Sanjivani Kacheshwar Chine And ... vs Bastiram Changdev Chine And ...
2021 Latest Caselaw 3269 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                          SECOND APPEAL NO.98 OF 2020

 Sanjivani Kacheshwar Chine & Anr.                       ..Appellants
       Vs.
 Bastiram Changdev Chine & Ors.                          ..Respondents

                                      ----

 Mr. Nikhil M. Pujari, for the Appellants.

 Mr. Kuldeep U. Nikam, for the Respondents.

                                      ----

                                    CORAM : C.V. BHADANG, J.

                                    DATE     : 22nd FEBRUARY 2021

 P.C.


 .         The challenge in this appeal is to the concurrent findings

recorded by the Courts below dismissing the suit filed by the

appellants for specific performance of contract of sale.

2. The brief facts necessary for the disposal of the appeal may be

stated thus-

Land admeasuring 0 Hector 59 Ares, from out of Gat No.27 of

Village Pathare Khurd, Taluka Sinnar, District Nashik, happens to be

the subject matter of dispute. According to the appellants (original

plaintiffs), the land was owned by late Changdeo Mahadu Chine.

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Changdeo had entered into an agreement to sale of the suit property

with the plaintiffs in the year 1999. The agreement to sale interalia

contemplated execution of the sale deed after clearance of a loan /

encumbrance on the property and obtaining of the necessary

permission by the vendor. According to the plaintiffs, they were all

along ready and willing to perform their part of contract. However,

Changdeo failed to comply with the stipulations in the agreement to

sale and to execute the sale deed. Changdeo passed away on

4/2/2010 and is succeeded by the respondents (original defendants)

alongwith Maruti Changdeo Chine and Sukhdeo Changdeo Chine as

his legal heirs / representatives.

3. The case made out in the plaint is that the plaintiffs requested

the heirs of Changdeo to execute the sale deed. However, only two

of them namely Maruti and Sukhdeo agreed to execute the sale deed

and accordingly a sale deed was executed in favour of the plaintiffs

on 17/9/2012 after accepting Rs.1000/-. It may be mentioned that

according to the plaintiffs, the suit property was agreed to be sold by

Changdeo for a consideration of Rs.1,07,000/- out of which

Rs.1,06,000/- was already paid to Changdeo.

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4. Be that as it may, in as much as, the sale deed was executed

by only two of the legal representatives, the plaintiffs again

requested the defendants to execute the sale deed. However, they

failed to do so. In these circumstances, the plaintiffs filed RCS

No.182/2013 for specific performance of the contract of sale. It may

be mentioned that according to the plaintiffs, they were already put

in possession of the suit property.

5. The respondents resisted the suit interalia on the ground that

the suit property was the ancestral property of Changdeo and his

brother Namdev. It was contended that although the suit property

was standing in the name of Changdeo in the revenue record being

the elder brother, Changdeo had no exclusive right, title or interest

in the suit property and therefore, the alleged agreement to sale was

illegal. They also questioned the sale deed executed in favour of the

plaintiffs on 17/9/2012. There were other contentions raised

including non joinder of necessary party namely Namdev Mahadu

Chine, brother of Changdeo Chine and the suit being barred by

limitation, in as much as, the suit was filed in the year 2013 seeking

specific performance of an agreement to sale of the year 1999.

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6. The learned Trial Court framed as many as eleven issues.

7. The plaintiff No.1 examined himself as P.W.1 alongwith

Kacheshwar Waman Chine as P.W.2. The plaintiffs also produced

documentary evidence including 7/12 extract, mutation entries,

copy of the notice and acknowledgment and the agreement to sale

at Exh.20. The defendant No.1 examined himself as D.W.1.

8. The learned Trial Court answered issue Nos.1 to 3, 5, 6, 8 and

10 in the negative and issue Nos.4, 7 and 9 in the affirmative. In the

face of the findings as above, the learned Trial Court by the

judgment and decree dated 13/11/2015 dismissed the suit. The

appellants challenged the same before the learned District Judge at

Nashik in RCA No.415/2015. The learned District Judge by the

impugned judgment and decree dated 5/4/2018 has dismissed the

same. Hence, this appeal.

9. I have heard the learned counsel for the appellants and the

learned counsel for the respondents. With the assistance of the

learned counsel for the parties, I have gone through the record.

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10. It is submitted by the learned counsel for the appellants that

the Courts below were not justified in holding that the plaintiffs

were not ready and willing to perform their part of the contract

when admittedly substantial part of consideration was paid

excepting Rs.1,000/-. It is submitted that the Courts below erred in

holding that the plaintiffs had failed to prove that there was an

agreement to sale executed by the father of the defendants in the

wake of a clear admission by the Defendant Bastiram Chine in his

cross examination that his father Changdeo had executed the

agreement to sale. It is submitted that the vendor Changdeo was

under an obligation to clear the encumbrance and to obtain the

necessary permission which he failed to do and therefore in the

absence of any duty being cast on the plaintiffs in the agreement to

sale, it cannot be accepted that the plaintiffs were not ready and

willing to perform their part of contract. It is submitted that the

subsequent execution of the sale deed on 17/9/2012 by two of the

legal representatives of Changdeo would also indicate that indeed

there was an agreement to sale and substantial part of the

consideration was already paid in as much as the sale deed of the

year 2012 was executed by accepting Rs.1,000/- i.e. remaining

consideration. He therefore submitted that findings of fact recorded

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are perverse which according to the learned counsel is a substantial

question of law in the appeal.

11. The learned counsel for the respondents has supported the

impugned judgment. It is submitted that there is a substantial delay

in filing the suit in the year 2013 seeking specific performance of the

agreement of sale of the year 1999. It is submitted that the

plaintiffs waited even after the death of Changdeo on 4/2/2010 for

which there is no explanation forthcoming. It is submitted that the

plaintiffs cannot indefinitely wait even assuming that there is any

failure on the part of Changdeo to comply with his obligation under

the agreement of sale. It is submitted that the suit property is

ancestral property of Changdeo and his brother Namdev and the suit

was bad for non joinder of necessary party namely Namdev Chine.

It is submitted that in any event, the execution of the sale deed of

the year 2012 by only some of the legal representatives is illegal and

cannot enure to the benefit of the appellants. It was also denied

that the possession was ever handed over to the plaintiffs. It is

submitted that both the Courts below after appreciation of the oral

and documentary evidence on record have rightly refused to grant

specific performance. It is submitted that in the absence of said

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finding of fact being shown to be perverse, the appeal does not raise

any substantial question of law.

12. I have carefully considered the rival circumstances and the

submissions made. The agreement to sale (Exh.20) is a registered

document shown to be executed in favour of the appellants. At the

relevant time, the appellant No.2 who is son of the appellant No.1

being 10 years of age, was a minor. The appellant No.1 examined

herself. The Appellate Court on the basis of cross examination of

P.W.1 has come to the conclusion that there is a doubt about valid

execution and registration of agreement Exh.20. P.W.1 claimed that

the possession was delivered at the time of execution of the

agreement Exh.20. However, the agreement itself recites that it is

without possession. The First Appellate Court has noted the recitals

in the agreement that it is without parting of possession. The P.W.1

also feigned ignorance whether the suit property was a joint family

property of Changdeo Chine and Namdev Chine which is also found

to be contrary to the contents of the agreement Exh.20. In fact,

P.W.1 stated that she was unaware about the transaction till it was

executed. She claimed that the earnest amount was not paid in the

presence of the Sub-Registrar. She was also unaware of the attesting

witnesses.

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13. In so far as readiness and willingness is concerned, the First

Appellate Court has noted the admission by P.W.1 that she does not

have any documentary evidence to show that since the year 1999

she ever demanded execution of the sale deed. It is true that the

sale deed was to be executed after clearance of the loan /

encumbrances and after obtaining necessary permission. However,

that does not mean that the plaintiffs can wait indefinitely. In the

present case, it is significant to note that Changdeo died in the year

2010 and even thereafter there was no demand for execution of the

sale deed. The Appellate Court has found that P.W.1 was unable to

specify the date when any such demand for execution of the sale

deed was made. The First Appellate Court has also found that none

of the attesting witnesses to the agreement were examined. P.W.1

claimed that the transaction was within the personal knowledge of

her husband Kacheshwar Chine. The First Appellate Court has also

found that the suit was not filed within three years as prescribed by

Article 54 of the Limitation Act. It is necessary to note that Article

54 has two parts, in so far as the starting point of the limitation is

concerned. The first part pertains to a case where there is a specific

date fixed for performance. The second part pertains to a case

where no such date is fixed in which case the suit is to be filed

within three years, when the plaintiffs have notice that the

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performance is refused. In the present case, it has come on record

that since the year 1999 there is no evidence of any demand made

to deceased Changdeo. At least on the death of Changdeo on

4/2/2010, the plaintiffs ought to have been put to notice about the

refusal. Even thereafter, the suit is not filed within three years. The

suit appears to have been filed only on 19/6/2013. Thus looked

from any angle, no exception can be taken to the concurrent

findings recorded by the Courts below refusing to grant specific

performance. The appeal is without any merit and is accordingly

dismissed, with no order as to costs. A decree be drawn accordingly.

C.V. BHADANG, J.

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