Bombay High Court
Shankar vs Janabai on 11 January, 2018
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No.82 of 1997
Shankar son of Balaji Hend,
aged about 60 years,
occupation - Agriculturist,
resident of Anjangaon [Surji],
Tq. Daryapur, [dead], through
his legal heirs :
1. Smt. Shantabai Shankarrao Hend,
aged about 77 years,
occupation - Household,
2. Vijay Shankarrao Hend,
aged about 56 years,
occupation - Agriculturist,
3. Avinash Shankarrao Hend,
aged about 50 years,
occupation - Agriculturist,
4. Deepak Shankarrao Hend,
aged about 47 years,
occupation - Agriculturist,
5. Vivek Shankarrao Hend,
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aged about 45 years,
occupation - Agriculturist,
resident of Baraganpura, Anjangaon
Surji, Tq. Anjangaon Surji,
Distt. Amravati,
now Railway Quarter,
Civil Lines, Nagpur.
6. Ajay Shankarrao Hend,
aged about 39 years,
occupation - Agriculturist,
Appellant Nos. 1 to 4 and 6
residents of Barganpura,
Anjangaon Surji,
Distt. Amravati.
7. Sau. Sandhya Pandurang Hage,
aged about 53 years,
occupation - Household,
resident of Danapur,
Tq. Telhara, Distt. Akola.
8. Sau. Sangita Pramod Datir,
aged about 42 years,
occupation - Household,
resident of Badnera,
Tq. Badnera,
Distt. Amravati.
9. Shubhangi Shankarrao Hend,
aged about 28 years,
occupation - Household,
resident of Anjangaon Surji,
Tq. Anjangaon Surji,
Distt. Amravati. ..... Appellant
Org. Deft.
Versus
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1. Smt. Janabai Tulshiram Hend,
aged 55 years,
2. Sukhdeo Tulshiram Hend,
aged 36 years,
3. Sau. Shantabai w/o Kashiram
Khedkar,
....matter is dismissed
as per Court's order
dated 6-6-17.
4. Himmat Tulshiram Hend,
aged 28 years,
5. Gopal Tulshiram Hend,
aged 32 years,
6. Rambhau Tulshiram Hend,
aged 23 years,
occupation - Agriculturist,
nos. 1,2,4,5 and 6 all residents
of Anjangaon Surji,
Distt. Amravati. . ..... Respondents
Org. Plffs.
*****
Mr. Anand Deshpande, Adv., for the appellant.
None for the respondents.
*****
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CORAM : A.S. CHANDURKAR, J.
Date : 11th January, 2018
ORAL JUDGMENT:
01. The following substantial question of law was formulated
while admitting the Second Appeal:-
"Whether discretion under Section 20 should have been
exercised in favour of the defendant especially in view
of the fact that the suit land if decreed to be sold shall
render the appellant as landless requires
reconsideration?"
02. The appellant is the original defendant in the suit for specific
performance filed by the respondents. According to the plaintiffs, the
defendant had agreed on 18th June, 1976 to sell field admeasuring 12
Acres 27 Gunthas from Survey No. 112 for a consideration of Rs.
8,000/-. Amount of Rs.7,000/- was paid as earnest and possession was
also delivered. The sale-deed was to be executed by 15th March, 1977
by paying the balance consideration. According to the plaintiffs, on 5th
January, 1977, a notice was issued by them calling upon the defendant
to complete the transaction. As the same was not done, the suit came
to be filed on 23rd March, 1977.
03. In the Written Statement, the defendant took the stand that
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the transaction between the parties was a money lending transaction.
It was not intended to sell the suit land. It was further pleaded that
the land was fertile and a source of maintenance to the family of the
defendant.
04. After the parties led evidence, the trial Court held that the
agreement in question was duly proved. It further held that the
plaintiffs were ready and willing to perform their part of the
agreement. The possession was already delivered to them. The stand
that the transaction was out of a money lending act was disbelieved.
The suit was accordingly decreed. The first appellate Court confirmed
that decree.
05. Shri Anand Deshpande, learned counsel for the appellant,
submitted that the suit land being the only land with the defendant,
hardship would be caused if the decree for specific performance was
passed. The discretion under Section 20 of the Specific Relief Act,
1963 was erroneously exercised by both the Courts, inasmuch as the
defendant would be rendered landless by virtue of said decree. He
referred to the pleadings in the Written Statement to indicate that the
land was fertile and the family was getting income from the same. By
failing to consider these aspects, both the Courts committed an error
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in decreeing the suit.
06. There is no appearance on behalf of the respondents though
they have been duly served. With the assistance of the learned
counsel for the appellant, I have perused the evidence on record and
considered the submissions as made.
07. It can be seen that the agreement in question has been held
to be proved by both the Courts. The defence that the transaction was
an outcome of money being lent by the defendant was not accepted.
Possession was also delivered in favour of the plaintiffs. It is now well
settled that if the prayer for specific performance is sought to be
opposed on the plea of hardship that is likely to be caused to the
defendant, the same has to be specifically pleaded. In the Written
Statement, the only stand taken is that the land was fertile and a
source of income for the family of the defendant. Perusal of the cross-
examination of the defendant indicates that he has in clear terms
admitted that besides the suit field, he was in possession of ten acres
of land. It is, thus, clear that the defendant would not be rendered
landless by virtue of the decree for specific performance. Moreover, it
is not the pleading of the defendant that he would have been rendered
landless by virtue of the said decree.
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08. In view of aforesaid, the substantial question of law is
answered by holding that discretion under Section 20 of the Specific
Relief Act, 1963 has been properly exercised in favour of the plaintiffs.
Hence, the Second Appeal stands dismissed with no order as to costs.
Judge
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