Bombay High Court
Bajirao Ramchandra Shelar vs Vishnu Rustum Shinde And Ors on 26 October, 2016
Bench: R.D. Dhanuka
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vai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.494 OF 1990
Bajirao Ramchandra Shelar, )
Aged 26 years, Occupation Driver & )
Trader, Resident of Karanje Peth, )
Satara, District Satara ) ...Appellant
Ori.Plaintiff
....Versus....
1. Vishnu Rustum Shinde,
since deceased by Heirs :-
ig )
)
)
1A. Laxmibai Vishnu Shinde, )
since deceased by her Legal Heirs )
& Legal Representatives - )
)
1A-1. Savitribai @ Sarubai Dattu )
Dhanawade, Aged 40 Years )
)
1A-2. Sou.Indubai Bapu Chavan )
Aged 35 Years )
)
)
1A-3. Sou.Parvati Damodar Devrukhe)
Aged 35 Years )
)
All residing at Karanje Peth, )
Tal. Satara, District Satara. )
)
2. Shri Jaysing Garu Nalawade, )
(Since deceased through Legal Heirs) )
)
2-A Shri Ranaram Jaysing Nalawade, )
Age 33 Years )
)
2-B Smt.Indubai Jaysing Nalawade, )
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Age 55 Years )
)
2-C Smt.Shalan Jaysing Nalawade )
Age 53 Years )
)
All Residing at 337, Karanje Peth, )
Satara, District Satara. ) ...Respondents
Ori.Defendants
WITH
SECOND APPEAL NO.495 OF 1990
Bajirao Ramchandra Shelar, )
Aged 26 years, Occupation Driver & )
Trader, Resident of Karanje Peth,
ig )
Satara, District Satara ) ...Appellant
Ori.Deft.No.2
....Versus....
1. Suvarna Natya Mandal, Karanje )
Chairman Shripati Narayan Kumbhar )
Since deceased through its member - )
)
1A. Sadashiv Jotiba Kumbhar, )
(R.I.A. As member of Respondent No.1)
Age : Major, residing at 322, )
Karanje Peth, Satara )
)
2. Vishnu Rustum Shinde, )
since deceased by Heirs :- )
)
2A. Laxmibai Vishnu Shinde, )
since deceased by her Legal Heirs )
& Legal Representatives - )
)
2A-1. Parvati Damodar Devrukhe )
Age 35 Years, Occupation )
Household, R/O Sambarwadi )
Tal. & District Satara. )
)
2A-2. Sarubai Dattu Dhanawade )
Age 31 Years, Occupation )
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Household, R/o Mohot, Post : )
Medha, Taluka Jawali, )
District Satara. )
)
2A-3. Indubai Bapu Chavan )
Age 26 Years, Occupation )
Agriculturist, R/O Combawadi )
Post : Arvi, Tal. Koregaon, )
District Satara. )
) ...Respondents
No.1 Ori.Plff.
No.2 Ori.Deft 1
WITH
SECOND APPEAL NO.350 OF 1991
1. Vishnu Rustum Shinde,
ig )
since deceased by Heirs :- )
)
1A. Laxmibai Vishnu Shinde, )
since deceased by her Legal Heirs )
& Legal Representatives - )
)
1A-1. Parvati Damodar Devrukhe )
Age 58 Years, Occupation )
Agriculture, R/O Sambarwadi )
Tal. & District Satara. )
)
1A-2. Sarubai Dattu Dhanawade )
Age 65 Years, Occupation )
Agriculture, R/o Mohol, Post : )
Medha, Taluka Jawali, )
District Satara. )
)
1A-3. Indubai Bapu Chavan )
Age 60 Years, Occupation )
Agriculturist, R/O Kombawadi )
Post : Arvi, Tal. Koregaon, )
District Satara )
....Versus....
1. Suvarna Natya Mandal, Karanje )
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Chairman Shripati Narayan Kumbhar )
Since deceased through its member - )
)
1A. Sadashiv Jotiba Kumbhar, )
(R.I.A. As member of Respondent No.1)
Age : Major, residing at 322, )
Karanje Peth, Satara )
)
2. Bajirao Ramchandra Shelar, )
Aged 26 years, Occupation Driver & )
Trader, Resident of Karanje Peth, )
Satara, District Satara ) ...Respondents
No.1 Ori. Plff.
No.2 Ori.Deft.2
WITH
SECOND APPEAL NO.359 OF 1991
1. Vishnu Rustum Shinde, )
since deceased by Heirs :- )
)
1A. Laxmibai Vishnu Shinde, )
since deceased by her Legal Heirs )
& Legal Representatives - )
)
1A-1. Parvati Damu Devrukhe )
Age 58 Years, Occupation )
Agriculture, R/O Sambarwadi )
Tal. & District Satara. )
)
1A-2. Sarubai Dattu Dhanawade )
Age 65 Years, Occupation )
Agriculture, R/o Mohol, Post : )
Medha, Taluka Jawali, )
District Satara. )
)
1A-3. Indubai Bapu Chavan )
Age 60 Years, Occupation )
Agriculturist, R/O Kombawadi )
Post : Arvi, Tal. Koregaon, )
District Satara. ) ...Appellants
....Versus....
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Bajirao Ramchandra Shelar, )
Aged 26 years, Occupation Driver & )
Trader, Resident of Karanje Peth, )
Satara, District Satara. ) ...Respondent
Mr.P.J. Thorat for the Appellant in S.A. No.494 of 1990 and S.A.
No.495 of 1990 and for the Respondents in S.A. No.350 of 1991 and
S.A. No.359 of 1991.
Mr.Victor K. Fernandes for the Appellant in S.A. No.350 of 1991 and
S.A. No.359 of 1991 and for the Respondent in S.A. No.494 of 1990
and S.A. 495 of 1990.
Mr.Vilas A. Jadhav for the Respondent No.2-A in S.A. No.494 of
1990.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 29TH SEPTEMBER, 2016
PRONOUNCED ON : 26TH OCTOBER, 2016
JUDGMENT :-
1. By these four appeals filed under section 100 of the Code
of Civil Procedure, 1908, the appellants have impugned the common
judgment and decree dated 23rd April, 1990 passed by the learned
District Judge, Satara in Regular Civil Appeal Nos.348 of 1985, 416
of 1987, 349 of 1985 and 416 of 1987. The aforesaid four appeals
were heard together and are being disposed of by a common
judgment. Some of the relevant facts for the purpose of deciding
these appeals are as under :
2. Suit bearing Regular Civil Suit No.92 of 1971 is filed by
Suvarna Natya Mandal (hereinafter referred to as the "said Mandal")
against Vishnu R. Shinde and the said Bajirao R. Shelar. Vishnu R.
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Shinde is referred as the "said Shinde" and Bajirao R. Shelar is
referred as the "said Shelar". Suit No.320 of 1976 is filed by the said
Shinde against said Shelar. Suit No.192 of 1979 is filed by said
Shelar against said Shinde and Jaysing Ganu Nalawade. The said
Jaysing Ganu Nalawade is hereinafter referred to as the "said
Jaysing". It was the case of the said Mandal that the said Shinde was
the owner of the suit property viz. CTS No.339, ademasuring 286 sq.
mtrs. bounded by National Highway No.4 to North by Municipal Road
to East and third person's properties to the West and South. The said
Mandal is an unregistered association. It was the case of the said
Mandal that the said Shinde agreed to sell the suit property to the
said Mandal and entered into an agreement to sell with the said
Mandal for selling the suit property for Rs.4,000/-. The said Mandal
paid an earnest money of Rs.2,000/- under the agreement to sell and
agreed to pay the balance amount of Rs.2,000/- in three years from
25th March 1971 to the said Shinde and then said Shinde should
execute the sale deed and deliver possession to the said Mandal.
3. It was the case of the said Mandal that in September,
1973, the said Mandal contacted the said Shinde for executing the
sale deed on receiving the balance amount, but the said Shinde
avoided to perform his part of contract. It was the case of the said
Mandal that when the Chairman of the said Mandal verified City
Survey Record on 19th September, 1973, he came to know that the
said Shelar had purchased the suit property from the said Shinde on
6th September, 1973 for Rs.5,250/-. The said Mandal thereafter
issued a legal notice on 30th October, 1973 to the said Shinde and the
said Shelar for executing the sale deed and for delivering possession
of the suit property. Neither the said Shinde nor the said Shelar
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replied to the said notice. It was the case of the said Mandal that the
said Shinde informed the said Mandal that he was cheated by the
said Shelar. The said Shelar refused to hand over possession of the
suit property to the said Mandal.
4. Some time in the year 1974, the said Mandal therefore
filed a suit for specific performance of the agreement dated 25 th
March, 1971 against the said Shinde and the said Shelar and also
prayed for a declaration that the sale deed dated 6 th September, 1973
executed by the said Shinde in favour of the said Shelar was illegal
and void and also prayed for possession of the suit property.
5. The said Shinde filed a written statement in the said suit
(Regular Civil Suit No.92 of 1974) filed the said Mandal and admitted
that he had entered into an agreement dated 25 th March, 1971 with
the said Mandal in respect of the suit property and had also received
earnest amount of Rs.2,000/- and had agreed to execute the sale
deed within three years from the date of the said agreement with the
said Mandal. It was the case of the said Shinde that the said Shelar
had contacted him in the month of August, 1973 and had requested
for letting out a portion of the suit property for running Cycle Shop.
The said Shinde informed the said Shelar about the agreement dated
25th March, 1971 entered into between the said Shinde and said
Mandal, however, the said Shelar insisted for possession of the
portion of the suit property and promised to vacate the said portion
when the sale deed would be executed by the said Shinde in favour
of said Mandal.
6. It was the case of said Shinde in the written statement that
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the said Shelar took him to the office of the Sub-Registrar and
obtained his thumb impression on certain documents on 6 th
September, 1973 when the said Shinde was old age and was
mentally disturbed.
7. The said Shelar filed a written statement in the said suit
(Regular Civil Suit No.92 of 1974) filed by the said Mandal and raised
various issues, including the issue of locus of the Chairman of the
said Mandal for filing the said suit. It was averred that the said Shelar
had purchased the suit property from the said Shinde under the
registered sale deed dated 6th September, 1973. He also alleged the
collusion between the said Mandal and said Shinde in filing Regular
Civil Suit No.92 of 1974. It was averred that initially the suit property
belonged to one Ganu Nalawade, who was the maternal uncle of the
said Shinde, who gifted the suit property to the said Shinde under the
registered Gift Deed dated 28th January, 1982. The said Shinde had
given his genetic son Jaysing in adoption on 31st December, 1956 to
said Ganu Hari Nalawade. It was averred that out of the suit property,
a room in South-East corner was used by the said Jaysing for
residential purpose and another room to the West side was in
possession of the said Shinde.
8. It was the case of the said Shelar that at the time of
execution of the sale deed in favour of the said Shelar by the said
Shinde, the said Shinde had given an undertaking to get the room
from his genetic son i.e. Jaysing vacated and also offered an
undertaking from the said Shelar to allow said Shinde to reside in
Western side room till his life time. The said Shelar accepted both
these conditions and had thereafter entered into the registered sale
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deed with the said Shinde. The said Shelar contended that he was a
bonafide purchaser for value without notice of the suit agreement
between the said Mandal and said Shinde.
9. The said Shinde thereafter converted his written statement
in Regular Civil Suit No.92 of 1974 as his plaint (Regular Civil Suit
No.320 of 1976) and prayed for a declaration that the sale deed
dated 6th September, 1973 executed in favour of the said Shelar was
illegal, void and not binding on him and also prayed for possession
and mesne-profits. It was also contended by the said Shinde that
from the notice dated 30th October, 1973 issued by the said Mandal,
he came to know about the fraud alleged to have been exercised by
the said Shelar upon him. In his written statement, the said Shelar
had also raised the plea of limitation in Civil Suit No.92 of 1974 by
placing reliance on Article 58 of the Limitation Act, 1963. He also
raised a plea that Regular Civil Suit No.92 of 1974 was barred by
acquiescence, waiver and estoppal.
10. Some time in the year 1979, the said Shelar filed a suit
(Regular Civil Suit No.192 of 1979) against the said Shinde and his
genetic son Jaysing inter-alia praying for possession of the portion
of the suit property described in the plaint and for mesne-profits. In
the said suit, the said Shinde and said Jaysing were impleaded as the
defendants. In the suit Regular Civil Suit No.192 of 1979, the said
Shinde adopted the issues raised by him in his written statement filed
in the said Regular Civil Suit No.92 of 1974 and contended that he
was in possession of the Eastern half and his erstwhile genetic son
Jaysing was in possession of the Western side of the suit property
and further contended that the sale deed was not binding on him. He
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had already challenged the said sale deed by filing a separate suit
(Regular Civil Suit No.320 of 1976). The said Jaysing, who was
defendant no.2 in the said suit also filed a written statement and took
the plea of adverse possession in respect of the Western half portion
of the suit property.
11. Learned Second Joint Civil Judge, Junior Division, Satara,
heard all the three suits i.e. Regular Civil Suit Nos.92 of 1974, 320 of
1976 and 192 of 1979 filed by the said Mandal, the said Shinde and
the said Shelar together. Learned trial Judge framed separate issues
in all the three suits and allowed parties to lead evidence in Regular
Civil Suit No.92 of 1974. The learned trial Judge held that there was
no dispute that the suit property initially belonged to Ganu Hari
Nalawade, who was admittedly the maternal uncle of the said Shinde.
The said Ganu Hari Nalawade had by his registered Gift Deed gifted
the said property to the said Shinde, who in turn on 31 st December,
1956 gave his first genetic son Jaysing in adoption to his maternal
uncle. It is held that there was no dispute that the said deceased
Shinde resided in the Eastern half portion of the suit property till his
death in the year 1965 along with his adopted son Jaysing. It is held
that there was no controversy with the said Shelar of purchasing the
suit property under the sale deed for a consideration of Rs.5250/-
from the said Shinde and had paid a sum of Rs.2,000/- out of the said
consideration and had promised to pay the balance amount after
receiving certain portion out of the suit properties from the possession
of the said Shinde and his genetic son Jaysing within seven month
from 6th September, 1973.
12. Learned trial Judge held that the said Shelar could not
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claim himself to be the bonafide purchaser for value, paid in full and
without notice of the said agreement. It is held that the said Mandal,
who was the plaintiff in Regular Civil Suit No.92 of 1974 was entitled
to specific performance of the agreement from the subsequent
purchaser i.e. the said Shelar besides legal heirs of the said Shinde
in respect of the suit property.
13. Insofar as Regular Civil Suit No.192 of 1979 filed by the
said Shelar is concerned, the learned trial Judge held that the said
Shelar had proved his title to the suit property. The said Shinde had
failed to prove that the Sale Deed dated 6th September, 1973 was
obtained by fraud. The said Shelar proved that he had agreed to
accommodate the said Jaysing for seven months in the suit property
and was to pay Rs.3,250/- to the said Shinde towards the balance
consideration only after the said Jaysing would have vacated the suit
property. Insofar as the claim of adverse possession made by
Jaysing is concerned, the learned trial Judge held that the said
Jaysing had failed to prove that he had become the owner of the suit
property by adverse possession. The learned trial Judge also rejected
the claim of the said Shelar for payment of compensation. The
learned trial Judge however, passed a decree of possession in favour
of the said Shelar in the said suit against the said Shinde and said
Jaysing.
14. Insofar as Regular Civil Suit No.329 of 1976 filed by the
said Shinde is concerned, it is held by the learned trial Judge that the
said Shinde had failed to prove that the Sale Deed dated 6th
September, 1973 was executed in favour of the said Shelar without
consideration and practicing fraud upon them. The learned trial Judge
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rendered a finding in the said suit that the said suit was barred by law
of limitation as contemplated under Article 58 of the Limitation Act.
The learned trial Judge held that the said Shinde was not entitled to
any relief as prayed or otherwise.
15. The learned trial Judge accordingly dismissed the suit
bearing Regular Civil Suit No.92 of 1974 filed by the said Mandal and
the suit bearing Regular Civil Suit No.320 of 1976 filed by the said
Shinde. The learned trial Judge however, decreed the suit bearing
Regular Civil Suit No.192 of 1979 filed by the said Shelar against the
said Shinde and the said Jaysing. The learned trial Judge directed
the said Shinde and the said Jaysing to hand over possession of the
portion which was in their possession on receipt of Rs.3,250/- from
the said Shelar within three months from the date of the said decree.
16. Being aggrieved by the said common judgment and
decree dated 10th December, 1984 passed by the learned Second
Joint Civil Judge, Junior Division, Satara, the said Mandal filed an
appeal (Regular Civil Appeal No.416 of 1987) before the learned
District Court. The said Shinde filed an appeal (Regular Civil Appeal
No.349 of 1985) before the learned District Court. The said Jaysing
filed an appeal (Regular Civil Appeal No.348 of 1985) before the
learned District Court. By a common judgment and decree dated 23 rd
April, 1990, the learned Third Additional District Judge, Satara,
dismissed Regular Civil Appeal No.349 of 1985 filed by the said
Shinde. Regular Civil Appeal No.348 of 1985 filed by the said Jaysing
came to be allowed. The said Regular Civil Suit No.192 of 1979 filed
by the said Shelar came to be dismissed. Insofar as Regular Civil
Appeal No.416 of 1987, filed by the said Mandal is concerned, the
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same came to be allowed.
17. The first appellate Court decreed the said suit (Regular
Civil Suit No.92 of 1974) and directed the said Shinde and said
Shelar to execute the sale deed in favour of the said Mandal in
respect of the suit property upon receipt of Rs.2,000/- by the
defendants to the said suit from the said Mandal and directed to
deliver possession of the suit property to the said Mandal. It was
further provided that on failure of the said Shinde and the said Shelar
to execute the sale deed, the said Mandal do get the sale deed
executed and obtain possession of the suit property from the
defendants through the Court Commissioner.
18. Being aggrieved by the said common judgment and
decree dated 23rd April, 1990 passed by the first appellate Court, the
said Shelar filed second appeal (494 of 1990) in this Court. The said
Shinde filed second appeal (359 of 1991) in this Court impugning the
judgment and decree passed by the first appellate Court in Regular
Civil Appeal No.349 of 1985, which was filed by the said Shinde. The
said Shinde filed second appeal (350 of 1991) impugning the
judgment and decree dated 23rd April, 1990 passed in Regular Civil
Appeal No.416 of 1987, which was filed by the said Mandal. The said
Shelar filed second appeal (495 of 1990) in this Court thereby
impugning common judgment and decree dated 23rd April, 1990
passed by the first appellate Court in Regular Civil Appeal No.416 of
1987, which was filed by the said Mandal.
19. The aforesaid four appeals were admitted by this Court on
different substantial questions of law formulated in the orders passed
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by this Court. All four appeals were directed to be heard together.
20. Substantial questions of law formulated in Second Appeal
Nos.494 of 1990 and 495 of 1990 are as under :-
a). Whether the Lower Appellate Court after having
found that the sale deed dated 6th September,
1973 by the deceased Vishnu Rustum Shinde in
favour of the Appellant was not vitiated on any of
the grounds as contended by Vishnu Rustum
Shinde, his heirs and Suvarna Natya Mandal
was correct in allowing the said appeal ?
b). Whether the findings of the Lower Appellate
Court that the Appellant is not a bona-fide
purchaser for value without notice is based on
no evidence at all and only on the basis of the
surmise that the Appellant is a resident of
Karanje. The Lower Appellate Court has not at
all referred to the correct appreciation of
evidence by the Trial Court on this issue ?
c). Whether the Lower Appellate Court has correctly
and properly exercised its Appellate Jurisdiction
in appreciating the evidence on record and
whether the Judgment suffers from non-
application of mind, irrationality and perversity ?
d). Whether the Lower Appellate Court has totally
misinterpreted and misapplied the ratios of the
cases reported in A.I.R. 1976 Orissa, 113, 1912
I.L.R. 36 Bombay, page 446 and A.I.R. 1968
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Madras Page 383 to the facts of the present
case to hold that the purchase by the Appellant
does not entitle him to claim benefit of Section
19(b) of the Specific Relief Act ?
e). Whether the Courts below were correct in
holding that the Suvarna Natya Mandal (Plaintiff
in Regular Civil Suit No.92 of 1974) was legal
entity capable of entering into contract as well as
to file suit for specific performance. The said
body being unregistered association whether the
exists as a legal person and is capable of
entering into contract and to sue and be sued.
Whether the suit filed by such body was
maintainable in law ?
21. Substantial questions of law formulated in Second Appeal
Nos.350 of 1991 are as under :-
a). Whether the lower Appellate Court was correct
in allowing the appeal filed by the Respondent
No.1 after it came to the conclusion that the
sale-deed dated 6th September, 1973 executed
by the deceased Vishnu Rustom Shinde in
favour of the Respondent No.2 was illegal and
not binding ?
b). Whether the lower Appellate Court was correct
in decreeing the suit for specific performance
filed by the Respondent no.1 when the
document dated 25th March, 1971 is highly
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suspicious as found by the trial Court ?
c). In the peculiar circumstances of the present
case, whether the claims of the Respondents
ought to have been rejected and the suit filed by
the Appellants being Regular Civil Suit No.320
of 1976 ought to have been decreed ?
d). Whether the Respondent No.1 was ready and
willing to perform his part of the contract under
agreement, dated 25th March, 1971 and was,
thus, disentitled to specific performance of the
agreement of sale, dated 25th March, 1971 ?
e). Whether the judgment of the lower Appellate
Court is contrary to the established principles of
law regarding specific performance of
agreement of sale ?
22. Mr.Thorat, learned counsel appearing for the said Shelar,
who is the appellant in Second Appeal Nos.494 of 1990 and 495 of
1990, invited my attention to various findings recorded by the two
Courts below. It is submitted that the learned trial Judge had already
considered the entire documentary and oral evidence led by the
parties in the suit (Regular Civil Suit No.192 of 1997) and had rightly
decreed the said suit and had directed the said Shinde and Jaysing to
hand over possession of the portion which was in their possession on
receipt of Rs.3,250/- from the said Shelar within three months of the
date of decree.
23. Learned counsel invited my attention to the judgment and
decree passed by the lower appellate Court in Regular Civil Appeal
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No.348 of 1985 by which the judgment and decree passed by the
learned trial Judge on 10th December, 1984 came to be reversed. He
submits that the first appellate Court ought to have given adequate
reasons under Order 41 Rule 32 of the Code of Civil Procedure for
reversing the findings and reasons recorded by the learned trial
Judge. He submits that the so called reasons recorded by the first
appellate Court in the judgment and decree passed in Regular Civil
Appeal No.348 of 1985 are very cryptic and are without any
discussion about the evidence and the pleadings in the said judgment
and decree. He submits that the findings of the learned trial Judge
that the agreement dated 25th March, 1971 executed by the said
Shinde in favour of said Mandal was a suspicious document though
was not set aside by the first appellate Court, the first appellate Court
erroneously granted a decree of specific performance in favour of the
said Mandal.
24. It is submitted by the learned counsel that non-payment of
consideration of Rs.3,250/- by his client i.e. said Shelar to the said
Shinde would not have rendered the sale deed illegal or void. He
submits that under section 54 of the Transfer of Property Act, the
payment of balance consideration was permissible to be made in
future.
25. It is submitted by the learned counsel for the said Shelar
that insofar as the decree for payment of maintenance in favour of
Laxmibai, widow of the said Shinde and the same shall be charged
on the property is without any pleading or without prayer by the
plaintiff in the said suit (Regular Civil Suit No.320 of 1976). He
submits that the wife of the said Shinde was impleaded in view of his
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demise and as a legal heir. She had adopted the written statement
filed by the said Vishnu Shinde. He submits that the first appellate
Court could not have passed a decree for maintenance or for creation
of charge on the suit property for the first time.
26. It is submitted by the learned counsel for the said Shelar
that his client was a bonafide purchaser for value and without notice.
The sale deed executed in his favour was a registered document duly
proved before the learned trial Judge as well as before the first
appellate Court. He submits that under section 19(b) of the Specific
Relief Act, 1963, no specific relief could be granted by the learned
trial Judge in the suit (Regular Civil Suit No.92 of 1974) filed by the
said Mandal against the said Shelar, who was bonafide purchaser for
value without notice.
27. Mr.Thorat, learned counsel for the said Shelar placed
reliance on the judgment of the Supreme Court in case of Shasidhar
& Ors. vs. Ashwini Uma Mathad & Anr., (2015) 11 SCC 269 and in
particular paragraphs 11 to 17 in support of the submission that the
first appellate Court ought to have dealt with all the issues and the
evidence led by the parties before recording its findings. He also
placed reliance on the judgment of the Supreme Court in case of
Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 179 and in
particular paragraph 15 in support of the said proposition.
28. Mr.Thorat, learned counsel for the said Shelar placed
reliance on the judgment of this Court in case of Joao Salvador
Jesus & Anr. vs. Fatima Electra Jasmina D'Silva, 2005(1)
Bom.C.R. 488 and in particular paragraph 20 and would submit that
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though the appellate Court can mould the relief, it cannot grant any
relief, which was not claimed by a party. It is submitted by the learned
counsel for the said Shelar that the trial Court had rendered a finding
that the said Mandal did not have funds when the agreement for sale
was executed. The trial Court had perused the accounts produced by
the witness examined by the said Mandal and had noticed the alleged
donations from the office bearers for some time in the month of
September, 1973, there were no funds available with the said Mandal
for making payment under the agreement for sale to the vendor.
Since the said Mandal did not have financial capacity to pay the
consideration amount in terms of the said agreement for sale, the
said Mandal was not ready and willing to comply with their part of
obligations under the said agreement for sale.
29. It is submitted by the learned counsel for the said Shelar
that the registered document executed by the said Shinde in favour of
the said Shelar could not be up set by the first appellate Court. He
submits that both the Courts below had rendered a finding that the
document entered into with the said Shelar was not vitiated by fraud.
He submits that the decree passed by the learned trial Judge in
favour of the said Shelar for possession thus could not have been set
aside by the first appellate Court. He submits that the user of the said
Jaysing was permissive and he had not established any adverse
possession in respect of the suit property. He submits that Second
Appeal Nos.494 of 1990 and 495 of 1990 filed by the said Shelar thus
shall be allowed. It is submitted that the second appeal filed by the
said Shinde (359 of 1991) deserves to be dismissed.
30. Mr.Fernandes, learned counsel appearing for the said
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Shinde (original plaintiff in Regular Civil Suit No.320 of 1976 and the
appellant in Second Appeal Nos.350 of 1991 and 359 of 1991) invited
my attention to the findings rendered by the learned trial Judge in
Regular Civil Suit No.320 of 1976 and would submit that the findings
rendered by the learned trial Judge and also the findings rendered by
the first appellate Court in Regular Civil Appeal No.349 of 1985 are
perverse. He invited my attention to the Sale Deed dated 6 th
September, 1973 executed in favour of the said Shelar and would
submit that the sale deed was ex-facie illegal, void and was not
binding upon his client. He submits that the sale deed was totally
fraudulent. It is submit that the said Shelar had admittedly not paid a
sum of Rs.3,250/- towards the balance consideration since they had
no funds to pay the said amount.
31. It is submitted by the learned counsel that there was no
purpose of preparing other two agreements on the same date when
the said agreement dated 6th September, 1973 was executed in
favour of the said Shelar by his client since the agreement for sale
dated 6th September, 1973 was already executed. He submits that
preparation of other two documents which were not in conformity with
the first document were totally illegal along with the first agreement.
He submits that the learned trial Judge had considered all three
documents though the same were contradictory to each other. He
submits that the impugned judgment and decree passed by the
learned trial Judge as well as the first appellate Court in Regular Civil
Suit No.320 of 1976 and in Regular Civil Appeal No.349 of 1985
against the said Shinde are totally perverse.
32. It is submitted by the learned counsel that the said Shelar
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had not even produced the original of two other documents for
perusal of the learned trial Judge but had only produced the
agreement for sale dated 6th September, 1973. He submits that
admittedly the other two agreements were not even registered.
33. Learned counsel for the said Shinde placed reliance on the
judgment of the Supreme Court in case of P. Chandrasekharan &
Ors. vs. S. Kanakarajan & Ors., AIR 2007 SC 2306 and in
particular paragraph 13 in support of his submission that
interpretation of a document which goes to the root of the title of a
party to the lis would indisputably give rise to a question of law and
thus this Court shall interfere with the erroneous and perverse
findings of the two Courts below on the interpretation of the
agreement in these second appeals filed under section 100 of the
Code of Civil Procedure, 1908.
34. None appeared for the said Mandal (original plaintiff in
Regular Civil Suit No.92 of 1974 and the respondent no.1 in Second
Appeal No.495 of 1990 and the respondent no.1 in Second Appeal
No.350 of 1991). The said Jaysing, who was the defendant no.2, his
legal heirs which were defendant nos.2-A to 2-C in Regular Civil Suit
No.192 of 1979 and respondent no.2 in Second Appeal No.494 of
1990 also did not appear when the matter was heard finally, though
were served.
REASONS AND CONCLUSIONS :
35. Insofar as Regular Civil Suit No.192 of 1979 filed by the
said Shelar against the said Shinde and said Jaysing is concerned,
the learned trial Judge has held that it was not disputed that the suit
property was the gifted property of the said deceased Shinde. The
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said Jaysing was the real son of the said deceased Shinde and had
gone in adoption to Ganu Hari Nalawade, who was the original owner
of the suit property. The said Jaysing was residing with the said
Shinde and also in a portion of the suit property.
36. The learned trial Judge considered the oral evidence of the
said Shelar, who proved that the said agreement dated 6 th
September, 1973 was scribed by one Chandoba Kadam and was
dictated by the said Shinde and was read over and explained to the
said Shinde. The said Shinde and the witness though had put their
thumb impression upon the said document. The said document was
duly registered before the Sub-Registrar. The said document recited
that the price of the suit house was agreed to Rs.5,250/- out of which
Rs.1,000/- was paid four days prior to the date of execution of the
agreement and another Rs.1,000/- at the time of execution of the
agreement. The said witness further proved that on the same day, the
parties had executed two separate agreements in favour of each
other in respect of the portion in possession of the said Shinde and
his real son the said Jaysing out of the said property. It was agreed
between the parties that the portion in possession of the said Jaysing
was to be vacated within seven months and the said sum of
Rs.3,250/- was to be paid to the said Shinde upon the said Jaysing
vacating the portion of the suit property. The said Shinde was allowed
to reside in the portion of 2 Khans out of the said house during his life
time.
37. The learned trial Judge also considered the oral evidence
of other witnesses and held that the said Laxmibai, the widow of the
said Shinde had admitted in her cross-examination that she was not
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knowing the transaction done by her husband i.e. the said Shinde.
The learned trial Judge held that the evidence of the said Laxmibai
was totally inconsistent. The learned trial Judge also rendered a
finding that the other two documents, which were executed on the
same day were proved.
38. In paragraph 24 of the impugned judgment and decree
passed by the learned trial Judge, a finding is rendered that the said
Laxmibai, the widow of the said Shinde had failed to establish that the
Sale Deed dated 6th September, 1973 in favour of the said Shelar
was executed by the deceased Shinde by practicing fraud upon him
or that the same was without consideration.
39. Insofar as the possession of the said Jaysing is
concerned, the learned trial Judge referred to the agreement for sale
dated 6th September, 1973 and after considering the oral and
documentary evidence, held that in view of the clear pleading of the
said Shelar and in absence of rebuttal by the said Shinde and said
Jaysing, the contentions raised by the said Shinde and said Shelar
were not produced. The dispute had arisen between the said Shinde
and said Jaysing subsequently over the title of the suit house. The
learned trial Judge held that the agreement dated 6 th September,
1973 was executed by the said Shinde in favour of the said Shelar,
the said Shinde had title over the suit property and the said Jaysing
was in possession of certain portion of the suit house i.e. adopted
father i.e. Ganu Hari Nalawade. The learned trial Judge accordingly
held that possession of the said Jaysing was a permissive
possession and not not be turned into an adverse possession.
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40. Insofar as the issue of limitation is concerned, the learned
trial Judge after considering the oral and documentary evidence has
held hat the suit filed by the said Shinde against the said Shelar for a
declaration was barred by law of limitation. There was a delay of 9
days in filing the suit.
41. Insofar as the suit filed by the said Mandal is concerned, it
is held by the learned trial Judge that there were only 9 members in
the said Mandal who had contributed their membership of Rs.11/- per
head and thus only a sum of Rs.99/- were in the hands of the said
Mandal on 9th June, 1968, whereas on the same day a sum of
Rs.150/- was shown as expenditure by the said Mandal for
performing a drama. It is held that the account books showed the
receipt of donation from 13 members and as against that a sum of
Rs.2,000/- was shown to have been paid as an earnest money under
an agreement of sale dated 25th March, 1971 entered into in favour of
the said Mandal by the said Shinde. The learned trial Judge held that
the documents produced by the said Mandal were falsified and the
said Mandal had no funds for paying the balance consideration as
reflected from the account produced by the said Mandal.
42. Insofar as the judgment and decree passed by the first
appellate Court is concerned, the first appellate Court independently
considered the oral and document evidence led by the parties and
had allowed Regular Civil Appeal filed by the said Mandal. A perusal
of the judgment and decree passed by the first appellate Court
indicates that the reasons and the findings recorded by the first
appellate Court insofar as reversal of the findings rendered by the
learned trial Judge in the said suit filed by the said Mandal are very
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cryptic and without dealing with the oral and documentary evidence
which was appreciated by the learned trial Judge in the said Regular
Civil Suit No.92 of 1974.
43. A perusal of the judgment and decree passed by the first
appellate Court in Regular Civil Appeal No.348 of 1985 filed by the
said Jaysing indicates that the said judgment and decree also records
no sufficient reasons and the first appellate Court has not considered
the oral and documentary evidence in right perspective. The
Supreme Court in case of Santosh Hazari vs. Purushottam Tiwari,
(2001) 3 SCC 179 held that the first appeal is valuable right of the
parties and unless restricted by law, the whole case is therein open
for rehearing both on questions of fact and law. The judgment of the
appellate Court must therefore, reflect its conscious application of
mind and record findings supported by reasons, on all the issues
arising along with the contentions put forth, and pressed by the
parties for decision of the appellate Court. The task of an appellate
Court affirming the findings of the trial Court is an easier one. It is
also held that the appellate Court agreeing with the view of the
learned trial Court need not restate the effect of the evidence or
reiterate the reasons given by the trial Court ; expression of general
agreement with reasons given by the Court, decision of which is
under appeal, would ordinarily suffice. In my view the principles of
law laid down by the Supreme Court in case of Santosh Hazari
(supra) squarely applies to the facts of this case.
44. The Supreme Court in case of Shasidhar & Ors. vs.
Ashwini Uma Mathad & Anr. (2015) 11 SCC 269 and in particular
paragraphs 11 to 17 has dealt with the powers of the first appellate
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Court under section 96 of the Code of Civil Procedure and after
adverting the judgment in case of Santosh Hazari (supra) and other
judgments have laid down the criteria to be considered by the first
appellate Court in view of Order 41 Rule 31 in the judgment and
decree of the first appellate Court. Since the judgment and decree of
the first appellate Court was a cryptic and none of the relevant
aspects had been noticed in the impugned judgment and decree, the
Supreme Court in the said judgment has set aside the judgment of
the first appellate Court. The principles laid down by the Supreme
Court in case of Shasidhar & Ors. (supra) squarely applies to the
facts of this Court.
45. A perusal of the judgment and decree passed by the first
appellate Court in Regular Civil Appeal No.348 of 1985 and in
Regular Civil Appeal No.416 of 1987 clearly indicates that the first
appellate Court has not considered the oral and documentary
evidence which was dealt with extensively by the learned trial Judge
in the judgment and decree dated 10th December, 1984 and is
cryptic. In my view, the findings recorded by the learned trial Judge if
has to be reversed by the first appellate Court, the reasons and the
findings recorded by the first appellate Court cannot be cryptic and
has to be in detail after considering the oral and documentary
evidence led by both the parties. The judgment and decree of the first
appellate Court should indicate as to why and for what reasons the
judgment and decree of the learned trial Judge deserves interference
and was required to be reversed. In my view, the judgment and
decree rendered by the first appellate Court in Regular Civil Appeal
No.416 of 1987 and in Regular Civil Appeal No.348 of 1985 are
contrary to the principles laid down by the Supreme Court and is in
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violation of section 96 of the Code of Civil Procedure, 1908.
46. A perusal of the judgment and decree dated 23rd April,
1990 in Regular Civil Appeal No.416 of 1987 clearly indicates that the
findings of the learned trial Judge in Regular Civil Suit No.92 of 1974
that the agreement dated 25th March, 1971 executed by the said
Shinde in favour of the said Mandal was a suspicious document was
not reversed by the first appellate Court in Regular Civil Appeal
No.416 of 1987. However, the fist appellate Court still passed a
decree for specific performance in favour of the said Mandal without
any basis and contrary to the evidence on record.
47. In my view, the balance consideration payable by the said
Shelar to the said Shinde under the said agreement dated 6 th
September, 1973 was payable upon the said Shinde handing over
possession of the other portion of the suit property to the said Shelar
which the said Shinde had failed to hand over. Be that as it may, the
first appellate Court could not have reversed the decree for
possession of the suit property in favour of the said Shelar on the
ground that the balance payment was not paid by the said Shelar. In
my view, non-payment of the balance consideration amount, cannot
render the sale deed illegal under section 54 of the Transfer of
Property Act. The learned trial Judge had rightly directed the said
Shinde and the said Jaysing to hand over the portion of the property
in their possession to the said Shelar on payment of balance
consideration of Rs.3,250/-. The impugned judgment and decree
passed by the first appellate Court on 23 th April, 1990 reversing the
judgment and decree passed by the learned trial Judge in Regular
Civil Suit No.192 of 1979 in favour of the said Shelar is perverse and
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deserves to be set aside.
48. A perusal of the judgment and decree passed by the
learned trial Judge in Regular Civil Suit No.320 of 1976 indicates that
the learned trial Judge had directed the payment of maintenance
under section 39 of the Transfer of Property Act and had passed an
order for creating a charge on the property, whereas the said
Laxmibai was impleaded in place of the said Shinde upon his demise
and she had adopted the written statement filed by the said Shinde.
She had not filed any separate proceedings for recovery of
maintenance or for creation of any charge on the suit property. The
learned trial Judge however, has exceeded its jurisdiction by passing
such an order creating a charge on the suit property though the same
was neither the subject matter of the said suit, nor any prayer was
made by the said Laxmibai.
49. Insofar as the submission of the learned counsel for the
said Shinde that the Sale Deed dated 6th September, 1973 entered
into between the said Shinde and said Shelar was fraudulent on the
ground that the balance consideration was not paid or that the said
Shelar did not have funds to pay the balance consideration is
concerned, in my view, there is no substance in this submission
made by the learned counsel. The said amount of Rs.3,250/- was
payable by the said Shelar upon the said Shinde handing over
possession of the portion of the suit property to the said Shelar, which
admittedly the said Shinde had failed to hand over. In my view, in
any event, the sale deed cannot be considered as fraudulent even if
the balance consideration was not paid by the purchaser.
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50. Insofar as the submission of the learned counsel for the
said Shinde that other two documents which were executed on 6 th
September, 1973 were inconsistent with the Sale Deed dated 6 th
September, 1973 is concerned, the learned trial Judge has
considered all three documents rightly and had rendered a finding of
fact that the execution of all three documents was proved by the
witness examined by the said Shelar and the same did not disclose
any contradiction as contended by the learned counsel for the said
Shinde.
51. Insofar as the submission of the learned counsel for the
said Shinde that the said Shelar had not produced the original of the
said two documents, and had only produced the photocopy is
concerned, the said Shinde had examined the other witness to prove
the execution and the contents of the said documents also. The said
Shinde had not disputed the execution of the said document.
52. Insofar as the judgment of the Supreme Court in case of
P. Chandrasekharan & Ors. (supra) relied upon by the learned
counsel for the said Shinde is concerned, even in the said judgment,
it is held by the Supreme Court that there cannot be any doubt
whatsoever that substantial question of law is different from a
question of law. It is held that the interpretation of a document which
goes to the root of the title of a party to lis would un-disputably give
rise to a question of law. In my view, this judgment does not assist
the case of the said Shinde even remotely. The learned trial Judge
had passed a decree in favour of the said Shelar in Regular Civil Suit
No.192 of 1979 and had dismissed the suit of the said Shinde
(Regular Civil Suit No.320 of 1976) after considering the oral and
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documentary evidence and not on the interpretation of the
agreements dated 6th September, 1973. The first appellate Court
rightly dismissed the appeal (Regular Civil Appeal No.349 of 1985)
filed by the said Shinde against the said Shelar. The findings
rendered by the learned trial Judge in Regular Civil Suit No.320 of
1976 and by the first appellate Court in Regular Civil Appeal No.349
of 1985 being concurrent findings and not being perverse, cannot be
interfered with by this Court under section 100 of the Code of Civil
Procedure, 1908.
53. In my view, there is no merit in the Second Appeal No.359
of 1991 filed by the said Shinde. The judgment and decree however,
passed by the lower appellate Court in Regular Civil Appeal No.416
of 1987 insofar as the judgment and decree passed in favour of the
said Mandal is concerned, being perverse, deserves to be set aside.
54. For the reasons recorded aforesaid, substantial questions
of law formulated in Second Appeal Nos.494 of 1990 and 495 of 1990
are answered as under :
Substantial question of law (a) is answered in negative.
Substantial question of law (b) is answered in affirmative. Substantial
question of law (c) is answered in negative. Substantial question of
law (d) is answered in affirmative. Substantial question of law (e) is
answered in affirmative.
55. Insofar as substantial questions of law formulated in
Second Appeal No.350 of 1991 are concerned, the same are
answered as under :-
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Substantial question of law (a) is answered in affirmative.
Substantial question of law (b) is answered in negative. Insofar as the
question as to whether the claims of the respondents in the said
appeal ought to have been rejected is concerned, the same is
answered in affirmative. Insofar as the question as to whether the suit
filed by the appellants in the said appeal arising out of Regular Civil
Suit No.320 of 1976 ought to have been decreed is concerned, the
same is answered in negative. Substantial question of law (d) is
answered in negative. Substantial question of law (e) is answered in
affirmative.
56. I therefore, pass the following order :-
a). Second Appeal No.494 of 1990 is allowed. The judgment
and decree dated 23rd April, 1990 passed by the first appellate Court
in Regular Civil Appeal No.348 of 1985 is set aside. Regular Civil
Appeal No.348 of 1985 is dismissed.
b). Second Appeal No.495 of 1990 is allowed. The judgment
and decree dated 23rd April, 1990 passed in Regular Civil Appeal
No.416 of 1987 is set aside. Regular Civil Appeal No.416 of 1987 is
dismissed.
c). Second Appeal No.359 of 1991 is dismissed.
d). Second Appeal No.350 of 1991 is allowed. The judgment
and decree dated 23rd April, 1990 passed in Regular Civil Appeal
No.416 of 1987 is set aside. Regular Civil Appeal No.416 of 1987 is
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dismissed.
e). There shall be no order as to costs.
(R.D. DHANUKA, J.)
