Bombay High Court
Ajabrao Maarotrao Radake ... vs Bhalchandra Vitthalraao ... on 15 March, 2017
Bench: Ravi K. Deshpande
1 sa110.02.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 110 OF 2002
Ajabrao Marotrao Radake,
aged about 65 years, Occ. Agriculturist,
R/o. Bhaji Bazar Chowk, Amravati,
Tq. And Distt. Amravati ...... APPELLANT
...VERSUS...
1. Bhalchandra Vitthalrao Deshpande,
aged about 63 years, Occ. Service,
R/o. Mudholkar Peth, Amravati,
Tq. And Distt. Amravati.
2. Smt. Vimal Prabhakar Bangale,
aged about 66 years, Occ. Household,
R/o. Bandra West, Bombay.
3. Madhukar Vitthalrao Deshpande,
aged about 64 years, Occu. Service,
R/o. Ville Parle, Bombay.
4. Smt. Gayatra Kamlakar Nande,
aged about 64 years, Occ. Service,
R/o. Shankar Nagar, Amravati,
Tq. And Distt. Amravati...... RESPONDENTS
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Shri R.L.Khapre, counsel for Appellant
Shri P.R.Agrawal, counsel for Respondent nos. 1 to 4
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CORAM: R. K. DESHPANDE, J.
th
DATE : 15 MARCH, 2017 .
2 sa110.02.odt
ORAL JUDGMENT
1] The trial Court partly decreed the Special Civil
Suit No. 63 of 1988 on 30.06.1994 for possession of the suit
field and enquiry into the mesne profit. The lower appellate
Court has dismissed the Regular Civil Appeal No. 190 of
1994 on 07.12.2001. Hence, the original defendant is before
this Court in this second appeal.
2] Undisputedly, the plaintiffs were the owners of
the suit property and the defendant claimed protection of
possession on the basis of the agreement to sell dated
22.12.1975 at Exh.39. The Courts below are concurrent in
holding that the defendant has failed to establish the
possession over the suit property by way of part performance
of contract. According to the Courts below, the defendant
was in possession of the suit property on the basis of the
orders dated 17.05.1978 and 31.08.1978 at Exh.45. The
Courts have held that the defendant has failed to establish
readiness and willingness on his part to perform the contract
by making payment of balance amount of consideration of
Rs.12,250/- to get the sale deed executed.
3 sa110.02.odt
3] On 15.07.2005, this Court passed a reasoned
order framing two substantial questions of law, which are
reproduced below.
[1] Whether the possession of present appellant
of suit field is or is not in pursuance of
agreement for sale dated 22.12.1975 and
therefore, in part performance of the said
agreement?
[2] Whether provisions of Section 53-A of
Transfer of Property Act are attracted in
such circumstances?
4] Shri Khapre, the learned counsel appearing for
the appellant has invited my attention to the agreement dated
22.12.1975 at Exh.39, which contains a recital that the
defendant was put in possession of the suit property, which is
3 acres and 18R of land in Survey No. 28. According to him,
though the total consideration payable was shown in the
agreement to be of Rs.17,250/-, it was at the rate of
Rs.5,000/- per acre, intending thereby to work out the total
consideration actually payable upon the actual area in
possession of the defendant. He submits that the Court
Commissioner was appointed who has measured the land
and it is found that the defendant was in possession of
4 sa110.02.odt
2 acres 18R of land and not 3 acres and 18R of land, as was
stipulated in the agreement.
5] Shri Khapre further submits that the agreement
itself recites the payment of earnest amount of Rs.5,000/- to
the plaintiffs and the balance, therefore, remained to be paid
was of Rs.4,250/- on the basis of area of 2 acres and 18R of
land actually found in possession of the defendant. He
submits that the Courts have wrongly rejected a plea raised
by the defendant that an amount of Rs.5,000/- was paid from
time to time to the plaintiffs and the defendant had incurred
expenditure of Rs.2,000/- for recovering possession of the
suit property from the tenants. He, therefore, submits that
out of total consideration payable of Rs.12,250/-, the
defendant had actually paid an amount of Rs.12,000/- and he
was ready and willing to pay the balance amount of
consideration to get the sale deed executed. He submits that
the Courts below ought to have, therefore, held that the
defendant is entitled to protection of possession under
Section 53-A of the Transfer of Property Act.
6] Coming to the substantial question of law at
5 sa110.02.odt
Sr.No.[1] framed by this Court, the perusal of the agreement
at Exh.39 shows that the defendant was put in possession of
3 acres and 18R of land, which defendant had agreed to
purchase it from the plaintiffs. In para 2 of the written
statement, the specific stand taken by the defendant is
reproduced below;
"2.............................. It is denied that the suit land was in
possession of the plaintiff Umabai on 22.12.75. The price
of the land was to be paid by this defendant as per the
exact measurement of the area that would be available at
the time of execution of the sale deed. It is denied that
the defendant was placed in possession of that land by
the plaintiff Umabai on 22.12.1975. The recital in the
agreement of sale about delivery of possession after
doing exact measurement is totally incorrect and false."
In para 12 of the written statement, the defendant took the
stand as under;
"12.............................................. The defendant was not
placed in actual possession of the agreemented area of 3
acres 18 gunthas of land but the land was less by about 1
acre and it is thus submitted that the defendant came in
possession of about 2 acres 18 gunthas of land only and
I.e in the month of August, 1978".
7] The oral evidence of the defendant is in
conformity with the aforesaid pleadings. It, therefore,
becomes apparent that on the date when the agreement was
entered into between the parties on 22.12.1975, neither the
plaintiff was in actual physical possession of 3 acres and 18
6 sa110.02.odt
gunthas of land, nor was in a position to deliver it to the
defendant. The defendant got the possession of the land, as
has been stated by him, by spending an amount on litigation
in the month of August, 1978, that too only to the extent of 2
acres and 18 R of land. The defendant could not secure the
possession of remaining 1 acre of land, out of 3 acres and
18R of land agreed to be purchased by him. It is, thus
apparent from the defendant's own stand that it was not the
actual possession of 3 acres and 18R of land which was
handed over to him by the plaintiff on the date of entering into
an agreement, but he came in possession of 2 acres and
18R of land in the month of August, 1978.
8] In view of above, the finding recorded by the
appellate Court that the defendant took possession of
2 acres and 18R of land in the month of August, 1978 and
was, therefore, not entitled to protection of part performance
of contract, cannot be faulted with and the substantial
question of law at Sr.No. [1] has to be answered holding that
the possession of the defendant was not pursuant to the
agreement dated 22.12.1975 at Exh. 39.
7 sa110.02.odt
9] On the substantial question of law at Sr.No. [2]
regarding the proof of readiness and willingness on the part
of the defendant to perform his part of the contract, the
Courts are concurrent in holding that the defendant has failed
to establish it and hence, he is not entitled to protection
under Section 53-A of the Transfer of Property Act. The
consideration agreed for sale of 3 acres and 18R of land
determined under the agreement was of Rs.17,250/-. It is
not in dispute that the defendant has not shown his readiness
and willingness to pay the entire consideration, the reason
being that the actual area is found to be less by 1 acre by the
defendant and he wanted deduction for the same.
10] The portion of written statement in para 2
reproduced earlier indicate the stand of the defendant that
the price of the land was to be paid by the defendant as per
the exact measurement of the area that would be available at
the time of execution of the sale deed. Shri Khapre, the
learned counsel appearing for the appellant does not dispute
the fact that such a condition is not found in the agreement at
Exh.39. He was, therefore, asked to point out a definite
portion from the oral evidence led by the defendant to
8 sa110.02.odt
establish such fact. Shri Khapre has invited my attention to
the following portion in para 1 of the deposition of the
defendant.
".................. This agreement was came to be registered
on that date. I agreed to purchase 3 acres 18 gunthas of
land Rs.5000/- per acre. .........."
He has further invited my attention to the following portion in
the examination-in-chief of the defendant.
".............. As per the rate which was agreed at the time of
agreement, the price of 2 acres 18 gunthas comes to
Rs.12,500/-. I paid Rs.5,000/- from the day of agreement,
remaining Rs.5,000/- lateron as stated earlier and thus,
made payment of Rs.10,000/- and I incurred expenses of
Rs.2,000/- to prosecute and defend the Court cases.
Umabai is responsible for those expenses. I am ready to
pay balance of Rs.500/- to the plaintiff and take sale deed
from them. ......................"
Except this evidence, he could not point out any other
evidence in support of his plea.
11] In my opinion, it is not the evidence of defendant
that in view of uncertainty of area to be purchased, the rate
was to be determined as per the area found to be in actual
possession of the defendant. It is also not the evidence that
the total consideration actually payable depended upon the
actual area to be found in possession of the defendant. It is
not the evidence that the price of the land was to be paid by
9 sa110.02.odt
the defendant as per the exact measurement of the area that
would be available at the time of execution of the sale deed.
12] The Courts below have recorded the finding of
fact that the defendant has failed to establish the payment of
Rs.5,000/- and incurring of expenditure of Rs.2,000/- on the
litigation. Shri Khapre, the learned counsel admits that there
is no receipt of payment of Rs.5,000/- produced on record,
apart from the earnest amount of Rs.5,000/-. He also could
not point out any evidence of incurring of expenditure of
Rs.2,000/- on the litigation and this is what the finding
recorded by the Courts below. In view of this, it has to be
held that the defendant has failed to discharge the burden of
proving readiness and willingness on his part to perform the
contract by making payment of balance amount of
consideration of Rs.12,250/- either on 12.04.1976 which was
the date agreed for execution of sale deed or thereafter till
the filing of the suit. The provision of Section 53-A of the
Transfer of Property Act is not at all attracted in the present
case. The substantial question of law at Sr.No. [2] is
answered accordingly.
10 sa110.02.odt
For the reasons stated above, the second
appeal is dismissed.
JUDGE
Rvjalit
