,
Mithubhai Satpaise, Lalganj,
Nagpur. ....... RESPONDENTS
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Shri N.S. Deshpande, Advocate for Appellants.
Shri A.G. Gharote, Advocate for Respondents.
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CORAM: R.K. DESHPANDE, J.
st OCTOBER, 2016.
DATE: 21
ORAL JUDGMENT
1] The trial court dismissed Regular Civil Suit
No.1158/2007 for specific performance of contract and the
counter claim has been allowed directing the plaintiffs to deliver
the vacant possession of the suit land to the defendants within a
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period of three months. This decision of the trial court, dated
30.12.2008 was the subject-matter of Regular Civil Appeal No.87
of 2009, which has been dismissed by the lower Appellate Court
on 30.03.2015. Hence, the original defendants are before this
Court in this second appeal against the concurrent findings of fact.
2] The specific performance of contract was claimed in
respect of the oral agreement said to have entered into in the year
1978. According to the plaintiffs, on 30.03.1978 land admeasuring
5.12 acres was sold by one Vitthal the predecessor in title of the
defendants to the plaintiffs for total consideration of Rs.5000/-.
The plaintiffs alleged that at that time itself it was agreed that the
sale-deed in respect of another 4.20 acres of land shall be executed
in favour of the plaintiffs for total consideration of Rs.5140/-.
The original vendor Vitthal died on 28.08.1981. The plaintiffs filed
Regular Civil Suit No.1158 of 2007 for specific performance of
contract after issuing notice dated 13/14.11.2006. The plaintiffs
also claimed that they were in possession of the suit property by
way of part performance of contract.
3] Both the courts below are concurrent in holding that
the agreement with Vitthal has not been established for the sale of
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the suit property. There is no evidence on record showing any
payment in furtherance of any such agreement to Vitthal. Both the
courts below have recorded the finding that the sale-deed dated
30.03.1978 did not contain any recital that the sale-deed in
respect of the 4.20 acres of land shall be executed in future for
consideration of Rs.5140/-.
4] The reliance was placed upon two receipts (i) dated
02.03.1983 showing payment of Rs.500/- at Exh-47 to the
defendants and another Exh-49 dated 11.04.1983 evidencing the
payment of Rs.1000/-. It is urged that both these payments were
made in compliance with the obligation on the part of the
plaintiffs. The courts below have held that all these receipts are
denied and the payment has not been proved. Undisputedly, the
payments were not made to Vitthal with whom the alleged
agreement was entered into. The courts below have held the
plaintiffs have failed to establish that they were put in possession
of the suit property by way of part performance of contract and it
is also the finding recorded that taking advantage of the injunction
granted on 13.12.2007 the plaintiff was dispossessed the
defendant.
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5] The view taken by the courts below is a possible view
of the matter. It does not give rise to any substantial question of
law. The arguments are advanced as if this Court is hearing the
civil suit and in spite of seeking adjournment on 18.10.2016 for
taking instructions after the matter is heard, the time of Court is
wasted without even formulating any substantial question of law.
The second appeal is, therefore, dismissed with the costs of
Rs. 15,000/- to the respondents and the trial court should see that
the decree for possession passed in a counter claim is executed
within one month from today.
6] Shri Deshpande, at this stage submits that the
protection of possession shall be granted by this Court be extended
for a further period of six weeks is hereby rejected.
JUDGE
NSN
