Dhakalu Bahu Gajarkar And Anr vs Sushila Shrikant Savare And Ors
2023 Latest Caselaw 4983 Bom

2023:BHC-AS:14633

                                                                                  19-sa-257-2020.doc
    Sonali


                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION

                                        SECOND APPEAL NO.257 OF 2020
                                                   WITH
                                     INTERIM APPLICATION NO.1625 OF 2021

               Dhakalu Bhau Gajarkar & Anr.                             ...Appellants
                   Versus
               Sushila Shrikant Savare & Ors.                          ...Respondents


               Mr. Sudhir V. Sadavarte, for the Appellants.


                                                   CORAM : MADHAV J. JAMDAR, J.

DATED : 5th JUNE 2023

P.C. :

1. Heard Mr. Sadavarte, learned counsel appearing for the

Appellants.

2. The Appellants are the original Plaintiffs. The Appellants filed

Special Civil Suit No.24 of 2011 inter alia seeking specific performance

of oral promise to sell the suit property and for declaration that Sale

Deed dated 24th January 2011 executed by Defendant No.1 in favour of

Defendant Nos. 2 to 6 is illegal, sham and bogus. It is the contention of

the Appellants that they are the tenants of the suit property and they

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are in the possession of the suit property. It is their contention that they

are also in the possession of the adjoining property and therefore,

entitled to purchase the land in accordance with the oral agreement.

3. Learned Trial Court has found that the Plaintiffs are not in

possession of the suit property, the Plaintiffs failed to prove the said oral

agreement and also that the Plaintiffs have failed to prove that the said

Sale Deed dated 24th January 2011 is illegal, sham and bogus.

4. The present Appellants challenged the Judgment and Decree

dated 16th September 2017 passed by the learned Trial Court before the

learned Appellate Court and learned Appellate Court has dismissed the

Appeal by Judgment and Decree dated 31st December 2018.

5. The present Second Appeal is filed impugning the Judgment and

Decree passed by the learned Trial Court as well as of the learned

Appellate Court.

6. It is the contention of Mr. Sadavarte, learned counsel appearing

for the Appellants that the Appellants are in possession of the suit

property and they are the tenants of the suit property and they are also

cultivating the adjoining land. He therefore submits that the Appellants

have preferential right to purchase the said land. Both the Courts have

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concurrently held that as far as the tenancy rights are concerned, in the

tenancy proceedings, it has been held that the Appellants are not the

tenants. The Appellants challenged the said order of tenancy

authorities including order of Maharashtra Revenue Tribunal by filing

Writ Petition No.4006 of 2009 and said Writ Petition was dismissed

by order dated 11th August 2009. Thereafter, this Court has passed

further order dated 24th August 2009 in said Writ Petition holding that

the Respondents can take possession of the suit property from the

Appellants and accordingly possession was received by the

Respondents.

7. The factual position on record clearly shows that both the Courts

have concurrently held that the Plaintiffs are not in possession of the

suit property, the Plaintiffs failed to prove the said oral agreement and

also that the Plaintiffs have failed to prove that the said Sale Deed dated

24th January 2011 is illegal, sham and bogus. Mr. Sadavarte failed to

point out how the Appellants are entitled for preferential right to

purchase the said land. Therefore, there is no substance in the

substantial questions of law raised by Mr. Sadavarte on behalf of the

Appellants.

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8. For the above reasons, the Second Appeal is dismissed, however

with no order as to costs. In view of the dismissal of the Second Appeal,

nothing survives in the Interim Application and the same is also

dismissed.

[MADHAV J. JAMDAR, J.]