Sunil Nandlal Chauhan And Others vs Nagorao Fattuji Badwaik And ...
2022 Latest Caselaw 9213 Bom

                               1        910.SA.233-2018 JUDGMENT.odt




     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               NAGPUR BENCH : NAGPUR


            SECOND APPEAL NO. 233 OF 2018


1.   Sunil Nandlal Chauhan
     Aged about 26 years,
     Occupation: Cultivator.


2.   Prashant Nandlal Chauhan
     Aged about 24 years
     Occupation : Business


3.   Manoj Nandlal Chauhan
     Aged about 22 years,
     Occupation : Education
     All R/o. Rajendra Nagar, Mohadi,
     Tah: Mohadi, District Bhandara.        APPELLANTS

      Versus

1.   Nagorao Fattuji Badwaik
     Aged about 43 years,
     Occupation : Business,
     R/o: Kharbi, Tah: Tumsar,
     District Bhandara.


2.   Julfikar Gulam Nabi Agwan
     Aged about 36 years,
     Occupation : Business,
     R/o. Ravidas Nagar, Tumsar,
     District Bhandara.                   RESPONDENTS
                               2              910.SA.233-2018 JUDGMENT.odt




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Mr. S.S. Ghate, Advocate for the Appellants.
Mr. N.R. Bhishikar, Advocate for the Respondents.
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                  CORAM : AVINASH G. GHAROTE, J.

                  DATED      : 14th SEPTEMBER, 2022.


ORAL JUDGMENT :-

Heard Mr. Ghate, learned counsel for the appellants

and Mr. Bhishikar, learned counsel for the respondents.

2. ADMIT in view of the substantial questions of law as

indicated in the order dated 24.11.2021. The Second Appeal is

taken up for final disposal by consent of learned counsel

appearing for the respective parties.

3. The Second Appeal challenges the judgment dated

15.02.2013 passed by the learned Civil Judge Senior Division,

Bhandara, in Spl.C.S. No.8/2010, whereby the suit for specific

performance as filed by the respondents/plaintiffs has been

decreed and so also the judgment of the learned appellate Court 3 910.SA.233-2018 JUDGMENT.odt

dated 15.03.2018 in RCA No.26/2013, which has dismissed the

appeal by affirming the judgment of learned trial Court.

4. Mr. Ghate, learned counsel for the appellants, has

raised two grounds, (i) the property in question was an

ancestral property, and therefore, apart from the appellants

there were other persons having share in the suit property, and

therefore, the appellants were incompetent to have executed the

agreement, for which reliance is placed by him on Pemmada

Prabhakar and others Vs. Youngmen's Vysya Association and

others, 2015(6) Mh.L.J. 487 and (ii) there was no readiness and

willingness in the plaintiffs. He therefore submits, that the

impugned judgments which do not consider this position, in

their proper perspective raises substantial question of law to be

decided in the Second Appeal.

5. Mr. Bhishikar, learned counsel for the respondents,

opposes the contention and submits, that the

respondents/plaintiffs were tenants in the ground floor of the

suit property with whom the appellants/defendants as owners

had entered into an agreement to sell the suit property for 4 910.SA.233-2018 JUDGMENT.odt

valuable consideration. The suit for specific performance, was

filed in 2010, whereas the suit for partition has been filed in

2022, which obviously according to him is at the behest of the

appellants/defendants, as is apparent from the delay. He

submits, that even otherwise the respondents/plaintiffs would

be entitled for specific performance of the contract which is in

respect of the part of the entire property and in case any share is

awarded to the plaintiffs in RCS No. 1/2022, the same can be

from the remaining part of the property. As regards, readiness

and willingness he submits, that the plaintiffs were ready and

willing to pay the balance consideration, which is reflected from

the reply dated 08.12.2009 (Exh. 28) as well as the averment in

para 8 of the plaint.

6. The agreement of sale in question was executed on

04.07.2009 in respect of an area admeasuring 1900 sq.ft. from

and out of the land of Plot No.857, House No.155, which had a

total area of 4272 sq.ft. situated at Mouza Mohadi. The

plaintiffs, are admittedly the tenants occupying portion on the

ground floor of House No. 155. The total consideration was

agreed was Rs. 6,25,000/-, out of which, on the date of 5 910.SA.233-2018 JUDGMENT.odt

agreement itself, a part consideration of Rs. 25,000/- stood paid

to the defendants. The sale deed was to be executed on or

before 31.01.2010. Before the date fixed, a further part

consideration of Rs. 1,00,000/- was paid to the defendants on

06.07.2009.

7. Before the time limit fixed in the agreement for

completion of the contract was over, the defendants by notice

dated 19.11.2009 (Exh. 27) resiled from the agreement

claiming that the property was an ancestral property, and

therefore, they were not in position to execute the sale deed and

offered to refund the earnest amount. A plea was also raised

that the transaction in question was a loan transaction. By a

reply dated 08.12.2009 (Exh. 28), the plaintiffs reiterated their

intention to purchase the land and so also their readiness and

willingness to make payment of balance consideration of Rs.

5,00,000/- and get the sale deed executed in their favour at

their cost. The plaintiffs immediately filed a suit on 03.03.2010

for specific performance. In the trial, the plaintiff No.1

examined himself as PW-1 and also the attesting witness

Manikchand Dhanraj Nimkar as PW-2 at Exh. 38 (page 81). The 6 910.SA.233-2018 JUDGMENT.odt

evidence of PW-2 Manikchand indicates, that the execution of

the agreement was proved by him in his testimony. In his

cross-examination there does not appear to be anything brought

out to discredit his testimony. Thus, the execution of the

agreement stood proved. Even otherwise, the

defendants/appellants had raised contradictory pleas inasmuch

as in their notice dated 19.11.2009 (Exh. 27), a plea was raised

that the document was a loan transaction, as against which in

the written statement, a plea was raised that it was a forged

document. What is material to note, is that even before the

expiry of the period, as contemplated by the agreement dated

04.07.2009, which was fixed as 31.01.2010, by the reply dated

08.12.2009 (Exh.28), the plaintiffs have offered to pay the

entire balance consideration and get the sale deed executed.

This would indicate more than sufficient material on record

regarding the readiness and willingness of the plaintiffs.

8. That apart, it is material to note, that the appellate

Courts judgment is dated 15.03.2018, till which time, no suit for

partition or separate possession was ever filed. The same came

to be filed only on 15.01.2022, in which a compromise has been 7 910.SA.233-2018 JUDGMENT.odt

effected before the Lok Adalat. Be that as it may, since the

agreement, was not in respect of the entire land of Plot No.857,

but only in respect of an area admeasuring 1900 sq.ft., out of it,

it was permissible, for the plaintiffs to have a decree for specific

performance of the same and any claim regarding adjustment

regarding the share to be allotted to the other legal heirs who

are claimed to have any share therein could be done from the

remaining area of Plot No. 857, and therefore, that does not

detract the Court from granting specific performance. In

Pemmada Prabhakar and others (supra), relied upon by

Mr. Ghate, learned counsel for the appellants, the agreement

was executed by the defendant Nos. 1 and 2 therein, which was

in respect of the entire property which included the share of the

co-owner also, for which the person executing the agreement

had no authority whatsoever in law, which is not the case in the

present matter, considering which, the same is not attracted on

the facts. I therefore do not see any substantial question of law

which arises for consideration in the present matter. The appeal

is therefore without any merit and it is accordingly dismissed.

No costs.

8 910.SA.233-2018 JUDGMENT.odt

9. Pending application/s, if any, shall stand disposed of

accordingly.

( AVINASH G. GHAROTE, J.)

S.D.Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:16.09.2022 17:39