Bombay High Court
Mahadeo Zitruji Zoting vs Sheshrao Bapurao Nandurkar on 16 September, 2016
Bench: Ravi K. Deshpande
sa504.03.J.odt 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.504 OF 2003
Mahadeo Zitruji Zoting
Aged about 47 years,
Occ: Service and Agriculturist
R/o Karegaon, Post Chahand,
Taluka Ralegaon,
District Yavatmal. ....... APPELLANT
...V E R S U S...
Sheshrao s/o Bapurao Nandurkar
Aged about 57 years,
Occ: Agriculturist,
R/o Karegaon, Post Chahand,
Taluka Ralegaon,
District Yavatmal. ....... RESPONDENT
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Mrs. V.P. Thakare, Advocate for Appellant.
Shri S.D. Zoting, Advocate for Respondent.
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CORAM: R.K. DESHPANDE, J.
th SEPTEMBER, 2016.
DATE: 16
ORAL JUDGMENT
1] The trial court passed a decree for possession of suit
property which is Gat No.32, admeasuring area 2 H 76 R situated at
Mouza Karegaon, Taluka Ralegaon, District Yavatmal in favour of the
plaintiff on 31.10.1996 and the defendant is directed to deliver the
possession of the suit property to the plaintiff. Regular Civil Appeal
No.15 of 2003 was dismissed by the lower Appellate Court on
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03.07.2003, hence this second appeal by the original defendant against
the concurrent findings of fact.
2] The undisputed factual position is that there was an
agreement to sale entered into between the plaintiff and the defendant
on 23.04.1984 for sale of the suit property for total consideration of
Rs.45,000/-, out of which Rs.20,000/- was paid by way of earnest
money. The sale-deed was to be executed on 30.04.1985 by paying the
balance amount of consideration of Rs.25,000/- to be paid by the
defendant to the plaintiff. The date for executing the sale-deed was
extended upto 30.04.1986. The defendant was put in possession of the
suit property by way of part performance of contract on 23.04.1984
itself.
3] The defendant claimed to have paid an amount of
Rs.25,000/-, i.e. the balance consideration, to the plaintiff on
30.04.1985, as the plaintiff was in need of money. Since there was a ban
on execution of sale-deed, the date for execution of the sale-deed was
extended upto 30.04.1986. According to the plaintiff, that was not the
reason to extend the date for execution of the sale-deed, but the reason
was that defendant was not having with him the balance amount of
consideration of Rs.25,000/-, the date was extended. According to the
plaintiff, the defendant did not pay any amount much less of Rs.25,000/-
sa504.03.J.odt 3/8
on 30.04.1985. The plaintiff claimed that the defendant himself handed
over possession of the suit property to the plaintiff on 01.05.1986 as he
was not in a position to pay balance amount of consideration even by the
extended date of 30.04.1986.
4] Both the courts are concurrent in holding that the plaintiff
has established that the defendant was not in a position to pay the
balance amount of Rs.25,000/- by 30.04.1986 and the plaintiff,
therefore, issued notice dated 20.07.1993 at Exhibit-28 cancelling the
agreement and forfeiting the amount of Rs.20,000/- received by way of
earnest money. The courts are also concurrent in holding that the
plaintiff has established his possession over the suit property from
01.05.1986 and the reliance is placed upon 7/12 extract for the years
1986-87 to 1991 at Exhibits-23, 24 and 25. The defendant did not raise a
plea of protection of possession under Section 53-A of the Transfer of
Property Act, in his pleadings in the written statement, but raised such a
plea before the lower Appellate Court by filing a counter claim, which
was rejected by an order dated 25.02.2003 passed below Exhibit-18.
The said order is not the subject-matter of challenge in the second
appeal.
5] On 22.01.2004, this Court admitted the second appeal on
the substantial question of law at Sr. No.1 in the memo of appeal, which
sa504.03.J.odt 4/8
is reproduced below:
1) Whether the learned lower Courts were right in not
applying the provisions of section 53-A of the Transfer of
Property Act in the case of the defendant instead of turning
down his plea ?
6] I have heard the learned counsels appearing for the parties
on the aforesaid substantial question of law. I have also gone through the
documents placed on record mainly the agreement dated 23.04.1984 at
Exhibit-22. Perusal of the agreement shows that it was originally written
in black ink on stamp paper and it bears the signature of the plaintiff.
The agreement bears the signatures of two attesting witnesses, one was
Sadashiv Datoba Nandurkar and another was Vyankat Nandurkar.
The date of 30.04.1985 for execution of the sale-deed appearing in the
agreement at two places has been corrected with blue ink and instead of
30.04.1985, it is made as 30.04.1986 suggesting extension of the date to
execute the sale-deed. It is countersigned by the plaintiff. The contents of
the agreement are not disputed. On the first page in the side margin, the
following endorsement in blue ink appears, "vkeps xko rqdMh canhr
vlY;keqGs fodzh d#u nsrk ;sr ukgh o eyk vMp.k vlY;keqGs jkfgysyh jDde
[email protected]& #i;s ¼iapohl gtkj½ vkt fn- [email protected]@1985 yk feGkys o fodzh iq<s
d#u nsbZy- eh ojhy cny d#u lg;k dsY;k vkgs- " (Transcribed in English as -
"Since our village is under fragmentation process, it is not possible to
execute the sale-deed and since I am in difficulty, the balance amount of
sa504.03.J.odt 5/8
Rs.25,000/- is received today on 28.04.1985 and sale-deed shall be
executed subsequently. I have made the aforesaid change and has signed
it.) The aforesaid endorsement in Marathi does not bear the signature of
the plaintiff, though it is stated to have been signed. Undisputedly, the
original agreement was in the custody of the defendant, who produced it
on the record of the trial court.
7] The defendant entered the witness box and admits that the
aforesaid portion was written in his own handwriting. He however, says
that though the plaintiff countersigned the alterations in the dates, he
refused to sign the aforesaid portion written on the agreement.
The defendant examined the attesting witness Sadashiv Datoba
Nandurkar, who states that an amount of Rs.25,000/- was paid to the
plaintiff by the defendant in his presence and the defendant himself
wrote the aforesaid portion in his handwriting on the agreement.
Thus, there is variation in the deposition of two witnesses on the
material aspects. In the cross-examination, the said attesting witness
admits that he knows the plaintiff but he is not in good terms with the
plaintiff as the plaintiff had filed criminal cases against him in court. He
denies that he was convicted in criminal case and was sentenced to
rigorous imprisonment for a period of one month along with the fine of
Rs.100/-.
sa504.03.J.odt 6/8
8] In the background of the aforesaid factual position, the
question of law need to be considered. In order to claim the protection
under Section 53-A of the Transfer of Property Act what is required to be
established is that the defendant is in possession of the suit property by
way of part performance of contract and that he has performed his part
of contract or was willing to perform his part of contract. A plea of part
performance necessarily, thus involved adjudication on facts and unless
such a plea is raised, issue is framed and parties led evidence on it, the
question of claiming protection does not at all arise.
9] In the present case as pointed out earlier, there was no
pleading for protection showing readiness and willingness to perform the
part of contract by the defendant by paying the balance amount of
consideration to the plaintiff. It is not the pleading in the written
statement nor any evidence to show readiness and willingness on the
part of the defendant to pay the balance amount of consideration. Such a
plea raised at the appellate stage was rejected and that order has not
been challenged. The courts below have also recorded the concurrent
finding of fact that the defendant delivered the possession of the suit
property to the plaintiff on 01.05.1986 and the further plea raised by the
plaintiff that he was forcibly dispossessed on 14.06.1983 has also been
accepted. The findings are based upon the evidence available on record.
In view of this, the substantial questions of law framed by this Court is
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answered holding that the plaintiff is not entitled to protection of his
possession under Section 53-A of the Transfer of Property Act.
10] The second appeal is, therefore, dismissed. No costs.
JUDGE
NSN
sa504.03.J.odt 8/8
C E R T I F I C A T E
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