Dilip Bhagwan Chaudhari vs Manoj Brajmohan Maheshwari And ...
2021 Latest Caselaw 11445 Bom

                                                            sa-240-2017 with CA.odt


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                           SECOND APPEAL NO.240 OF 2017

                        DILIP BHAGWAN CHAUDHARI
                                   VERSUS
               MANOJ BRAJMOHAN MAHESHWARI AND ORS
                                      ...
                  Mr. S. S. Bora, Advocate for the appellant.
           Mr. D. M. Pingle, Advocate for respondent No.3 (Absent).
                                       ...

                                    CORAM    : SMT. VIBHA KANKANWADI, J.

                                    DATE     : 20.08.2021

ORDER :-

.       Present appeal has been filed by the original plaintiff challenging

the concurrent judgment and decree passed by the Courts below.

2. Present appellant - original plaintiff filed Regular Civil Suit No.49

of 2012 before the learned Civil Judge Senior Division, Shahada, Dist.

Nandurbar for specific performance of the contract and perpetual

injunction. The learned Trial Judge held that the plaintiff has failed to

prove that the document, on which the plaintiff is relying, is agreement to

sell. He failed to prove that the defendant delivered the possession of the

suit plot to him on the date of the agreement and, therefore, relief of

specific performance cannot be granted. The suit came to be dismissed

and the said judgment and decree was challenged by the plaintiff in Civil

Appeal No.41 of 2012 before the learned Adhoc District Judge-1,

sa-240-2017 with CA.odt

Shahada, Dist. Nandurbar. The first Appellate Court has dismissed the

appeal on 20.02.2017. Hence, this second appeal.

3. Heard learned Advocate Mr. S. S. Bora for the appellant. Learned

Advocate respondent No.3 is absent. In order to cut short, it can be said

that learned Advocate for the appellant has made submissions in support

of his contention.

4. At the outset, it is to be noted that both the Courts below, after

assessing the facts on record and interpreting the document, which has

been produced by the plaintiff held that the said document is not an

agreement to sell. Unless it is now shown that the said finding is

perverse, it may not give rise to admission of the second appeal by

framing substantial questions of law as contemplated under Section 100

of the Code of Civil Procedure. Interesting point to be noted is that the

defendant had not resisted the claim of the plaintiff by filing written

statement, however, that does not excuse the plaintiff from proving his

claim by preponderance of probabilities. The Courts below were not

under obligation to decree the suit or allow the appeal merely because the

contentions of the plaintiff were not challenged by the defendant. The

plaintiff contended that he as well as the defendant are from Madhya

Pradesh. Defendant is the owner of non agricultural plot Gut No.42/1/A,

Plot No.24 admeasuring 150 Sqare meters situated in village Kheddigar,

sa-240-2017 with CA.odt

Tq. Shahada. Defendant was in need of money and, therefore, decided to

sell the suit land in the meeting with the plaintiff. The consideration was

agreed at Rs.4,41,000/-. Plaintiff says that an agreement was entered into

on a stamp paper on 15.10.2011. He paid entire consideration to the

defendant on that day and defendant handed over the possession of the

suit land to the plaintiff. Defendant agreed to execute sale-deed in favour

of plaintiff as per his convenience, however, thereafter, in December, 2011

when plaintiff asked defendant to register the sale-deed, he avoided.

Hence, the suit for specific relief.

5. The agreement, which was produced before the Courts below, has

been given Exhibit-18. Photocopy of the same has been made available to

this Court though the title says Sauda Pavti i.e. agreement to sell. If we

consider the contents thereof, then it can be seen that it was executed at

Madhya Pradesh. It is in Hindi language. That means, on the date of

execution of this document, they had not come to village Kheddigar. The

question then remains as to how the possession would have been given by

the defendant to the plaintiff. Further, there is absolutely no explanation

by the plaintiff that when he had allegedly paid entire amount of

consideration on the date of that agreement, then why the sale-deed itself

was not executed by coming down to village Kheddigar or Shahada. Why

only the act of registration of the sale-deed was postponed. Further, the

detailed description of the suit plot is not mentioned in the said

sa-240-2017 with CA.odt

agreement Exhibit-18. It has also come on record that stamp paper of the

year 2009 was utilized to execute the agreement and the date of

agreement is 16.10.2011. But then the Mutation Entry No.1062, which is

produced on record, states that on the basis of sale-deed dated

02.08.2011 in favour of defendant by one Arunabai Sitaram Sonani, the

said mutation entry had been taken on record on 22.08.2011. So, if the

stamp paper was of the year 2009, how it could be utilized for the

agreement to sell in the year 2011, is a question. Further, how the

amount of Rs.4,41,000/- was paid by the plaintiff to the defendant is also

not clarified by the plaintiff and further, if we go by the contention of the

plaintiff that on the date of the agreement to sell he was also put in

possession, then it becomes a compulsorily registerable document. Still,

as per his own contention, when the plaintiff paid the entire amount of

compensation, got the document, yet without giving any reason he

contends that only agreement to sell was executed. The case of the

plaintiff, therefore, becomes doubtful. Both the Courts below were right

in refusing the discretionary relief. No substantial question of law as

contemplated under Section 100 of the Code of Civil Procedure is arising

in this case. Second appeal, therefore, stands dismissed.

[SMT. VIBHA KANKANWADI, J.] scm