Bombay High Court
Ismail Kabirsaheb vs Mohammed Ibrahim And Anr on 7 July, 2017
Bench: N.W. Sambre
SA 481-2000
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 481 OF 2000
Ismail s/o Kabirsaheb,
age 65 years occupation agriculture
R/o Chata Taluka and Dist. Latur, (DIED) (Original Deft.No.2)
Through legal representatives:
1) Shaikh Afrubee Ismail,
age 65 years occupation household,
2) Shaikh Ahmed Ismail,
age 85 years occupation agriculture,
3) Shaikh Babu Ismail,
age 40 years occupation agriculture,
4) Shaikh Khajamiya Ismail,
age 38 years occupation agriculture,
5) Shaikh Gulab Ismail,
age 35 years occupation agriculture,
6) Shaikh Mannabee Sardar,
age 52 years occupation agriculture,
7) Shaikh Saherabee Dastagir,
age 36 years occupation agriculture,
8) Medake Chunnibee Hujur,
age 32 years occupation household,
9) Shaikh Taherabee Osman,
age 30 years occupation house wife
10) Sayyed Baibee Rasheed,
age 25 years occupation household
All R/o Chata Taluka and Dist. Latur.
... APPELLANTS
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SA 481-2000
(2)
VERSUS
1. Mohammad s/o Ibrahim,
age 35 years occupation agriculture
R/o Chata, now at village Chincholi Wadi
Taluka and District Latur. (Original plaintiff)
2. Kashim s/o Hussain,
age 60 years occupation agriculture
R/o Chata Taluka and Dist. Latur (DIED), (Orig. defendant No.2)
Through legal representatives:
2/1. Saherabee Kasim Shaikh,
age 50 years occupation agriculture,
2/2. Shaikhlal Kasim Shaikh,
age 29 years occupation agriculture
2/3. Abedabee Isaq Shaikh,
age 32 years occupation household
2/4. Rasheedabee Kasim Shaikh (Malaji),
age 60 years occupation household
All R/o Chata Taluka and Dist. Latur.
...RESPONDENTS.
Mr Avinash Khande, Advocate, holding for Shri Girish L. Awale,
Advocate for Appellants,
Ms. Sheetal Salunke, Advocate, holding for Mr V.D. Salunke,
Advocate for respondent No.1,
Mr N.N. Jagdale, Advocate for respondents No. 2/1 to 2/4.
CORAM : N.W. SAMBRE, J.
DATE : 7th July, 2017
ORAL ORDER
1. In Regular Civil Suit No. 353/1981, present appellant/original
SA 481-2000
defendant No.2 suffered a decree for possession, which was confirmed
in Regular Civil Appeal No. 62/1996. As such, this Second Appeal.
2. The learned Counsel for the appellant, apart from reasoning and
grounds of appeal, in view of Section 53-A of the Transfer of Property
Act, would urge that though the suit for specific performance is
dismissed in default, the proceedings for restoration thereof are
pending. According to him, the outcome in the present suit will
adversely affect the right of the appellant/defendant No.2 in the suit for
specific performance, and as such, the judgment and decrees in this
Second Appeal be set aside, and it be directed that the suit be heard
alongwith suit for specific performance filed by the present appellant.
3. The claim is opposed by the learned Counsel for
respondent/plaintiff on the ground that the appellant was not diligently
pursuing the suit for specific performance. According to the learned
Counsel, the application for restoration was also dismissed, which
demonstrates the negligent attitude on the part of the appellant. It is
then claimed that there are concurrent findings and the appeal be
dismissed.
4. From rival claims put-forth before this Court and upon perusal of
SA 481-2000
the judgment and decrees of learned Trial Court and the Appellate
Court, it is required to be noted that land survey No. 77-A after
consolidation renumbered as Block No. 168 admeasuring 4H.01R
situated at village Chatta Taluka Latur, which is the subject matter of
the suit in question.
5. The plaintiff claimed title over the suit property, and as such, he
brought the suit for possession in action.
6. The present appellant resisted said claim by filing written
statement at Exh. 16, and claimed that though father of the original
plaintiff/ respondent herein was owner of the suit property, it is claimed
by the defendant that the respondent/plaintiff had no title to the suit
property being successor to deceased Ibrahim. It is further claimed by
the appellant that the plaintiff sold Western portion of the suit property
to one Bhimrao Kamble by way of sale deed, who is in possession of
the said property, and balance land to the extent of 10 acres remained
in possession of the respondent/plaintiff. He would then further urge
that on 4th of April 1960 deceased Ibrahim executed agreement of sale
in favour of appellant and the possession of the suit land was delivered
to him. It is also claimed that the permission for alienation as
contemplated under Section 47 of the Hyderabad Tenancy and
SA 481-2000
Agricultural Lands Act, remained pending. As such, the sale deed was
not executed.
7. Considering rival submissions, the Trial Court framed issues at
Exh. 33 and answered the issue of title in favour of the
plaintiff/respondent. It is also held that plaintiff was in possession of the
suit property earlier and he is also entitled for the relief sought. While
recording such findings, the Trial Court considered the evidence of the
plaintiff including that of oral and documentary. One Kaka Ganapati
and Tukaram Balu, deposed in support of plaintiff's case at Exh. 9 and
29. Plaintiff examined himself at Exh. 84, one Digambar Ambekar at
Exh. 87 and Bimbraj Dadarao at Exh. 88, whereas present appellant
examined himself at Exh. 93.
8. Original defendant No.1 admitted claim of the plaintiff, which was
also an issue, which is sought to be canvassed by the learned Counsel
for the appellant.
9. The Trial Court after evaluating the evidence, recorded finding
that the evidence of the present appellant/defendant No.2 is not
reliable. The Trial Court then considered that the defence as is raised
under section 53-A of the Transfer of Property Act, was not established.
SA 481-2000
10. Apart from above, it is required to be noted that the Appellate
Court in detail analysed submissions of the present appellant in Regular
Civil Appeal No. 62/1996. The Appellate Court recorded that the nature
of transaction to the agreement dated April 4, 1960, is an agreement for
sale and held that the present respondent/plaintiff was not in
possession of the suit property. However, while dealing with claim of
possession, the lower Appellate Court has also taken recourse to
provision of section 53-A of the Transfer of Property Act. The appellate
Court then considered the aspects of sale of part of land in favour of
Bhimrao Kamble and repayment of loan, which was obtained by
present appellant/plaintiff. It is further observed, based on the
evidence, that the possession of the land was forcibly taken by the
present appellant.
11. While analysing the claim in the backdrop of Section 53-A of the
Transfer of Property Act, it is to be considered whether present
appellant was in permissive possession and his possession is protected
in the backdrop of qualification under section 53-A of the T.P. Act.
Admittedly, present appellant filed a suit for specific performance, which
was not taken to its logical end, in sense was dismissed in default.
12. While seeking qualification under section 53-A of the T.P. Act, it
was expected from the present appellant to establish that he was ready
SA 481-2000
and willing to perform his part of contract for the suit property in
question.
13. Even though pleadings to that effect are raised, I hardly found
any sufficient case so as to infer ready and willingness of the present
appellant so as to get the agreement of sale to its logical end by getting
executed sale deed in his favour. No concrete material to that effect
could be noticed to have been brought on record by the present
appellant.
14. In the aforesaid backdrop, in my opinion, the appeal lacks merit.
Hence appeal stands dismissed.
15. Though the present appellant is not diligent as regards steps to
be taken by him for restoration of the suit for specific performance,
however, it will be worth to observe here that if any steps are taken, the
said proceedings be decided on its merit.
1. Protection of possession is continued for a period of six weeks
i.e. upto 18th August 2017, in view of the fact that agreement is almost
for more than 50 years old, under which he claims to be in possession.
( N.W. SAMBRE, J.)
pjm
