Smt.Anjanibai Wd/O Mahadeo ... vs Gajanan S/O Vithobaji Kharwade
2017 Latest Caselaw 10046 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No.543 of 1991


 1.      Smt. Anjanibai widow of
         Mahadeo Pragat,
         aged about 35 years,
         resident of Plot No.7,
         near Ram Mandir,
         Ayodhyanagar,
         Nagpur.

 2.      Harihar son of Mahadeo Pragat,
         aged about 39 years,

 3.      Damu son of Mahadeo Pragat,
         aged about 32 years,

 4.      Pramod son of Mahadeo Pragat,
         aged about 21 years,

 5.      Dattau son of Mahadeo Pragat,
         aged about 18 years,

         .....Legal heirs of Org. Deft. No.1.

         all residents of Plot No.7,
         near Ram Mandir,
         Ayodhyanagar, Nagpur.               .....              Appellants


                                  Versus


 1.     Gajanan son of Vithobaji Kharwade,

        .....Org. Plaintiff,

        since dead, through his legal



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        heirs :


 1.1 Prakash son of Gajanan Kharwade,
     adult,

 1.2 Rajesh son of Gajanan Kharwade,
     adult,

 1.3 Sau. Madhuri wife of Mahesh
     Dahale [Madhuri daughter of
     Gajanan Kharwade]

        all residents of Sharda
        Chowk, Garoba Maidan,
        Nagpur.

 2.     Afsarali son of Mir Hasanali,

        ....Org. Deft. No.2.

        ....Deleted on 16th March, 2002.

 3.     Shaukatali son of Mir Hasanali,

        ....Org. Deft. No.3,

        since dead, through his
        legal heirs :-

 1.     Mir Akhtar Ali son of Mir Hasan
        Ali,
        aged about 40 years,

 2.     Majhar Ali son of Mir Hasan
        Ali,
        aged about 43 years,
        [Lunatic], represented by
        the Legal Representative No.1,




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 3.     Ashfaq Ali son of Mir Hasan
        Ali,
        adult,

 4.     Azhar Ali son of Mir Hasan
        Ali,
        adult,

 5.     Mir Kaisar Ali son of Mir Hasan
        Ali,

        .....Deleted as per Court's order
           dated 14th July, 2017.

        all residents of Mir Manjil,
        Araba Wada, Mahal, Nagpur.                .....        Respondents


                                *****
 Mr. S. D. Harode, Adv., for appellants.

 Mr. S. R. Deshpande, Adv., for respondent nos. 1 (1) to 1 (3) -
 legal heirs of the plaintiff.

                                     *****


                                CORAM :          A.S. CHANDURKAR, J.

                                Date         :   22nd December, 2017


 ORAL JUDGMENT:

01. This Second Appeal under Section 100 of the Code of Civil

Procedure, 1908 was admitted by framing the following substantial

question of law :-

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"Whether in view of the finding of the first appellate Court that there was agreement in favour of the appellant on 27th January, 1968, the respondent was not entitled for to possession on the basis of sale-deed dated 5th June, 1968?"

02. The appellants are the legal heirs of the original defendant

no.1. Respondent Nos. 1 (1) to 1 (3) are the legal heirs of the original

plaintiff. It is the case of the original plaintiff that he is the owner of

Plot No.7 admeasuring about 1500 sq. ft. This plot was purchased by

the plaintiff on 5th June, 1968 from one Mir Hasan Ali for a

consideration of Rs.1,000-00. The plaintiff was accordingly put in

possession of the same. In March, 1979, when the plaintiff intended to

erect a construction on the said land, he found that the defendant no.1

was attempting to make some construction thereon. He, therefore, on

15th February, 1980 gave a notice to the defendant no.1 calling upon

him to pull down the structure and hand over possession to him. As

same was not done, the plaintiff on 24th September, 1980 filed suit for

ejectment and possession of the suit property. He also sought

damages for illegal use and occupation.

03. In the Written Statement filed by the defendant no.1, the

case of the plaintiff was denied. According to the defendant no.1, Mir

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Hasan Ali had entered into an agreement on 27th January, 1968 with

one Bhagwatibai wife of Champalal for selling Plot Nos. 6 and 7 for a

consideration of Rs. 2680-00. On 3rd May, 1968, an amount of

Rs.1200/- came to be paid to the vendor and hence on 5th July, 1968,

said Mir Ali executed sale-deed of Plot No.7 in favour of her close

relative Brijlal Banode. According to the defendant no.1, said

Bhagwatibai had been placed in possession of Plot No.7 when the

agreement took place and thereafter on 5th July, 1968, the possession

was handed over to the purchaser. Thereafter, on 6th April, 1979, said

Brijlal Banode executed a sale-deed in favour of defendant no.1 with

regard to Plot No.7 for a consideration of Rs.4500/- and also handed

over possession. The defendant no.1 thereafter started construction

on the suit plot. It was, therefore, prayed that as the defendant no.1

had a valid title, the suit was liable to be dismissed.

04. The parties led evidence before the trial Court. By judgment

dated 18th December, 1984, the trial Court dismissed the suit. The

appeal filed by the original plaintiff, however, was allowed and the suit

came to be decreed. Being aggrieved, the legal heirs of the original

defendant have preferred this appeal.

05. Shri S. D. Harode, learned counsel for the appellants,

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submitted that on 27th January, 1968, the vendor - Mir Hasan Ali had

entered into an agreement for sale of Plot Nos. 6 and 7 in favour of

Bhagwatibai. Earnest amount of Rs. 200/- was paid and said

Bhagwatibai was put in possession. Thereafter, in May, 1968, further

amount of Rs.1200/- was paid to the said vendor. Though it was

mentioned in the agreement that the sale-deed was to be executed by

26th March, 1968, part consideration was accepted in May, 1968. This

indicated that the agreement was subsisting and pursuant thereto on

5th July, 1968, Plot No.7 was sold to the nominee of Bhagwatibai -

Brijlal Banode. The defendant no.1 on 6th April, 1979 having

purchased the suit property from said Brijlal Banode, it was not open

for the plaintiff to claim that he had got a valid title to the suit

property. The claim of the plaintiff that on 5th June, 1968, he had

purchased Plot No.7 from Mir Hasan Ali cannot be accepted. No

objection was raised by the plaintiff from 1968 till filing of the suit for

objecting to the possession of Bhagwatibai, Brijlal Banode and

thereafter the defendant no.1. He referred to the evidence on record

as well as exhibited documents and submitted that the agreement

between Mir Hasan Ali and Bhagwatibai being executed prior in time to

the sale-deed of the plaintiff, the plaintiff did not have any valid title to

the suit property. It was, therefore, submitted that the appellate Court

committed an error in decreeing the suit.

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06. Shri S. R. Deshpande, learned counsel for the respondent

nos. 1 (1) to 1 (3) - legal heirs of the plaintiff, supported the impugned

decree. According to him, mere fact that on 27th January, 1968, the

plaintiff's vendor had entered into an agreement with Bhagwatibai was

not sufficient to confer any right on the defendant no.1. The

agreement dated 27th January, 1968 stipulated that the transaction

was to be completed till 26th March, 1968. The same was not done.

Payment of Rs.1200/- in May, 1968 was not towards earlier agreement

dated 27th January, 1968. He submitted that in the sale-deed dated

5th July, 1968, there was no reference to the aforesaid agreement

dated 27th January, 1968. Similarly, Brijlal Banode was not concerned

with that agreement. The plaintiff was put in possession on 5th June,

1968 and all taxes were paid by the plaintiff from 1968 to 1980. The

necessary mutation entries showing plaintiff's name as owner of the

property were also taken. Though Bhagwatibai was examined as a

witness by the defendants, the initial agreement dated 27th January,

1968 or the subsequent sale-deed dated 5th July, 1968 was not

referred to her. The agreement in question was always disputed by

the plaintiff and the appellate Court after considering the entire

evidence on record rightly decreed the suit.

07. I have heard the learned counsel for the parties at length

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and I have perused the records of the case.

08. The agreement dated 27th January, 1968 [Exh.68] is

between Mir Hasan Ali and Bhagwatibai. Plot Nos. 6 and 7 were

agreed to be purchased by Bhagwatibai for a consideration of Rs.

2650/-. Rs. 200/- were paid as earnest amount and sale-deed was to

be executed by 26th March, 1968. This agreement does not refer to

possession of the suit property being handed over to Bhagwatibai.

Similarly, it mentions that M/s. M.H. Patle & Company through Mir

Hasan Ali had agreed to sell these two plots to Bhagwatibai. There is

an endorsement of Rs.1,200/- being further paid to the vendor. The

sale-deed dated 5th July, 1968 [Exh.69] is between Mir Hasan Ali and

Brijlal Banode. Same is for a consideration of Rs.500/- with regard to

Plot No.7. It is witnessed by one Champalal Jaiswal who is said to be

the husband of Bhagwatibai. However, there is no reference in this

sale-deed to the earlier agreement dated 27th January, 1968 at

Exh.68. Prior thereto, on 5th June, 1968, the plaintiff purchased Plot

No.7 from Mir Hasan Ali. The document at Exh.53 is an application

moved by the plaintiff for having his name mutated in the records

pursuant to that sale-deed. This application is dated 6th September,

1970. On that basis, name of the plaintiff was mutated as per notice

at Exh.55. As per document at Exh.58, taxes were paid from 1st April,

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1968 to 31st March, 1980.

09. It is on the basis of the aforesaid evidence that the appellate

Court found that the sale-deed in favour of the plaintiff being executed

prior in time entitled the plaintiff to the relief. By virtue of that sale-

deed, vendor Mir Hasan Ali did not have any title to execute the further

sale-deed on 5th July, 1968. It is to be noted that sale-deed dated 5th

June, 1968 in favour of the plaintiff has not been subjected to

challenge by the defendant no.1. The only premise on which the

defence is raised is that prior to the plaintiff's sale-deed, there was an

agreement dated 27th January, 1968 by the vendor with Bhagwatibai.

Once it is found that sale-deed dated 5th July, 1968 does not refer to

earlier agreement dated 27th January, 1968, then the basis for that

defence loses its legal force. The reason for Mir Hasan Ali to first enter

into an agreement with Bhagwatibai and then again selling Plot No. 7

on 5th July, 1968 to the vendor of defendant no.1 has not been

explained. Considering the fact that title had passed over in favour of

the plaintiff on 5th June, 1968, by virtue of sale-deed at Exh.52 the

plaintiff has been rightly found entitled for possession of the suit

property on that basis. The subsequent sale-deed at Exh.69 having

been executed by Mir Hasan Ali when he had no title to the suit

property, therefore, cannot defeat the claim of the plaintiff.

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10. In view of aforesaid, the substantial question of law is

answered against the appellant. The judgment of the appellate Court

decreeing the suit stands confirmed. Second Appeal is, therefore,

dismissed with no order as to costs.

Judge

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