Ragunath Ramaji Tighare vs Shankar Ganpati Dhabekar & Others
2017 Latest Caselaw 4184 Bom

                                               1




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   NAGPUR BENCH : NAGPUR



First Appeal No.  40 of 2005



Appellant               :          Raghunath Ramaji Tighare, aged about

                                   63 years, Occ: Cultivator, resident of Wani,

                                   Tahsil Pauni, District Bhandara

                                   versus

Respondents             :           1) Shankar Ganpati Dhabekar ... Since

deceased, through legal representatives -

1-A) Anubai wd/o Shankar Dhabekar, aged

about 68 years, Occ: Cultivator, resident of

Khairi Diwan, Tahsil Pauni, Dist. Bhandara

1-B) Pramod s/o Shankar Dhabekar, aged

about 43 years, Occ: Book-seller, r/o c/o

Ashish Books & Stationary Mart, Vidarbha

Buniyadi High School, Umrer Road, Nagpur

1-C) Kishor s/o Shankar Dhabekar, aged

about 41 years, Occ: business

1-D) Prashant s/o Shankar Dhabekar, aged

38 years, Occ: Business, R/o c/o I. B. Umrer

Road, Nagpur

1-E) Mangala w/o Manohar Maske, aged

33 years, Occ: Nurse, Primary Health

Centre, Barwha, Tahsil Lakhandur, Dist.

Bhandara

2) Baburao Ganpati Dhabekar, aged 72

years, Occ: Cultivator, Behind Netaji Talkies

Velekar Galli, Near House of Balwantrao

Dhobale, Advocate, Mahal, Nagpur

3) Arun s/o Ganpati Dhabekar, aged about

52 years, Cultivator, r/o Quarter No. 30,

Behind, Poonam Flat, Gurudeo Nagar, Nagpur

4) Ramesh s/o Ganpati Dhabekar, aged

43 years, Occ: service

5) Rajendra s/o Ganpati Dhabekar, aged

47 years, Occ: service, resident of Quarter

No. 48, c/o Vinayakrao Harde, Near ICC

Factory, Shastri Nagar, Nagpur

6) Rekha d/o Ganpati Dhabekar, aged

about 38 years, Occ: Cultivator

7) Pushpa wd/o Damodhar Dhabekar,

aged about 48 years, Occ: Cultivator

8) Vandana w/o Ashok Gotaphode, aged

about 28 years, Occ: Household, r/o Lalganj,

Nagpur

9) Sau Bharti w/o Subhashrao Dalawe,

aged about 25 years, r/o Near Lata

Mangeshkar Hospital, Hingna, Dist. Nagpur

Shri P. C. Madkholkar, Advocate and Shri Ram Karode, Advocate with

him for appellant

Shri K. R. Lambat, advocate for respondents no. 1 (a) to 1 (d), 2 and 3

None appears for other respondents

Coram : S. B. Shukre, J

Dated : 7th July 2017

Oral Judgment

1. This is an appeal challenging legality and correctness of the

judgment and order rendered in Special Civil Suit No. 17 of 2001 by 3 rd

Adhoc Additional District Judge, Bhandara. By this judgment and order,

suit filed for specific performance of contract and in the alternative, for

refund of earnest money together with interest @ 18% per annum has

been partly allowed. Prayer for specific performance of contract has been

rejected and prayer for refund of earnest money has been partly allowed

by recording a finding that the appellant is entitled to recover an amount

of Rs. 16,500/- from the respondents with future interest @ 8% per

annum from the date of suit till realization of the entire amount. Not

being satisfied with the same, appellant (original plaintiff) is before this

Court in the present appeal.

2. I have heard Shri P. C. Madkholkar, learned counsel for the

appellant and Shri K. R. Lambat, lerarned counsel for the respondents no.

1 (a) to (d), 2 and 3. I have gone through the record and proceedings

including the impugned judgment and order.

3. The following points arise for my determination:

(i) Whether the appellant proves that there was an agreement to

sell executed between appellant and deceased Damodar and original

defendants no. 2 to 5 on 24.2.1996 ?

(ii) Whether appellant proves that he had paid total amount of

Rs. 1,80,000/- in total as a part consideration to the vendors towards

purchase of land?

(iii) Whether the appellant proves that the possession of suit land

was delivered to him after the execution of the agreement to sell ?

(iv) Whether the defendants prove that they had obtained hand-

loan of Rs. 10,000/- from the appellant ?

As to Points No. (i) and (ii) :

4. It is seen from the record that no original agreement to sell

dated 24.2.1996 was adduced in evidence although it was the specific

case of the appellant that the agreement was reduced into writing and

executed on stamp paper of Rs. 20/-. It was also the case of the appellant

that execution of the agreement to sell was accompanied by delivery of

possession. Therefore, it was necessary for the appellant to have tendered

in evidence the original agreement to sell. It was his contention that this

agreement to sell was taken away from him by respondent no. 4. This

contention was denied by respondent no. 4. In such a case, some

additional evidence was required to be adduced in order to prove the

assertion that the original document was taken away by respondent no. 4

and retained by him. But, no such evidence was brought on record. It is

also seen that no foundation was laid by the appellant to lead secondary

evidence by following the procedure prescribed in Section 65 of the

Evidence Act. It was also the case of the appellant that agreement was

executed in presence of witnesses. But, not a single witness, who may

have been the attesting witness, was examined to prove the existence of

agreement.

5. The appellant was also not sure as to in what manner and

when the total amount of Rs. 1,80,000/- was paid to the respondents.

Therefore, I find that the appellant failed to prove the execution of the

Agreement to Sell dated 24.2.1996 and payment of total amount of Rs.

1,80,000/- to the respondents. The findings recorded in this regard by

the Court below could not be said to be not based on the evidence

brought on record.

6. Learned counsel for the appellant has invited my attention to

the admissions given by defendants' witness D.W. 1 Ramesh in his cross-

examination taken on behalf of the appellant. These admissions, I must

say, upon their over-all consideration, could not be said to be going

against the defence of the defendants. The defendants have taken a plea

that an amount of Rs. 10,000/- was borrowed by them from the

appellant and the amount of Rs. 6500/- was the amount payable by them

by way of interest. There is not a single admission given by this witness

that there was in existence between the appellant and the defendants any

agreement to sell the suit land and that the total amount of Rs.

1,80,000/- was received by them from the appellant. Therefore, these so-

called admissions would not help the appellant in any way. I, therefore,

see no reason to upset the findings recorded in this behalf by the Court

below. Points no. (i) and (ii) are answered accordingly in the negative.

As to Point No. (iii):

7. As stated earlier, the appellant did not examine any other

witness who, according to his own case, had witnessed the execution of

the agreement for sale, which was stated to be coupled with delivery of

possession. The appellant, it is seen from the evidence available on

record, also did not produce any 7/12 extract of the year 1996 or the

subsequent years to show that he was in possession of the suit land. Of

course, there is one 7/12 extract of the suit land of the year 1999-2000

which records an entry in the name of the appellant in the cultivating

column. But for this year, there is another 7/12 extract and the entry in

cultivating column of this document discloses the names of respondents.

The respondents also produced on record the 7/12 extracts for the year

1998-99 showing their possession over the suit land. So, on the basis of a

stray entry taken in the revenue record against which there is a

contradictory entry available as well, no finding that the suit land was in

possession of the appellant, can be recorded and it has been rightly

refused by the trial Court. Point no. (iii) is answered in the negative.

As to Point No. (iv) :

8. It is seen from the evidence of the witnesses and the

documentary evidence that respondent no. 4 had obtained hand-loan of

Rs. 10,000/- and this amount was to be repaid by him together with

interest and the interest component was of Rs. 6500/-. This evidence is in

the nature of admission given by D.W. 1 Ramesh. There is nothing on

record to improbablise this evidence. Therefore, I am of the view that the

trial Court has rightly found that the amount of Rs. 16500/- was due and

payable by the respondents to the appellant together with interest @ 8%

per annum. Point no. (iv) is answered accordingly.

9. In the circumstances, I find no merit in this appeal. Appeal

stands dismissed without any order as to costs.

S. B. SHUKRE, J

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