Bombay High Court
Sk. Pasha Sk. Gafoor vs Sk. Salim Sk. Nawaz on 14 September, 2016
Bench: T.V. Nalawade
WP 10376/2015
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10376/2015
Sk.Pasha S/o Sk.Gafoor
Age: 46 years, Occ.Agriculture,
R/o Nager Jawala, Tq.Manwat,
Dist.Parbhani.
...Petitioner..
Versus
Sk.Salim S/o Sk.Nawaz
Age: 49 years, Occ.Agiculture,
R/o Nager Jawala, Tq.Manwat,
Dist.Parbhani.
...Respondent..
.....
Shri P.N.Kalani, Advocate for petitioner.
Shri S.G.Bhalerao, Advocate for Respondent.
.....
CORAM: T.V. NALAWADE, J.
DATE: 14.09.2016
ORAL JUDGMENT :
1] Rule. Rule made returnable forthwith and with the
consent of learned counsel for the parties, the petition
is taken up for final disposal at this stage.
2] The petition is filed to challenge the order made by
the learned Civil Judge, Junior Division, Manwat
WP 10376/2015
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Dist.Parbhani, on Exhibit 173 filed in Regular Civil Suit
No.9/2015.
3] The suit is filed for specific performance of
contract by present respondent. Present petitioner is a
purchaser of the suit property from the owner under the
saledeed dated 2.7.2001. It is the case of plaintiff
that in his favour, there was agreement of sale made by
the owner on 26.3.2001 and so he is entitled to get the
relief of specific performance of contract.
4] It appears the District Court remanded the matter to
the trial Court by allowing the Appeal No.65/2012 and the
District Court had given direction to the trial Court to
see that there is comparison of the thumb impression
appearing on the so called agreement of sale, which is at
Exhibit 106, with some documents on which there was thumb
impression of the owner of the property. However, the
District Judge had observed that atleast two admitted
thumb impressions need to be sent.
5] The submissions made and the reasoning given show
that the owner, who is now deceased, had executed
saledeed in the past, on 23.9.1985 and so the admitted
thumb impression of the owner is available. However,
WP 10376/2015
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there is no other admitted thumb impression of the owner
and on the saledeed executed in favour of the present
petitioner / defendant, there was only line drawn as the
owner was suffering from leprosy and his fingers and toes
were affected. It appears that the learned Judge of the
trial Court felt that two thumb impressions need to be
sent and so the trial Court has rejected the application.
6] In view of aforesaid circumstances and as there is
material like saledeed executed in the year 1985
available and it is a matter of comparison of thumb
impressions, this Court holds that the trial Court ought
to have allowed the application.
7] In the result, the petition is allowed. The order
made by the learned Judge of the trial Court is hereby
set aside. The application at Exhibit 173 is allowed.
The two documents (Exhibits 106 and 172) be sent to the
expert for comparison.
8] Rule is made absolute in above terms. No costs.
(T.V. NALAWADE, J.)
ndk/c1491636.doc
