Angad Manikrao Kendre vs Narayan Namdeo Sirsat
2021 Latest Caselaw 10810 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                      SECOND APPEAL NO.126 OF 2021
                                  WITH
                    CIVIL APPLICATION NO.3163 OF 2021
                             IN SA/126/2021


                            ANGAD S/O MANIKRAO KENDRE
                                      VERSUS
                              NARAYAN NAMDEO SIRSAT

                                        .....
                     Advocate for Appellant : Mr. B. R. Kendre
                    Advocate for Respondent : Mr. S. V. Munde
                                        .....

                                    CORAM :   SMT.VIBHA KANKANWADI, J.
                                    DATE :    11-08-2021.

ORDER :

1. Present appeal has been filed by the original defendant to

challenge the concurrent Judgment and decree passed by the lower

Courts.

2. Present respondent is the original plaintiff who had filed Regular

Civil Suit No.27 of 2012 (Old Special Civil Suit No.21 of 2010) before

Joint Civil Judge, Junior Division, Renapur, District Latur for specific

performance of the contract and damages for breach of contract. That

suit came to be decreed on 19-12-2014 and even the counter claim of

the defendant for injunction came to be allowed. Only the original

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defendant filed appeal challenging the said Judgment and decree

passed by the Trial Court by filing Regular Civil Appeal No.02 of

2015. The said appeal was heard by the learned Adhoc District

Judge-2, Latur and it was dismissed on 28-11-2018. Hence, this

second appeal.

3. Heard learned Advocate Mr. Mr. B. R. Kendre for appellant

and learned Advocate Mr. S. V. Munde for respondent.

4. It has been vehemently submitted on behalf of the appellant

that both the Courts below have not considered the evidence

properly and gave perverse finding. It was the specific defence of

the defendant that the agreement to sell has been prepared by

forging it. Even the criminal case was filed by the defendant against

the respondent and the attesting witnesses for the offence

punishable under Section 467, 468, 471, 418, 420 read with 34 of

the Indian Penal Code and the said Regular Criminal Case No.70 of

2010 is pending for trial. In fact, the defendant is in actual

possession of the suit land but when he had sold 39 R land to one

Pralhad Munde i.e. the real cousin brother of the plaintiff then at

that time one extra bond of Rs.100/- appears to have been

purchased in the name of the defendant and his signature has been

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obtained on that blank document by keeping him in dark. It has

come on record that said 39 R land was sold by the defendant in

favour of said Pralhad Munde for a consideration of Rs.1,56,000/-.

The plaintiff has come with a case that defendant agreed to sell 44 R

land in his favour for a consideration of Rs.1,60,000/- and earnest

amount of Rs.60,000/- was taken from him. If we consider the rate

for the land, it can be seen that defendant would not have agreed to

sell the land admeasuring 44 R for such a meager amount. Further,

the present appellant/original defendant had laid evidence of the

notary who has stated that defendant was not present when he

notarized the document. Therefore, it appears that the agreement

to sell was brought in existence in collusion. When agreement itself

has not been proved to have been executed willingly, question of its

specific performance should not have been granted. Further, in the

suit for specific performance, the plaintiff had not prayed for

possession and, therefore, when it was proved by the defendant that

he is in possession, the specific relief ought not to have been

granted and the discretion under Section 20 of the Specific Relief Act

ought to have been exercised judiciously. Therefore, substantial

questions of law are arising in this case requiring admission of the

second appeal.

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5. Per contra, the learned Advocate for respondent relied on the

reasons given by both the Courts below and submitted that the

substantial questions of law are not arising.

6. Here, it is to be noted that both the Courts below have

concurrently held that the plaintiff has proved that the defendant

had agreed to sell the suit land for a consideration of Rs.1,56,000/-

and executed the agreement on 15-06-2009. It was also held that

the defendant has failed to prove that plaintiff prepared forged

document of agreement to sell dated 15-06-2009. Unless it is

shown by the appellant that the said findings are perverse or the

appreciation of the evidence is perverse, this Court may not disturb

those findings. Plaintiff has examined himself to support his

contention, also examined the attesting witness P.W.2 Rakhmaji

Jogdand, and stamp vendor as P.W.3. P.W.2 who was the attesting

witness to the admitted sale transaction executed by defendant in

favour of Pralhad that was executed on the same day of agreement

to sell and this attesting witness to the agreement of sale was also

the attesting witness to the sale deed in favour of Pralhad. When

the defendant is admitting one transaction where the same attesting

witnesses signing that document, then it cannot be said that the

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another document is got executed from him by fraud. Further, the

scribe has also been examined by the plaintiff. No contradictory

material is coming forward. No doubt it appears that the defendant

had filed criminal case against the plaintiff and attesting witness but

it appears that in respect of that matter "B" Summary was filed

before the Criminal Court and further the opinion of the handwriting

expert was called which supports the case of the plaintiff. It can

also be seen that in strict sense the defendant is not disputing the

signature on that agreement to sell but it is his contention that

inadvertantly his signature was obtained on additional stamp paper

purchased in his name without his consent. Except his own

statement to that effect, there is nothing. The First Appellate Court

has rightly scanned the evidence of D.W.3 notary who has deposed

that the defendant was not present when he affixed his stamp and

signature on agreement Exhibit 101. In fact, notarization of the

document was not at all compulsory and, therefore, whether he was

present or not before the notary makes no difference at all. It also

appears that the sale deed was also scribed by the same person who

had scribed the sale deed which document is admitted to the

defendant. The evidence has been chronologically assessed by both

the Courts below and then the conclusion has been drawn that the

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agreement is proved. When the agreement to sell is proved and

also the fact that it was proved that earnest amount of Rs.60,000/-

was paid on the day of the agreement then the decree for specific

performance was inevitable since it was the agreement to sell an

immovable property. Further, both the Courts on the basis of

documentary as well as oral evidence have held that the plaintiff was

ready and willing to perform his part of the contract.

7. Much strenuous submissions have been made on the point that

the agreement to sell contains recital of handing over of possession

of suit property to the plaintiff, but it is not a registered instrument

and, therefore, that recital has no force and cannot be accepted.

When part of the document has been proved to be false then the

specific performance ought not to have been granted. Important

point to be noted is that though the said recitals are appearing, yet

the document has not been registered. The benefit of that recital

cannot be given to the plaintiff but that does not ipso facto negatives

the execution of the document or raises any kind of doubt over the

same. In fact, the learned Trial Judge, therefore, held that the

possession would remain with the defendant till proper procedure is

adopted. Now it has been tried to be contended that since prayer

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for possession was not added to the suit, the discretion ought to

have been used and the specific performance ought to have been

refused. This cannot be the requirement of law whether the plaintiff

will be able to get the possession of the said property would be

decided in the appropriate proceedings but that does not estop the

Court from granting specific performance of the contract. Further, it

appears that no such point was raised before the First Appellate

Court, therefore, taking into consideration all these aspects it can be

said that no substantial questions of law are arising in this case

requiring admission of the second appeal. Hence, the second appeal

stands dismissed. Pending Civil Application stands disposed of.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-