Bombay High Court
Gavatya S/O Dashrath Nanhe (Dead ... vs Khawaja Garib Nawaz Coop Housing ... on 30 January, 2018
Bench: A.S. Chandurkar
SA422.16nSA474.16.odt 1/19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.422 OF 2016
APPELLANTS: Gavatya S/o Dashrath Nanhe, (Dead
(Ori. Deft. No.1) through Legal Representatives)
1. Smt. Parvati wd/o Gawtya Nanhe,
Aged 71 years, Occ: Household, R/o
232, Zingabai Takli, Gond Mohalla,
Nagpur-440 030.
2. Manohar S/o Gawtya Nanhe, Aged
51 years, Occ.: Fisherman, R/o Kuhi
Road, Bhugaon, District - Nagpur.
3. Suryabhan S/o Gawtya Nanhe, Aged
46 years, Occ.: Agriculturist, R/o
Kuhi Road, Bhugaon, District -
Nagpur.
4. Dilip S/o Gawtya Nanhe, Aged 39
years, Occ: R/o 932, Zingabai Takli,
Gond Mohalla, Nagpur - 440 030.
5. Smt. Sakubai w/o Shivaji Mohankar,
Aged 55 years, Occ: Household, R/o
932, Zingabai Takli, Gond Mohalla,
Nagpur-440 030.
6. Bebitai w/o Godruji Mandre, Aged
53 years, Occ.: Household, R/o
Dhangapur, Umred, District _
Nagpur.
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7. Manda w/o Mangal Nagre, Aged 49
years, Occ.: Household, R/o Plot
No.119, Guruwari Bazar, Ward No.2
New Koradi,
8. Smt. Vimala w/o Namdeo Mohankar,
Aged 44 years Occ.: Household, R/o
932, Zingabai Takli, Gond Mohalla,
Nagpur - 440 030.
9. Vijay Mohankar (Dead).
10. Harish S/o Vijay Mohankar, Aged 17
years, Occ.: Student,
11. Chetan s/o Vijay Mohankar, Aged 15
years, Occ.: Student,
Nos.10 and 11 being minor through
Guardian Dilip Nanhe, (Appellant
No.4) R/o Zingabai Takli, Nagpur.
-VERSUS-
RESPONDENTS: 1. Khawaja Garib Nawaz Co-op.
(Ori. Plff.) Housing Society, Through its
Presidenty Haji Mohammed Sharif
S/o Mohammed Shafi, Aged about
56 years, Occ.: Business, R/o
Anantnagar, Nagpur - 440 013.
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(Ori.Deft.No.2) 2. Dilip S/o Shivdas Gwalbansi, Aged
42 years, Occ.: Aglriculturist, R/o
Makardhokada, Gittikhadan, Katol
Road, Nagpur.
Shri K. H. Deshpande, Senior Advocate with Shri V. U.
Waghmare Advocate for the appellant.
Shri A. G. Gharote, Advocate for the respondent No.1.
Shri S. G. Shukla, Advocate for the respondent No.2.
AND
SECOND APPEAL NO.474 OF 2016
APPELLANT: Shri Dilip S/o Shivdas Gwalbansi,
(Ori. Deft.No.2) Aged 48 yrs, Occ: Agriculturist, R/o
Makardhokada, Katol Road, Nagpur.
-VERSUS-
RESPONDENTS: 1. Khawaja Garib Nawaz Co-operative
(Ori. Plff) Housing Society, Through its
President Haji Mohammed Sharif
S/o Mohammed Shafi, Aged about
56 years, Occ.: business, R/o
Anantnagar, Nagpur - 440 013.
(Ori.Deft.No.1) 2. Shri Gavatya S/o Dashrath Nanhe
(Dead through his legal
representatives)
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2(a) Smt. Parvati Wd/o Gavatya Nanhe,
Aged 71 years, Occ: Household, R/o
932, Zingabai Takli, Gond Mohalla,
Nagpur.
2(b) Shri Manohar S/o Gavatya Nanhe,
Aged 51 years, Occ: Fisherman, Ward
No.1, Bazar Chowk, Bhugaon, Tahsil
Kampthee, Dist. Nagpur-441 104.
2(c) Shri Suryabhan S/o Gavatya Nanhe,
Aged 46 years, Occu: Agricuolturist,
R/o Kuhi Road, Bhugaon, Dist.-
Nagpur.
2(d) Shri Dilip S/o Gavatya Nanhe, Aged
39 years, Occ: Business, R/o 932,
Zingabai Takli, Gond Mohalla,
Nagpur.
2(e) Smt. Sakubai w/o Shivaji Mohankar,
Aged 55 years, Occ:Household, R/o
932, Zingabai Takli, Gond Mohalla,
Nagpur.
2(f) Smt. Bebibai W/o Godruji Mandre,
Aged 53 year, Occ:Household, R/o
Dhangapur, Umred Dist. Nagpur.
2(g) Manda W/o Mangal Nagre, Aged 49
years, Occ: Household, R/o Plot
No.119, Guruwari Bazar, Ward No.2,
New Koradi, Nagpur.
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2(h) Smt. Vimala W/o Namdeo
Mohankar, Aged 44 years, Occ:
Household, R/o 932, Zingabai Takli,
Gond Mohalla, Nagpur.
2(i) Shri Vijay Mohankar, Aged 44 years,
Occ: Service, (dead through legal
representatives 2(j) and 2(k).
2(j) Shri Harish S/o Vijay Mohankar,
Aged 17 years, Occ:Student,
2(k) Shri Chetan S/o Vijay Mohankar,
Aged 15 years, Occ: Student,
Nos.2(i) & 2(k) R/o - 932, Zingabai
Takli, Gond Mohalla, Nagpur.
Respondent No.2(j) to 2(k) through
their legal guardian Shri Dilip
Gavatya Nanhe.
Shri S. G. Shukla, Advocate for the appellant.
Shri A. G. Gharote, Advocate for the respondent No.1.
CORAM: A.S. CHANDURKAR, J.
DATED: JANUARY 30, 2018.
ORAL JUDGMENT :
1. Both these appeals can be conveniently decided by
this common judgment.
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2. Second Appeal No.422/2016 arises in the
following backdrop:
The respondent No.1 herein is the original plaintiff
which had filed Special Civil Suit No.717/2002 seeking
specific performance of the agreement dated 15-1-1994.
According to the plaintiff, the original defendant no.1 was the
owner of about four acres of land from field No.82/4. The
plaintiff - Society had purchased two acres of that land by
virtue of two sale deeds dated 13-10-1989 and 30-8-1990.
After purchasing two acres in the aforesaid manner, the
defendant No.1 agreed to sell the remaining two acres of land
in favour of the plaintiff - Society for a consideration of
Rs.2,00,000/-. On 15-1-1994 as well as prior thereto the
entire consideration of Rs.2,00,000/- stood paid to the
defendant No.1 who then executed an agreement of sale
styled as "Kabuliyatnama". According to the plaintiff -
Society, as the registration of sale deeds was not permissible
it was agreed that the sale deed would be executed after the
ban in that regard was removed. The possession was
delivered to the plaintiff - Society on the said date after
which the Society prepared layouts by demarcating the plots.
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According to the plaintiff, it was always ready to have the
sale deed executed but the defendant No.1 avoided to do so.
After issuing a notice on 23-3-2003, the suit came to be filed.
Specific performance of agreement dated 15-1-1994 seeking
execution of the sale deed was sought. During pendency of
the suit, the defendant No.1 sold the suit property on 30-5-
2005 in favour of the defendant No.2. Said defendant was
thus added as party and a declaration was sought that the
sale deed executed in his favour was null and void.
3. In the written statement filed by the defendant
No.1, the execution of earlier sale deeds dated 13-10-1989
and 30-8-1990 was admitted. It was however denied that
there was any agreement with the plaintiff - Society to sell
the remaining two acres of land in favour of the said Society.
It was pleaded that the agreement was not registered and
was also insufficiently stamped. It was further denied that the
plaintiff - Society was put in possession. The thumb
impressions of the defendant No.1 were taken on various
receipts and the defendant No.1 was not aware about the
nature of the transaction. In so far as the written statement
of the defendant No.2 is concerned, he pleaded that he was a
SA422.16nSA474.16.odt 8/19
bonafide purchaser of the suit property for value without
notice.
4. After the parties led evidence, the trial Court
recorded a finding that the plaintiff - Society had entered into
an agreement with the defendant No.1 for purchasing the suit
property. It was further held that the plaintiff was ready and
willing to perform its part of the agreement and that the suit
was filed within limitation. By judgment dated 24-11-2009
the trial Court decreed the suit. The first appellate Court
after re-appreciating the evidence on record confirmed the
findings of the trial Court and dismissed the appeal. The
original defendant No.1 has thus filed Second Appeal
No.422/2016.
5. In so far as the Second Appeal No.474/2016 is
concerned, the same has been filed by the defendant No.2
who claims to have purchased the suit property from the
defendant No.1 on 30-5-2005. As stated above, he was
added as defendant No.2 in Special Civil Suit No.717/2003
which thereafter came to be decreed. The defendant No.2
filed a separate appeal being Regular Civil Appeal
SA422.16nSA474.16.odt 9/19
No.682/2012. The first appellate Court by its judgment
dated 20-4-2016 dismissed that appeal and confirmed the
decree passed by the trial Court.
6. Shri K. H. Deshpande, learned Senior Counsel for
the appellant - legal heirs of the defendant No.1 in support of
Second Appeal No.422/2016 made the following
submissions:
(a) The alleged document dated 15-1-1994 styled as
"Kabuliyatnama" could not be the basis of a decree for
specific performance. As per this document, the defendant
No.1 agreed to sell two acres of land for a consideration of
Rs.2,00,000/- It was stated that the possession of the said
area of two acres agreed to be sold was shown to be handed
over to the plaintiff - Society. If this document is stated to be
an agreement of sale then the document was ambiguous as
no time frame was stipulated for having the sale deed
executed. In absence of any such time being fixed for
executing the sale deed, the plaintiff - Society ought to have
taken necessary steps in that regard within reasonable time.
Though the agreement is dated 15-1-1994, the notice seeking
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specific performance was first issued by the plaintiff -Society
in the year 2003 after which the suit came to be filed.
Though it was stated in the said agreement that the was a
ban to execute the sale deed there was no such evidence
brought on record. If the said document is treated as a sale
deed as the entire consideration had been received and
possession was also stated to be delivered, that document
was inadmissible in evidence as it was not registered. In
absence of registration of the said document no title could
pass in favour of the plaintiff - Society. The construction of
this document, therefore, gave rise to a substantial question
of law.
(b) That the conduct of the plaintiff - Society dis-
entitled it to any relief. The defendant No.1 was uneducated
and he was not aware about the contents of that agreement.
The total consideration of Rs.2,00,000/- was much less than
the market value of the land in question which was evident
from the earlier sale deeds dated 13-10-1989 and 30-8-1990
wherein the said land though shown to be valued at
Rs.1,20,000/- had been sold for a consideration of
Rs.40,000/-. There was total inaction on the part of the
SA422.16nSA474.16.odt 11/19
plaintiff - Society in seeking specific performance as the suit
was filed after almost nine years from the date of the
agreement. Even the alleged receipts relied upon by the
plaintiff - Society were of a doubtful nature. It was thus
submitted that both the Courts having failed to consider these
aspects of the matter committed an error in exercising
discretion under Section 20 of the Specific Relief Act, 1963 in
favour of the plaintiff - Society while decreeing the suit.
7. Shri S. G. Shukla, learned Counsel for the
appellant in Second Appeal No.474/2016 - defendant No.2
made the following submissions:
(a) The defendant No.2 was a bonafide purchaser of
the suit property and he had no knowledge of the suit filed by
the plaintiff - Society nor was there any notice of lis pendens
issued by the plaintiff - Society. According to him, the
defendant No.1 was competent to execute the sale deed in
favour of the defendant No.2 as it was his ancestral property.
It was submitted that the plaintiff - Society was never ready
and willing to have the agreement dated 15-1-1994
completed and filed the civil suit after almost nine years. The
SA422.16nSA474.16.odt 12/19
plaintiff - Society executed various sale deeds even of the
property purchased by the defendant No.2 and it did not
produce proper records before the trial court. In support of
his submissions, the learned Counsel placed reliance on the
decisions in Hansa V. Gandhi Vs. Deep Shankar Roy and others
(2013) 12 SCC 776, Rangammal Vs. Kuppuswami and another
(2011) 12 SCC 220, Manjunath Anandappa Urf. Shivappa
Hansi Vs. Tammanasa & Ors. 2003 (3) ALL MR 303, Om
Prakash Berlia and another v. Unit Trust of India and others
1983 Mh.L.J. 339, Lourdu Mari David and others v Louis
Chinnaya Arogiaswamy and others (1996) 5 SCC 589 and
Parashram S/o Kashiram Sakhare vs. Vatsalabai w/o Harshay
Sharma and another 2003 (5) Mh.L.J. 405.
8. Shri A. G. Gharote, learned Counsel for the
respondent No.1 - original plaintiff supported the decree for
specific performance. He made the following submissions:
(a) The "Kabuliyatnama" dated 15-1-1994 was in fact
an agreement to sell two acres of land that remained with the
defendant No.1. Though possession of the said two acres of
land was handed over to the plaintiff - Society, it was not
SA422.16nSA474.16.odt 13/19
necessary to have the agreement dated 15-1-1994 registered
in view of the fact that the provisions of Section 17(1)(a) of
the Registration Act, 1908 did not mandate such registration.
He submitted that during pendency of the suit, the said
agreement was impounded as per order dated 1-7-2006 after
which the requisite stamp duty was paid on 13-4-2007.
(b) The agreement dated 15-1-1994 (Exhibit-71) has
been held to be duly proved. The plaintiff - Society had
examined the scribe as well as one of the witnesses to the
said document. On the other hand the defendant No.1 did
not examine his witness namely Baban Nanhe who was
related to the defendant No.1. The entire payment of
consideration was proved and the receipts in that regard
below Exhibit-70 were placed on record. There was no
ambiguity in that document and therefore, both the Courts
rightly directed specific performance of that agreement.
(c) The conduct of the defendant No.1 was relevant
inasmuch as the earlier sale deeds at Exhibits-68 and 69 had
not been challenged by him. Though sufficient opportunity
was granted to the defendant no.1 to lead evidence, the same
SA422.16nSA474.16.odt 14/19
was not done. The defendant No.1 was sought to be
examined by appointing a Court Commissioner but the
defendant No.1 did not have himself examined and therefore,
failed to discharge the burden that was cast on him. The
possession of the suit property was handed over to the
Society which was duly proved. Moreover, by virtue of
provisions of Section 43 of the Transfer of Property Act, 1882
even if it was assumed that some sale deeds were executed by
the plaintiff - Society on the strength of agreement dated
15-1-1994, the same would not cast a doubt on the title of
the Society.
(d) The defendant No.2 was not a bonafide purchaser
of the suit property. His transaction was hit by lis pendens as
the lis was filed on 10-9-2003 and the sale deed was executed
in favour of the defendant No.2 on 30-5-2005. Moreover,
there was no requirement of registration of lis pendens in the
Vidarbha Region of the State of Maharashtra. He placed
reliance on the decisions in Murlidhar S/o Bhima Vaidya &
another vs. Nababbi Yousufkhan and others 2000(1) BCR 670,
Dagadu Bapu Shinde v. Vasant Shankar Nimbalkar AIR 1988
SA422.16nSA474.16.odt 15/19
Bombay 22 and Mst. Suganik v. Rameshwar Das and anr. AIR
2006 SC 2172. He, therefore, submitted that there was no
reason to interfere with the decree passed by the trial Court
and maintained by the first appellate Court.
9. I have heard the learned Counsel for the parties at
length and I have also gone through the relevant documents
on record while giving due consideration to their
submissions. Perusal of the document at Exhibit-71 indicates
that the defendant No.1 had sold two acres of land from field
Survey No.82/04 by two earlier sale deeds in favour of the
plaintiff - Society. The entire area of four acres of land was
agreed to be sold for a total consideration of Rs.4,00,000/-.
After referring to the earlier sale deeds at Exhibits 68 and 69,
it was stated that the remaining area of two acres was also
agreed to be sold to the plaintiff - Society for a consideration
of Rs.2,00,000/-The entire consideration of Rs.4,00,000/-
was received by the defendant No.1 by 15-1-1994. The
possession of remaining two acres was also handed over to
the plaintiff - Society. The payment of the entire
consideration is sought to be proved by various receipts at
Exhibits 70/1 to 70/11. These receipts indicate that when
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the agreement dated 15-1-1994 was executed, the entire
consideration of Rs.2,00,000/- was duly paid. The scribe of
the agreement - Dinkar Kadu as well as one of the witnesses
to the agreement Samiullah Khan were examined by the
plaintiff - Society. The other witness though related to the
defendant No.1 was not examined. This agreement was
subsequently impounded by the orders of the trial Court. The
provisions of Section 17(1)(a) of the Registration Act, 1908
requiring an agreement of such nature to be registered were
amended on 24-9-2001 which is much later than the date
when the agreement was executed. Hence, the finding
recorded by both the Courts that the execution of the
agreement at Exhibit-71 has been held to be proved does not
require any interference. The defendant No.1 has duly proved
the agreement and the law laid down in Rangammal, Om
Prakash Berlia and Parashram Sakhare has been complied
with.
10. As regards readiness and willingness on the part of
the plaintiff - Society to have the sale deed executed, it must
be noted that the entire consideration of Rs.2,00,000/-
payable under the agreement dated 15-1-1994 was duly paid
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to the defendant No.1 who had handed over possession of the
suit property to the society. Nothing further was required to
be done except having the sale deed executed. The aspect of
readiness and willingness would have to be taken into
consideration in the light of these factors. If the entire
transaction was completed except for having the sale deed
executed, then it cannot be said that the plaintiffs were not
ready and willing to perform their part of the contract
inasmuch as there was nothing left to be performed. The
notice for having the sale deed executed came to be issued by
the plaintiff - Society on 23-8-2003 after which the suit was
filed. In the facts of the present case, I do not find this aspect
of the defendant No.1 being called upon to execute the sale
deed in the year 2003 of such nature to refuse relief to the
plaintiff - Society. The suit has been filed within limitation.
Hence, the ratio of the decision in Manjunath Hansi (supra)
does not apply to the facts of the case.
11. In so far as the claim of the defendant No.2 of
being a bonafide purchaser is concerned, it is found that the
sale deed in his favour was executed much later on 30-5-
2005 while the suit was filed on 10-9-2003. In the light of
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provisions of Section 52 of the Transfer of Property Act, 1882
the sale deed executed in favour of the defendant No.2
would, therefore, be subject to the outcome of the pending
proceedings filed at the instance of the plaintiff - Society.
Moreover, as held in Murlidhar Bhima Vaidya and another, it
was not necessary to have the lis registered in so far as the
area of Vidarbha is concerned. There is no evidence brought
on record by the defendant No.2 to indicate the nature of
enquiries made by him before having the sale deed executed
in his favour. As per documents at Exhibits 52/6 and 52/7
the name of the plaintiff - Society was already entered in the
revenue records much prior to the same being purchased by
the defendant No.2. Hence, the finding recorded that the
defendant No.2 was not a bonafide purchaser of the suit
property does not call for any interference. The decisions in
Hansa V. Gandhi and Lourdu Mari David (supra) do not assist
the case of the defendant No.2.
12. I find that both the Courts have taken into
consideration the entire evidence on record and have
appreciated the same in the proper perspective. The findings
recorded are thus supported by the material on record. I,
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therefore, do not find that the appeals give rise to any
substantial question of law. Both the appeals, therefore,
stand dismissed with no order as to costs.
JUDGE
/MULEY/
