Bombay High Court
Shaikh Abdul Wahid And Anr vs Bilal Easak Padiyar (Since Decd. ... on 28 January, 2021
Bench: C.V. Bhadang
jud-12-sast-93831-2020 with iast-93844-20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL (ST) NO.93831 OF 2020
Mr.Shaikh Abdul Wahid & Anr. ..Appellants
V/s.
Bilal Padiyar Since Deceased
Through Lrs. 1.a Shabab Bilal Padiyar & Ors. ..Respondents
----
Mr.Shilendra S. Kanetkar for the Appellants.
Nilam Digitally signed
by Nilam Kamble Mr.Hemant Ghadigaonkar for the Respondents.
Kamble ----
Date: 2021.02.08
17:53:12 +0530
CORAM : C.V. BHADANG, J.
DATE : 28th JANUARY 2021
P.C.
1. The challenge in this appeal is to the judgment and
decree dated 11th February 2020 passed by the learned Ad-hoc
District Judge at Pune in RCA No.232 of 2012. By the impugned
judgment the First Appellate Court, has dismissed the appeal filed
by, the appellant and partly allowed the Cross objection filed by the
respondent. The net result is that there is a decree of eviction
passed against the appellants directing them to hand over the vacant
possession of the suit premises to the respondents.
N.S. Kamble page 1 of 20
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2. The brief facts necessary for the disposal of the appeal
may be stated thus :-
That the respondent late Bilal Padiyar (Original
Plaintiff) was in the business as a Promoter and Developer. Late
Bilal Padiyar had constructed a building on Land Survey No.62 Hissa
No. 7+8/1 at Wanowarie, Pune which was named as Empire
Landmark. The subject matter of dispute happens to be Flat No.604
having a built up areas of 650 sq.ft. on the 06 th floor of the building
Empire Landmark which is hereinafter referred to as the "Suit Flat".
According to the plaintiff he had employed the appellant No.1
Shaikh Abdul Wahim (Defendant No.1) as a Computer Operator on
04th April 2000 as the plaintiff in the course of his business was
required to prepare draft of several agreements to be executed by
the prospective purchasers of the flats.
3. It is the case made out in the plaint that the plaintiff
was paying a salary of Rs.6,500/- to the appellant No.1 Shaikh
Wahim (Defendant No.1). It was contended that on account of a
long association between the plaintiff and the defendant No.1 the
plaintiff had developed full faith in the defendant No.1 and used to
blindly sign and execute the documents/agreements, prepared by
the defendant No.1 without going through the same. It was
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contended that the plaintiff used to advance money to the defendant
No.1 as an when required. The plaintiff had advanced an amount of
Rs.4 lakhs to the defendant No.1 in cash from time to time, during
the period from 04th April 2000 to 04th February 2003. It was
contended that the defendant No.1 has also repaid such amounts
from time to time by cheque.
4. It is the material case that the defendant No.1 at the
relevant time was residing at Nana Peth, Pune. The defendant No.1
represented the plaintiff that he wanted to take admission of his
children in the convent school at Wanoworie Cantonment and also
on account of some family bickerings the defendant No.1 was
required to leave his house at Nana Peth, Pune. It is thus contended
that the defendant No.1 was allowed to the flat temporarily for his
residence. It was contended that the plaintiff had no intention to
sale the said flat to the defendant No.1. The defendant No.1 had
assured to vacate the suit flat whenever the plaintiff was able to find
a buyer for the same. In short according to the plaintiff the
defendant No.1 was permitted to temporarily occupy the suit flat in
the aforesaid circumstances. It was contended that subsequently the
defendant No.1 represented that the school authorities were asking
for residence proof and had therefore requested the plaintiff to issue
N.S. Kamble page 3 of 20
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some document showing the address proof. It is contended that the
defendant No.1 therefore, prepared a document dated 05 th March
2002 (Exhibit.59) which was singed by the plaintiff. After a couple
of months the defendant No.1 sought permission from the plaintiff
to have furniture and fixtures in the suit flat when the plaintiff
informed the defendant No.1 that he was looking for a customer and
the suit flat was to be sold. However, the defendant No.1
surreptitiously started the work of furniture and fixtures in the suit
flat.
5. In short according to the plaintiff the suit flat was given
to the defendant No.1 temporarily for residence and the document
Exhibit.59 was got executed by practicing misrepresentation and
fraud. It was contended that the said document is sham and bogus.
6. It is in these circumstances, that the plaintiff filed
Special Civil Suit No.543 of 2004 against the appellants before the
learned Senior Civil Judge at Pune for the following reliefs:
"A) The Hon'ble Court may be pleased to declare that
the so-called documents dated 5/3/2002 dishonestly
and fraudulently got signed by the Defendant No.1
from the Plaintiff, by exercising fraud, deception and
misrepresentation, is/are illegal and void ab initio and
N.S. Kamble page 4 of 20
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that the same does not confer any right, title, interest of
the Defendant No.1 & 2 in respect of flat described in
para 1 above, belonging to the Plaintiff.
B) The Hon'ble Court may be further pleased to
declare that the so-called documents dated 5/3/2003
is, even otherwise illegal and void ab initio and of no
consequences whatsoever, the same being hollow and
does not vest Defendant Nos.1 & 2 with any right in
respect of the said flat as described in para 1 above.
C) The Hon'ble Court may be pleased to pass a
decree for possession of the said flat described in para 1
above in favour of the Plaintiff and against the
Defendant Nos.1 and 2.
D) Ad-interim reliefs of injunction, restraining the
Defendants from parting with the possession of the said
flat except in favour of the Plaintiff and from creating
third party interest therein, may kindly be granted in
favour of the Plaintiff and against the Defendants.
E) The Defendants be ordered to pay Rs.1,60,000/-
as and by way of damages / compensation as detailed
in para 8 herein above to the plaintiff.
F) The Hon'ble Court may be further pleased to
direct the Defendants to pay by way of compensation
for wrongful use of the said flat of Rs.10,000/- per
N.S. Kamble page 5 of 20
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month from the date of suit till the date of recovery of
possession by the Plaintiff of the said flat.
G) Such other orders, as may be deemed, just and
proper be passed."
7. The suit was resisted on behalf of the appellants. It was
contended that the (appellant No.1) defendant No.1 has filed a
complaint before the Consumer Disputes Redressal Forum at Pune
(Consumer Forum) bearing No.201 of 2003 seeking execution of the
Sale Deed of the suit flat which is pending. It was contended that
for this reason alone the suit was not maintainable. It was not
disputed that the plaintiff was a Promoter, Developer and Builder
and had constructed the building 'Empire Landmark'. However all
other adverse allegations were denied. It was denied that the
defendant No.1 was working as a Computer Operator on a salary of
Rs.6,500/- per month from April 2000 to February 2003. It was
contended that the defendant No.1 was working with the plaintiff as
an accountant. It was denied that the plaintiff used to advance
money to the defendants or the plaintiff having advanced the
amount of Rs.4 lacks as alleged.
N.S. Kamble page 6 of 20
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8. It was the material case made out that the plaintiff and
the defendant No.1 were friends. The defendant No.1 was residing
at Dubai and had come back to the India in the year 1996, with an
intention to settle down at Pune. At that time the plaintiff had
newly started business of construction and was intending to develop
the plot at Wanoworie. For that purpose the plaintiff had requested
to defendant No.1 to accommodate him with an amount of Rs.2
lakhs assuring to repay the same. Considering the friendly relations
and with an intention to help the plaintiff, the defendant No.1 gave
a "hand loan" of Rs.2 lakhs to the plaintiff through a Demand Draft.
It is contended that the defendant No.1 called upon the plaintiff to
repay the said amount along with interest in May 2003. However,
the plaintiff failed to do so. It is at that time that the plaintiff had
offered the defendant No.1 to sell the said flat for a consideration of
Rs.4 lakhs. Acting on the proposal the defendant No.1 issued a
cheque dated 05th February 1991 for Rs.4 lakhs in the name of
'Empire Construction', as and by way of consideration, for purchase
of the suit flat and also paid Rs.15,000/- by cheque dated 18 th
December 2002 as part of one time society charges of Rs.30,000/-.
It is the material case made out that the plaintiff failed to execute
the agreement of sale as assured. It was contended that the
possession of the suit flat was handed over and accordingly the
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defendant No.1 executed the document dated 05 th March 2002
(Exhibit.59) and assured to execute the Sale Deed later on, which he
failed to do.
9. The adverse allegations about any representation being
made to the plaintiff that the defendant No.1 wanted some address
proof in order to enable him to take the admission of his children in
the convent school at Wanoworie, were denied. It was also denied
that the defendant No.1 was required to leave the house at Nana
Peth on account of family bickering. In short according to the
defendants the suit flat was put in possession of the defendants as
against the payment of full and final purchase price of Rs.4 lakhs. It
was contended that the tax receipt in respect of the suit flat was
issued in the name of the defendant No.1. It was denied that the
document (Exhibit-59) was the outcome of any fraud or
misrepresentation. It was contended that the plaintiff with a view to
harass the defendants had cutoff the electricity supply to the suit
flat, as a result of which, the defendants were required to file Civil
Suit RCF No.988 of 2003 and the electricity supply was eventually
restored in pursuance of the order passed by the District Court in
Miscellaneous Civil Appeal No.281 of 2003. It was thus contended
that the suit be dismissed.
N.S. Kamble page 8 of 20
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10. On the basis of the rival pleadings the learned Trial
Court framed the following issues.
Sr. No. ISSUES
1 Does plaintiff prove that document dated
5/3/2002 got signed by defendant No.1
from plaintiff dishonestly and
fraudulently ?
2 Whether so called document dated
5/3/2002 is void, ab-initio ?
3 Is plaintiff entitled to get possession of flat
described in para 1 of the plaint ?
4 Is plaintiff entitled to get Rs.1,60,000/- by
way of damages / compensation ?
5 Is plaintiff entitled to get compensation of
Rs.10,000/- per month towards wrongful
use of flat by defendant No.1 ?
6 What relief and order ?
11. The plaintiff Bilal Padiyar examined himself along with
Haridas Soalnkar (PW-2) while the appellant No.1 examined
himself. Both the parties produced documents.
12. The learned Trial Court answered Issue No.1,2,4 and 5
in the negative and Issue no.3 in the affirmative. The learned trial
Court by a judgment and decree dated 17 th February 2012 decreed
N.S. Kamble page 9 of 20
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the suit directing the appellants to hand over possession of the suit
flat. The trial Court also directed inquirying future mesne profits.
Feeling aggrieved the appellants challenged the same before the
learned District Judge in Civil Appeal No.232 of 2012. The
respondent (Original Plaintiff) filed a Cross Objection in order to
challenge the adverse finding against certain issues.
13. The learned District Judge framed the following points
for determination.
Sr. No. ISSUES
1 Whether the document dated 05/03/2002
was got signed dishonestly and
fraudulently?
2 Whether the document dated 05/03/2002
is void, ab-inito ?
3 Whether the respondent agreed to sale the
suit flat to the appellant ?
4 Whether the respondent is entitled to seek
possession of the suit flat ?
5 Whether the decree of the Trial Court is
perverse ?
6 Whether the Trial Court had jurisdiction to
try the matter ?
7 What order ?
N.S. Kamble page 10 of 20
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The learned District Judge answered the point Nos.1,2,4
and 6 in the affirmative and point Nos.3 and 5 in the negative. The
learned District Judge by the impugned judgment and decree dated
11th February 2020 has dismissed the appeal and partly allowed the
Cross Objection which brings the appellants to this Court.
14. I have heard Mr.Kanetkar, the learned counsel for the
appellants and Mr.Dhakephalkar, the learned Senior Counsel for the
respondents. With the assistance of the learned counsel for the
parties I have gone through the record.
15. Mr.Kanetkar, the learned counsel for the appellant has
submitted that the suit as framed and filed, simplicitor for
possession was not maintainable under Section 34 of the Specific
Relief Act. It is submitted that the plaintiff failed to seek a
declaration of title/ownership and in the absence thereof the suit
was not maintainable. Secondly, it is submitted that the first
Appellate Court was not justified in reversing the finding recorded
by the trial Court about document Exhibit.59 without recording
proper reasons, as mandated by Order XLI Rule 31 of the Civil
Procedure Code. It is submitted that the lower Appellate Court is
not justified in reversing the finding in respect of the document
N.S. Kamble page 11 of 20
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Exhibit-59 and that finding is against the weight of the evidence on
record and is perverse. It is submitted that First Appellate Court
ought to have seen that there were no pleadings about fraud and
misrepresentation much less there was any proof. It is submitted
that it is the settled position that a case of fraud and
misrepresentation has to be specifically pleaded with necessary
particulars and has to be proved. It is submitted that the receipt of
the amount of Rs.4 lakhs is not disputed and therefore this would
probablize the case of the appellants that they were put in
possession of the suit flat on payment of purchase price. It is
submitted that the parties were close friends and the appellant No.1
had paid Rs.2 lakhs to the respondent in the year 1998 much prior
to the appellant No.1 being employed as an accountant in the year
2000 and therefore the appellants relied upon the assurance by the
plaintiff that an agreement of sale/conveyance would be executed.
It is submitted that the case made out that the defendant No.1 had
represented the plaintiff to issue a document showing his address
proof as the defendant No.1 intended to obtain the admission of his
children in the convent at Wanoworie Cantonment is not acceptable,
inasmuch as the children were admitted in the said convent much
prior to 2002.
N.S. Kamble page 12 of 20
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16. Mr.Dhakephalkar, the learned Senior Counsel for the
respondents has supported the impugned judgment. It is submitted
that admittedly there is no registered document of conveyance or an
agreement for sale executed in favour of the appellant and in the
absence thereof, the appellant cannot claim any ownership in the
suit flat. It is submitted that admittedly the flat was constructed by
the original plaintiffs in the building 'Empire Landmark'. It is
submitted that the defendant No.1 was temporarily allowed to
occupy the said flat on his own representation.
17. It is submitted that the document Exhibit-59 is only in
the form of a certificate and has no legal effect. The learned counsel
pointed out that it was the appellant No.1 who was maintaining the
accounts and it was the appellant No.1 who intimated about alleged
purchase of the same to the Municipal Corporation, on the basis of
which the tax registration was obtained. It is submitted that in any
event in the absence of any document of title in favour of the
appellant he cannot seek any protection from eviction.
18. I have carefully considered the rival circumstances and
the submissions made. Notwithstanding the detailed narration of the
rival pleadings and the submissions, the dispute falls in a narrow
N.S. Kamble page 13 of 20
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compass. It is undisputed that the appellant No.1 and the
respondent Bilal Padiyar were friends and were having cordial
relations. After the appellant No.1 had returned from Dubai with an
intention to settle down at Pune, he had accommodated the
respondent No.1 with an amount of Rs.2 lakhs somewhere in the
year 1998 which would show that the parties were having cordial
relations. It has also come on record that the appellant No.1 was
working with the respondent as an Accountant/ Computer Operator
from 1999 to 2003. The case of the respondent is that the appellant
No.1 was allowed to temporarily occupy the suit flat for two
reasons. First according to respondent a representation was made
that on account of some family bickerings the appellant No.1 was
required to shift his residence from Nana Peth and secondly that in
order to get his children admitted to the school at Wanoworie
Cantonment the appellant was in need of address proof. The
respondent claimed that owing to the faith between the parties and
acting on the representation the document at Exhibit-59 was
obtained by the appellant No.1 by fraud and misrepresentation.
19. On the contrary according to the appellant the full
consideration of Rs.4 lakhs was paid to the respondent No.1. It was
the respondent No.1 who had represented and proposed to sell the
N.S. Kamble page 14 of 20
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suit flat to the appellant No.1, as he was enable to repay the amount
of Rs.2 lakhs along with interest which was advanced to the
respondent No.1 in the year 1998.
20. In order to appreciate the rival contentions it is
necessary to reproduce the document at Exhibit-59 which reads
thus:-
"5th March 2002
TO WHOMSOEVER IT MAY CONCERN
This is to inform that we have sold flat No.604, on
the sixth floor of 'B' building to Mr. SHAIKH ABDUL
WAHID ABDUL GAFUR in our scheme "EMPIRE
LANDMARKS" situated at Survey No.62, 7-8/1, Waowrie,
Pune - 411 040.
We have given Mr. Shaikh Abdul Wahid possession
of the Flat No.604 and he is residing since 14-9-2001.
This letter is issued upon his request.
Thanking you,
Yours truly,
For Empire Constructions,
Bilal Essak Padiyar
Proprietor"
N.S. Kamble page 15 of 20
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21. It is true that the learned Trial Court had refused to
hold that the document Exhibit-59 was a result of fraud and
misrepresentation. However, the First Appellate Court has answered
Point No.1 in the affirmative holding that the said document was got
signed fraudulently. The First Appellate Court has held that there
was an element of faith between the parties and it was the appellant
No.1 who was handling the accounts and preparing the the
agreements which were singed by the respondent No.1. In my
considered view, nothing much turns on the question whether the
said document is got executed dishonestly and fraudulently
inasmuch as the document can never be considered as a title
document or even an agreement of sale or an agreement
contemplated under Section 4 of the Maharashtra Ownership of
Flats Act (MOFA).
22. A bare perusal of the document shows that it is in the
form of a certificate certifying that the appellant No.1 was in
possession of the said flat from 14 th September 2001. In my
considered view, the appellants cannot resist the impugned
judgment and decree on the basis of the said document. It is
necessary to note that under the Transfer of property Act, the
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transfer of immovable property of the value more than Rs.100/- has
to be by registered conveyance.
23. Even so far as payment of Rs.4 lakhs and the part of the
one time society charges are concerned the Appellate Court has
found that the ledger account of the Empire Constructions (Exhibit-
85) were in the handwriting of the appellant No.1. The First
Appellate Court has found that although there were details of the
other entries, made in the ledger account, the amount of Rs.4 lakhs
or the amount paid as the one time maintenance charges did not
contain any such details in the ledger account. Insofar as the extract
of the tax registers Exhibit-36 and 37 are concerned the First
Appellate Court has found from the letter Exhibit-43 that it was the
appellant No.1 who had communicated to the corporation that he
was the purchaser of the suit flat. That intimation is not shown to
be ignored by the respondent no.1. Looked from any angle it
appears that in all probability on account of the close relations
between the parties the appellant No.1 was merely allowed to reside
in the suit flat.
24. The contention that the respondent ought to have
sought for declaration of ownership to my mind cannot be accepted.
N.S. Kamble page 17 of 20
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This is because the respondent No.1 was admittedly the owner of
the land survey No.62, Hissa No.7-8/1, Wanoworie-Pune and was
the Promoter of the building Empire Landmark. Infact the appellant
No.1 is claiming to be the purchaser from the respondent No.1 and
therefore cannot possibly dispute the ownership/title of the
respondent no.1 over the suit flat. The document Exhibit-59 as
reproduced above is anything but a document of title. Thus in the
absence of any cloud on the title of the respondent No.1 over the
suit flat it is not possible to accept that the respondent No.1 was
obliged to seek a declaration of title/ownership.
25. The contention that the First Appellate Court without
coming into close proximity with the finding and reasoning of the
trial Court has reversed the finding insofar as the nature of the
document Exhibit-59 is concerned also cannot be accepted. A
careful perusal of the impugned judgment of the First Appellate
Court shows that the Appellate Court has considered the pleadings
of the plaintiff, the admitted facts and the evidence on record to
come to such finding. However, as indicated earlier this would not
be decisive inasmuch as, nothing would turn on the question
whether the document is an outcome of fraud or misrepresentation
or otherwise, inasmuch as the document can neither be a title
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document nor an agreement of sale or an agreement contemplated
under Section 4 of the MOFA Act.
26. I have carefully gone through the impugned judgment
of the First Appellate Court and I do not find that it suffers from any
infirmity so as to require interference. The appeal does not raised
any substantial question of law. In the result the appeal is hereby
dismissed, with no order as to costs.
Decree be drawn accordingly.
27. At this stage, the learned counsel for the appellants,
submits that the Appellate Court has stayed the decree in order to
enable the appellant to approach this Court. He seeks continuation
of the said relief for a reasonable period.
28. The learned Senior Counsel for the respondents states
that in the event the protection is extended, the appellants be put to
condition that they will not create any third party interest in the suit
flat.
29. In such circumstances, the interim order granted by the
First Appellate Court shall continue for a period of six weeks. This
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shall be subject to the condition that the appellants shall not part
with the possession of the suit flat or create any third party rights or
interest, therein.
C.V. BHADANG, J.
N.S. Kamble page 20 of 20
