Bombay High Court
Sharifabi Mohammad Sharif Rangrej ... vs Prithviraj Rajaramsing Chauhan @ ... on 5 December, 2023
Author: S.G. Mehare
Bench: S.G. Mehare
21-sa-231-2023 (2).odt
(1)
This order is corrected as per order dated 05/12/2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.231 OF 2023
WITH CA/5222/2023 IN SA/231/2023
SHARIFABI MOHAMMAD SHARIF RANGREJ DECEASED THROUGH
HER LEGAL HEIRS
VERSUS
PRITHVIRAJ RAJARAMSING CHAUHAN @ PARDESI DECEASED
THROUGH HIS LEGAL HEIRS
...
Advocate for Appellants : Mr. Dhorde Vikram R.
Advocate for Respondent No.1A : Mr. Sanjiv Deshpande, Senior
Counsel h/f Mr. Shaikh Mazhar A. Jahagirdar
...
CORAM : S.G. MEHARE, J.
DATED : NOVEMBER 29, 2023
PER COURT:-
1. Heard learned counsel for the appellants and learned
senior counsel for the respondent.
2. The appellants are the plaintiffs, and the respondents are
the defendants.
3. The respondent contesting the suit is the purchaser of the
entire land measuring 1 acre 41 R gunthas of land.
4. The plaintiff had filed the suit for specific performance in
pursuance of the agreement to sell. The original defendant, who was
the landlord, had denied the agreement to sell with the plaintiff. He
also denied that the plaintiff was his tenant. However, before he
entered the witness box, he died. Thereafter, his sole legal
21-sa-231-2023 (2).odt
representative, his wife, was brought on record. Then the suit was
contested on merit.
5. The Court of First Instance held that there was an
agreement to sell. However, the plaintiff is not entitled to the specific
performance. The plaintiff against the said judgment had preferred
the appeal before the First Appellate Court. In the said appeal, the
contesting defendant has filed the cross objection. On re-appreciating
the evidence, the learned First Appellate Court held that there was no
agreement to sell and dismissed the suit by allowing the cross
objection. Against these two contra findings, the plaintiffs are before
this Court.
6. Both sides have heavily argued on the facts of the
execution of the agreement to sell. The defendant had a specific plea
that plaintiff No.2 was a lawyer. He used to have some fiduciary
relations with him. Therefore, he fraudulently obtained some
signatures without the knowledge of the defendant.
7. The opinions of two handwriting experts were on the
record. The learned Trial Court of First Instance did not touch it nor
expressed any opinion about its acceptance or not agreeing with the
contra handwriting expert opinion. Much has been argued about how
the document in dispute reached to the handwriting expert for
examination during the pendency of the suit.
21-sa-231-2023 (2).odt
8. Learned counsel for the appellants argued that PW-3 had
proved the agreement to sell. However, he was not cross-examined.
On the defendant's application, the witness was recalled subject to the
payment of Bhatta. The defendant failed to deposit the Bhatta in the
Court. Hence, he was not recalled. He further submits that the
agreement to sell in question was notarized. However, the Notary also
died. Therefore, attempts were made to examine the son of the
Notary Public, but it was acting adversely to the plaintiffs' interests.
Hence, they did not examine him. The defendant examined him. The
agreement to sell needs no attestation. However, as it was disputed,
one of the witnesses to the agreement to sell was examined, and it
was proved that the deceased defendant had agreed to sell some
portion of the land i.e. measuring 60 x 267 feet, to the plaintiff, who
was the tenant in the suit premises. The lease agreement was also
proved by examining the witnesses from the BSNL Office. The Court
fee for the cross-objection was paid after the judgment. Hence, it
could not be accepted as a cross objection in the eye of the law. He
submits that the First Appellate Court misread the evidence of the
witnesses and illegally held that there was no agreement to sell. He
also illegally held that the plaintiff was not financially sound to
purchase the land. It is also incorrectly held that plaintiff no.2, being
a lawyer, was well aware that the transaction of the money above
Rs.20,000/- could not be done in cash. Therefore, he doubted the
21-sa-231-2023 (2).odt
payment of Rs.8,00,000/- as the earnest money in cash to the
deceased. He submits that the First Appellate Court recorded the
contra findings. The substantial questions of law like the existence of
the agreement to sell, the landlord-tenant relationship, the
admissibility of the cross objection, the financial capacity of the
plaintiff to pay the cash of Rs.8,00,000/- and its effect on the claim of
the specific performance of the contract, the plaintiff is and was ready
and willing to perform his part of the contract, whether the evidence
of power of attorney for defendant is admissible, have been involved
in this appeal.
9. Learned senior counsel Mr. Deshpande for the contesting
defendant has vehemently argued that the defendant never admitted
the execution of any agreement to sell. However, a forged document
was created to create interest in the suit property. The plaintiffs were
never the tenants of the defendant. They were barely the licensee. He
pointed out that the suit land is prime land in the town and was used
for commercial purposes. Therefore, the consideration of the land, as
the plaintiff claimed, was comparatively too low. The deceased
defendant was in service. He has a sufficient income source. Hence,
he did not need to raise money from the plaintiff to convert the suit
land to freehold land. The plaintiffs were not financially sound
enough to pay such a huge amount. Primarily, the defendant has
specifically denied the transaction of the agreement to sell and the
21-sa-231-2023 (2).odt
landlord-tenant relationship. Therefore, there is no question granting
the injunction and specific performance of the contract. There are
two concurrent findings about the specific performance of contract
and injunction. He vehemently argued that the second opinion of the
handwriting expert was against the first handwriting expert opinion
of the Additional Chief State Examiner of Documents. He conceded
that the Trial Court did not comment on the handwriting expert
report Exhibit-41. However, the Court has correctly observed that
both parties consented; hence, that document was marked as Exhibit-
41. Therefore, that opinion is binding upon the plaintiffs. Referring
to the facts of the case and the observations recorded by the
respective Courts, he submits that no substantial questions of law
have been involved in the case. He prayed to dismiss the appeal at the
admission stage itself.
10. The rival contentions of the parties reveal that they are
highly contesting the agreement to sell. Admittedly, there are contra
findings on the existence of the agreement to sell. The Trial Court
believed in the existence of the agreement to sell and the evidence
produced by the plaintiffs. Since there are contra findings and the
issues involved in the case, the Court is of the view that there are
substantial questions of law involved in the case. Hence, the following
substantial questions of law have been formulated :
21-sa-231-2023 (2).odt
(i) Was the agreement to sell genuine or forged, and was it
required to be proved?
(ii) What is the effect of the cash transaction above
Rs.20,000 on the contract to sell the property?
(iii) What was the effect of not cross-examining PW-3?
(iv) What was the evidential value of the expert opinion
Exhibit-41?
(v) Whether the son of the Notary was an interested
witness?
(vi) Was the cross objection legal, proper, and validly received
in appeal, as court fee was paid after the judgment?
(vii) Were the plaintiffs financially sound enough to pay the
huge amount of Rs.8,00,000/- as earnest money?
(viii) Was the landlord-tenant relationship between the parties
in existence?
(ix) Were the plaintiffs ready and willing to perform their
part of the contract?
(x) Do the plaintiffs prove that the original deceased
landlord needed money to convert the suit land to freehold
land; hence, he agreed to sell the suit land with the plaintiff's
constructed house?
11. Admit.
21-sa-231-2023 (2).odt
12. Issue notice to the respondents. The Learned senior
counsel Mr. Deshpande, waives service of notice for the respondents.
13. Interim protection granting protection to the possession
of the plaintiffs is confirmed till the conclusion of the appeal without
following due legal procedure.
(S.G. MEHARE, J.)
Mujaheed//
Signed by: Syed Mujaheed Naseer
Designation: PA To Honourable Judge
Date: 05/12/2023 19:24:44
