Sanjay Vinayakrao Lakde Amt vs Vinod Ambadas Lakde & 2 Others
2017 Latest Caselaw 7508 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                         Second Appeal No.66 of 2004

 Sanjay son of Vinayakrao Lakde
 aged about 36 years,
 occupation - cultivator,
 resident of Nimbha,
 Tq. Bhatkuli,
 Distt. Amravati.                            .....       Appellant
                                                    Org. Deft. No.3

                                   Versus

 1.     Vinod son of Ambadas Lakde,
        aged about 35 years,
        occupation - cultivator,
        resident of Nimbha,
        Tq. Bhatkuli,
        Distt. Amravati.

        ....Original Plaintiff.

 2.     Ganesh @ Manish son of Balkrishna
        Shirsat,
        aged about 27 years,

 3.     Gokuldas son of Balkrishna
        Shirsat,



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        aged 25 years,

        both cultivators and residents
        of Borala, Post - Aarala,
        Tq. Daryapur,
        Distt. Amravati.

        ....Org. Defts. 1 & 2                        .....        Respondents



                                *****
 Mr. A.A. Naik, Adv. and Mr. P. R. Agrawal, Adv., for the appellant.

 Ms. V. V. Tiwari, Adv., holding for Mr. S. V. Bhutada, Adv., for
 respondent no.1.

                                       *****


                                  CORAM :         A.S. CHANDURKAR, J.

                                  Date       :    25th September, 2017


 ORAL JUDGMENT:

01. This appeal has been filed by the original defendant no.3

who is aggrieved by the decree for specific performance passed in

favour of the respondent no.1 herein which decree has been confirmed

by the first appellate Court.

02. It is the case of the original plaintiff that field bearing Gat

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No. 88 was owned by two others - Ganesh and Gokuldas Shirsat. On

being informed by them that their agricultural field was intended to be

sold, on 16th January, 1995, the plaintiff along with his father went to

the village of said brothers to negotiate the transaction. It was agreed

that the field would be purchased for Rs.61,000/- and an agreement

would be executed on 25th January, 1995. On that basis, an

Agreement to Sell was entered into. Rs. 11,000/- was paid as earnest

amount and the balance amount of Rs. 50,000/- was to be paid by 30th

April, 1995. On 13th February, 1995, the plaintiff and his father along

with the uncle of the owners of the suit property contacted the

defendant nos. 1 and 2 for having the sale-deed executed. As no date

was intimated by the said defendants, a notice was issued by the

plaintiff on 18th February, 1995. A reply was sent by the defendants

on 25th February, 1995 in which it was denied that any Agreement of

Sale was entered into. A stand was taken that the said defendants had

borrowed a sum of Rs. 5,000/- from the plaintiff. Thereafter the

defendant no.3 on getting knowledge of the agreement of the plaintiff

contacted the defendant nos. 1 and 2 and got the sale-deed executed

in his favour on 15th February 1995. By pleading that the plaintiff was

ready and willing to purchase the suit property and that the defendant

no.3 was not a bona fide purchaser, a suit for specific performance of

Agreement dated 25th January 1995 was filed.

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03. The defendant nos. 1 and 2 in their Written Statement

denied having agreed to sell the suit property to the plaintiff.

According to them, they had borrowed an amount of Rs.5000/- from

the plaintiff as the defendant no.2 was to be married. It was then

pleaded that the stamp paper in question was misused by the plaintiff.

On the contrary, it was pleaded that on 29th October, 1994, an

agreement had been entered into for selling the suit property with one

Ravindra Mahalle and he had paid an earnest amount of Rs.13,500/- to

them. On that basis, the defendants had executed a sale-deed of the

suit property in favour of the defendant no.3 as per the say of said

Ravindra Mahalle. This sale-deed was dated 15th February 1995.

Thus, according to said defendants, the plaintiff's suit was liable to be

dismissed.

The defendant no.3 in his Written Statement pleaded that

the defendant nos. 1 and 2 had stated that no agreement had been

entered into by the said defendants on 25th January, 1995. He then

pleaded that he was aware that the plaintiff was a money lender and

that the defendant no.3 was a bona fide purchaser of the suit property

for consideration. He also referred to the Public Notice issued by the

mother of defendant nos. 1 and 2 on 31st January, 1995 and, thus,

submitted that the suit was liable to be dismissed.

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04. In the trial Court, twelve issues were framed below Exh.21

on 5th September, 1995. After the parties led evidence, it was held by

the trial Court that the Agreement dated 25th January 1995 entered

into by the plaintiff had been duly proved. The sale-deed executed by

the defendant nos. 1 and 2 in favour of the defendant no.3 was not

binding and that the defendant no.3 was not a bona fide purchaser of

the suit property. The suit was accordingly decreed.

The first appellate Court after re-considering the entire

evidence on record affirmed this decree and dismissed the appeal.

Being aggrieved, the defendant no.3 has filed the present appeal.

05. While admitting the Second appeal, following substantial

questions of law were framed:-

"1. Whether the Courts below ought to have framed the following issue:-

Whether the plaintiff was entitled for a decree of specific performance binding on the defendant no.3 in view of the fact that defendant no.3 had purchased the suit property on the basis of the prior agreement of sale dated 29.10.1994 in favour of Mahalle and as nominee of Mahalle?

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2. Whether the trial Court ought to have given opportunity to defendant no.3 to adduce additional evidence in view of the fact that the issues were modified by the trial Court after recording of the evidence and at the time of the judgment?

3. Whether the judgments of the lower Courts are perverse?"

An additional substantial question of law was framed as

under:-

"Whether the decree for specific performance in favour of the plaintiff and against the defendant No.3 could be passed in the light of provisions of Section 19 (b) of the Specific Relief Act, 1963?"

06. Shri A. A. Naik, learned counsel for the appellant submitted

that the trial Court had initially framed twelve issues below Exh.21.

However, while deciding the suit, the learned Judge of the trial Court

re-framed those issues and reduced the same to five. According to

him, without putting the parties to notice, the issues had been re-

framed thereby causing prejudice to the case of the appellant. Relying

upon the judgment in Shraddha Associates, Pune & another Vs.

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St. Patrick's Town Co-operative Housing Society Ltd. & others

[2003 (2) Mh.L.J. 219], it was submitted that the issues having been re-

framed without hearing the parties, such exercise was not permissible.

He also placed reliance on the decisions of the Karnataka High Court in

Perikal Malappa Vs. T. Venkatesh Gupta [2007 (2) Civil LJ 453]

and the Honourable Supreme Court in Makhan Lal Bangal Vs.

Manas Bhunia & others [ (2001) 2 SCC 652]. It was then submitted

that in view of provisions of Section 19 (b) of the Specific Relief Act,

1963 [for short, "the said Act"], the defendant no.3 being a bona fide

purchaser for value without notice, no decree for specific performance

could have been passed against him. He submitted that it being the

specific case of the defendant nos. 1 and 2 that they had borrowed a

sum of Rs.5,000/- from the plaintiff and they having denied to have

executed such agreement with the plaintiff, the only agreement that

could have been relied upon was the agreement dated 29th October,

1994 between defendant nos. 1 and 2 and Ravindra Mahalle. As it was

agreed by the parties that the land would be sold either to Ravindra

Mahalle or a person nominated by him and the defendant no.3 being

the nominee of said Ravindra Mahalle, he was entitled to the

protection under Section 19 (b) of the said Act. In that regard the

learned counsel placed reliance on the decisions in [1] Jagan Nath

Vs. Jagdish Rai & others [ (1998) 5 SCC 537], [2] Zorawar Singh &

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another Vs. Sarwan Singh (dead) By LRS & another [ (2002) 4

SCC 460], and [3] Thomson Press (India) Ltd. Vs. Nanak Builders

& Investors Pvt. Ltd. & others [ (2013) 5 SCC 397]. It was, thus,

urged that the suit as filed was liable to be dismissed.

07. Ms. Tiwari, learned counsel for the respondent no.1,

supported the impugned judgments. According to her, the plaintiff was

rightly granted the decree for specific performance on the basis of

Agreement dated 25th January, 1995. It was submitted that the trial

Court did not commit any error in re-framing the issues while

delivering the judgment. The parties had led evidence on the basis of

issues that were framed below Exh. 21. The parties went to trial with

due notice of the respective pleadings and led evidence accordingly.

The defendant no.3, in fact, did not lead any evidence. Both the Courts

considered the entire evidence on record and then held in favour of the

original plaintiff. The objection as raised was technical in nature

without demonstrating as to what prejudice was caused to the

defendant no.3 by virtue of the issues being re-framed. In that regard,

the learned counsel placed reliance on the judgments in [1] Nedunuri

Kameswaramma Vs. Sampati Subba Rao [AIR 1963 SC 884], and

[2] Harish Kashinath Mane Vs. Haribhau Adkoji Sapate [2010 (4)

Mh. L.J. 817]. The defence as raised by the defendant nos. 1 and 2 that

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the suit property was sold on 15th February, 1995 to the defendant

no.3 on the plea that he was the nominee of Ravindra Mahalle has

been rightly disbelieved by both the Courts. The defendant no.3 has

not been examined. There was no agreement in his favour preceding

the sale-deed dated 15th February, 1995. Considering the public notice

issued by the mother of defendant nos. 1 and 2, the stand taken that

the defendant no.3 was a bona fide purchaser without notice was not

liable to be accepted. The evidence on record was not sufficient to

record a finding in favour of the defendant no.3 that he was a bona

fide purchaser and hence entitled to the protection under Section 19

(b) of the said Act. It was, thus, submitted that no interference is called

for with the impugned judgments, especially when both the Courts had

concurrently held in favour of the plaintiff. For said purpose, the

learned counsel placed reliance on the decisions in [1] Zarif Ahmad

(D) through LRs & another Vs. Mohd. Farooq [AIR 2015 SC 1236],

and [2] Damodar Lal Vs. Sohan Devi & others [AIR 2016 SC 262].

08. I have heard the learned counsel for the parties at length

and with their assistance I have also perused the records of the case.

09. It is not in dispute that as per Exh.21, the trial Court had

framed twelve issues, on the basis of which, the parties led evidence.

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The trial Court, however, after referring to these issues re-framed them

while delivering the judgment and recorded its findings on the five

issues that were so re-framed. It is well settled that the Court is not

duty bound to grant hearing to the parties before it proposes to either

re-frame, recast or strike off any issues in exercise of powers under

Order-XIV, Rule 5 of the Code of Civil Procedure, 1908. This view has

been expressed in Shraddha Associates, Pune & another [supra].

Perusal of the issues framed below Exh. 21 indicates that Issue Nos. 1

to 3 have been re-framed to form a consolidated issue at Sr. No.1.

Issue Nos. 4 and 5 have been consolidated into Issue No.2. Issue No. 8

was re-framed as Issue No.3, while Issue No. 9 was framed as Issue

No.4. Issue Nos. 6 and 7 as per Exh.21 are on the defence as raised by

defendant nos. 1 and 2 with regard to obtaining a loan of Rs. 5,000/-

from the plaintiff and as to whether their signatures were misused on

the stamp papers. Issue No. 10 pertains to entitlement of the plaintiff

for recovery of Rs. 61,000/-. Perusal of the judgment of the trial Court

indicates that after re-framing issues, it has dealt with the entire

evidence on record including the defence raised by the defendant nos.

1 and 2 that they had borrowed a sum of Rs. 5,000/- from the plaintiff

and that their signatures were misused for the purposes of the

Agreement dated 25th January, 1995. In paragraphs 20 to 24, this

specific defence of defendant nos. 1 and 2 has been considered by the

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trial Court. Thereafter, the first appellate Court has decided this

ground that was raised by the defendant no.3 in the appeal filed by

him. In paragraph nos. 10 to 13 of its judgment, the appellate Court

found that the trial Court did not travel beyond the pleadings of the

parties while deciding the suit and that the defence as raised had been

taken into consideration.

10. From the aforesaid, therefore, I find that though the issues

that were initially framed at Exh.21 were re-framed while delivering

the judgment, no prejudice is evident to have been caused to the

defendant no.3 who had alone challenged the judgment of the trial

Court. In fact, the defendant no.3 did not choose to lead evidence

even on the basis of the twelve issues that were framed at Exh.21.

The evidence having been led by the other parties on the basis of

issues framed earlier, merely because they were re-framed so as to

consolidate them into five issues, I do not find that this has vitiated the

adjudication by the trial Court. As held in Nedunuri Kameswaramma

[supra], if the parties had gone to trial fully well knowing knowing the

rival case and had led evidence not only to support their contentions

but also to refute those of the other side, the same would not result in

vitiating the proceedings. Moreover, this objection is being raised by

the defendant no.3 who did not lead any evidence, whatsoever, before

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the trial Court. The first appellate Court having considered the

grievance of the appellant in that regard and having found the same

not warranting acceptance, the decisions in Shraddha Associates,

Makhanlal Bangal and Perikal Malappa [supra] do not support the

contentions of the appellant. Hence, substantial question of law no.2

stands answered accordingly.

11. In so far as the plea that no decree for specific performance

could be passed against the defendant no.3 in the light of provisions of

Section 19 (b) of the said Act is concerned, I find that the appreciation

of evidence by both the Courts while holding against the defendant

no.3 cannot be said to be perverse. It has been found that the sale of

the suit property in favour of the defendant no.3 on 15th February,

1995 was not preceded by any agreement of sale. Shri Ravindra

Mahalle, with whom the agreement dated 29th October, 1994 was

executed, has been examined by the defendant nos. 1 and 2. As per

this witness, the agreement at Exh.54 was prepared on the

instructions of Chandrakalabai and that the sale-deed dated 15th

February, 1995 was executed in favour of defendant no.3 with his

consent. In his cross-examination, this witness admitted that the

defendant nos. 1 and 2 did not inform him of the agreement entered

into by them with the plaintiff. The defence as raised that the

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defendant no.3 was a bona fide purchaser for value without notice has

not been substantiated by the defendant no.3. His father was

examined below Exh.61 and he admitted that he had not seen the

Agreement of Sale dated 29th October, 1994 which was executed

earlier by the defendant nos. 1 and 2. He also admitted that

Chandrakalabai and defendant nos. 1 and 2 did not tell him that they

had executed an agreement in favour of the plaintiff. This witness

further states that he did not remember as to who had borne the

expenses for the sale-deed or the place from where the stamp paper

was purchased. Similarly, he did not have any public notice published

in any newspaper.

12. I find that the aforesaid evidence is grossly insufficient to

record a finding that the defendant no.3 was a bona fide purchaser of

the suit property. The burden in that regard was on the defendant no.3

as observed in Zorawar Singh [supra]. The necessary enquiries that a

prudent purchaser would make before entering into a transaction of

purchase of immovable property had not been shown to have been

made. I find that both the Courts, therefore, rightly disbelieved this

witness as well as the plea as raised of the defendant no.3 being a

bona fide purchaser for value without notice. The appreciation of

evidence by both the Courts in that regard cannot be said to be

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perverse. As observed by the Honourable Supreme Court in Dr.

Govinddas & another [supra], the version of the plaintiff has been

found to be more acceptable. I do not find any reason to disagree with

this conclusion. In fact, it is a case of there being lack of evidence to

substantiate the defence that the defendant no.3 was a bona fide

purchaser for value without notice. In the light of the law laid down in

Ram Niwas and Jagan Nath [supra], the defendant no.3 is not found

entitled to the benefit of the provisions of Section 19 (b) of the said

Act. The decision in Thomson Press [supra] on the aspect of

transferee pendente lite also does not assist the case of the appellant.

The substantial questions of law nos. 1, 3 and 4 stand answered

accordingly.

13. As a result of the aforesaid discussion, I find that the plaintiff

has been rightly held entitled to a decree for specific performance.

The impugned judgments do not call for any interference, whatsoever.

Hence, the Second Appeal stands dismissed with no order as to costs.

14. At this stage, learned counsel for the appellant prays that

the interim protection granted by this Court be continued for a period

of eight weeks.

In the facts of the case, the interim order granted on 18th

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August, 2005 shall continue to operate for a period of eight weeks from

today. The protection shall cease to operate at the end of said period

automatically.

Judge

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