Bhanudas S/O Mahadeo Taksande vs Eknath S/O Mahadeo Taksande
2017 Latest Caselaw 9534 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                    SECOND APPEAL  NOS.439 & 440  OF  2016

 
Bhanudas s/o Mahadeo Taksande, 
aged about 73 years, Occ. Agriculturist, 
R/o Pradnya Nagar, Hinganghat, 
Dist. Wardha                                                ... Appellant. 
-vs-
Eknath s/o Mahadeo Taksande, 
aged about 73 years, Occ. Agriculturist, 
R/o Pradnya Nagar, Hinganghat, 
Dist. Wardha                                                ... Respondent 


Shri A. V. Bhide, Advocate for appellant. 
Shri A. M. Ghare, Advocate for respondent. 


                                 CORAM  :  A. S. CHANDURKAR, J. 

DATE : December 12, 2017

Common Judgment :

Since both these appeals arise out of common judgment passed by

the appellate Court, they are being decided together by this judgment.

The facts in brief are that the parties are real brothers and sons of

one Mahadeo. Said Mahadeo had purchased land admeasuring 3H 64 R.

After the death of Mahadeo on 14/10/1981 his second wife, two sons and

three daughters inherited his property. According to Eknath on 08/11/1989

the stepmother and sisters relinquished their share in favour of the brothers.

On 11/12/2004 an agreement was entered into by which Eknath agreed to

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purchase half undivided share of his brother Bhanudas. The amount agreed

was Rs.3,15,000/- out of which Rs.65,000/- was initially paid. The balance

amount was to be paid by 31/12/2008. Eknath thereafter on 18/11/2006

filed R.C.S. No.145/2006 for specific performance of the aforesaid

agreement. In so far as Bhanudas is concerned, it is his case that there was

no agreement entered into for selling of his half share of land. He disputed

the said agreement. He filed R.C.S. No.144/2012 for partition and separate

possession.

2. Both the suits were clubbed together and common evidence was

recorded. The trial Court held that the agreement dated 11/12/2004 was

not proved to have been executed. The question as to readiness and

willingness of Eknath was therefore not gone into. A direction to refund

earnest amount of Rs.1,00,000/- came be passed. The suit for partition came

to be decreed. Being aggrieved Eknath filed two appeals. The appellate

Court set aside the judgment of the trial Court and after accepting the

agreement dated 11/12/2004 to have been executed decreed the suit for

specific performance. The suit for partition and separate possession was

dismissed. Being aggrieved, Bhanudas has filed the aforesaid two appeals.

3. The following substantial question of law arises for consideration :

" Whether the Appellate Court for the first time was legally

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justified in coming to the conclusion that Eknath was ready and willing to perform his part of the agreement or whether the suits are required to be remanded to the trial Court for answering said question ? "

4. Heard learned counsel for the parties. The learned counsel on

instructions agree that the trial Court having not considered the question as

to readiness and willingness of Eknath, the appellate Court after holding the

agreement to be proved ought to have remanded the proceedings to the trial

Court so that any finding recorded on that issue could be subjected to

challenge before the Appellate Court.

5. I have perused the impugned judgment. The trial Court while

answering Issue No.2 in R.C.S. No.145/2012 has held that said issue as to

readiness and willingness of the plaintiff had become redundant in view of its

findings on issue No.1. The Appellate Court in paragraph 17 of its judgment

has held otherwise. From the evidence on record I find that the question as

to readiness and willingness of the plaintiff being a question of fact, it ought

to be first decided by the trial Court so as to enable either party to challenge

such finding in appeal. In the facts of the case, the appellate Court ought not

to have decided the said point for the first time in appeal.

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6. In view of aforesaid, the following order is passed :

i) Common judgment of the trial Court in R.C.S. Nos.144/2012 and 145/2012 dated 19/03/2014 as well as common judgment in R.C.A. Nos.228/2014 and 229/2014 dated 03/05/2016 are set aside.

ii) Proceedings in R.C.S. Nos.144/2012 and 145/2012 are remanded to the trial Court for fresh adjudication from the stage of hearing of the parties. The evidence already on record shall be taken into consideration.

iii) Both the suits shall be decided by the same Court expeditiously.

For said purpose parties shall appear before the trial Court on 08/01/2018. The trial Court shall decide the same expeditiously and preferably within period of two months from the date of appearance. Without prejudice to the rights of the parties, they shall maintain status quo as of toady till the suits are decided. This interim arrangement shall not influence the trial Court in any manner.

iv) It is clarified that this Court has not examined the correctness of findings recorded by both the Courts. The suits shall be decided in accordance with law without being influenced by any of the observations made hereinabove.

v)               Appeals are allowed.  No costs. 
                                                              
                                                                                   JUDGE




Asmita