Bandu Nagnath Ghone vs Santosh Shivajiappa Reshame And ...
2021 Latest Caselaw 2660 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                     930 SECOND APPEAL NO.352 OF 2020
                                  WITH
                       CA/5807/2020 IN SA/352/2020

                        BANDU NAGNATH GHONE
                                VERSUS
               SANTOSH SHIVAJIAPPA RESHAME AND ANOTHER

                                       ...
                Advocate for Appellants : Mr. Swami Sandeep C.
               Advocate for Respondent No.1 : Mr. S. M. Vibhute
                                       ...

                                    CORAM :   SMT.VIBHA KANKANWADI, J.

                                    DATE :    10-02-2021.

ORAL ORDER :

1. Present appeal has been filed by the original defendant No.2 to

challenge the concurrent Judgment and decree. Present respondent

No.1 is the original plaintiff who had filed Special Civil Suit No.135 of

2010 before learned Civil Judge, Senior Division, Latur for specific

performance of contract and perpetual injunction. The said suit came

to be partly decreed. The decree for specific performance was granted

as against the defendant No.1 and the prayer of injunction was

rejected.

2. It will not be out of place to mention here that the plaintiff had

come with a case that there was an agreement to sell between him

2 SA 352-2020

and defendant No.1, however defendant No.2 got himself added as

party defendant No.2 during the pendency of the suit. After the suit

was partly decreed, defendant No.2 came in appeal by filing Regular

Civil Appeal No.12 of 2017 before learned District Court, Latur. The

said appeal was heard by the District Judge -4, Latur and it came to

be dismissed on 03-07-2020. The said Judgment and decree is

challenged in this second appeal.

3. Heard learned Advocate Mr. S. C. Swami for appellant and

learned Advocate Mr. S. M. Vibhute for respondent No.1. In order to

cut short it is stated that both the learned Advocates have strongly

supported their respective cases.

4. It is an admitted position that defendant No.1 is the original

owner of the suit property Block No.58 in village Warwanti Taluka

and District Latur.

5. The plaintiff has come with a case that an agreement to sell

was entered into by defendant No.1 in his favour on 31-08-2009.

Defendant No.1 agreed to sell the said land for an amount of Rs.10

lakh and accepted earnest amount of Rs.5 lakh on the day when the

agreement was entered into. It was agreed that the rest of the

3 SA 352-2020

amount would be paid at the time of the execution of the sale deed.

The said agreement to sell is a notarized document. Possession was

agreed to be given at the time of sale deed. It is the further case of

the plaintiff that defendant No.1 had requested him to give more

amount i.e. amount of Rs.4 lakh towards the rest of the

consideration and agreed to adjust it in the consideration amount.

Plaintiff gave him amount of Rs.1,73,000/- by cheque and the rest of

the amount was given by cash. Thereafter, despite several

requests, defendant No.1 did not execute sale deed in favour of the

plaintiff and, therefore, suit for specific performance has been filed.

It was stated by the plaintiff that he was always ready and willing to

perform his part of the contract by giving the balance amount of the

consideration. It appears that by way of amendment, after it was

brought on record that the defendant No.1 has sold the suit land to

defendant No.2 on 19-07-2010, further prayer was added that the

said sale deed is not binding on the plaintiff. Alternate prayer was

also made for directing defendant No.1 to refund the amount that

was paid by the plaintiff till then to the plaintiff. Both the

defendants have resisted the suit by filing their respective written

statements. The defendant No.1 contended that the alleged

agreement to sell dated 31-08-2009 is a bogus document. He never

4 SA 352-2020

entered into that document. He was in need of money and,

therefore, he accepts that he has received only amount of

Rs.1,73,000/- which was given by cheque from plaintiff. It is his say

that his signatures were obtained on blank stamp paper and blank

papers for creating the agreement, and receipts for the amount of

Rs.5 lakh. It was tried to be contended that it was not possible that

such a huge amount would have been paid by cash. Defendant No.2

tried to contend that he has purchased the suit land for value and,

therefore, he is a bonafide purchaser for valuable consideration. He

has developed the land by converting the same to non-agricultural

use.

6. After the issues were framed, only the plaintiff has led oral as

well as documentary evidence. It appears that thereafter the

defendants No.1 and 2 did not adduce any evidence. After

considering the evidence on record as aforesaid, the learned lower

Court partly decreed the suit and the appeal filed by defendant No.2

was dismissed.

7. The scope of the present appeal which is filed by original

defendant No.2 is very much narrow in a sense that he could agitate

only the rights that may be available to him. He cannot point out or

5 SA 352-2020

he cannot rely on any defects in the evidence led by the plaintiff in

respect of the agreement to sell dated 31-08-2009, receipts those

were executed, nor he can try to agitate that the said document

which is in favour of the plaintiff is a bogus document. He was not

party to the said document nor it can be said that he has stepped

into the shoes of defendant No.1. It was tried to be contended by

the defendant No.2 that in fact there was an agreement to sell in his

favour executed by defendant No.1 on 17-07-2008, that is much

prior to the agreement in favour of the plaintiff, and it is the

contention of the defendant No.2 that plaintiff had put him in

possession on the day of that agreement to sell itself. Important

point to be noted is that the document has not even being produced

nor got proved by the defendant No.2 or defendant No.1. If the

possession would have been handed over then such agreement to

sell would become compulsorily registerable document in view of

Section 17 of the Indian Registration Act, however it has been fairly

admitted by the learned Advocate appearing for the appellant that

said document is not registered. Therefore, we cannot accept the

contention of the defendant No.2 i.e. present appellant, that the

possession has been handed over to him and, thereafter, he has

developed the said land. Now as regards the sale deed is

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concerned, it is admittedly after the suit was filed. Unless there

would have been a evidence that any right has been created in

favour of the defendant No.2 prior to the filing of the suit by the

plaintiff, then we could have stated that he would have been the

necessary party in this case, and further, the said sale deed though

executed later on could be binding on the plaintiff. However, as

aforesaid, the alleged agreement of sell dated 17-07-2008 was

never tried to be produced on record by the defendants.

8. It was tried to be argued that the evidence led by the plaintiff

is doubtful. There is variance between the story that was given by

the plaintiff, the notary in whose presence the alleged agreement to

sell dated 31-08-2009 came to be executed and the attesting

witness. As aforesaid, defendant No.2 has no locus standi to

challenge the said evidence. Even if for the sake of arguments we

accept that he has such locus standi, yet mere variance in the

evidence which is not going to the root of the case, will not give rise

to substantial question of law which is mandatory for entertaining

second appeal under Section 100 of Code of Civil Procedure. The

agreement (Exhibit 85) has been held to be duly proved by both the

Courts below who were supposed to assess the facts. Further

7 SA 352-2020

defendant No.1 has not adduced any evidence in rebuttal.

Therefore, now no substantial question of law can be said to be

arising on the basis of the testimonies of the witnesses of the

plaintiff.

9. Though the defendant No.2 claimed to be the bonafide

purchaser for value without notice, he has not adduced any

evidence. Learned Advocate appearing for the appellant also

submitted that he would pray for remand for getting an opportunity

to lead evidence, however he has failed to point out as to why

though the opportunity was made available by the learned Trial

Court, he has not led the evidence. The defendant No.2 is not

coming with a case that his Advocate has not properly represented

him and he did not appear also in the matter. If the Judgment

passed by learned Civil Judge Senior Division is considered, then it

can be seen that the Advocate engaged by defendant No.1 is the

same who was engaged by defendant No.2. Further, after the order

was specifically passed below Exhibit 01, that the matter would

proceed without the evidence of defendants No.1 and 2 on 21-09-

2016, thereafter the learned Advocate representing the defendants

had submitted his final arguments, therefore no such ground is

8 SA 352-2020

shows even for remand of the matter. Therefore, after taking into

consideration the entire evidence and both the Judgments, it can be

said that both the Courts below have correctly appreciated the facts,

evidence and applied proper law. Therefore, no substantial question

of law is arising in this case requiring admission of the second appeal

or interference by this Court under Section 100 of Code of Civil

Procedure. Appeal, therefore, stands dismissed.

10. In view of the dismissal of the second appeal, Civil Application

No.5807 of 2020 stands disposed of accordingly.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-