Ramrao Paikaji Bhoyar (Dead), ... vs Mr. Shriram Tukaram Shrirame
2017 Latest Caselaw 6682 Bom

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

                         SECOND APPEAL NO.287 OF 2016


Ramrao Paikaji Bhoyar 
(Dead) Thr. L.Rs. 

1.  Sumanbai Ramrao Bhoyar,
     Aged about 68 Years, 
     Occ. Agriculture, r/o Gangadevi, 
     Tq. Kalamb, Dist. Yavatmal. 

2.  Lata Vasantrao Jaulkar,
     Aged about 48 Years, 
     Occ. Agriculture, r/o Gangadevi, 
     Tq. Kalamb, Dist. Yavatmal.  

3.  Chitra Tukaram Mainde,
     Aged about 43 Years, 
     Occ. Agriculture, r/o Kandegaon,  
     Tq. & Dist. Wardha.  

4.  Maya Rajendra Bire,
     Aged about 41 Years, 
     Occ. Agriculture, r/o  Talni, 
     (Bhagwat), Tq. Pulgaon, 
     Dist. Wardha.   

5.  Gajanan Ramrao Bhoyar,
     Aged about 39 Years, 
     Occ. Agriculture, r/o Gangadevi, 
     Tq. Kalamb, Dist. Yavatmal.                    ... Appellants. 

-vs- 

Shriram Tukaram Shrirame, 
Aged about 69 years, 
Occ. Agriculture, r/o Mankapur, 
Post : Shirpur (Hore), Tal. Kalamb, 
Dist. Yavatmal.                                     ... Respondent.  




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Shri Amol Mardikar, Advocate for appellants. 
Shri R. D. Bhuibhar, Advocate for respondent. 


                                 CORAM  :  A. S. CHANDURKAR, J. 

DATE : September 01, 2017

Oral Judgment :

Notice for final disposal of the appeal was issued on the following

substantial questions of law :

(1) Whether the approach adopted by the Courts below is totally misdirected ignoring the real controversy involved in the matter, (2) Whether the findings recorded by the Courts below are rendered perverse being based upon irrelevant factors and ignorance of the relevant factors ?

Admit.

Heard finally with consent of learned counsel for the parties.

2. The appellants are the legal heirs of one Ramrao. It is the case of

the respondent-plaintiff that in the year 1995 he had entered into an oral

agreement for sale of 5 R land from the eastern portion of Gat No.27. The

consideration fixed was Rs.20,000/- per acre and an earnest amount of

Rs.7,000/- had been paid by said Ramrao. Possession was handed over by

the plaintiff in favour of Ramrao. The plaintiff requested said Ramrao to

have the sale deed executed but he refused to the same. Hence after issuing

notice on 27/06/2006, suit for cancellation of the aforesaid oral agreement

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along with a prayer for possession came to filed.

3. In the written statement the claim of the plaintiff was denied. It

was pleaded that in the year 1990 the plaintiff orally agreed to sell 7 R of

land on the eastern side of said Gat No.27. The consideration fixed was

Rs.3,000/- per acre and an amount of Rs.3,000/- was paid as earnest

amount. Subsequently an amount of Rs.18,000/- was paid in two

instalments. The defendant also filed a counter-claim seeking specific

performance of his agreement of the year 1990.

4. The parties led evidence before the trial Court. It was held by the

trial Court that the plaintiff had proved the oral agreement of the year 1995

and that he was ready to have the sale deed executed. The suit was

accordingly decreed. The counter-claim came to be dismissed after holding

that it was filed beyond limitation.

Being aggrieved the legal heirs of Ramrao filed an appeal. The

appellate Court after reconsidering the evidence held that both the parties

failed to prove their respective agreements. After holding that the defendant

was in possession of 5 R of land since the year 1995, the suit came to be

decreed with regard to relief of possession. Being aggrieved, the original

defendants have filed this appeal.

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5. Shri A. Mardikar, learned counsel for the appellant submitted that

it was the specific case of the plaintiff that oral agreement of sale had taken

place in the year 1995-96. On that basis the defendant had been put in

possession. It was the case of the defendants that such oral agreement took

place in the year 1990. Thus when both the parties were relying on oral

agreements though of different dates, the appellate Court was not justified in

holding that neither of the said oral agreements were not duly proved. He

referred to the observations of the appellate Court in paragraph 23 of its

judgment in which it was held that the case of the plaintiff regarding such

oral agreement could not be accepted. It was submitted that the first

appellate Court misdirected itself ignoring real controversy involved that

both the parties were relying upon their respective oral agreements. It was

then submitted that the appreciation of evidence was perverse inasmuch as

the defendant's evidence in support of the counter-claim had been

misconstrued. From his evidence it was clear that such agreement was

entered into in the year 1990 and as per the deposition of DW-5 at Exhibit-

75 this agreement was duly proved. It was therefore submitted that the

appellate Court having misconstrued the pleadings of the parties, the

proceedings ought to be remanded to the appellate Court for fresh

consideration. In any event it was submitted that said findings being

perverse they deserve to be set aside.

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6. Shri R. Bhuibhar, learned counsel for the respondent supported

the judgment of the appellate Court. It was submitted that the suit as filed

was firstly for possession of the suit property based on title and thereafter a

declaration was sought that the oral agreement of the year 1995 was liable

to be cancelled. Even if the appellate Court held that this agreement was not

duly proved, the plaintiff was entitled for possession. The counter-claim was

barred by limitation as was rightly held by the trial Court. He therefore

submitted that the case of the defendants in the counter-claim being based

on an oral agreement which was not duly proved, there was no perversity in

the impugned judgment as it was passed on the basis of findings of fact

recorded by both the Courts.

7. I have heard the learned counsel for the parties at length and I

have also perused records of the case. Perusal of the plaint indicates that it

is the case of the plaintiff that in the year 1995 there was an oral agreement

entered into with the defendant for sale of 5 R land for a consideration of

Rs.20,000/- per acre. Another prayer made was for recovery of possession

based on title. In the written statement, the original defendant set up

another agreement entered into in April 1990 with regard to 7 R land for

consideration of Rs.3,000/- per acre. As per the counter-claim a prayer for

specific performance of that agreement was made.

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8. The plaintiff examined himself while the defendant examined

himself and four other witnesses. It has been found by both the Courts that

the agreements being oral in nature there was no sufficient evidence to

record a finding that either of such agreements were proved to have been

entered into. In so far as the agreement of the year 1990 put forth by the

defendant is concerned, his witness at Exhibit-75 has clearly admitted in the

cross-examination that earnest amount of Rs.2,000/- was never paid nor was

the payment of Rs.9,000/- on two occasions paid as was pleaded by the

defendant. In other words the defendant could not lead sufficient evidence

to prove that the agreement had taken place in the year 1990. This finding

has been recorded by both the Courts and I do not find any justifiable reason

to differ with this finding of fact based on evidence available on record.

9. In so far as the agreement as pleaded by the plaintiff is

concerned, according to him in the year 1995, he had agreed to sell 5 R land

at the rate of Rs.20,000/- per acre and amount of Rs.7,000/- had been

received as earnest amount. The trial Court on the basis of the evidence on

record found that as per order of Tahsildar at Exhibit-51 and the 7/12

extract at Exhibit-61 it was probable that such agreement as pleaded by the

plaintiff was entered into. It was then found that the value of the land at

Rs.20,000/- per acre appeared probable. It was further found that though

the plaintiff was ready to perform his part of contract, the defendant failed

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to take any steps. On that basis it was held that the agreement was liable to

be cancelled.

10. The first appellate Court reconsidered this evidence but found

that except the bare words of the plaintiff there was no other corroborative

evidence. It also found that the defendant was in unauthorised possession of

5 R land belonging to the plaintiff. It therefore partly allowed the appeal

filed by the defendant and set aside the declaration as to cancellation of oral

agreement of the year 1995. The decree for possession was however

maintained.

11. It is to be noted that the relief sought by the plaintiff was two

fold. The principal relief sought was with regard to seeking possession of 5

R land from the defendant. The other relief sought was for a declaration

that his oral agreement of the year 1995 be cancelled. Though it was

strenuously urged on behalf of the defendant that when it was the case of

the plaintiff that on the basis of oral agreement that had taken place in the

year 1995, the defendant had been put in possession and the appellate Court

misdirected itself by holding said agreement not to be proved, I do not find

that the same would make much difference in so far as grant of relief of

possession to the plaintiff is concerned. Even if this oral agreement of the

year 1995 as put forth by the plaintiff is not proved, the relief of grant of

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possession based on title can always be granted. It is not the case of the

defendant that the title vests in him. His agreement of the year 1990 has

been held to be not proved by both the Courts. Moreover question of his

possession being protected by virtue of provisions of Section 53A of the

Transfer of Property Act, 1882 cannot arise as it is his specific case that the

agreement of the year 1990 was oral. The plaintiff is thus entitled to the

relief of possession on the basis of his title.

12. In view of aforesaid discussion, the substantial questions of law as

framed are answered by holding that the approach adopted by both the

Courts is not misdirected resulting in ignoring the real controversy.

Similarly the findings recorded by both the Court are not perverse being

based on irrelevant factors. The plaintiff despite having failed to prove the

agreement entered into in the year 1995, is entitled for the relief of

possession on the basis of his title.

13. As a result of aforesaid adjudication, the judgment of the first

appellate Court is maintained. Second appeal is thus dismissed with no

order as to costs.

JUDGE

Asmita